between the plaintiffs as such owners of and interested in the said lands and the defendants, within the meaning of the said act.

The defendants demurred to the second replication to the third and fourth pleas,-the ground stated in the margin being, "that the defendants are not estopped by the verdict and judgment in the first count mentioned from pleading the said third and fourth pleas." Joinder.

Field (with whom was Hayes, Serjt.), for the plaintiffs.(a)—Two substantial points are presented for the decision of the court,-first, whe ther the verdict and judgment of the jury and the commissioners under the act are conclusive, secondly, whether the fourth plea shows any answer to the plaintiffs' claim, upon the assumption that the verdict and judgment are not conclusive.

1. The verdict and judgment, it is submitted, are conclusive. It will not be necessary to call in question the cases which have decided that the verdict of a jury or the award of an arbitrator or umpire under the Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18, ss. 21, 68, merely ascertains the amount, not the claimant's right to [*732 compensation: The Queen v. The *London and North Western Railway Company, 3 Ellis & B. 443 (E. C. L. R. vol. 77); Chapman v. The Monmouthshire Railway and Canal Company, 2 Hurlst. & N. 267; Read v. The Victoria Station and Pimlico Railway Company, 1 Hurlst. & Colt. 826; In re Newbold and The Metropolitan Railway Company, 14 C. B. N. S. 405 (E. C. L. R. vol. 108). These cases have decided that it is still open to the company to contest the verdict or the award, if they can show that the claimant is not entitled to the land in respect of which the compensation is claimed, or, perhaps, that he has not sustained the damage complained of. But, under this act, the commissioners and the jury had jurisdiction not only over the amount of damage, but also over the question wheThe 1st section ther the claimant had sustained damage or not. recites that the making and maintaining the intended canal and cuts "will open an easy communication between several valuable mines of coal and the town of Nottingham," and it incorporates the company, and empowers them to make the intended canal and cuts, and also to make "one or more reservoir or reservoirs, and to erect one or more fire-engine or engines, or other machines, for the purpose of supplying the said intended canal and collateral cuts with water, and also such and so many feeders, aqueducts, and channels as they shall think fit, for supplying the said intended canal, collateral cuts, and reservoirs with water," "doing as little damage as may be in the execution of the several powers to them thereby granted, and making satisfaction in manner thereinafter mentioned to the owners or proprietors of and other persons interested in any lands, tenements, or other hereditaments, waters, &c., which shall be taken, used, removed, diverted, or prejudiced, for all damages to be by them sustained in or by the exe

(a) The points marked for argument on the part of the plaintiffs were as follows:

"1. The plaintiff will contend that the defendants are estopped by the verdict and judgment in the first count mentioned from pleading the said third and fourth pleas, and will rely upon the replication by way of estoppel, as well as upon the demurrer :

2. The plaintiffs will also contend that the fourth plea is bad, because it admits that the damage was caused by the water flowing and oozing out of the reservoir, and was therefore matter for compensation."

cution of any of the powers of this act." The 3d and 4th sections again refer to mines. The 26th provides that certain persons

*733] named, and their successors, to be elected in manner thereinafter (s. 27) mentioned, "shall be and are hereby appointed commissioners for settling, determining, and adjusting, all questions, matters, and differences which shall or may arise between the said Nottingham Canal Company and the several proprietors of and persons interested in any lands, grounds, or other hereditaments, mills, or waters, that shall or may be affected or prejudiced by the execution of any of the powers hereby granted, and for the settling or determining whereof no other mode is by this act provided," &c. The 32d section provides for notice of the meetings of the commissioners: and the 35th section, upon which this question will turn, enacts "that the said commissioners are hereby authorized and empowered by writing under their hands and seals, with the consent of the parties concerned, to determine and adjust from time to time what sum or sums of money shall be paid by the said Nottingham Canal Company, either by an annual rent or payment, or by a sum of money in gross, to and at the election of such bodies politic, corporate or collegiate, or any person or persons respectively who shall be so entitled or interested as aforesaid [s. 24], for the absolute purchase of the lands, grounds, or other hereditaments which shall be set out and ascertained for making the said intended canal, collateral cuts, and towing-paths, or any part thereof, and other the purposes herein mentioned; and also to determine and adjust what other distinct sum or sums of money shall be paid by the said Nottingham Canal Company as a recompense for any damages which may or shall be at any time or times sustained by any such bodies politic, corporate, or collegiate, or by any person or persons respectively, being owners of and interested in any lands, grounds. *734] severing or dividing the same, or the making, maintaining, or repairing the said intended canal and collateral cuts, reservoirs, aqueducts, feeders, trenches, passages, gutters, water-courses, roads, ways, or sluices, or supplying the same or any of them with water as aforesaid, or by altering, diverting, taking away, or using any springs, streams of water, or water-courses flowing to or supplying with water any mill, or any engine for the working or getting of coals or other minerals, or by the flowing, leaking, or oozing of the water over or through the banks of the said intended canal and collateral cuts, reservoirs, trenches, or sluices, or over or through any passages, gutters, or water-courses which shall be made pursuant to the powers hereby given for conveying or communicating water to or from the said intended canal or collateral cuts, or by not cleansing the said watercourses, trenches, or passages, or by turning or diverting any streams or brooks into the same, or by reason or means of the execution of any of the powers herein contained, by the said Nottingham Canal Company, or by their agents, workmen, officers, or assistants, in case such price or value, damage, and recompense respectively cannot be settled, adjusted, or agreed for by and between the said Nottingham Canal Company or their agent or agents and such proprietors of or persons interested in the said lands, grounds, mills, or hereditaments as aforesaid and if the said Nottingham Canal Company, or any such

