Atkinson v King

• Jurisdiction: Ireland
• Judgment Date: 02 March 1878
• Date: 02 March 1878
• Court: Chancery Division (Ireland)

Appeal.

Before BALL, C., MORRIS, C. J., CHRISTIAN and DEASY, L. JJ.

ATKINSON

and

KING

Bonomi v. BackhouseENRENR E. B. & E. 622; 9 H. L. C. 503.

Pickard v. SmithENR 10 C. B. (N. S.) 470.

Perry v. Fitzhowe 11 Q. B. 757.

Thompson v. GibsonENR 7 M. & W. 456.

Ellis v. The Sheffield Gas Consumers Co.ENR 2 E. & B. 767.

Corby v. HillENR 4 C. B. (N. S.) 556.

White v. JamesonELR L. R. 18 Eq. 303.

Bower v. PeateELR L. R. 1 Q. B. D. 321.

The Corporation of Birmingham v. AllenELR 6 Ch. D. 284.

Gray v. PullenENR 5 B. & S. 970.

Saxby v. The Manchester &c., Railway Co.ELR L. R. 4 C. P. 198.

Wood v. LeadbitterENR 13 M. & W. 838.

The Duke of Devonshire v. EglinENR 14 Beav. 530.

Gowan v. Christie L. R. 2 Sc. Ap. 273.

Wood v. LeadbitterENR 13 M. & W. 838.

Rich v. BasterfieldENR 4 C. B. 783.

Duke of Devonshire v. EglinENR 14 Beav. 530.

Duke of Beaufort v. PatrickENR 17 Beav. 60.

Moreland v. RichardsonENR 22 Beav. 596.

Cornish v. StubbsELR L. R. 5 C. P. 334.

Carr v. BensonELR L. R. 3 Ch. App. 532.

Bower v. PeateELR 1 Q. B. D. 321.

Gandy v. JubberENR 5 B. & S. 78.

Dugdale v. RobertsonENR 3 K. & J. 695.

Proud v. Bates 11 Jur. (N. S.) 443.

Winter v. BrockwellENR 8 East, 308.

Liggins v. IngeENR 7 Bing. 682.

Bayley v. ConynghamUNK 15 Ir. C. L. R. 242.

Gandy v. JubberENR 9 B. & S. 15.

Harris v. RydingENR 5 M. & W. 60.

Bonomi v. BackhouseENR 9 H. L. C. 503.

Dent v. Auction Mart CompanyELR L. R. 2 Eq. 251.

Doe v. WoodENR 2 B. & Al. 724.

Doe v. WoodENR 2 B. & Ald. 724.

The Duke of Devonshire v. EglinENR 14 Beav. 530.

White v. Jameson and ProffittELR L. R. 18 Eq. 303.

Laugher v. PointerENR 5 B. & C. 547.

Quarman v. BurnettENR 6 M. & W. 499.

Rich v. BasterfieldENR 4 C. B. 783.

Bower v. PeateELR L. R. 1 Q. B. D. 326.

License Mining Right of support.

