Swan Hill Developments Ltd & Ors v British Waterways Board [1997] EWCA Civ 1089

EWCA-Civ
Swan Hill Developments Ltd & Ors v British Waterways Board
[1997] EWCA Civ 1089 · 1997-02-25
SWAN HILL DEVELOPMENTS LIMITED DAVID WILLIAM LLOYD-THOMAS ESTELLE MARY LLOYD-THOMAS ABBCOTT PROPERTIES LIMITED v. BRITISH WATERWAYS BOARD [1997] EWCA Civ 1089 (25th February, 1997) IN THE SUPREME COURT OF JUDICATURE FC3 97/5278/B 96/7690/B CHANF 95/0998/B IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE CHANCERY DIVISION (MR JUSTICE ROBERT WALKER ) Royal Courts of Justice Strand London WC2 Tuesday 25 February 1997 B e f o r e: THE MASTER OF THE ROLLS (LORD WOOLF) LORD JUSTICE PETER GIBSON LORD JUSTICE SWINTON THOMAS - - - - - - SWAN HILL DEVELOPMENTS LIMITED DAVID WILLIAM LLOYD-THOMAS ESTELLE MARY LLOYD-THOMAS ABBCOTT PROPERTIES LIMITED Plaintiffs/Respondents - v - BRITISH WATERWAYS BOARD Defendants/Appellants - - - - - - (Computer-aided transcript of the Palantype Notes of Smith Bernal Reporting Limited, 180 Fleet Street, London EC4A 2HD Tel: 0171 831 3183 Official Shorthand Writers to the Court) - - - - - - MR A SCRIVENER QC and MR J WHITTAKER (Instructed by Nabarro Nathanson, London, W1X 6NX) appeared on behalf of the Appellants. MR T ETHERTON QC and MR J KARAS (Instructed by Messrs Debenhams, London, SW3 1RT) appeared on behalf of the Respondents. - - - - - - J U D G M E N T (As approved by the Court ) - - - - - - ©Crown Copyright JUDGMENT LORD WOOLF, MR: This is an appeal from a judgment given by Robert Walker J on a preliminary issue directed to be determined by Master Gowers. For practical purposes the issue to be decided is whether or not the present owners and occupiers of land adjacent to the canal mentioned in the Statement of Claim are entitled to exercise rights conferred on owners and occupiers of such land by Section 79 of the Grand Junction Canal Act 1793. What rights were conferred on such owners does not directly arise on this appeal. The canal referred to in the Statement of Claim is part of the Northampton arm of the Grand Union Canal, formerly the Grand Junction Canal. The stretch in question starts in the vicinity of junction 15a of the M1 motorway and runs north and then east, close to Northampton, joining the River Nene. The main canal was built at the beginning of the 19th century. The Northampton arm was constructed approximately 1812 to 1850. The defendants, the British Waterways Board, are the successors of the promoters of the 1793 Act. The plaintiffs are developers who own land in the vicinity of the canal and are interested in conducting a substantial development on their land. The outcome of the present proceedings is important to both the parties from a purely commercial point of view. So far as the developers are concerned, if they are right in their contentions it will avoid their having to pay certain charges the British Waterways Board will require to be paid to enable them to carry out certain works which they require. On the other hand, if the British Waterways Board are correct they will be entitled to receive fees as a condition of giving their consent to works which the plaintiffs would not otherwise be able to carry out. As to the merits of the issues with which we are concerned, therefore, there is nothing to distinguish between the position of the plaintiffs and the defendants. In his judgment in the court below, the judge acknowledged the debt which he owed to the judgment of Hoffmann J in the unreported decision of Freedman v British Railways Board and The Church commissioners v British Railways Board , given on 22 March 1990. That case went to the Court of Appeal who also acknowledged the contribution which Hoffmann J had made to the understanding of the issues which were involved in that case. So far as the present case is concerned, I would like to make a similar acknowledgement to the debt which I owe to the extremely clear and helpful judgment of the learned judge. He has set out in the course of his judgment the principles which should be adopted in seeking to interpret the 1793 Act. I found his approach extremely helpful. The judge did, however, make certain comments about the historical background to the 1793 Act. Mr Scrivener, on behalf of the Board, submits that those comments are based upon historical research which the judge himself conducted. He questions the accuracy of certain of those comments which the judge made from a historical standpoint. For that purpose he sought to adduce further evidence before this court. Although I have had the opportunity of reading material on which Mr Scrivener relies, the historical facts which he would seek to put in issue are so remote from the issues which have to be decided in this case that I do not feel it necessary to have regard to that material, the admissibility of which was objected to by Mr Etherton on behalf of the developers. As to the Act the judge said:
"Its most important provisions were as follows. (a) It incorporated the proprietors (who are named in the Act, starting with the Duke of Bridgewater) as a corporation named the Company of the Proprietors of the Grand Junction Canal ("the company") with a common seal and a licence in mortmain. (b) It conferred on the company power to construct the canal, and for that purpose to obtain water from a defined area bordering the canal, and to carry out accommodation works and other operations specified in the Act. (c) It provided for the compulsory acquisition of land by the company for the purposes of the Act, upon the company paying compensation (termed ´satisfaction´ in the Act) for land acquired and damage sustained. (d) It provided for the regulation of the finances and internal affairs of the company. (e) It provided for the payment of charges (termed ´rates´) by users of the canal, subject to certain exemptions. (f) It provided for the rights, powers and obligations of the company and the owners of land adjacent to the canal both during and after its construction."
The purpose of the Act appears clearly from Section 1 which is the preamble of the Act. Mr Scrivener described it as being the "overture" to the Act. The preamble reads, so far as relevant, as follows:
"WHEREAS it is practicable to make and maintain a Canal for Navigation of Boats, Barges, and other Vessels, from the present Oxford Canal, in the Parish of Braunston, in the County of Northampton, through, by, or near the Towns of Daventry, Newport, Leighton Buzzard, Rickmansworth, and Uxbridge in the several Counties of Northampton, Buckingham, Bedford, Hertford, and Middlesex, to unite with the River Thames at or near Brentford, in the County of Middlesex, and also certain Collateral Cuts hereinafter described, to communicate with the said intended Canal, which said Canal and Collateral Cuts will open a certain Communication for the cheap and easy Conveyance of Goods, Wares, Provisions, and Merchandise, and all heavy Commodities, between the Irish and British Channels, and the Ports of Hull and London, and the several intermediate, populous, manufacturing Towns and places through, and by means of, several Canals already made in this Kingdom, whereby the Intercourse of Trade and Commerce between the several places aforesaid will be greatly promoted and facilitated, Manufactures encouraged and increased, and the Agriculture of the Country, throughout the Line and Neighbourhood of the said Canal and Collateral Cuts, materially assisted, by being supplied with Lime and other Manure at a moderate Expense, and will tend very much to reduce the Price of Coals throughout the whole Line and Neighbourhood of the said Canal and Cuts, and will be in other respects of great public Utility; but the same cannot be effected without the Authority of Parliament."
There is then reference as to the incorporation of the company and conferment of powers. The section ends by saying:
"they the said company of proprietors, their deputies, agents, servants, and workmen, doing as little damage as may be in the execution of the several powers to them hereby granted, and making satisfaction in manner hereinafter mentioned, to the owners or proprietors of, and all persons interested in the lands, tenements, or hereditaments, waters, watercourses, brooks, or rivers respectively, which shall be taken, used, removed, diverted, or prejudiced, for all damages to be by them sustained in or by the execution of all or any of the powers of this Act; and this Act shall be sufficient to indemnify the said company of proprietors and their deputies, servants, agents, and workmen, and all other persons whomsoever, for what they or any of them shall do by virtue of the powers hereby granted, subject nevertheless to such provisos and restrictions as are hereinafter mentioned."