mills, waters, or other hereditaments, for or by reason of the

:

body politic, corporate, or collegiate, or other person or persons so interested or entitled as aforesaid shall refuse or neglect to submit any such matter to the determination of the said commissioners, for the space of fourteen days after being applied to for that purpose on behalf of the said Nottingham Canal Company, or shall be dissatisfied with any determination which shall be by them made as [*735 aforesaid, or if any such body politic, corporate, or collegiate, trustee or trustees, or any other person or persons as aforesaid, shall refuse to receive, upon due tender thereof made, such purchase-money, or the first payment of such annual rent, or such recompense as shall be so determined to be paid, or shall, upon notice in writing given to the principal officer of any such body politic, corporate, or collegiate, or to such trustee or trustees, person or persons, respectively, or left at the last or usual place or places of his, her, or their abode, or with the tenant or tenants, occupier or occupiers of such lands, grounds, mills, waters, or other hereditaments, for the space of fourteen days next after such notice, neglect, or refusal to treat, or shall not agree with the said Nottingham Canal Company, or by reason of absence shall be prevented from treating, or, through disability by nonage, coverture, or other impediment, cannot treat for themselves or make such agreement as shall be necessary for the purposes aforesaid, or shall not within the before-mentioned space of fourteen days, produce and evince a clear title to the premises which they are or shall be in the possession of, or to the interest which they claim therein, then and in every such case the said commissioners shall and are hereby empowered and required to issue a warrant under their hands and seals to the sheriff of the county of Nottingham, or to the sheriffs of the town and county of the town of Nottingham (in which the matter in question shall arise); and, in case any such sheriff or sheriffs, or his or their undersheriff, shall happen to be one of the said Nottingham Canal Company, or enjoy any office of profit or trust under them, or shall be otherwise interested in the matter in question, then to the coroner of the said county or town and county, not interested as aforesaid, commanding such sheriff or sheriffs, or *coroner, respectively, to impannel, [*736 summon, and return a jury; and the said sheriff or sheriffs, or coroner, is and are hereby required accordingly to impannel, summon, and return a jury of twelve sufficient and indifferent men, qualified according to the laws of this realm to be returned for the trials of issues in His Majesty's courts at Westminster, to appear before the said commissioners at such time and place as in such warrant shall be appointed, not being less than nine nor more than twenty-one days after such warrant shall be served upon the said sheriff or sheriffs or coroner; and in case a sufficient number of jurymen shall not appear at the time and place so to be appointed as aforesaid, the said sheriff or sheriffs, or coroner, shall return other honest and indifferent men of the standers-by, or that can speedily be procured to attend that service (being so qualified as aforesaid), to make up the said jury to the number of twelve; and all parties concerned may have their lawful challenges against any of the said jurymen, but shall not challenge the array; and the said commissioners are hereby empowered to summon and call before them all and every such person and persons who shall De thought necessary to be examined as a witness or witnesses touchC. B. N. S., VOL. XV.-28