LAW REPORTS (IRELAND). (L. R. ATKINSON v KING (1).. License-Mining-Right of support. The Plaintiff owned the surface of certain lands on which he had erected houses; the mines and minerals under them, and a right of access to the same, were, by virtue of an exception and reservation in the deed of grant under which the Plaintiff was entitled, vested in the Defendant, who in 1873, by an instrument signed by him, gave N. a license to raise coal from these mines, in the following terms :-" I agree to allow you to sink a pit for coal in B., at 1s. 6d, per ton, and not to allow anyone to sink on any coal you prove in the pit ; also an air pit, and one hundred yards in each square of the pit :" on procuring this license, N. sank pits, and mined in such a manner that no suffiÂÂcient support was left for the land above and the Plaintiff's houses fell ; the Plaintiff thereupon sued the Defendant for wrongfully digging away and. removing the soil adjacent to the lands and the mines and minerals under same without leaving proper support, and for breaking and entering his land; the Defendant pleaded (amongst other things) that he did not do the acts comÂÂplained of and that he did leave proper support. The jury, in answer to questions left to them, found (amongst other things) that the Defendant did not personally direct or interfere in the mining so as to cause or authorise the injurious operation, but that, knowing injurious consequences to the houses would follow, he allowed the work to go on-that is, he did nothing to stop it: Held (CHRISTIAN, L. J., diss.), -that the license was irrevocable, that the Defendant had no power by any proceeding to restrain N. from working under it to the Plaintiff's, injury, and that, therefore, he was not liable to the PlainÂÂtiff for the injurious acts of N. Per CHRISTIAN; L. J.-The license was revocable, and. the Defendant, not having revoked it so as to prevent N. continuing the injurious acts when he became aware that N. was mining improperly, was liable in damages to the Plaintiff. APPEAL by the Plaintiff from an order of the Court of Queen's Bench discharging a conditional order obtained by the Plaintiff to have the verdict entered for him or for a new trial. The case is reported in the Court below, Ir. R. 11 C. L. 536. The Simmons and Plaint contained four counts, complaining respectively ; (1), That the Plaintiff was possessed of land and houses thereon, and that the Defendant wrongfully dug away and. (1) Before BILL, C., Moms, C. J., CHRISTIAN and DEASY, LSI. VOL. II.] Q. B., C. P., &. EX. DIVISIONS. 321 removed the land adjacent to said lands and the soil and,minerals Appeal. under same, without leaving proper support for the land and _ 1878' houses, whereby injury resulted; (2), That the Defendant wrong- 'ATKINSON fully excavated certain coal mines under the Plaintiff's land, and Kora. took away coal and earth out of said mines without leaving proper support for the Plaintiff's land ; (3), That the Defendant broke and entered the Plaintiff's land ; (4), Of injury to the reversion. To all the counts the Defendant pleaded a traverse of the doing of the acts: he also pleaded to the first count-(1), that he did. leave proper support ; (2) a traverse of the Plaintiff's right to have the land and houses supported: to the second count, that he did leave proper support ; to the third count (1), a traverse of the lands being the Plaintiff's ; (2), that he did the acts in the proper exerÂÂoise by him of a right granted to him to work the mines and. minerals under the lands : to the fourth count (1), a traverse of the damage alleged ; (2), that the lands were not in the possession of the occupier as tenant to the Plaintiff ; (3), a defence similar to the second defence to the third count. In 1632, Sir Andrew Stewart, being seised in fee-simple of the lands of Brackaville and Derry (comprising, amongst others, the lands now in question), and of the mines and minerals in and upon them, granted the lands aforesaid unto John Nicholson, his heirs and assigns, in fee-farm for ever, excepting and reserving out of the grant unto the grantor, his heirs and assigns, free liberty, with ingress, egress and regress through the premises, to hawk, hunt, and fowl, and the use and benefit of all mines and minerals that could or might be had or found in and, upon the granted premises. Nicholson's interest in the lands became vested in Cornwall Clements, who, by lease of the year 1795, granted about twelve acres thereof to Andrew Sloan, for lives renewable for ever. Sloan's interest in these lands (which were the lands in question in the case) was vested in the Plaintiff Wolsey Atkinson, at the • time of action brought, and he had erected on them a row of fourÂÂteen cottages, called the Red Row. The interest of Sir Andrew Stewart to the mines and minerals in and upon the lands was, in the year 1852, vested in Sir Thomas Staples and E. II. Caulfield, their heirs and assigns ; and they being so entitled, by lease of the 22nd of June, 1852, demised to the Defendant, Robert King, his 21)2 322 LAW REPORTS (IRELAND). [L. It. I. Appeal. executors, administrators and. assigns, for his life or for twenty 1878. years, whichever should longest last, at the yearly rent of 100, ATKINSON " all those coal mines, coal pits, collieries, seams and veins of coal, v. KING. as well open as not open, which can, shall, or may be wrought, dug, found out, or discovered within, upon, or under all or any of the demesne, waste wood or common lands, part of or belonging-to the. towns and lands of Derry, Brackaville," and others, with full liberty, license, and authority for him and his workmen or agents to dig and sink for coal, and make all necessary works and. excavations for " mining, working, getting, raising, and procurÂÂing all the said mines of coal ; " power of distress and re-entry; covenant by the lessee to pay the rent reserved ; power of surÂÂrender-by lessee every seven years ; covenant by lessors for quiet enjoyment. In December, 1873, the Defendant gave a writing to. a person named O'Neill, in the following terms :- " COAL ISLAND, December let, 1873. " MR. JAMES O'NEILL. "I agree to allow you to sink a pit for coal in Brackaville, at ls. 6d. per ton, and not to allow anyone to sink on any coal you prove in the pit. " ROBERT KING. " Also an air pit, and one hundred yards in each square of the pit." Having got this document, O'Neill opened two pits on the other side of the road, opposite the Plaintiff's houses, and not on his land, and then a third pit in a field behind a house in the Red Row, of which house and field a man named Quinn was tenant to the Plaintiff. The Plaintiff stated that in May, 1874, he went to the houses, which were giving way a little, and spoke to the workmen ; that the injury to the houses was caused by the mining; that he went again in June, and they were ten times worse ; that at that time the mining was going on in front, and the third pit had not been commenced; that in a few weeks he went again-the pits were closed, but he saw where the hole was made for the third pit on Quinn's holding, and stuff thrown up' and.a piece of wall thrown down there. Patrick Campbell stated that his business was weighing and selling the coal that came up ; that he was paid (is. a-week by King and 8s. by O'Neill ; that King told him to make as speedy a sale as he could-to tear and sink away ; that VOL. II.] • Q. B., C. P., & EX. DIVISIONS. Xing, coming there and. finding parties weighing at their own weighbridge, refused to allow it, and O'Neill brought a weighÂÂbridge which King's man put up. O'Neill sent Campbell to King, to inquire as to continuing the mining, and opening the third pit on Quinn's land after the houses began cracking. Campbell's and King's accounts of that interview will be found referred to at length in LORD JUSTICE CHRISTIAN'S judgment, post, 357-359. Campbell further stated that he did not mention to King that the houses were cracked, but that the cracks could be seen a long way off, and that King was there once a-month or a-fortnight. Quinn stated that, having refused to let O'Neill on his land, he was served...