It will be observed from Section 1 that the Act is intending to confer extraordinary powers on the promoters. These would enable them to construct the canal which was, no doubt, a venture from which the promoters hoped to obtain generous returns. It was also clear from the section that if the promoters expended their money in the way that was indicated, this was in the interests of the public in general. The public could hope to obtain economic advantage as a consequence of the construction of the canal. It was therefore a situation where it was appropriate that private property rights should infringed but, where this was done, that appropriate compensation would be paid. However, in so far as the rights of individuals were concerned, the intention was that the canal should be constructed in a way and with consequences which would restrict the interference and damage to the interests of the individuals to the minimum, consistent with the achievement of the objectives of the Act. The Act was a private Act. Mr Scrivener accepts that that being so, where the provisions of the Act are ambiguous the general rule of construction is one which involves construing the Act so as to resolve ambiguities in a way which is against interests of the the promoters and in favour of the private individuals who could be affected. The general approach to the construction of the Act is helpfully summarised in a passage from the judgment of Lord Tenterden LCJ in the case of Proprietors of the Stourbridge Canal v Wheeley (1831) 2 B & Ad 792, at page 793 where he said:
"The canal having been made under the provisions of an Act of Parliament, the rights of the plaintiffs are derived entirely from that Act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully established to be this, - that ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public; and the plaintiffs can claim nothing which is not clearly given to them by the Act."
It is also to be noted that the Act was drafted long before the Office of Parliamentary Counsel was established in 1869. It is in a different style from that which would be adopted by Parliamentary Counsel for drafting public Acts after the office was established. There are many examples to be found in the Act of different language being used for the same purpose. There is a lack of consistency in the use of language, which means that the normal approach to construction has to be adopted with caution because it can lead to wrong inferences being drawn as to what is intended. It is now possible to turn to the principal area of contention between the parties. The plaintiffs, the developers, wish to construct bridges across the canal and instal pipes under it. As adjoining owners of land abutting the canal, they say that they are entitled to do so by reason of the provisions of Section 79. The Board say that that is not so. The issue boils down to the interpretation of a few words of Section 79. The words bestow rights on:
".....owners or occupiers of any lands, or other hereditaments, through which the said canal and collateral cuts...."
Mr Scrivener submits that before the owners can have the benefit of Section 79 they must be owners of lands on both sides of the canal, what the judge described as double riparian owners. The developers say that on the contrary, it is sufficient if their lands adjoin the canal, if they have land abutting the canal on one side. Both the parties agree that in order to interpret Section 79 correctly, it is necessary to look at that section in the context of other sections in the Act. In particular both parties agree that Section 79 has to be construed in conjunction with Sections 75, 76 and 78. In addition Mr Scrivener relies on other sections, including Sections 82, 97, 98 99, 101 and 103. The approach adopted by both parties, it is important to note, is they do not contend for a halfway house. On the one hand it is said that it is sufficient that you own or occupy land on one side of the canal; on the other hand, it is said that land has to be owned and occupied on both sides of the canal. I make reference to the positions they are adopting because it is obvious that in the construction of a canal of this nature there could be situations where the canal is constructed at the same time on the land of more than one owner, albeit when the canal is constructed the position will be that there is no common interest on land on both sides of the canal. I draw attention to this because it seems that on any interpretation of the word "through", where land is used for making the canal, its particular owner or occupier, albeit he is left with no land of which he is the owner or occupier on the far side of the canal, has still had his land used for the purpose of constructing the canal, so it is difficult to see why his land is not still land through which the canal was constructed. Reliance was placed by Mr Scrivener on the dictionary meaning of the word "through". For that purpose there was put before us an extract from the Shorter Oxford Dictionary which contains a number of different uses of the word "through". In particular it says:
"The preposition expressing the relation of transition or direction within something from one limit of it to the other; primarily in ref. to motion in space." and the first definition is: "
