OJnrnrU Haw ii>rtjonl library CORNELL UNIVERSITY LIBRARY 924 064 831 583 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924064831583 ORIPPS ON COMPENSATION SIXTH EDITION. The Law in this Edition is stated as at the end of Hilary Sittings, 1922. A TREATISE ON THE PRINCIPLES LAW OF COMPENSATION 9> ^ BY C. A. QRIPPS, M.A., B.C.L. (Now LORD PARMOOR), LATH FELLOW OF ST. JOHN'S COLLEGE, OXFOED, SOMETIME HOLDS E OF A FIE6T CLASS STUDENTSHIP OF THE FOUB INNS OF COURT, OF THE MIDDLE TEMPLE, ONE OF HIS MAJESTY'S COUNSEL. SIXTH EDITION BY AUBREY T. LAWRENCE, M.A., &c, OF THE INNER TEMPLE, BABEISTER-AT-LAW, AND R. STAFFORD CRIPPS, OF THE MIDDLE TEMPLE, BAEEISTEE-AT-LAW. LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCEET LANE, 1922. ( v ) PREFACE TO THE SIXTH EDITION. The original scheme of this Treatise, which consisted in the adoption of a logical method of arrangement founded on exposition of principle, has, as far as possible, been preserved, though the large number of Statutes that have been passed since the publication of the Fifth Edition in 1905, has made it necessary to introduce a second book dealing with the numerous modifications of the Lands Clauses Acts which have been enacted. These modifications have been arranged for convenience under the headings of the various subject-matters in connection with which the land is being acquired. The decisions given by the Courts since the last edition have been carefully noted up and the text modified or rewritten where necessary. A Table of Statutes has been added and all the material portions of the new Statutes are printed in the Appendix, which should now form a practically complete collection of the material portions of all the Statutes dealing with the subject-matter of compensation. 1, Esses Oottet, Temple. Easter, .1922. ( vii ) TABLE OF CONTENTS. — * — PAGE Table of Oases xiii Table of Statutes lxxii Intkoduction 1 BOOK I. The Lands Clauses Acts. ■ohapteb i I. — Incorporation of the Lands Clauses Acts 3 H. — Definition of lands 8 III. — Lands authorized to be taken: — Part I. — General 17 Part II. — Special oases 32 1. Lands for extraordinary purposes 32 2. Lands for temporary purposes 33 3. Intersected lands — Part of a house, &c 34 IV. — Promoters and owners 47 V. — Purchase of lands by agreement 53 VI. — The notice to treat 65 VII. — Entry on lands before purchase 89 VIII. — Compensation for lands purchased 107 IX. — Compensation for lands injuriously affected 142 1. Where no lands are taken 148 2. Where lands injured are held with lands taken 161 X. — Surveyors — Justices 172 1. Surveyors 173 2. Justices 177 XI.— Arbitration 185 XII.— Jury 205 XIII. — Jurisdiction of Assessing Tribunals 221 vui TABLE OF CONTENTS. CHAPTER PAGE XIV. — Enforcing an assessment of compensation 228 XV. — Setting aside an assessment of compensation 2.37 XVI. — Conveyance of lands 244 XVII. — Payment of compensation into Court 248 XVIII. — Copyhold lands — Common or waste lands— Lands in mortgage — Bent-charges — Lands subject to leases — - Land Tax and Poor's Pate 285 1. Copyhold lands 285 2. Common or waste lands 289 3. Lands in mortgage 293 1 4. Bent-charges, &c 297 5. Lands subject to leases .< 298 6. Compensation to taxing authorities 299 XIX. — Superfluous lands 303 BOOK II. I. — Modifications of the Lands Clauses Acts 315 II. — Acquisition of Land (Assessment of Compensation) Act, 1919 319 III. — Acquisition of land in time of emergency by the Crown 334 IV. — Acquisition of land under the Public Health and Metropolis Management Acts 338 V. — Land taken under the Housing of the Working Classes and Town Planning Acts 354 1. Housing 354 2. Town planning 36S VI. — Agriculture and allied purposes 370 1. Small holdings and allotments 370 2. Economic development of land, &c, and road improvement 375 VII. — Provision of public services by State or local authorities... 378 VIII. — Provision of public services by railway companies and other semi-public or private authorities 382 Bailways 383 Light railways 385 Miscellaneous "Clauses Acts'' 386 TABLE OF CONTENTS. ix APPENDIX OF STATUTES. BOOK I. SECTION PAGE I. — Lands Clauses Acts 389 II. — Railways 440 III. — Waterworks 460 IV. — Commons 467 V. — Arbitration 472 BOOK II. I. — The Acquisition of Land (Assessment of Compensation; Act, 1919, and Eules 478 II. — Emergency powers of the Crown 489 III. — Public Health and Metropolis Management 506 IV. — Housing and Town Planning 531 V. — Agriculture and allied purposes 567 VI. — Provision of public services by State or local authorities ... 600 VII. — Provision of public services by semi-public or private authorities 613 PRECEDENTS UNDER THE LANDS CLAUSES ACTS. A. AGEEEMENTS. 1. Agreement for sale between an owner and a company 620 2. Agreement for sale in consideration of a rent-charge 621 3. Agreement fixing amount of compensation when lands have been injuriously affected 623 B. NOTICE TO TEEAT. 