throughout the whole length of the said intended canal. By a subsequent public Act, 8 & 9 Vict. c. 28, proprietors of canals were empowered to vary or alter the tolls granted to them, "either upon the whole or for any particular por"tion or portions of such canals, according to local cir"cumstances, or the quantity of traffic, or otherwise, as they should think fit;" with a proviso that such tolls were to be charged equally to all persons and after the same rate, whether per ton or per mile, in respect of all boats of the like description passing along or using the same portion of canal, and all goods, &c. of the like description conveyed or propelled in a like boat, &c., passing along or using the same portion of the said canal under the like circumstances:-Held, that it was competent to the company to agree to carry at a lower rate for a particular individual in consideration of a larger guaranteed minimum toll, in order to enable them to enter into a successful competition with rival lines of railway. Erle, C. J., said: "It seems to me that the contract "with the Ystalyfera Iron Company falls exactly within "the principle which has been laid down as to railway "companies by many cases in this Court,-where it has "been held that the company is guilty of no violation "of The Railway Traffic Act, 1854, in carrying large guaranteed quantities of any description of goods for long distances in full train loads at lower rates than "they will carry smaller quantities for less distances and "without such rates. I see nothing unreasonable in such "an arrangement. . . . . I am of opinion that the tariff “is valid.” 66 Byles, J., remarked: "It seems to me that The Railways "Clauses Consolidation Act, 1845, which is recited in 8 & "9 Vict. c. 28, and The Railway Traffic Act, 1854, are in “pari materiâ with this Act, and that it ought to receive "substantially the same construction. The proviso in "sect. 2 is not absolute. . . The principle adverted "to by my lord has been laid down and acted upon in a Canal shares. "great number of cases in this Court, the most recent of "which is In re Oxlade and The North Eastern Rail. Co.1 "The same principle was acted upon in the cases of In re "Jones and The Eastern Counties Rail. Co.,2 In re Nichol66 son and The South Western Rail. Co."s It has been held that the mortgagee of the tolls of a canal, held by him in trust to pay creditors and discharge incumbrances, is a proprietor of a river navigation, so as to be liable to the payment of the salary to the clerk.1 5 We will conclude this section with a few remarks as to canal shares, though a full consideration of this branch of law does not properly come within the scope of this work. Canal shares are not estate and interest in land within the meaning of the Statute of Mortmain; and it does not matter if the Act of Parliament incorporating the company does not contain a clause declaring the shares to be personal property." Where an Act of Parliament declared that canal shares "should be deemed personal estate, and transmissible as "such," they were held to be personal property, though the profits arose out of land, and to pass as such upon the bankruptcy of the holder." Where by Act of Parliament canal shares were to be deemed to be personal estate, it was held that they did not bear the character of realty so as to make a bequest of them specific. 8 1 15 C. B., N. S. 680. 3 5 C. B., N. S. 366. Cf. as to 4 Tibbits v. Yorke, 5 B. & Ad. 605. 5 As to calls for canal shares, see Huddersfield Canal v. Buckley, 7 T. R. 36; Weald of Kent Canal v. Robinson, 5 Taunt. 801; Norwich and Lowestoft Navigation v. Theobald, Moo. & Malk. 151; Thames Tunnel Co. v. Sheldon, 6 B. & C. 341; see Woolrych, p. 50 et seq. 6 Edwards v. Hall, 6 De G., M. & S. 74. 7 Ex parte Lancashire Canal Co., 1 Dea. & Ch. 411. 8 Robinson v. Addison, 2 Beav. 515. By a canal Act the shares were to be deemed personal property. The canal ran through the dioceses of Worcester and Lichfield. The transfer of shares and payment of dividends was in Lichfield:-Held, that for purposes of probate, the shares, being personal property, might be considered locally situate in Lichfield.1 The Court will grant a mandamus to a canal company to enter on their books the probate of the will of a shareholder, leaving any question as to validity of probate to be raised by return to the writ.2 The law relative to canal tolls, and the rateability of canals and canal tolls, is fully discussed in a future chapter.3 II. Water Supply. kinds of Water is supplied to the public (1) By companies Water supply having parliamentary powers; (2) By companies which under three have no such parliamentary authority; or (3) By local bodies. authorities, each of which requires a separate notice. 5 (1) In the case of companies having parliamentary powers, Companies with parliaa special Act is obtained, with which it is customary mentary to incorporate the following general enactments :-The powers. Waterworks Clauses Acts, 1847 and 1863; The Lands Clauses Consolidation Acts, 1845, 1860 and 1869; and The Companies Clauses Consolidation Acts, 1845, 1863 and 1869.5 works Clauses The preamble of The Waterworks Clauses Act, 1847 The Water(10 & 11 Vict. c. 17),6 states that it is expedient to com- Acts. prise in one Act sundry provisions usually contained in 10 & 11 Vict. 1 Ex parte Horne, 7 B. & C. 632. 