From one end, side, or surface to the other or opposite end, side, or surface of (a body or a space) by passing within it." Mr Scrivener says that the ordinary normal use of the word "through" involves a situation where in fact the result of the canal being built through land will result in there being some land left in the ownership or occupation of the person through whose land the canal was constructed remaining after the construction of the canal on both sides of the canal. However, if it is constructed in, on or over land why is that not also through the land? Turning to Section 79, which must be read as a whole for present purposes, it states:
"Provided always, and be it further enacted, that if the owners or occupiers of any lands, or other hereditaments, through which the said canal and collateral cuts, or any of them, shall be made, do or shall, at any time or times hereafter, choose to erect other gates, stiles, bridges, passages, arches, tunnels, drains, back drains, trenches, or other passages, watering places, and other conveniences respectively than such as the said commissioners shall have so directed or appointed to be made by the said Company of Proprietors, then and so often, or in any such case, it shall be lawful for all or any such owners or occupiers, with the consent and approbation of the said committee upon request made to them for the purpose, or in case of their refusal for the space of twenty-one days after such request, then with the consent and approbation of the said commissioners, to make, fix and erect, at their own costs and charges, one or more gate or gates, stiles, bridges, passages, arches, watering places, or other conveniences, of the same or the like constructions with others made and erected by the said Company of Proprietors, in, over, or near to the said canal and collateral cuts, or the towing paths thereof respectively, in such places as the said owners and occupiers shall judge most necessary and convenient for the better use, cultivation, improvement, or occupation of such lands and other hereditaments, and to repair and support the same, at their own like costs and charges, as occasion shall require, so as that the navigation of, in, or upon the said canal and collateral cuts, or any of them, be not prevented or obstructed thereby, for any longer space of time, or in any other manner, than the same would necessarily have been, if such gates, stiles, bridges, passages, arches, watering places or other conveniences, had been made or erected by the said Company of Proprietors as aforesaid."
It is important to bear in mind that Section 79 commences by using the words "Provided always, and be it further enacted". The fact that those words are used indicate that Section 79 is linked to the sections which precede Section 79 and is a proviso to those sections. It is also not without significance to note that the matters which can be carried out under Section 79 are identified as being "other" or "others", those words indicating that they are in addition to similar types of work which can be conducted under the powers given in the preceding sections, albeit as we will see in the case of the preceding sections, the works are to be carried out, as Section 79 itself indicates, not by those who are the owners or occupiers but the Company of Proprietors. The section indicates that the works which can be carried out do not have to be carried out over the canal, it is sufficient if they are "in, over, or near to the canal". This is relevant because it makes clear that the works could be on one side of the canal only. Referring to the first of the sections which both sides regard as important to have in mind, one turns to Section 75. Section 75 deals with the drainage of land adjoining the canal. It commences by stating that:
"And, to the end that the said navigation may be carried on with as little damage to private property as possible; be it further enacted, that the said Company of Proprietors shall, and they are hereby required, at their own proper costs and charges, to make or cause to be made such arches, tunnels, culverts, drains or other passages over, under, by the side of, or into the said canal and collateral cuts, and the trenches, streams, and watercourses communicating therewith, and the towing paths on the sides thereof respectively, of such depth, breadth, and dimensions, as shall be sufficient at all times to convey the water clear from the lands adjoining or lying near to the said canal or cuts, without obstructing or impounding the same, and likewise to make, or cause to be made, such back drain or drains as may be necessary."
The section continues, making clear that the benefit of the obligations which are there placed in the Company of Proprietors are ones which apply to the lands adjoining or lying near to the "said canal and collateral cuts". Section 76 deals with the fencing off of tow paths and other matters, and imposes an obligation to:
".... divide and separate and keep constantly divided and separated the towing paths on each side of the said canal and collateral cuts, trenches, or passages, or such part or parts thereof respectively as shall be declared necessary by the said commissioners, from the adjoining lands or grounds...."
The section then goes on to indicate how that shall be done. It places an obligation on the Company from time to time to maintain and support:
".... convenient gates, bridges, and stiles, in, over, and through all the hedges and fences...."