4. Notice to treat 623 5. Form of claim by an owner 625 6. Notice to treat for an easement 626 7. Notice to produce lease under sect. 122 of the L. 01. Act, 1845 627 8. Notice to yearly tenant requiring possession of lands before the expiration of his tenancy 628 9. Counter-notice by an owner under sect. 92 of the L. 01. Act, 1845 628 10. Withdrawal of notice to treat by company after receiving a counter-notice 629 x TABLE OF CONTENTS. C. SUEVEYOES. PAGE 11. Nomination of two surveyors under sect. 9 of the L. 01. Act, 1845 629 12. Notice of application to two justices to appoint a surveyor under sect. 9 of the L. 01. Act, 1845 630 13. Appointment of third surveyor by two justices under sect. 9 of the L. 01. Act, 1845 630 14. Nomination of a surveyor by two justices under sect. 59 of the L. 01. Act, 1845 631 15. Appointment of surveyor by two justices under sect. 85 of the L. 01. Act, 1845 632 16. Notice of intention to apply to Board of Trade to appoint a surveyor under sect. 36 of the Railway Companies Act, 1867 632 17. Appointment of surveyor by Board of Trade under sect. 36 of the Railway Companies Act, 1867 633 18. Declaration of impartiality by a surveyor appointed under sect. 59 or sect. 85 of the L. 01. Act, 1845 634 19. Declaration of correctness of valuation by a surveyor appointed under sect. 9, sect. 59, or sect. 85 of the L. 01. Act, 1845 ... 634 20. Valuation by a surveyor 635 D. JUSTICES. 21. Certificate of two justices that capital has been subscribed 635 22. Summons to appear before two justices for assessment of com- pensation payable to a yearly tenant 636 23. Assessment of compensation by two justices 636 24. Notice to company requiring apportionment of rent 637 25. Summons to apportion rent 638 26. Apportionment of rent by two justices 638 E. AEBITEATION. 27. Claimant's notice of desire to have compensation settled by arbitration under sect. 23 of the L. 01. Act, 1845 639 28. Demand for arbitration when lands have been injuriously affected 640 29. Appointment of an arbitrator by an owner 640 30. Notice by owner of appointment of arbitrator and request to company to appoint an arbitrator 641 31. Appointment of an arbitrator by a company 642 32. Appointment of an arbitrator by a company after receiving notice of appointment by an owner 642 33. Notice by company of appointment of an arbitrator, and request to owner to appoint an arbitrator 643 34. Appointment of arbitrator to act for both parties under sect. 25 of the L. 01. Act, 1845 643 35. Appointment by agreement of a single arbitrator 644 36. Notice requiring arbitration by owner dissatisfied with valua- tion of a surveyor under sect. 58 of the L. 01. Act, 1845 ... 645 TABLE OF CONTENTS. xi PAGE •37. Appointment of arbitrator by owner dissatisfied with valuation of a surveyor under sect. 58 of the L. 01. Act, 1845 646 38. Notice to arbitrator to proceed under sect. 30 of the L. 01. Act, 1845 647 59. Appointment of umpire by arbitrators 647 40. Notice by arbitrators to umpire of failure to agree 648 41. Appointment of an umpire by Board of Trade 648 42. Enlargement of time for making an award 649 43. Form of oath for a witness in an arbitration under the L. 01. Act, 1845 649 44. Award by two arbitrators 649 45. Award of compensation (including mines) by an umpire 650 46. Award of umpire in form of special case 652 F. JURY. 47. Notice of intention to issue warrant for summoning a jury and offer of compensation 652 48. Warrant to sheriff to summon a jury to determine the value of lands required to be purchased or taken 653 49. Owner's notice under sect. 68 of the L. 01. Act, 1845, requiring the company to issue their warrant to summon a jury 654 50. Warrant to sheriff where lands have been injuriously affected 655 •51. Notice from sheriff of time and place for nomination of a special jury 656 52. Notice from sheriff of time and place for reduction of a special jury 656 53. Notice from the sheriff to the company of time and place of holding inquiry 657 54. Notice by company to owner of time and place for holding an inquiry before a jury 657 55. Inquisition, verdict, and judgment 658 G. PAYMENT OF MONEY INTO COURT. 56. Deed poll under sect. 77 of the L. 01. Act, 1845, vesting lands in company on failure of owner to make a good title 659 57. Bond with sureties under sect. 85 of the L. 01. Act, 1845 ... 660 H. MISCELLANEOUS MATTERS. 58. Offer of the right of pre-emption to superfluous lands 662 59. Notice to produce 662 60. Notice to admit 663 JNDEX 665 ( xiii ) TABLE OF CASES. A. Abe — Arm PAGE Aberdare Bail. Co., In re (1860), 8 W. K. 603 100 Abergavenny (Earl of), Ex parte, In re Ouckfield Burial Board (1855), 19 Beav. 153; 24 L. J. Oh. 585; 3 W. E. 142 48 Abraham v. Great Northern Bail. Co. (1851), 16 Q. B. 586; 20 L. J. Q. B. 322; 15 Jur. 855 444 Abrahams v. London (Mayor of) (1868), L. B. 6 Eq. 625; 37 L. J. Oh. 732; 18 L. T. 811 52, 77, 206 Adams v. Oatley (1892), 66 L. T. 687; 40 W. B. 570 469 Adams v. London and Blackball Bail. Oo. (1850), 2 Macn. & G. 118; 2 H. & Tw. 285; 19 L. J. Oh. 557; 14 Jur. 679 88, 102 Adderley (Bector of), Ex parte (1864), 10 L. T. 131; 12 W. B. 243.. 59 Agar v. Begent's Canal Co. (1814), 1 Swanst. 250 n 25 Agg-Gardner, In re (1884), 25 Ch. D. 600; 53 L. J. Oh. 347; 49 L. T. 804; 32 W. B. 356 285 Aldis v. London Corporation, [1899] 2 Oh. 169; 68 L. J. Ch. 576; 80 L. T. 683; 47 W. B. 514 352 Aldred's Estate, In re (1882), 21 Oh. D. 228; 51 L. J. Oh. 942; 46 L. T. 379; 30 W. B. 777 255 Alexander v. Crystal Balaoe Bail. Co. (1862), 30 Beav. 556; 31 L. J. Ch. 500; 8 Jur. N. S. 833 37 Allgood v. Merrybent, &c. Rail. Oo. (1886), 33 Oh. D. 571; 55 L. J. Ch. 743; 55 L. T. 835; 35 W. B. 180 62, 102, 230 Allhusen v. Ealing and South Harrow Bail. Co. (1898), 78 L. T. 285, 396; 46 W. B. 483; 14 Times L. B. 307, 349 37 Alston's Estate, Re (1856), 28 L. T. (O. S.) 337; 5 W. B. 189... 