This is a "canal case," and is a complaint that the Great Western Companjy, the reputed owners of a navigation, had purposely neglected the property in order to make it of no use, and the application was to compel the railway company to dischrage their duty of keeping up the navigation, and not to divert the traffic to their railways. The applicants are Messrs. T.N. and R.G.Foster, seed crushers and merchants of Gloucester and elsewhere, and they stated in their application that the river Avon, which rose in the county of Northhampton, passed through the town of Stratford-on-Avon, in the county of Warwick, and flowed thence through the counties of Warwick, Worcester and Gloucester, as far as Tewkesbury, where it fell into the Severn. Under various Acts of Parliament weirs, locks, and wharves were constructed, and in the course of the 17th century the river Avon, from Stratford-on-Avon to Tewkesbury, was made a "navigation" for traffic and for the carriage of goods by boats and barges up and down the river, tolls being levied under the authority of the Acts. The navigation was termed "Upper" and "Lower," the former extending from Stratford-on-Avon to Evesham, and the latter from Evesham to Tewkesbury. For many years the Great Western Railway Company had owned or had the management of the Upper Avon navigation, and had received tolls from boats and barges using that part of the navigation, and had paid the rents due from the owners of the Upper Avon Navigation in respect to locks, wharves and landing places. Until recently the railway company had also by their agents effected the repairs necessary for maintaining the Upper Avon Navigation pn a working condition; but in the year 1859 a line of railway was constructed from Honeybourne to Stratford-on-Avon, and the line subsequently became the property of the Great Western Railway Company. It thereafter became, the applicants declared, the interest of the railway company to cause the use of the Upper Avon Navigation to be discontinued and put an end to, in order that goods which would otherwise pass and be carried by the river, should pass over the railways of the Great Western. Accordingly the railway company had for some time ceased to do any repairs to the Upper Avon Navigation, and the conveniences of the river had fallen into such a state of disrepair from Stratford-on-Avon to Evesham that the navigation had ceased to be navigable for any sort of traffic. By reason of the Upper Navigation having ceased to be navigable, the Lower Avon Navigation had also become of much less use than it would otherwise be, inasmuch as it was only avaiable for traffic passing between places situated above and below Evesham and between places situated above Evesham and places on the river Severn, with which the Lower Avon communicates, was wholly prevented. All the traffic which used to pass along the Upper Navigation and a portion of that which would have passed along the Lower Avon had become diverted to the railway company's lines. the applicants and other persons carrying on business at Gloucester, Birmingham, Evesham, Stratford-on-Avon, and elsewhere, had in the course of their business to transport goods between places situated on the Upper Avon Navigation and between those places and places on the Lower Avon Navigation, and places situated on the Severn; and these pesons had suffered great inconvenience by the Upper Navigation having ceased to be navigable, and had been compelled to use the company's lines. The applicants prayed the Commissioners for an order restraining the Great Western Railway Company from permitting or suffereing the Upper Avon Navigation, or the works belonging to it, to remain unrepaired or not in good working condition, and to reequire the company to keep and maintain the navigation and the works in good repair.

The Great Western Railway Company, in answer, that in or about the year 1636 the portion of the Avon referred to was under Orders in Council and by grants from the Crown, made navigable by one William Sandys, at his own cost, and the navigation was conferred upon him, his heirs and successors. In the year 1751 the title and interest of Sandys in the navigation had become devolved upon persons then known as the "Owners and Proprietors of the River Avon Navigation." In that year, 1751, an Act was passed in which it was enacted that, in order to preserve the river as a nvigable one "for ever," "for the encouragement of trade
and the benefit and advantage of the public in general," the river should be a free river, and that tolls to maintain the locks should be paid. By an Act passed in the ninth and tenth years of the peresent reign the Oxford, Worcester and Wolverhampton Railway Company were authorized tro purchase from the company of proprietors the Stratford-on-Avon Canal Navigation, which is separate and distinct from the Upper and Lower River Avon Navigation, and is a canal running into the river. The Oxford and Worcester Railway Company became became absorbed eventually into the Great Western Railway Company, and it was stated, prior to 1860, three years before the Great Western Act for the West Midland Amalgamation, the Upper Avon Navigation had been abandoned by the owners and proprietors, and had only been maintained by the local traders. It was "verbally arranged," the company said, between the Oxford, Worcester and Wolverhampton Railway Company, and the then manager of the Stratford-on-Avon Canal Navigation, that this manager should purchase, in his own name, the Upper Avon Navigation, and the tolls and tonnage rates. This was done, but no deed of conveyance was executed by the owners and proprietors transferring the tolls to the manager, and no Act of Parliament was passed whereby the navigation became vested in any of the railways, and the respondents submitted that they were not he owners and proprietors of the navigation within the true intent and meaning of the Act of Parliament, and that they could not be said to own or to manage the Upper Avon Navigation, which had never been owned or worked in the railway company's name. Then the company proceeded to say that the Honeybourne line was opened prior to the arrangement by which their manager of the Avon Canal acquired the Upper Avon Navigation, and they declared that the use of that navigation was discontinued or put to an end by them; but that the traffic on it decreased some years after, when other lines of the Great Western system were opened. The respondents declared that the receipts for the navigation had been for many years insufficient to meet the necessary expenditure on the Upper Avon Navigation, which was no longer required by the trade of the district, and the respondents submitted that, assuming them to be the owners and proprietors of the Upper Avon Navigation within the true intent and meaning of the Act of George II, which they did not, however, admit, yet even in that case they were not liable to maintain the navigation. Besides they added, the receipt of tolls and tonnage was a condition precedent to, or, at any rate, concurrent with the duty of keeping up the navigation, and that the receipt of tolls and the rates having been duly abandoned and relinquished before trhe grievances in the application, the railway company could not be liable to keep up the navigation. With regard to the company having repaired the works on the navigation, the expense of such repairs, the respondents said, were contributed by persons interested in the navigation.

A great many witnesses were examined for the case of the applicants, consisting of "old inhabitants," workers on the Upper Avon
Navigation, traders of the different towns, manufacturers, and millers. In the course of their depositions they stated that the
respondent company and the companies whose whose responsibilities the Great Western had taken over, had for many years
acted as the owners and proprietors of the Upper Avon Navigation, taking the tolls and excercising all the rights of ownership,
the managers being successive servants of the company, Mr.John Boughton, Mr.Hudson, and Mr.Innes representing the company.
It was shown that there had been a good trade in boats and barges on the navigation, in past times, but that now, from the condition of the locks and weirs, it was impossible with safety to work barges on that part of the Avon. the millers and traders said there used to be a good trade between places on the Avon and Severn, and that this trade had been greatly injured, as the more costly route by railway, by imposing additional charges on the goods, placed the traders behind others in competition. Tolls, they deposed, had to be paid to the Great Western Company's servants.

Mr.Thesiger Q.C., just before the end of the day's proceedings, said he would not dispute that there had been a traffic on the navigation; but the respondents denied that they owned or managed the navigation.

Mr.Powell Q.C., replied that the fact of the company of the company having taken tolls and at one time having repaired the navigation would be prima facie proof of ownership.

Further evidence was then given as to the ruinous condition of the locks and other places necessary to be kept in repair, and the court adjourned.