2 Rex v. Worcester Canal, 1 M. & R. 529. 3 See Chap. IX. The law relating to water supply is manifestly too wide a subject to be treated exhaustively in a work like the present. The reader is referred for details to the excellent work of Messrs. Michael & Will on the Law relating to Gas and Water Supply (2nd edition, 1877), to which the authors are in debted for most of the materials 5 Michael & Will, p. lvi. 6 An Act for consolidating in one Act certain provisions usually contained in Acts authorizing the making of waterworks for supplying towns with water. Sect. 12 does not empower a company to execute any works not authorized by the special Act; Simpson v. South Staffordshire Waterworks Co., 11 Jur., N. S. 453; 34 L. J., Ch. 380. c. 17. 66 66 Acts of Parliament authorizing the construction of waterworks for supplying towns with water, and that as well for avoiding the necessity of repeating such provisions in each of the several Acts relating to such undertakings as for ensuring greater uniformity in the provisions themselves. The Act extends "only to such waterworks as shall be "authorized by any Act of Parliament hereafter to be passed, which shall declare that this Act shall be incor"porated therewith; and all the clauses of this Act, save so far as they shall be expressly varied or excepted by any such Act, shall apply to the undertaking authorized thereby, so far as the same shall be applicable to such "undertaking, and shall, with the clauses of every other "Act which shall be incorporated therewith, form part of "such Act, and be construed therewith as forming one "Act." (Sect. 1.) The term "special Act" is defined (sect. 2) to mean "any Act which shall be hereafter passed "authorizing the construction of waterworks, &c. and with "which this Act shall be incorporated." By the same section the word " prescribed," used in this Act in reference to any matter herein stated, shall be construed to refer to such matter as the same shall be prescribed or provided for in the special Act, and the sentence in which such word occurs shall be construed as if instead of the word "prescribed," the expression "prescribed for that purpose in "the special Act" had been used: and the expression "the lands and streams"1 shall mean the lands and streams of water which shall, by the special Act, be authorized to be taken or used for the purposes thereof; and the expression "the undertaking" shall mean "the waterworks and the works connected therewith by the special Act authorized to construct the waterworks."2 "Water-rate" is 1863. defined by sect. 3 to include "any rent, reward or payment "to be made to the undertakers for a supply of water." This statute was amended by the 26 & 27 Vict. c. 93, Waterworks Clauses Act, The Waterworks Clauses Act, 1863,1 sect. 1 of which, after reciting the Act of 1847, states that "sundry provisions of "the like nature, but not comprised in the said Act, are now frequently introduced into Acts of Parliament re"lating to waterworks, and it is expedient to comprise such "last-mentioned provisions also in one Act;" and sect. 2 of which provides that the terms used in the Act shall have the same meaning as the same terms when used in The Waterworks Clauses Act, 1847, and the provisions as to the recovery of penalties contained therein are incorporated with this Act.2 solidation The Lands Clauses Consolidation Act, 18453 (8 Vict. c. 18), The Lands consolidates the provisions usually introduced into Acts Clauses Conrelative to the purchase of land for public purposes. By Acts. sect. 1, it applies "to every undertaking authorized by any "Act which shall hereafter be passed, and which shall "authorize the purchase or taking of lands for such under 66 taking." It enacts that "this Act shall be incorporated "with such Act; and all the clauses and provisions of this "Act, save so far as they shall be expressly varied or "excepted by any such Act, shall apply to the undertaking An Act for consolidating in one Act certain provisions frequently inserted in Acts relating to Waterworks. 2 By sect. 1, "The two Acts may "be cited together as the Water"works Clauses Acts, 1847 and "1863." For decisions on points connected with these Acts, cf. Atkinson v. Gateshead Waterworks Co., 2 Ex. Div. 44; Bush v. Trowbridge Waterworks Co., L. R., 10 Ch. 459; Metropolitan Board_of Works v. New River Co., 37 L. T., N. S. 124; Edgemore Highway Board v. Colne Valley Water Co., 46 L. J., Ch. 889; New River Co. v. Mather, L. R., 10 C. P. 462; see post, note (3), p. 318, and note (3), p. 322. See, too, Hildreth v. Adam son, 8 W. R. 470. 3 An Act for consolidating in one Act certain provisions usually inserted in Acts authorizing the taking of Lands for undertakings of a public nature. The preamble states the expediency of comprising in one general Act sundry provisions usually introduced into Acts of Parliament relative to the acquisition of lands required for works of a public nature, and to the compensation to be made for the same, "and "that as well for the purpose of "avoiding the necessity of repeat"ing such provisions in each of the "several Acts relating to such "undertakings, as for insuring "greater uniformity in the pro"visions themselves." (Sect. 1.) 8 Vict. c. 18. |