272, 273, 274 Alston v. Eastern Counties Bail. Co. (1855), 3 W. B. 559; 1 Jur. N. S. 1009 91 Anderson v. Manchester, Sheffield and Lincolnshire Bail. Co., [1898] 2 Ch. 394; 67 L. J. Oh. 568; 78 L. T. 821; 14 Times L. B. 317, 489 125, 156 Anderson u. Wallace (1835), 3 01. & F. 26 196 Arden, In re (1894), 70 L. T. 506 278 Arden's (Lord) Estates, In re (1875), L. B. 10 Oh. 445; 24 W. E. 190 253 Armistead (Doe d.) v. North Staffordshire Bail. Oo. (1851), 16 Q. B. 526; 20 L. J. Q. B. 249; 15 Jur. 944 18, 21, 22, 101 Armstrong v. Waterford and Limerick Bail. Oo. (1846), 10 Ir. Eq Bep. 60 90 xiv TABLE OF CASES. Am — Att PAOE Arnold, Ex parte, In re Battersea Park Acts (1863), 32 Bear. 591; 8 L, T. 623; 9 Jur. N. S. 833; 11 W. B. 793 56 Arnold, Re (1887), W. N. 122 251 Arnold v. Gravesend (Mayor, &c. of) (1856), 25 L. J. Oh. 776; 2 E. & J. 574 5& Artizans', &o. Dwellings Act, In re, Ex parte Jones (1880), 14 Ch. D. 624; 43 L. T. 84 264, 265, 543, 545 Ash v. Great Northern, Piccadilly & Brompton Rail. Co. (1903), 19 Times L. B. 639; 67 J. P. 417 14& Ashbury Railway Carriage Co. v. Riche (1875), L. R. 7 H. L. 653; 44 L. J. Ex. 185; 33 L. T. 451; 24 W. B. 794 30 Ashford v. London, Chatham & Dover Bail. Co. (1866), 14 L. T. 787 98 Ashton Vale Iron Co. v. Bristol Corporation, [1901] 1 Oh. 591; 70 L. J. Oh. 230; 83 L. T. 694; 49 W. B. 295; 17 Times L. E. 183 42, 71, 80, 86 Askew v. Woodhead (1880), 14 Ch. D. 27; 49 L. J. Oh. 320; 42 L. T. 567; 28 W. B. 874 269, 283 Astley v. Manchester, Sheffield & Lincolnshire Bail. Co. (1858), 2 De G. & J. 453; 27 L. J. Ch. 478; 4 Jur. N. S. 567; 31 L. T.. (O. 8.) 188; 6 W. B. 361 304, 305, 312 Athlone Bine Bange, In re, [1902] 1 Ir. B. 433 83, 141 Atkins' Estate, In re (1875), 1 Oh. D. 82; 45 L. J. Ch.' 117; 24 W. B. 39 252 Att. -Gen. v. Barnet and District Gas and Water Co. (1910), 74 J. P. 1, 193; 8 L. G. B. 15, 499; 102 L. T. 546; 54 S. J. 457. ..25, 27 Att.-Gen. *,. Barry Docks & Rail. Co. (1887), 35 Oh. D. 573; 56 L. J. Ch. 1018; 56 L. T. 559; 35 W. R. 830 46 Att.-Gen. v. De Keyser's Boyal Hotel (C. A.), [1919] 2 Oh. 197; 88 L. J. Ch. 415; 120 L. T. 296; 63 S. J. 445; 35 Times L. B. 418; (H. L.) [1920] A. C. 508; 89 L. J. Ch. 417; 122 L. T. 691; 64 S .J. 513; 36 Times L. B. 600 1, 334, 335, 336 Att.-Gen. v. Eastern Counties and Northern & Eastern Oounties Bail. Oo. (1842), 10 M. & W. 263; 12 L. J. Ex. 106 30 Att.-Gen. v. Edison Telephone Oo. of London (1880), 6 Q. B. D 244; 50 L. J. Q. B. 145; 43 L. T. 697; 29 W. B. 428 378 Att.-Gen. v. Erimley and Earnborough District Water Co., [1908] 1 Ch. 727; 77 L. J. Oh. 442; 98 L. T. 905; 72 J. P. 204- 6 L. G. E. 689; 24 Times L. E. 473 27 Att.-Gen. v. Great Central Bail. Oo., [1912] 2 Ch. 110; 81 L J Oh 596; 106 L. T. 413; 76 J. P. 205; 10 L. G. E. 687; 56 S. J. 343; 28 Times L. E. 268 23, 303, 304 Att.-Gen. v. Great Eastern Bail. Oo. (1873), L. B. 6 H L 367- 7 Ch. 475; 41 L. J. Oh. 505; 26 L. T. 749; 22 W. B. 281 '. 17 Att.-Gen. v. Great Eastern Bail. Oo. (1879), 5 App. Oas 473- 49 L. J. Ch. 545; 42 L. T. 810; 28 W. E. 769 .'...24, 30 Att.-Gen. v. Great Northern Bail. Co. (1850), 4 De G & Sm 75- 14 Jur. 684; 15 Jur. 387 .' ' ^ Att.-Gen. v. Great Northern Bail. Co. (1860), 1 Dr. & S. 154; 2 L. T. 653 46 Att.-Gen. v. Hanwell Urban Council, [1900] 1 Oh 51- 2 Oh 377- 69 L. J. Ch. 626; 82 L. T. 778; 48 W. B. 690; 16 Times L. E. 10, 452 24, 138, 304, 507 TABLE OF CASES. xy Att — Bak PAGE Att.-Gen. v. London and South Western Eail. Co. (1905), 21 Times L. E. 220; 69 J. P. 110; 3 L, G. E. 1327 23, 304 Att.-Gen. v. Metropolitan Eail. Co., [1894] 1 Q. B. 384; 69 L. T. 811; 42 W. E. 381; 58 J. P. 342 30, 145, 150, 159 Att.-Gen. v. Meyrick, [1893] A. C. 1; 62 L. J. Oh. 313; 68 L. T. 174; 57 J. P. 212 291 Att.-Gen. v. Nottingham Corporation, [1904] 1 Oh. 673; 73 L. J. Oh. 512; 90 L. T. 308; 52 W. E. 281; 68 J. P. 125; 20 Times L. E. 257 32 Att.-Gen. v. Pontypridd U. 0., [1906] 2 Ch. 257; 75 L. J. Oh. 578; 95 L. T. 224; 70 J. P. 394; 4 L. G. E. 791; 22 Times L. E. 576 24, 28, 138, 339 Att.-Gen. -c. St. John's Hospital, Bath, [1893] 3 Ch. 151; 62 L. J. Ch. 707; 69 L. T. 178; 42 W. E. 172 284 Att.-Gen. v. Sittingbourne & Sheerness Eail. Co. (1865), L. E. 1 Eq. 636; 35 L. J. Ch. 318; 14 L. T. 92; 14 W. B.. 414 62 Att.-Gen. v. South Staffordshire Waterworks Co. (1909), 25 Times L. E. 408 27 Att.-Gen. c. Teddingion "Urban District Council, [1898] 1 Oh. 66; 67 L, J. Ch. 23; 77 L. T. 426; 46 W. E. 88; 61 J. P. 825; 14 Times L. E. 32 24, 138, 304 Att.-Gen. v. Tewkesbury & Malvern Eail. Co. (1863), 32 L. J. Oh. 482; 8L. T. 682; 9 Jur. N. S. 951; 1 De G. J. & S. 423 443 Att.-Gen. v. Widnes Eail. Co. (1874), 22 W. E. 607; 30 L....T. 449... 46 Att.-Gen. of Straits Settlements v. Wemyss (1888), 13 App. Oas. 192; 57 L. J. P. C. 62; 58 L. T. 358 155 Aubrey's Estate, Re (1852), 21 L. T. (O. S.) 192; 17 Jur. 874; 1 W. E. 464 267 Austin v. Amhurst (1878), 7 Oh. D. 689; 47 L. J. Oh. 467; 38 L. T. 217; 26 W. E. 312 291 Australia (Commonwealth) v. Hazeldell, Ltd., [1921] 2 A. O. 373; 90 L. J. P. 0. 226 1, 137 Ayr Harbour Trustees v. Oswald (1883), 8 App. Cas. 623. ..23, 167, 303 B. Bache v. Billingham, [1894] 1 Q. B. 107; 63 L. J. M. 0. 