It includes an obligation in relation to protecting common highways, public bridleways and foothpaths. Section 78 is in effect a default provision which places obligations on the Company, in so far as it fails to fulfil its obligations under Section 75 and 76, which enables the owners and occupiers to construct the works that should have been constructed by the Company, or to maintain the works which should have been maintained by the Company and, if there is default in so doing, for the recovery of the costs and charges which have been incurred in complying with the obligations of the Company. Mr Scrivener relies strongly on the contrast between the language in particular of Sections 75 and 76 with that of Section 79. It is readily apparent that the word "through" which is so significant in Section 79 is absent from the earlier sections. In order to show, as he would submit, that this is no accidental omission, his learned junior, Mr Whittaker, who is an authority on this area of the law, advanced submissions in relation to other Canal Acts. Mr Etherton questions whether this was appropriate, or whether it is right for this court to take into account those other Acts in resolving the issue before us. He submits that strictly the other Acts, although Canal Acts, are not in pari materia with the present Act and therefore do not assist. I accept, and Mr Scrivener was prepared to accept, that the other Acts are not strictly in pari materia. However, the other Acts were Acts of approximately the same period as the present Act and have a similar subject matter. They form part of the same family of legislation. For a limited purpose it seems to me that it is perfectly appropriate to look at those other Acts, although one do must do so with caution recollecting the way they came into existence; that each provision may have been the subject of some specific bargain or arrangement made between objectors to the other Acts, or to take account of special interests which the promoters of those Acts were prepared to indulge, which may mean that their language is not to be interpreted in the same way as the language of this Act. However, while approaching those Acts with caution, it does seem to me that it is proper to at least deduce from the exercise which Mr Whittaker conducted, that the Canal Acts, which commenced with an Act of 1789 and continued to be passed by Parliament until close to the end of the century, in the majority of cases they had sections which were equivalent to Sections 76, 78 and 79 and, in some cases, had a section which was equivalent to Section 75. In addition the distinction in the language of the sections in the Act here being considered and in the sections of the other Acts, between the use of the word "through" and the use of the words "adjoining or adjacent" is reproduced. Mr Scrivener says this shows that the use of the different language was not some casual coincidence, but was deliberate. I am not sure that Mr Scrivener is necessarily right as to that. I recognise the similarity, but it seems to me that it could well be that if the earlier Acts were using language which had the distinction upon which Mr Scrivener relies, it is likely that the subsequent Acts would reproduce the same distinction without necessarily any particular significance being attached to that distinction. The other sections upon which Mr Scrivener relies have language in common with the sections to which I have already referred. I do not propose to deal with each of the points Mr Scrivener raises on those sections because it seems to me that the arguments which Mr Etherton advances with regard to the interpretation of Section 79 can equally be advanced in relation to each one of those sections. It is, however, right to say that the subsequent sections upon which Mr Scrivener relies, the word "through" is being used. On the other hand, for example, in Section 82, one finds the words "through or adjoining" appearing. Mr Etherton says that if in fact "through" has the meaning for which Mr Scrivener contends, if the word "adjoining" also appears, the word "through" would be mere surplusage. Again, when one looks at the subject matter of the subsequent sections upon which Mr Scrivener relies, they create problems, if Mr Scrivener is right in his approach to their interpretation. This is because this would produce discriminatory results against an adjoining owner, which would be surprising having regard to the general approach of the legislation to protect the interests of those who would be affected by the works being carried out. They, for example, deal with the loss of fishing rights by those who own or occupy the land through which the canal is constructed. Those fishing rights, if there was a previous watercourse over which the canal was constructed, would be fishing rights which could have been vested in either riparian owner. But if the word "through" is to be interpreted in the way submitted by Mr Scrivener, it would mean that if the land was not in common ownership on both banks rights could be lost. The same point can be made in relation to mining rights. I here refer to Sections 98 and 101. The judge thought that it was dangerous to pay particular attention to the other sections, apart from Sections 75, 76 and 78, when seeking to interpret Section[79]I recognise here again that caution is required. I would go no further with regard to Mr Scrivener's reliance on those sections than to say that in my view they do not strengthen his cause. The explanation for the difference in the language of Section 79 is not because as Mr Scrivener contends the legislation recognises that an owner or occupier who had land on both sides of the canal is in a special position where his interests require special protection. I fully accept that if an owner or occupier was left with