Later decisions that cite Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co
Lorp MacnacHTen. My Lords, this is a question of compensation under the Waterworks Clauses Act, 1847. The statement in the special case as to the rise in the value of coal seems to require explanation. There is no dispute as to the facts. It was stated by the appellants and not disputed by the respondents that, but for the notice given by the respondents, the coal in the protected area would have been reached about June, 1900, and would have been worked out in about two years from that date. The appellants gave evidence before the arbitrator to prove (1.) the tonnage of coal in the protected area that would have been brought to bank within each consecutive period of three months ; (2.) the cost and expense of getting that coal; and (3.) the market prices current during each period in respect of such coal. The 429 H. L. (E.) 1903 aw BWLuFA AND Merrruyr Dare STEAM COLLIERIES (1891) Vv PONTYPRIDD WATERWORKS CoMPANY. Earl of Halsbury L.C. 430 H. L. (E.) 1903 MERTHYR Dare STEAM COLLIERIES (1891) v PONTYPRIDD WATERWORKS _ Company. D Lord Macnaghten. HOUSE OF LORDS [1903] appellants also gave evidence to prove that at the time when the rise in price came they would have been in a position to make forward contracts for the delivery of the whole of the coal within the protected area, and would thus have been enabled to secure the full benefit of the rise. It was contended by the respondents that the arbitrator ought to have rejected this evidence altogether, and to have been guided in making his award solely by facts and circum- stances known at the date of the notice of October 15, 1898, and such inferences, if any, as to the probable course of future events as experts (if experts there be in such matters) could properly have drawn at the date of the notice, supposing them to be unbiased and unprejudiced in their forecast by knowledge of what actually did occur. That view was adopted by the Court of Appeal. The question turns on three sections in the Act of 1847— s. 6, s. 22, and s. 25. These sections cover much the same ground; they are to be read together, and, if any defect or obscurity be found in any one, recourse is to be had to the whole series of enactments: see Smith v. Great Western By. Co. (1) Sect. 6 requires the undertakers to make "' full compensation "' for the value of lands used for the purpose of their special Act, and for all damage sustained by reason of the exercise of the powers vested in them by the special or any general Act. It also provides by reference to the Lands Clauses Consolidation Acts for the adjustment of compensation and the enforcement of payment. Sect. 22 enacts that if a mine owner desires to get the minerals lying under the property of the undertakers, or within the prescribed distance from their works, he is to give thirty days' notice before commencing to work, and then, where danger is apprehended, the undertakers may by counter-notice prevent working within a specified area on the terms of making compensation. In the absence of agreement, compensation is to be made "as in other cases of disputed compensation." Sect. 25 provides for payment by the undertakers of all (1) 8 App. Cas. 165. AeC. _ AND PRIVY COUNCIL. "expenses and losses'' occasioned by the exercise of these powers as well as payment for any mines or minerals not purchased by the undertakers, and which cannot be obtained . by reason of making and maintaining the works, or by reason of apprehended injury from the working of such mines or minerals ; and, again, in regard to the question of compensation, reference is made to the Lands Clauses Consolidation Acts. My Lords, I cannot find in this group of sections any provision or even any suggestion to the effect that a line is to be drawn at the date of the counter-notice, and that all that occurs after that date is to be as if it had never happened. It appears to me that the case put forward on behalf of the respondents is based on a false analogy. The counter-notice by the undertakers following a notice of the mine owners under s. 22 does not operate to make a contract or to transfer pro- perty. It is not even a step towards a contract or a step towards expropriation. The undertakers acquire no property in the minerals. The property remains where it was. The mine owner is prohibited from working, and the undertakers are bound to make full compensation. That is all. If the question goes to arbitration, the arbitrator's duty is to determine the amount of compensation payable. In order to enable him to come to a just and true conclusion it is his duty, I think, to avail himself of all information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accom- plished fact ? Why should he guess when he can calculate ? With the light before him, why should he shut his eyes and grope in the dark? The mine owner prevented from working his minerals is to be fully compensated—the Act says so. That means that so far as money can compensate him he is to be placed in the position in which he would have been if he had been free to go on working. Here it has been proved to demonstration that if he had not been interfered with he would have made between 5000/. and 6000/. I cannot understand upon what principle it is maintained that he should be content with half, and that that half is full compensation. 431 H. L. (E.) 19038 MERTHYR Dare STEAM CoLLIERIES (4891) v. PoNTYPRIDD WATERWORKS CoMPANY. Lord Macnaghten, 432 H. L. (E.) 1903 —~ BWLura AND MERTHYR Dare STEAM COLLIERIES (1891) V. PONTYPRIDD WATERWORKS CoMPANY. HOUSE OF LORDS [1903] I think the appeal ought to be allowed, and the judg- ment of the Divisional Court restored with costs here and below. My noble and learned friend Lord Shand has asked me to add that he concurs in this opinion. Lorp Ropertson. My Lords, the following propositions in law seem to be perfectly clear. The coal in question was not taken and acquired (and could not be taken and acquired) by the respondents, but, on the contrary, remained the property of the appellants. After the notice of October 15, 1898, the appellants were disabled from working the coal. The resulting pecuniary obligation on the respondents was to pay compensa- tion to the appellants for being thus prevented from working the coal. It follows that what is due to the appellants is not the price on a transaction of sale, but compensation for a continuing embargo on working. The sum to be paid would thus be whatever sum could best be made out to be the profit that would have been made by the appellants if they had been free to work. Any estimate of this profit necessarily involves the question, '' How long would the coal in question take to work out ?"' if for no other reason than in order to compute the cost of working. If the question thus presented has to be solved ab ante, the arbitrator, or whoever has to deal with it, must form the best conjecture he can of probable prices and probable wages during the period required to work out the area in ques- tion. But these calculations are resorted to merely in the absence of facts, and not because the time to be considered is that moment of time when the notice of October 15, 1898, was presented. And if, owing to the course of the procedure, the period required for the working out of the coal in question has 'come to be matter of history, then estimate and conjecture are superseded by facts as the proper media concludendi. I do not mean that the proper course in awarding compensation is to wait for the expiry of the period required for working out the coal. On the contrary, it is natural that the compensation should be assessed once for all and by estimate. But the point A.T. AND PRIVY COUNCIL. is that as in this instance facts are available, they.are not to be shut out. I have only to add that my view exactly coincides with that of Phillimore J. when he says: '"'The true inquiry here is not what is the value of the coalfield or of the coal, but what would the colliery company, if they had not been prohibited, have made out of the coal during the time it would have taken them to get it." The opposite view seems to me to rest on the erroneous analogy between the notice given on October 15, 1898, and a notice where land is taken. The notice of October 15 is merely, and purports to be merely, a notice of the willingness of the respondents to make compensation for what they require to be left unworked, and so it is described in s. 23 of the Act in question. Lorp Linpury. My Lords, I am of the same opinion, and I cannot usefully add anything. Order of the Court of Appeal reversed and judg- ment of the King's Bench Division restored with costs here and below: cause remitted to the King's Bench Dwision. Lords' Journals, August 6, 1903.