1; 69 L. T. 648; 42 W. E. 217; 58 J. P. 181 235 Back, Ex -parte (1828), 2 Y. & J. (Ex.) 386 252 Baddeley, Ex -parte (1848), 5 D. & L. 575; 5 Eail. Oas. 542 210 Badham v. Marris (1882), 52 L. J. Ch. 237, n; 45 L. T. 579 ...11, 358 Bailey (Crawshaw), In re (1852), Bail Ot. Oas. 66 208 Bailev v. Badham (1885), 30 Oh. D. 84; 54 L. J. Oh. 1067; 53 L.T. 13; 33 W. E. 770; 49 J. P. 660 9, 76 Bailev v. Isle of Thanet Light Eailways Co., [1900] 1 Q. B. 722; 69 L.J. Q. B. 442; 82 L. T. 713; 48 W. E. 589 Ill Baily v. De Orespigny (1868), L. E. 4 Q. B. 180; 38 L. J. Q. B. 98; 19 L. T. 681; 17 W. E. 494 126 Baker v. Holme Cultram U. O. (1915), 85 L. J. K. B. 799; 80 J. P. 241; 14 L. G. E. 209 54 xvi TABLE OF CASES. Bak— Bat PAGE Baker v. Metropolitan Bail. Oo. (1862), 31 Beav. 504; 32 L. J. Oh. 7; 7 L. T. 494; 11 W. B. 18; 9 Jur. N. S. 61 58, 85, 88, 174, 22ft 229 Baker v. Moore (1696), 1 Ld. Baym. 491 156 Baker (or Barber) v. Nottingham and Grantham Bail. Oo. (1864), 15 0. B. N. S. 726; 33 L. J. 0. P. 193; 9 L. T. 829; 12 W. B. 376; 10 Jur. N. S. 260 177, 225, 232, 237 Baker v. St. Marylebone (Vestry of) (1876), 35 L. T. 129; 24 W. B. 848 348 Bala and Eestiniog Bail. Co., Ex parte (1883), 25 Oh. D. 168; 53 L. J. Oh. 127; 49 L. T. 777; 32 W. B. 181 251 Ballard v. Tomlinson (1885), 29 Oh. D. 115; 54 L. J. Oh. 454; 52 L. T. 942; 33 W. E. 533; 49 J. P. 692 154 Ballinrobe and Olaremorris Light Bailway and Kenny, Ex parte, [19131 1 Ir. B. 519 250 Balls v. Metropolitan Board of Works (1866), L. E. 1 Q. B. 337; 35 L. J. Q. B. 101; 13 L. T. 702; 11 W. B. 360; 14 W. B. 370; 12 Jur. N. S. 183 201, 216 Baltimore Extension Bail. Oo., In re, Ex parte Daly, [1895] 1 Ir. B. 169 100, 139, 140 Barber {or Baker) v. Nottingham and Grantham Bail. Oo. (1864), 15 0. B. N. S. 726; 33 L. J. 0. P. 193; 9 L. P. 829; 12 W. B. 376; 10 Jur. N. S. 260 177, 225, 232, 237 Bareham, Be (1881), 17 Oh. D. 329; 29 W. B. 116 276, 283 Barker v. Metropolitan Bail. Oo. (1864), 17 0. B. N. S. 785; 11 L. T. 312; 13 W. B. 82; 10 Jur. N. S. 1127 104, 232 Barker v. North Staffordshire Bail. Oo. (1848), 5 Bail. Oas. 401; 12 Jur. 324; 2 De G. & S. 55 42, 86, 94, 194 Barlow v. Boss (1890), 24 Q. B. D. 381; 59 L. J. Q. B. 183; 62 L. T. 552; 38 W. B. 372; 54 J. P. 660 358 Barnard v. Great Western Bail. Oo. (1902), 86 L. T. 798; 66 J. P. 568 , 152 Barnes v. Southsea Bail. Oo. (1884), 27 Oh. D. 536; 51 L. T. 762; 32 W. B. 976 37, 38, 41 Barnett «. Bccles Corporation, [1900] 2 Q. B. 423; 69 L. J. Q. B. 834- 83 L. T. 66; 64 J. P. 692; 16 Times L. B. 316, 463 ...342, 511 Barnett v. Great Eastern Bail. Co. (1868), 16 W. E. 793; 18 L. T. 408 249, 271 Barnsley Canal Oo. v. Twibell (1844), 13 L. J. Oh. 434; 7Baav. 19. 454 Barrett, Ex parte (1850), 15 Jur. 3; 19 L. J. Oh. 415 250 Barrington, In re, Gamlen v. Lyon (1886), 33 Oh. D. 523; 56 L. J. Oh. 175; 55 L. T. 87; 35 W. B. 164; 2 Times L. B. 774 258 Barrington's Case (1610), 8 Bep. 138 (a) 1 Barrow-in-Furness Corporation and Eawlinson, In re, [1903] 1 Oh. 339; 72 L. J. Oh. 233; 87 L. T. 724; 51 W. B. 248 51 Bateman's Estate, Be (1852), 21 L. J. Oh. 691 250 Bater and Birkenhead Corporation, In re, [1893] 2 Q. B. 77; 62 L. J. M. C. 107; 69 L. T. 220; 41 W. B. 513; 58 J. P. 7 511 Bates u. Moore (1888), 38 Oh. D. 381; 57 L. J. Oh. 789; 58 L T 513; 36 W. B, 586 251 Batson v. London School Board (1903), 67 J. P. 457; 2 L G B. 116 28 TABLE OF CASES. xvii Bat — Bey PAGE Battersea (St. Mary's) Vestry v. County of London and Brush Pro- vincial Electric Lighting Co., [1899] 1 Ch. 474; 68 L. J. Oh. 238; 80 L. T. 31 ." 72, 506 Baxter <>. London County Council (1890), 63 L. T. 767; 55 J. P. 391 183 Baxter v. Midland Eail. Co. (1905), 93 L, T. 538; 69 J. P. 389; 21 Times L. B. 708; (1906), 95 L. T. 538 386 Bayley r. Great Western Eail. Co. (1884), 26 Oh. D. 434; 51 L. T. 337' 73, 138, 303, 304, 306, 307 Bear Island Defence Works and Doyle, In re, [1903] 1 Ir. E. 164... 246 Beardmer v. London and North Western Rail. Co. (1849), 1 Macn. & G. 112; 18 L. J. Ch. 432; 5 Eail. Oas. 728; 13 Jur. 327 443 Beauchamp (Earl) v. Great Western Eail. Co. (1868), L. E. 3 Oh. 745; 38 L. J. Ch. 162; 19 L. T. 189; 16 W. E. 1155 ...29, 307, 312 Beaufort (Duke of) v. Swansea Harbour Trustees (1860), 8 C. B. N, S. 146; 29 L, J. C. P. 241; 6 Jur. N. S. 146 227 Beaufoy, Re (1853), 1 Sm. & Gift. 20; 22 L. J. Ch. 430 269 Beckett v. Midland Eail. Co. (1866-7), L. E. 3 C. P. 82; 1 0. P. 241; 37 L. J. C. P. 11; 35 L. J. C. P. 163; 17 L. T. 499; 16 W. E. 221 155, 158, 159, 224, 234, 233, 242 Beddoes, Ex parte (1855), 2 Sm. & Gift. 466; 24 L. J. Oh. 175 ... 253 Beddow v. Beddow (1878), 9 Ch. D. 89; 47 L. J. Oh. 570 172, 189 Bedford (Duke of) v. Dawson (1875), L. E. 20 Eq. 353; 44 L. J. Ch. 549; 33 L. T. 156 14,92, 152 Bee v. Stafford and Uttoxeter, &c. Eail. Co. (1875), 23 W. E. 86-8... 293 Belfast and Northern Counties Eail. Oo., In Re, Ex parte Gilmore, [1895] 1 Ir. E. 297 246 Bell c. Earl Dudley, [1895] 1 Ch. 182; 64 L. J. Ch. 291; 72 L. T. 14; 43 W. E. 122; 59 J. P. 199 96 Bell r. North Staffordshire Eail. Oo. (1879), 4 Q. B. D. 205; 48 L, J. Q. B. 518; 27 W. E. 263 220' Benington v. Metropolitan Board of Works (1885), 54 L. T. 837; 50 J. P. 740 39, 80 Bentinck and London & North Western Eail. Co., In re (1895), 12 Times L. E. 100 49, 244 Bentinck r. Norfolk Estuary Co. (1857), 8 De G. M. & G. 714; 26 L. J. Ch. 404; 3 Jur. N. S. 345; 5 W. E. 327 27 Berkeley's (Earl of) Will, In re (1874), L. B. 10 Ch. 56; 44 L. J. Ch. 3; 31 L. T. 531; 23 W. E. 195 267 Best v. Hamand (1878), 12 Ch. D. 1; 48 L. J. Ch. 503; 27 W. E. 942; 40 L. T. 769 304, 312 Bethlem Hospital, In re (1875), L. E. 19 Eq. 457; 44 L. J. Ch. 406. 253 Bethlehem and Bridewell Hospitals, Re (1885), 30 Oh. D. 541; 54 L. J. Ch. 1143; 53 L. T. 558; 34 W. E. 148 251 Betts v. Great Eastern Eail. Co. (1875), 3 Ex. D. 182; 47 L. J. Ex. 461 (C. A.); (18/9), 5 App. Oas. 7, n.; 49 L. J. Ex. 197; 28 W. E. 50; 44 J. P. 282; 42 L. T. 1 (H. L.) 306, 309' Bexley Heath Eail. Oo. v. North, [1894] 2 Q. B. 579; 64 L. J. M. C. 17; 71 L. T. 533; 58 J. P. 832 ...83, 162, 179, 180, 183, 187 Beyfus v. Westminster Corporation (1914), 84 L. J. Oh. 838; 112 L. T. 119; 79 J. P. Ill; 13 L. G. E. 40; 59 S. J. 129 351 xvm TABLE OF CASES. Bic — Bob page Bicester (Churchwardens and Overseers of), Ex parte (1848), 5 Rail. Gas. 702 263 Bidder & North Staffordshire Bail. Co., Re (1879), 4 Q. B. D. 412; 27 W. R. 540; 48 L. J. Q. B. 248; 40 L. T. 801 118, 187, 194 Bigg v. London Corporation (1873), L. R. 15 Eq. 376; 28 L. T. 336. 