land on both sides of the canal, that owner or occupier would certainly be disadvantaged, but for the protection provided by the sections with which we are here concerned. However, I can find no indication in the Act that the policy of the Act to preserve the interests of occupiers does not apply equally to those who have land on both sides of the canal and those who only have land on one side of the canal. I can see no reason why the position of those who are left with land on one side of the canal should be disadvantaged by comparison to those who have land left on both sides of the canal. I emphasise again that it is important to recognise that Section 79 is a proviso provision. It is a provision which provides additional protection for those who are affected by the construction of the canal, giving them the ability at their own cost to establish additional facilities of the very same kind as those which are dealt with by the earlier sections. My preferred interpretation of the actual language used by Section 79 is to regard the judge's approach as being correct and this as being a situation where the owner or occupier of land on one side of the canal is entitled to the benefit of Section 79. If I had any doubt as to the proper construction of Section 79, approaching the matter in the way which is required of giving the benefit of that doubt to those in the position of the developers, I would resolve that doubt by determining the question of construction in the same way as the learned judge. I would therefore answer the main issue which was before the judge in exactly the same way as he answered it. There were arguments advanced before us, for example, as to the proper meaning of the word "hereditament" in Section 79. I recognise that points which do not directly arise for decision in this case could have significance to the present parties and to others, which would require a more detailed consideration of those arguments. I have therefore deliberately not relied on matters where that could be the situation in reaching my conclusion, as I am satisfied that they would not alter the conclusion which I have just indicated. There is a second issue which arises on this appeal. It is very much a subordinate issue. It is difficult to see how it can have any real significance, having regard to my conclusion on the principal issue. However, it figured before the judge and has figured before us. The issue is as to whether or not the rights which Section 79 provides continue in existence even though there is no continuation of common ownership or continuation of occupation of adjoining lands. So far as that is concerned, Section 79 uses the words "at any time or times hereafter". I can see no reason why those words should not be given their ordinary meaning, so that if a person has rights under Section 79 at the time which he seeks to exercise those rights he should not be deprived of doing so. The matter should, in my judgment, be judged at the time that the rights are to be exercised. As long as Section 79 is complied with at that time, that is sufficient. I do not regard the case of Midland Railway Company v Gribble [1895] 2 Ch 827, which was dealing with the position in relation to easements, of any assistance in resolving this issue. I would therefore decide the second issue in the same way as the judge. That leaves one final point to which I should make reference. In the court below, and before us, it was acknowledged that the commissioners referred to in the Act are no longer in existence. That being so, it is accepted that the appropriate body to exercise what would otherwise be the powers of the commissioners in these circumstances is the High Court. The High Court can, by granting declarations, make any appropriate decision which is needed in the absence of the commissioners. That seems to me to be a happy resolution of what could otherwise be a purely technical problem. It follows from what I have said that I would dismiss this appeal. LORD JUSTICE PETER GIBSON: The appellant, the British Waterways Board, by this appeal seeks two declarations upon the true construction of Section 79 of the Grand Junction Canal Act 1793. The first is that the rights thereby conferred upon the owners or occupiers therein mentioned were conferred upon the owners or occupiers of lands severed in two by the making of the canal and collateral cuts, namely owners or occupiers of lands on both sides of the canal and collateral cuts, and not upon owners or occupiers of lands adjoining the canal on one side only. That declaration requires the reference in Section 79 to "the owners or occupiers of any lands or other hereditaments through which the canal and collateral cuts, or any of them, shall be made" to be interpreted as meaning the owners or occupiers of any land or other hereditaments which shall be severed in two by the making of the canal and collateral cuts. It is the appellant's contention that the relative clause commencing with the words "through which" signifies that only those whom the judge called double riparian owners could exercise the rights conferred by Section 79. It is Mr Scrivener's and Mr Whittaker's submission that there is a significant difference between the description of those whose lands are affected in Sections 75, 76 and 78 and those whose lands are affected in Section 79, and that such difference must be taken to be deliberate and to betoken that Section 79 confers rights only on those most adversely affected by the building of the canal, ie those whose lands are severed. I can express my reasons quite shortly why I am not able to accept that submission.