Railway Commissioners of New South Wales v Perpetual Trustee Company Limited [1905] HCA 38

3 O.L.R.} OF AUSTRALIA. 27

[HIGH COURT OF AUSTRALIA.)

THE RAILWAY COMMISSIONERS OF NEW SOUTH WALES

} . APPELLANT:

DEFENDANTS, AND THE PERPETUAL TRUSTEE COMPANY, | Ree ; LIMITED e 7 . i : an ESPONDENTS. PLAINTIFFS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WAL)

Resumption—Coal mines—Prohibition of work—Compensation—Claim by lessors— H. C. or A. Basis of assessment—Deductions—Interest—Public Works Act (N.S.W.), 1905, (Vo. 26 of 1900), sec. 135. mae

ie Sypyey, When land under lease for coal mining purposes has beon resumed for an 1, 9 94

authorized work under the Public Works Act, 1900, and the working of the — 95, 29.

mines has been prohibited, the lessees, although they may be the only persons _

desirous of working the mines, and entitled to give notice of their intention Grimith 0.J.,

to do so under sec. 135 of that Act, are not necessarily the only persons iirton and,

entitled to compensation. If the lessors are able to show that, over and above

the interest which they have conveyed to the lessees, they retain an ulterior

interest, which is immediately and injuriously affected by the prohibition,

and in respect of which they may receive compensation, they kave a claim to

compensation under sec. 95 and the following sections of the Act.

The principles governing the rights of lessors and lessees to compensation in such cases, as stated in Smith v. Great Western Railway Co., 3 App. Cas., 165, applied.

Coal-bearing land was leased by the owners to a colliery company for a term of which about 30 years had still to run. 'The lessees were at liberty to mine under any part of the land, and to pay a "fixed rent" of £700, and "rent or royalty" at a specified rate on all coal &c. over and above such quantity as might be worked in respect of the fixed rent, and might work such quantity of coal, &¢,, as should, at the specified rate of royalty, produce £700 without paying rent or royalty in respect of it, with permission to make up any deficiency in the amount worked in any year in the succeeding year. Astrip of the land was resumed by the Railway Commissioners, and the lessors and lessees gave notice of their intention to work the coal under and within forty yards of the boundary of the strip. The Commissioners forbade such working