118, 158 Bilston (Perpetual Curate of), Ex parte (1889), 37 W. R. 460.. .251, 283 Binks v. Rokeby (Lord) (1818), 2 Swanst. 222; 19 R. R. 68 ...139, 140 Binney v. Hammersmith & City Rail. Co. (1863), 8 L. T. 161; 9 Jur. N. S. 773 41 Birch v. Joy (1852), 3 H. L. 0. 565 139, 141 Birch v. Vestry of St. Marylebone (1869), 20 L. T. 697; 17 W. B. 1014 74, 81, 352, 507 Bird v. Eggleton (1885), 29 Oh. D. 1012; 54 L. J. Oh. 819; 53 L. T. 87; 33 W. R. 774 309 Bird v. Great Eastern Rail. Co. (1865), 19 C. B. N. S. 268; 34 L. J. 0. P. 366; 13 L. T. 365; 13 W. R. 989; 11 Jur. N. 8. 782 ...10, 153 Birkbeck Freehold Land Society, In re (1883), 24 Oh. D. 119; 52 L. J. Ch. 777; 49 L. T. 265; 31 W. R. 716 282 Birkenhead (Mayor, &c. of) v. London & North Western Rail. Oo. (1885), 15 Q. B. D. 572; 55 L. J. Q. B. 48; 50 J. P. 84 ...9, 150, 151, 153 Birmingham Canal Oo. v. Oartwright (1879), 11 Oh. D. 421; 48 L. J. Ch. 552; 40 L. T. 784; 28 W. R. 597 136 Birmingham and District Land Co. o. London and North Western Rail. Oo. (1887), 36 Oh. D. 650; 57 L. J. Ch. 121; 57 L. T. 185; 36 W. R. 414 (Oh. D.); (1888), 40 Oh. D. 268; 60 L. T. 527 (0. A.) 81, 88, 89, 91, 102, 107, 171 Birmingham and District Land Oo. v. London and North Western Rail. Oo. (1889), 22 Q. B. D. 435; 58 L. J. Q. B. 587; 60 L. T. 317; 37 W. R. 285 220, 226 Birmingham, Dudley, &c. Banking Oo. v. Ross (1888), 38 Oh. D. 295; 57 L. J. Ch. 601; 36 W. R. 914; 59 L. T. 609 130 Birmingham and Oxford Junction Rail. Oo. v. R. (1851), 15 Q. B. 635, 647, n.; 20 L. J. Q. B. 304 56, 79, 87, 207 Birmingham, Wolverhampton, &c. Rail. Co., Re (1863), 1H. & M. 772; 3 N. R. 290 97, 98 Biscoe -v. Great Eastern Rail. Co. (1873), L. R. 16 Eq. 636; 21 W. R. 908 149 Bishopsgate Foundation, In re, [1894] 1 Oh. 185; 63 L. J. Oh. 167; 70 L. T. 231; 42 W. R. 199 284 Blackett v. Bates (1865), L. R. 1 Oh. 117; 2H. &M. 270; 35 L. J. Ch. 324; 12 Jur. N. S. 151; 13 L. T. 656; 14 W. R. 139 228 Blackpool Corporation v. Starr Estate Co., Ltd., [1922] 1 A. O. 27; 19 L. G. R. 721; 38 Times L. R. 79; 66 S. J. 74; 86 J. P. 25; 91 L. J. K. B. 202; 126 L, T. 258... 25, 315, 317, 319, 330, 352 Blantyre (Lord) v. Babtie (1888), 13 App. Oas. 631 164, 167 BlundeU v. R. (1904), 74 L. J. K. B. 91; 92 L. T. 53; 21 Times L. R. 143 335 Blyth's Trusts, In re (1873), L. R. 16 Eq. 468; 28 L. T. 890; 21 W. R. 819 263, 277 Bobbett v. South Eastern Rail. Oo. (1882), 9 Q. B. D. 424; 51 L. J. Q. B. 161 , 138, 308 TABLE OF CASES. xix Bog — Bri PAGE Bogg v. Midland Rail. Co. (1867), L. R. 4 Eq. 310; 36 L. J. Ch. 440; 16 L. T. 113 221 Bonner v . Great Western Rail. Oo. (1883), 24 Oh. D. 1; 48 L. T. 619; 32 W. R. 190; 47 J. P. 580 24, 46, 138, 303 Bostock v. North Staffordshire Rail. Oo. (1855), 5 De a. & S. 584; 4 E. & B. 798; 3 Sm. & G. 283; 24 L. J. Q. B. 225 303, 304 Bottomley v. Ambler (1878), 38 L. T. 545; 26 W. R. 566 193 Bourne v. Liverpool (Mayor, &o. of) (1863), 33 L. J. Q. B. 15; 10 Jur. N. S. 125; 8 L. T. 572; 1 N. R. 425 125, 126 Bradby (or Bradley) and Southampton Local Board, In re (1855), 4 E. & B. 1014; 24 L. J. Q. B. 239; 1 Jur. N. S. 778; 3 W. R. 413; 3 0. L. R. 771 344 Bradford Corporation v. Perrand, [1902] 2 Oh. 655; 71 L. J. Oh. 859; 87 L. T. 388; 51 W. R. 122; 67 J. P. 21 154 Bradford Corporation v. Pickles, [1895] A. 0. 587; 64 L. J. Oh. 759; 73 L. T. 353; 44 W. R. 190; 60 J. P. 3 154 Bradford Local Board v. Hopwood (1858), 6 W. R. 818 341, 512 Bradley v. London and North Western Rail. Co. (1850), 5 Ex. 769; 20 L. J. Ex. 3; 1 L. M. ft P. 597 191 Bradshaw's Arbitration, Be (1848), 12 Q. B. 562; 17 L. J. Q. B. 362; 12 Jur. 998; 5 Rail. Cas. 527. .143, 189, 191, 192, 194, 227, 241 Bradshaw, Ex parte, In re East and West India Dock Oo. (1848), 16 Sim. 174; 17 L. J. Oh. 454; 5 Rail. Oas. 432; 12 Jur. 888... 282 Bradshaw v. Bray U. C, [1907] 1 Ir. R. 152 364 Bradshaw v. Pane (1862), 3 Drew. 534; 9 Jur. N. S. 166; 1 N. R. 159 264 Brandon v. Brandon, Be Brandon's Estate and South Eastern Rail. Oo. (1862), 32 L. J. Oh. 20; 2 Dr. & Sm. 162; 9 Jur. N. S. 11; 7 L. T. 499; 11 W. R. 53 280 Brandon v. Brandon (1864), 2 Dr. & Sm. 305; 34 L. J. Ch. 333; 13 W. R. 251; 11 Jur. N. S. 30; 11 L. T. 658 52, 77, 125,221, 222, 272, 274, 283 Brandram, In re (1883), 25 Ch. D. 366; 53 L. J. Oh. 331; 49 L. T. 558; 32 W. R. 180 250 Brasher's Trusts, Be (1858), 6 W. R. 406 254, 260 Bray v. South Eastern Rail. Oo. (1850), 19 L. J. Q. B. 11; 7 D. & L. 307; 14 L. T. (O. S.) 184 215 Bredicot (Rector of), Ex parte (1848), 17 L. J. Oh. 414; 5 Rail. Oas. 209 250 Brewer, In re (1876), 1 Oh. D. 409; 34 L. T. 466; 4 W. R. 465... 8, 298 Bridgend Gas, &c. Oo. v. Dunraven (Earl) (1886), 31 Ch. D. 219; 55 L. J. Ch. 91; 53 L. T. 714; 34 W. R. 119 58, 59, 174, 229 Bridges v. Wilts, &c. Rail. Co. (1847), 16 L. J. Oh. 335; 9 L. T. (0. S.) 242; 11 Jur. 315; 4 Rail. Cas. 622 96, 100 Brierley Hill Local Board v. Pearsall (1884), 9 App. Oas. 595; 54 L. J. Q. B. 25; 51 L. T. 577; 33 W. R. 56 107, 148, 221, 222, 225, 226, 233, 340, 341, 344, 348, 510, 512 Bright v. River Plate Construction Co., [1900] 2 Oh. 835; 70 L. J. Ch. 59; 82 L. T. 793; 49 W. R. 132; 64 J. P. 695 188 Brine v. Great Western Rail. Co. (1862), 2 B. & S. 402; 31 L. J. Q. B. 101 149 b 2 xx TABLE OF CASES. Bri — Bur PAGE Briscoe, Re (1864), 2 De G. J. & S. 249; 10 Jur. N. S. 859 277 Bristol and Exeter Bailway Act and Land's Trust, In re (1857), 4 K. & J. 81 274 Bristol Free Grammar School Estates, In re (1878), 47 L. J. Oh. 317 257, 281 Bristol (Governors of the Poor ofj v. Bristol (Mayor, &c.) (1887), 18 Q. B. D. 549; 56 L. J. Q. B. 320; 56 L. T. 641; 35 W. E. 619; 51 J. P. 676 301, 302 Broadbent v. Imperial Gas, &c. Oo. (1857-9), 7 De G. M. & G. 436; 26 L. J. Oh. 276; 5 W. B. 272; 3 Jur. N. S. 221 (0. A.); 7 H. L. C. 600; 29 L. J. Ch. 377; 5 Jur. N. S. 1319 (H. L.)