[1]Whilst the preposition "through" can connote that the canal or collateral cuts fall inside the boundaries of the land of the owners or occupiers in question, leaving land on both sides within common ownership or occupation, it can also, as matter of ordinary usage, refer to the canal or collateral cut falling within but running along the edge of the boundary of the owners' or occupiers' land or partly within, and partly outside, the boundary.[2]Section 79 is introduced by the word "provided". That suggests that the section operates by way of a qualification to what has gone before. The obvious sections to which it alludes are Sections 75, 76 and 78. The additional facilities which Section 79 authorises the owner or occupier in question to provide at his own expense are of the same type as those mentioned in the previous sections as facilities required to be provided by the company at its expense. It is not, and cannot be, suggested that Sections 75, 76 and 78 operate only for the benefit of double riparian owners. It would be surprising if Section 79 were so limited. Rather it is natural to expect that it refers to the same persons, though conferring a right exercisable at their expense for the benefit of lands adjoining the canal or collateral cut.[3]Nothing in Section 79 itself shows that it is addressing the special position, or intended to be for the exclusive benefit, of double riparian owners. The additional facilities permitted by Section 79 are all applicable as much to the owner of land on one side only of the canal or collateral cut as to double riparian owners, for example the provisions as to back drains.[4]The construction contended for by the appellant places altogether too much weight on the preposition "through", used as it is but once in the section forming part of a private Act drafted 200 years ago and betraying the less rigorous standards of draftsmanship which then obtained.[5]Nor do the other examples in the Act of the use of the word "through" to identify the owners in question provide firm assistance to the appellant. If anything, they seem to me to be pointing in the other direction. Thus, in Section 82 one finds:
"and that any lord or lords, lady or ladies of any manor or manors, through which the said canal and collateral cuts, or any of them, shall pass, may build, construct and use such wharfs...."
It was common ground between the parties that "through" in that context did not connote that the land in question was severed, but rather that it could also apply to land which was in the ownership or occupation of a person owning land on one bank. My Lord has also referred to Section 98 relating to rights of fishery. It would be very surprising indeed if the existing owner of a right of fishery over a river or a pond, but owning only the land on one side of that river or pond, were to lose the right of fishery under the Act simply because that person did not own the land on both sides of the canal or collateral cut. That would run counter to Mr Scrivener's submission that the object of the Act was to preserve the status quo.[6]If there be any ambiguity, the Act must be construed against the promoters or their successor, the appellant. I, therefore, in agreement with the judge would reject the arguments advanced by the appellant. The second declaration sought is that in order for the rights conferred by Section 79 upon the owners or occupiers of land severed in two by the making of the canal and collateral cuts to be exercised by an owner or occupier at the present time, there must have been a continuous common ownership or occupation of such lands since the severing of such lands, so that, for any present owner or occupier to be able to exercise those rights, such owner or occupier must be a successor by direct chain of succession from owners or occupiers of lands severed in two. It was submitted by the appellant that if ownership or occupation on one side of the canal became separate from that on the other side, the rights under Section 79 ceased and could not be revived even if ownership or occupation on both sides of the canal or collateral cut was reassembled. It was said that this was based on the decision of this court in Midland Railway Company v Gribble [1895] 1 Ch 827. That case related to Section 68 of the Railway Clauses Consolidation Act 1845 which required the railway company to make gates and passages over the railway for the accommodation of the owners and occupiers of land adjoining the railway. The conveyance to the railway company reserved to the landowner and his successors in title a right of way over the level crossing that was made. This court treated the right thereby granted to a landowner owning land on both sides of the railway as an easement. The landowner on subsequently conveying away land on one side, without granting a right of way over the retained land and without reserving a right of way over the land conveyed away, was held to have abandoned his easement over the level crossing. That case is in my judgment of no assistance in the totally different circumstances of the present case. In the present case we are concerned not with a reserved easement which has been abandoned, but with a statutory right yet to be exercised. The Gribble case seems to me not to touch on this point at all. On the question raised by the second declaration, there is nothing in the statutory language to limit the rights to the very limited class of persons for which the appellant argues. I can see no justification for this limitation, the inconvenience of which is obvious. I would therefore reject the second declaration. For these, as well as the reasons given by my Lord, I too would dismiss this appeal. LORD JUSTICE SWINTON THOMAS: I agree that this appeal should be dismissed for the reasons given by the Master of the Rolls and Lord Justice Peter Gibson with whose judgments I am in entire agreement.

Order

Appeal dismissed with costs. Leave to appeal to the House of Lords refused.

Cited in 1 later judgment