ing the matters in question; and the said commissioners may order and authorize the said jury, or any six or more of them, to view the place or places or matters in question, which jury upon their oaths (which oaths, as well as the oaths to such person or persons as shall be called upon to give evidence, the commissioners are hereby empowered to administer), shall inquire of, assess, and ascertain the sum of money or annual rent to be paid for the purchase of such lands, grounds, mills, waters, or other hereditaments, or the recompense to be made for the damages that may or shall be sustained as aforesaid, and shall assess separate *737] *damages for the same, and the said commissioners shall give judgment for such purchase-moneys, rent, or recompense so to be assessed by such jury, which said verdict, and the judgment there. upon pronounced as aforesaid, shall be signed by the said commissioners, and shall be binding and conclusive to all intents and purposes against all bodies politic, corporate, or collegiate, and all other persons whomsoever, and shall not be removed by a certiorari or other process into any of His Majesty's courts of record at Westminster, or any other court, any law or statute to the contrary hereof notwithstanding." And by s. 40 the verdict and judgment of the jury and commissioners is to be recorded with the clerk of the peace. The record showing that the commissioners were acting in a matter which was within their jurisdiction, upon the principle laid down by the Court of Queen's Bench in The Queen v. Bolton, 1 Q. B. 66 (E. C. L. R. vol. 41), 4 P. & D. 679, their decision is final. They are (by s. 26) appointed a court "for settling, determining, and adjusting all questions, matters, and differences" which shall or may arise between the company and the persons interested in lands or hereditaments that shall or may be affected or prejudiced by the execution of any of the powers thereby granted. Allen v. Sharp, 2 Exch. 352, comes very near to the present An assessment under the assessed-tax acts is final and conclusive, unless appealed against in the manner prescribed by the 43 G. 3, c. 99, s. 24: therefore, where a party was assessed to the duty imposed on "horse-dealers," it was held that the decision of the assessor that the party was a horse-dealer, however erroneous, could not be ques tioned in an action. Parke, B., in giving judgment there, relies very much upon the case of The Earl of Radnor v. Reeve, 2 Bos. & P. 391, where the court say "that it had been determined by all the judges of England, *that, when a statute provides that the judgment of *738] the commissioners appointed thereby shall be final, their decision is conclusive, and cannot be questioned in any collateral way." That principle has been adopted in many recent cases: see Mould v. Williams, 5 Q. B. 469 (E. C. L. R. vol. 48), D. & M. 631; The Queen v. The Inhabitants of Hickling, 7 Q. B. 880 (E. C. L. R. vol. 53); Thompson v. Ingham, 14 Q. B. 710 (E. C. L. R. vol. 68); The Queen v. Dayman, 7 Ellis & B. 672 (E. C. L. R. vol. 90); Williams v. Adams, 2 Best & Smith 312 (E. C. L. R. vol. 110).

case.

2. The fourth plea in substance alleges that the damage complained of was occasioned by the plaintiffs' own acts and default. That plea clearly discloses in itself no answer to the declaration. The interference by the defendants with the natural flow of the water, so as to throw an increased burthen on the plaintiffs, constitutes a clear cause of action: Tenant v. Goldwin, 1 Salk. 360, 2 Ld. Raym. 1089; Cooper

v. Barber, 3 Taunt. 99; Hodgkinson v. Ennor, 32 Law J., Q. B. 231; Baird v. Williamson, antè, p. 377.

Mellish, Q. C., contrà.(a) The first question is, whether the verdict of the sheriff's jury, and the judgment of the commissioners thereon,

be conclusive as to the right of the plaintiff to damages. It [*739

is submitted that they are conclusive only as to the amount of damage, but not as to the fact that damage has been sustained. The decisions upon the Lands Clauses Consolidation Act did not turn upon the words of the particular act, but upon the general principles which govern the construction of all acts which are in pari materiâ. The right to compensation may often depend upon nice and difficult questions of law and the legislature never could have intended that these should be disposed of by a sheriff's jury. The plaintiffs, it is submitted, can only be entitled to compensation in respect of that for which they could have maintained an action independently of the act of parliament. As regards the Lands Clauses Consolidation Act, the question may now be considered to be settled. The case of The Queen v. The Metropolitan Railway Company, Ex parte Horrocks, 8 Law T. N. S. 663, may be added to the list of cases already referred to. In Read v. The Victoria Station and Pimlico Railway Company, 1 Hurlst. & Colt. 826, a plea in the very words of the third plea here was held good. There is no material distinction between the language of the provisions of that act and that of the act now under consideration. [ERLE, C. J.-By s. 35 of the 32 G. 3. c. c., the verdict and judgment are to be "binding and conclusive to all intents and purposes" against all persons.] That is, binding and conclusive as regards the matter submitted to the jury, not as to that which is not submitted. Those words, therefore, carry the matter no further.

1. Assuming, then, that, unless an action could have been mantained if there had been no act of parliament, the case is not one for compensation under the act,-would an action have lain against the defendants for doing what they did here? For some *purpose [*740 of profit, the canal company make a reservoir upon their own land. Some time afterwards, a mine-owner sinks a shaft at some distance from the reservoir. The nature of the strata between the bottom of the reservoir and the shaft is such that there is water therein; and, when the mine-owner draws the water off, water from the reservoir percolates into the mine. The question is, whether that is a cause of action. Neither the making nor the keeping the reservoir was a wrongful act. The case is extremely analogous to that of Chasemore v. Richards, 7 House of Lords Cases 349, where it was held that the principles which regulate the rights to the enjoyment of water running in a natural channel on the surface, do not apply to water percolating through underground strata. [WILLIAMS, J.-There is nothing in the

(a) The points marked for argument on the part of the defendants were as follows:"1. That the defendants are not estopped from showing that the commissioners had not jurisdiction to assess the damage in the first count mentioned; and that they are entitled to judgment on the third plea, inasmuch as the plaintiffs by their demurrer to that plea admit that the damage was not within the 35th section of the 32 G. 3, c. c. :

2. That the defendants are not bound to make compensation to a mine-owner whose own operations caused the damage, and the same not being caused by the act or default of the defendants; and that they are not estopped from setting this up as a defence, and are therefore entitled to judgment on the fourth plea."