...7, 148, 149, 234 Broadwood's Settled Estates, In re (1886), 1 Ch. D. 438; 45 L. J. Ch. 168 259 Broadwood's Trusts, In re (1886), 55 L. J. Ch. 646; 55 L. T. 312.. 251, 252 Brogden and Llynvi VaUey Bail. Co., In re (1861), 9 0. B. N. S. 229; 30 L. J. 0. P. 61; 4 L. T. 361 168 Brook v. Manchester, Sheffield and Lincolnshire Bail.'Oo., [1895] 2 Oh. 571; 64 L. J. Ch. 890; 73 L. T. 205; 43 W. B. 698 39 Brooshooft's Settlement, In re (1889), 42 Oh. D. 250; 58 L. J. Ch. 654; 61 L. T. 320; 37 W. B. 744 276 Brown, Re (1849), 1 Macn. & G. 201 49 Brown, Re (1890), 59 L. J. Ch. 530; 63 L. T. 131; 38 W. B. 529... 262 Brown v. Penwkk (1866), 35 L. J. Oh. 241; 13 L. T. 787; 14 W. B. 257 281 Brown v. North British Bail. Oo. (1908), 8 P. 534 306 Brownlow v. Metropolitan Board of Works (1864), 33 L. J. C. P. 233; 12 W. fi. 871; 16 0. B. N. S. 546; 8 Jur. N. S. 891; 6 L. T. 187 347 Browse's Trusts, In re (1866), 14 L. T. 37 253 Brumby and Prodingham U. 0., In re (1904), 3 L. G. B. 258; 69 J. P. 96 258 Brunskill v. Caird (1873), L. B. 16 Eq. 493; 21 W. B. 943; 43 L. J. Ch. 163 255 Buccleuch (Duke of) v. Metropolitan Board of Works (1868-72), L. B. 5 H. L. 418; 5 Ex. 221; 3 Ex. 306; 41 L J. Ex. 137; 27 L. T. 1 155, 163, 164, 165, 166, 199, 236, 241, 242 Buck, Ex parte, In re Hampstead and Tottenham Junction Bail. Co. (1863), 33 L. J. Oh. 79; 1 H. & M. 519; 3 N. E. 110; 12 W. E. 100; 9 L. T. 374; 9 Jur. N. S. 1172 245, 246, 299 Buckingham, In re (1876), 2 Ch. D. 690 253 Buckinghamshire Bail. Co., Re (1850), 14 Jur. 1065 256 Burdekin, In re, [1895] 2 Oh. 136; 64 L. J. Oh. 561; 72 L. T. 639; 43 W. B. 534 247 Burges v. Bristol Urban Sanitary Authority (1886), 50 J. P. 455; 2 Times L. B. 719 339, 355, 507 Burgess v. Northwich Local Board (1880), 6 Q. B. D. 264- 44 L. T. 154; 50 L. J. Q. B. 219; 29 W. B. 931; 45 J. P. 236... 341, 342, 348, 511 Burkinshaw v. Birmingham and Oxford Bail. Oo. (1850), 5 Ex. 475; 20 L. J. Ex. 246; 6 Bail. Oas. 600 104, 209, 232 TABLE OF OASES. XXl Bur — Cal PAGE Burrup v. London and South Western Bail. Oo. (1891), 64 L. T. 112 301, 302 Bush v. Trowbridge Waterworks Oo. (1875), L. E. 10 Oh. 459; 19 Eq. 291; 44 L. J. Oh. 235, 645; 33 L. T. 137; 23 W. It 641 14, 92, 14.5, 152 Butchers' Co., Be (1885), 53 L. T. 491 255. Butler's Will, In re (1873), L. B. 16 Eq. 479 259 Butler's Will, In re, Ex parte Metropolitan Board of Works (1912), 106 L. T. 673; 56 S. J. 326 281 Butter knowle Colliery Co. v. Bishop Auckland Industrial Co- operative Society, [1906] A. 0. 305; 75 L. J. Oh. 541; 94 L. T. 795; 70 J. P. 361; 22 Times L. B. 516 96 Buxton v. North Eastern Bail. Oo. (1868), L. B. 3 Q. B. 549; 9 B. & S. 824; 37 L. J. Q. B. 258; 18 L. T. 795; 16 W. B. 1124 450 Bwllfa and Merthyr Dare Collieries and Pontypridd Waterworks Co., In re, [1901] 2 K. B. 798; 70 L. J. K. B. 1041; 85 L. T. 253; 50 W. B. 135; 65 J. P. 691 (K. B. D.); [1903j A. C. 426; 72 L. J. K. B. 805; 89 L. T. 280; 19 Times L. B. 673 (H. L.) 133, 135 Bygrave v. Metropolitan Board of Works (1886), 32 Oh. D. 147; 55 L. J. Ch. 602; 54 L. T. 889; 50 J. P. 788; 2 Times L. B. 422 60, 89, 92, 228, 229 Byles and Ipswich Dock Commissioners, -Re (1855), 11 Ex. 464; 25 L. J. Ex. 53 224, 241 Byrom, Me (1859), 7 W. B. 367; 5 Jur. N. S. 261 278 Byron's Charity, In re (1883), 23 Oh. D. 171; 53 L. J. Ch. 152; 48 L. T. 515; 31 W. E. 517 253, 259, 260, 262 0. Oalcraft v. Eoebuck (1790), 1 Ves. Jr. 221; 1 B. B. 126 140 Caledonian Bail. Oo. v. Colt (1860), 3 Macq. H. L. (Sc.) 833; 3 L. T. 252; 7 Jur. N. S. 475 149 Caledonian Bail. Oo. v. Carmichael (1870), L.. B. 2 H. L. (Sc.) 56 141, 170 Caledonian Bail. Oo. v. Davidson, [1903] A. C. 22; 72 L, J. P. C. 25; 87 L, T. 602 70, 128 Caledonian Bail. Oo. v. Glenboig Union Fireclay Co., [1911] A. C. 290; 80 L.J. P. 0. 128; 104 L. T. 657; 75 J. P. 377 137, 138 Caledonian Bail. Oo. v. Lockhart (1860), 3 Macq. II. L. (Sc.) 808; 3 L. T. 252; 8 W. B. 373; 6 Jur. N. S. 1311. ..142, 168, 188, 196, 224 Caledonian Bail. Co. v. Ogilvy (1856), 2 Macq. H. L. (Sc.) 229; 7 Jur. N. S. 475 145, 150, 151, 155, 158, 240 Caledonian Bail. Oo. v. Sprot (1856), 2 Macq. H. L. (Sc.) 449; 4 W. E. 659; 2 Jur. N. S. 623; 27 L. T. (O. S.) 264 ...95, 129, 303 Caledonian Bail. Co. v. Turcan, [1898] A. 0. 256; 67 L. J. P. C. 69 23, 35, 38, 44, 205, 222, 303 Caledonian Bail. Oo. v. Walker's Trustees (1882), 7 App. Cos. 259; 46 L. T. 826; 30 W. E. 569; 46 J. P. 676. ..147, 150, 155, 156, 158 xxii TABLE OF CASES. Cal — Cas PAGK Callow v. Elynn (1890), 26 L. E. Ir. 179 228, 230 Oalten's Will, In re (1883), 25 Oh. D. 240; 53 L. J. Oil. 329; 49 L. T. 398, 566; 32 W. E. 150, 167 251 Cambrian Bail. Oo.'s Scheme, In re (1868)', L. E. 3 Oh. 278; 37 L. J. Ch. 409; 15 L. T. 522; 16 W. E. 346 63 Cambridge (Corporation of), Ex parte, In re Eastern Counties Bail. Co. (1848), 6 Hare, 30; 12 Jur. 450; 5 Bail. Cas. 204 254 Cameron v. Charing Cross Rail. Co. (1864), 16 0. B. N. S. 430; 33 L. J. 0. P. 313; 10 L. T. 381; 12 W. B. 803; 10 Jur. N. 8. 635 75, 186, 235 Cameron v. Charing Cross Bail. Co. (1865), 19 O. B. N. S. 764; 11 Jur. N. S. 282; 12 L. T. 121; 13 W. E. 390 155, 158 Campbell v. Liverpool (Mayor, &c. of)' (1870), L. E. 9 Eq. 579; 18 W. E. 422; 21 L. T. 814 222, 226 Canadian Pacific Bail. Co. v. Boy, [1902] A. 0. 