Egremont Cemetery Dispute Print E-mail
The Maryport Advertiser - Friday, November 17, 1882

LOCAL LAW CASES
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THE EGREMONT CEMETERY DISPUTE

In the Chancery Division of the High Court of Justice, on Monday, before  Mr.
Justice FRY, the case of the Burial Board of Egremont v. the Egremont Iron  
Ore Company was heard.

The plaintiffs in this action were the proprietors of the cemetery,  situated
in the parish of Egremont, and the defendants, claiming under Lord  LONSDALE
the minerals under the land so appropriated, had carried on certain  works the
effect of which had been to let down the surface of the cemetery to a  very
considerable extent and over a considerable area.  The defendants  justified
their acts by alleging that they had a right by an instrument executed  by a
Mrs. HOWDELL in 1799 to injure the surface, paying compensation to the  owners
and occupiers for the damage done.

Mr. M. COOKSON, Q.C., and Mr. J.A. ROBERTS appeared for the plaintiffs, and  
Mr. GLASSE, Q.C., and Mr. HOPE for the defendants.

Mr. Justice FRY, in giving judgment, said it was not in controversy that  the
property which the plaintiffs held formed part of the land dealt with by the  
enfranchisement deed of 1799, but whether it constituted the whole of that
land,  or what proportion it bore to the whole, counsel had not been able to
inform the  court.  In 1799 Lady BRADOCK was Lady of the Manor of Egremont, and
as such  was entitled to the minerals, and in that year her trustees entered
into a deed  by which the copyhold lands were enfranchised, but with a
reservation of the  minerals.  The question was whether that did or did not give to the
Lady of  the manor, or those who claimed under her, the right to let down the
surface.  It was plain that the reservation of minerals or the grant of  
minerals did not, according to the general law, justify the owner of the  
minerals in letting down the surface, but the right which the owner of the land  
above had to support might, like any other right, be renounced or give up, and  
the sole question was whether the owner of the superincumbent soil had in this  
case renounced or abandoned that right.  Although there was evidence of old  
workings in the neighbourhood, that was no evidence that in 1799 there were any
mining operations going on or of any uses of custom with regard to getting  
minerals in the district.  It appeared that the iron ore in question lay  upon
limestone, and it appeared that all these strata tilted up to the north,  and
therefore slipped to the south and terminated in an outcrop towards the  
north, when it was covered over by a deep bed of 70 or 80 feet of sand or  gravel,
so that the outcrop of the iron ore was not at the surface of the land,  but
at the stratum or limestone 70 or 80 feet below.  There was, therefore,  
nothing to show that the ore could not be got largely and profitably without  
letting down the surface.  That it had been so got appeared from what had  taken
place in this case, because the evidence showed that considerable works  were
carried on by the defendants' company before they produced any injury to  the
plaintiffs' land, and there was therefore nothing to give any peculiar  
construction to the terms of the reservation.  The reservation was of all  mines and
minerals then opened and worked or thereafter to be opened and worked  within
the said lands and premises or any part hereof, with liberty to work the  
mines, to lay minerals when got upon the surface, to sink shafts, make roads,  and
to erect smelting and refining houses.  Those powers some of which  clearly
could not be exercised without injury to the surface, and the deed  provided
that reasonable satisfaction should be made for all damage thereby done  to the
owners or occupiers.  The words referring to satisfaction for damage  did not
in his judgment enlarge the powers conferred by the deed, so as to  render that
lawful which but for those words it would not be lawful for the  company to
do.  The authorities went to show that the mere grant of a right  to minerals
with a right to work them would not justify working so as to create  damage,
and it also appeared to be plain that the mere grouping of a power to  work with
other powers which in their nature must create damage to the surface  did not
show that the power to work was to be enlarged so as to justify a  creation
of damage by letting down the surface.  He therefore granted the  injunction to
restrain the defendants from so working as to cause subsidence of  the
surface, and directed an inquiry to ascertain what damage the burial ground  had
sustained by the subsidence which had already taken place.  The  plaintiff had
also asked for an injunction to restrain a nuisance alleged to  have been
created by the working of a steam engine, but as to that he held that  they had
failed entirely, and he dismissed that part of the action with  costs.  The costs
of the action generally he must give to the  plaintiffs.

Mr. GLASSE, as the stoppage of the works would throw a great many men out  of
employment;  and as the defendants were trying to shore up the workings  so
as to prevent damage to the surface, asked that the operation of the  
injunction might be suspended for a short time to give them an opportunity of  
appealing if they should be so advised.

Mr. Justice FRY observed that the injunction would not interfere with the  
shoring up of the works, but only restrained the defendants from continuing so  
to work as to cause subsidence of the surface.  He would, however, suspend  
the operation of the injunction for a fortnight, and it would be for the Court  
of Appeal to determine whether the time should be extended so as to cover the  
period till the appeal could be heard.

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