220; 71 L. J. P. O. 51; 86 L. T. 127; 50 W. B. 415 159 Oann's Estate, Be (1850), 19 L. J. Oh. 376; 15 Jur. 3; 15 L. T. (O. S.) 520 254 Cannings. Ltd. v. Middlesex 0. C, In re, [1907] 1 K. B. 51; 76 L. J. K. B. 44; 95 L. T. 766; 71 J. P. 46; 5 L. G. B. 442; 23 Times L. B. 43 203, 386 Canterbury (Archbishop of), Ex parte (1848), 2 De G. & Sm. 365; 12 Jur. 1042; 5 Bail. Oas. 699 263 Canterbury (Dean, &c. of), Ex parte, In re Kent Coast Bail. Oo. (1862), 7 L. T. 240; 10 W. B. 505 256 Oapell v. Great Western Bail. Oo. (1883), 11 Q. B. D. 345; 52 L. J. Q. B. 348; 48 L. T. 505; 31 W. B. 555; 47 J. P. 246 204, 217 Cardiff (Mayor, &c. of) v. Cardiff Water Works Oo. (1859), 5 Jur. N. S. 953; 33 L. T. (O. S.) 104 27 Cardiff Bail. Co. v. Taff Vale Bail. Co., [1905] 2 Oh. 289; 74 L. J. Ch. 490; 93 L. T. 239; 53 W. E. 633 21 Cardigan v. Curzon-Iiowe (1898), 14 Times L. E. 550 258 Cardwell v. Midland Bail. Oo. (1904), 20 Times L. B. 364; 21 Times L. B. 22 69 Carey, Ex parte, In re Great Southern and Western Bail. Oo. (1847), 10 L. T. (O. S.) 37 272 Carington v. Wycombe Bail. Oo. (1868), L. E. 3 Oh. 377; 37 L. J. Oh. 213; 28 L. T. 96; 16 W. E. 494 45, 307, 312, 313 Carlisle (Earl) and Northumberland O. 0., In re (1911), 105 L. T. 797; 75 J. P. 539; 10 L. G. E. 50 132, 372 Carney, Be (1872), 20 W. E. 407; 26 L. T. 308 279 Oarnochan v. Norwich and Spalding Bail. Oo. (1858), 26 Beav. 169. 82 Oarr v. Metropolitan Board of Works (1880), 14 Ch. D. 807; 49 L. J. Ch. 272; 42 L. T. 354 360 Oary-Elwes' Contract, In re, [1906] 2 Oh. 143; 75 L. J. Ch 571- 94 L. T. 845; 54 W. B. 480; 70 J. P. 345; 4 L. G. B. 838; 22 Times L. B. 511 228, 229, 244 Cassell, Be (1829), 9 B. & C. 624; 4 M. & B. 555; 7 L. T. (0. S.) 329 192 Castle Bytham (Vioar of) and Midland Bail. Co., Ex parte, [1895] 1 Oh. 348; 64 L. J. Oh. 116; 71 L. T. 606; 43 W. E. 156 259 TABLE OF CASES. xx jii Cat — Chr PAGE Catling v. Great Northern Bail. Co. (1869), 18 W. R. 121; 21 L. T. 769 139 Cave, Ex parte (1856), 26 L. T. (0. S.) 176 245 Cedar Rapids Manufacturing and Power Co. v. Lacoste, [19141 A. 0. 569; 83 L. J. P. C. 162; 110 L. T. 873; 30 Times L. R. 293 108, 109, 110 Chabot v. Morpeth (Lord) (1850), 15 Q. B. 446; 19 L. J. Q. B. 377; 17 L. J. Q. B. 336; 12 Jur. 1023; 15 L. T. (O. S.) 364 ... 214, 215, 222 Chamber Colliery Co. v. Rochdale Canal Co., [1895] A. 0. 564; 64 L. J. Q. B. 645; 73 L. T. 258 128 Chamberlain, Ex parte (1880), 14 Ch. D. 323; 49 L. J. Ch. 354; 42 L. T. 358; 28 W. R. 565 273 Chamberlain v. West End of London, &c. Rail. Co. (1863), 2 B. 6 S. 605; 32 L. J. Q. B. 173; 8 L. T. 149; 11 W. R. 472; 9 Jur. N. S. 1051 155, 156, 168 Chamberlain's Trusts, Re (1866), 10 S. J. 910 269 Chambers, Ex parte, [1893] 1 Oh. 47; 62 L. J. Oh. 78; 67 L. T. 647; 41 W. R. 170 384 Chambers v. Goldthorpe, [1901] 1 K. B. 624; 70 L. J. K. B. 482; 84 L. T. 444; 49 W. R. 401 199 Chambers v. London, Chatham and Dover Rail. Co. (1863), 8 L. T. 235; 11 W. R. 479 38 Chandler's Wiltshire Brewery Oo. and London County Council, In re, [1903] 1 K. B. 569; 72 L. J. K. B. 250; 88 L. T. 271; 51 W. R. 573; 67 J. P. 119; 1 L. G. R. 269; 19 Times L. R. 268 125, 356, 359 Chapman v. Monmouthshire Rail, and Canal Oo. (1858), 2 H. & N. 267; 27 L. J. Ex. 97; 30 L. T. (O. S.) 308 222, 236, 238 Charlton v. RoUeston (1884), 28 Oh. D. 237; 54 L. J. Oh. 233; 51 L. T. 612 94, 177, 274, 276 Ohasemore v. Richards (1859), 7 H. L. C. 349; 29 L. J. Ex. 81; 7 W. R. 685; 33 L. T. (O. S.) 350; 5 Jur. N. 8. 873 154 Chelsea Waterworks Co., Be, Ex parte Phillips (1855), 10 Ex. 731; 24 L. J. Ex. 79; 3 W. R. 174; 1 Jur. ST. S. 143; 24 L. T. (O. S.) 223 212, 240 Chelsea Waterworks Co., Re (1887), 56 L. J. Oh. 640; 56 L. T. 421; W. N. 70; 3 Times L. R. 464 48, 258 Cherry's Settled Estates, In re (1862), 4 De G. F. & J. 332; 31 L. J. Ch. 351; 10 W. R. 305; 6 L. T. 31; 8 Jur. N. S. 446 ... 6, 274, 275 Cheshire Lines Committee v. Lewis (1880), 50 L. J. Q. B. 121; 44 L. T. 293; 45 J. P. 404 178 Oheshunt College, Re (1856), 3 W. R. 638; 1 Jur. N. S. 995 ... 256 Chesterfield Corporation and Brampton Local Board, In re (1886), 50 J. P. 824 340, 344, 509, 510 Chil worth Gunpowder Co. and Manchester Ship Canal Co., Re (1891), 8 Times L. R. 79 52, 71, 77, 186, 191 Chissum v. Dewes (1828), 5 Russ. 29; 29 R. R. 10 296 Christ Church (Dean of), Ex parte (1854), 23 L. J. Oh. 149 268 Christ Church, Ex parte (1861), 9 W. R. 474 284 xxiv TABLE OF CASKS. Chr— Coh PAGE Christchuroh, East Greenwich (Vicar of ), Ex parte, London County- Council, Ex parte, [1896] 1 Oh. 520; 65 L. J. Oh. 331; 74 L. T. 18; 44 W. B. 520 253 Christchuroh Inclosure Act, In re (1888), 38 Oh. D. 520; 57 L. J. Oh. 564; 58 L. T. 827 291 Christ's Hospital, Ex parte (1864); 10 L. T. 262; 12 W. E. 669 ... 245 Christ's Hospital, Exparte (1875), L. E. 20 Eq. 605; 27 W. E. 458. 279 Church and School Board for London, In re, E. v. Mauley Smith (1892), 40 W. E. 333; 8 Times L. E. 310; 67 L. T. 197; 56 J. P. 729 87, 104, 203, 209, 216, 218 City and South London Eail. Co. e. London County Council, [1891] 2 Q. B. 513; 60 L. J. M. C. 149; 40 W. R. 167; 7 Times L. E. 643 5 City and South London Eail. Co. v. St. Mary W.oolnoth and St. Marv Woolchurch Haw, [1903] 2 K. B. 728; 72 L. J. K. B. 936;" 88 L. T. 530; 67 J. P. 221; 19 Times L. R. 363; affd. H. L., [1905] A. C. 1; 74 L. J. K. B. 147; 92 L. T. 34; 2] Times L. E. 127; 69 J. P. 101 113 Oity of Glasgow Union Eail. Co. v. Caledonian Eail. Oo. (1871), L. E. 2H. L. (Sc.) 160 30, 32, 305 City of Glasgow Union Eail. Co. v. Hunter (1870), L, E. 2 H. L. (So.) 78 159, 162, 164, 165, 166 Clark, In re, [1906] 1 Oh. 615; 75 L. J. Oh. 325; 95 L. T. 143; 54 W. E. 385 279 Clark v. School Board for London (1874) ,L. E. 9 Ch. 120; 43 L. J. Ch. 421; 29 L. T. 903; 22 W. E. 354 11, 12, 92, 152 Clarke's (J.) Estate, In re (1882), 21 Ch. D. 776; 52 L. J. Ch. 88... 283 Clarke v. Wandsworth District Board of Works (1868), 17 L. T. 549. 118 Claypole (Eector of), Ex parte (1873), L. E. 16 Eq. 574; 42 L. J. Ch. 776; 29 L. T. 51 255 Clergy Orphan Corporation, In re, [1894] 3 Oh. 145; 64 L. J. Ch. 66; 71 L, T. 450; 43 W. E. 150 50, 59, 283 Clippens Oil Co. v. Edinburgh and District Water Trustees, [1904] A. 0. 64; 73 L. J. P. O. 32; 89 L. T. 589 95, 129 Clitheroe, In re (1869), 17 W. E. 345; 20 L. T. 6' 255 Clothier v. Webster (1862), 12 0. B. N. S. 790; 31 L. J. 0. P. 316; 6 L, T. 461; 9 Jur. N. S. 231; 10 W. E. 624 149 Clout and Metropolitan and District Eail. Cos., In re (1882), 46 L. T. 141 ;. 188 Clout v. Metropolitan and District Eail. Cos. (1883), 48 L. T. 257... 124 Clowes (-. Staffordshire Potteries Waterworks Co. (1872), L. E. 8 Ch 125; 42 L. J. Ch. 107; 27 L. T. 521; 21 W. E. 32 ...24, 25, 149 Coats v. Caledonian Eail. Oo. (1904), 6 F. 1042 20, 73, 80, 85 Coats v. Clarence Eail. Oo. (1830), Euss. & M. 181; 8 L. J. (O. S.j Ch. 72 ' '. 160 Cobb v. Mid- Wales Eail. Co. (1866), L. E. 1 Q. B. 342; 35 L. J. Q. B. 117; 14 W. E. 775; 12 Jur. N. S. 228; 13 L.T.342 ...34, 215 Codrington's Oharity, In re (1874), L. B. 18 Eq. 658 263 Cohen v. Wilkinson (1849), 12 Beav. 125, 138; 18 L J Oh 378- 1 Macn. & G. 481; 14 Jur. 535; 1 H. & Tw. 554; 5 Eail'. Oas. 758 26, 45 TABLE OF CASES. xxv Col — Cot PAGE Colao (President, &c. of) v. Summerfield, [1893] A. C. 187; 62 L J. P. 0. 64; 68 L-. T. 769 149, 150 Cole v. West London, &c. Bail. Oo. (1859), 27 Beav. 242; 28 L. J. Oh. 767; 5 Jur. N. 8. 1114; 1 L. T. 178 37 Colley v. London and North. Western Bail. Oo. (1880), 5 Ex. D. 277; 49 L. J. Ex. 575; 42 L. T. 807; 29 W. B. 16; 44 J. P. 427 452 Collins v. South Staffordshire Bail. Co. (1852), 7 Ex. 5; 21 L. J. Ex. 247; 16 Jur. 843 188, 190 Collis' Estate, Re (1866), 14 L. T. 352 267 Collver-Bristow & Oo., In re, [1901] 2 K. B. 839; 70 L. J. K. B. 941; 85 L. T. 208; 50 W. B. 4 198, 203 Colman v. Eastern Oounties Bail. Co. (1846), 10 Beav. 1; 16 L. J. Ch. 73; 11 Jur. 74; 4 Bail. Gas. 513 26 Colwell v. St. Pancras Borough Council, [1904] 1 Oh. 707; 90 L. T. 153; 73 L. J. Ch. 275; 52 W. B. 523; 68 J. P,. 286; 2 L. G. B. 518; 20 Times L. B. 236 32, 152 Commissioner of Public Works (Oape Colony) v. Logan, [1903] A. C. 355; 72 L. J. P. O. 91; 88 L. T. 779 1 Commonwealth of Australia v. Hazeldell, Ltd., [1921] 2 A. C. 373; 90 L. J. P. O. 226 1, 137 Oonron v. London 0. O. (1922), 38 Times L. B. 380; 20 L. a. E. 131; 66 S. J. 350 lxxxi Oonsett Waterworks Co. v. Bitson (1889), 22 Q. B. D. 318, 702; 60 L. T. 360; 53 J. P. 373 129 Cooke v. London C. C, [1911] 1 Ch. 604; 80 L. J. Oh. 423; 104 L. T. 540; 75 J. P. 309; 9 L. G. B. 593 60, 69, 70, 75, 94,296 Cooling and Great Northern Bail. Co., In re (1849), 6 Bail. Oas. 246: 14 Q. B. 25; 19 L. J. Q. B. 25; 14 Jur. 128 152,210 Cooling v. Great Northern Bail. Oo. (1850), 15 Q. B. 486; 19 L. J. Q. B. 529; 14 Jur. 875 212, 240 Cooper, Ex parte, Re North London Bail. Oo. (1865), 2 Dr. & Sm. 312; 34 L. J. Ch. 373; 13 W. B. 364; 11 Jur. N. S. 103; 11 L, T. 661 118, 119, 123, 272, 282 Cooper v. Gostling (1863), 9 L. T. 77; 11 W. B. 931; 4 Giff. 449 ... 49 Cooper v. Metropolitan Board of Works (1883), 25 Oh. D. 472; 53 L. J. Ch. 109; 50 L. T. 602; 32 W. B. 709 ...57, 76-, 118, 273, 297 Cooper v. Norfolk Bail. Oo. (1849), 3 Ex. 546; 18 L. J. Ex. 176; 6 Bail. Oas. 94; 13 Jur. 195 285 Copley, Ex parte (1858), 4 Jur. N. S. 297 279 Corpus Ohristi College, Oxford, Ex parte (1871), L. B. 13 Eq. 334; 41 L. J. Ch. 170 284 Corrie v. MacDermott, [1914] A. C. 1056; 83 L. J. P. 0. 370; 111 L. T. 952 108, 112 Corrigal v. London and Blackwall Bail. Co. (1843), 5 Macn. & G. 219; 12 L. J. 0. P. 209; 3 Dowl. P. 0. (N S.) 851; 6 Scott, N. E. 241; 3 Bail. Oas. 411 210, 211, 226, 241 Cother v. Midland Bail. Co. (1848), 2 Ph. 469; 17 L. J. Oh. 235; 10 L. T. O. S. 437; 5 Bail. Cas. 187 22, 29 Cotter v. Metropolitan Bail. Oo. (1864), 10 L. T. 777; 12 W. B. 1021; 10 Jur. N. S. 1014 95, 99, 174, 176 Cotton's Trustees and London School Board, In re (1882), 19 Oh. D. 624; 51 L. J. Ch. 514; 46 L. T. 813; 30 W. B. 610 174 ixvi TABLE OF CASES. Cot — Dav PAGE Oottrell v. Oottrell (1885), 26 Ch. D. 628; 54 L. J. Oh. 417; 33 W. E. 361; 52 L. T. 486 267, 268 Courage & Go. v. South Eastern Bail. Co. (1902), 19 Times L. E. 61 92, 152 Coventry v. London, Brighton and South Coast Eail. Co. (1867), L. E. 5 Eq. 104; 37 L. J. Ch. 90; 17 L. T. 368; 16 W. E. 267... 310, 313 Covington v. Metropolitan District Eail. Co., [1903] 1 K. B. 231; 72 L. J. K. B. 93; 87 L. T. 649; 51 W. E. 428; 19 Times L. E. 142 202, 218 Gowper Essex v. Acton Local Board (1889), 14 App. Oas. 153; 58 L. J. Q. B. 594; 61 L. T. 1; 38 W. E. 209; 53 J. P. 756. ..142, 150, 151, 161, 162, 163, 164, 166, 238, 239, 241, 511 Crampton v. Eidley (1887), 20 Q. B. D. 48; 57 L. T. 809; 36 W. E. 554 198 Crane's Estate, In re (1869), L. E. 7 Eq. 322; 17 W. E. 316 268 Cranwell v. London (Mayor, &o. of) (1870), L. E. 5 Ex. 284; 39 L. J. Ex. 193; 22 L. T. 760 82, 122, 179, 222, 239 Craven, Ex parte (1848), 17 L. J. Oh. 215 254 Crawford v. Chester and Holyhead Eail. Co. (1847), 11 Jur. 917 ... 22 Crawford v. McSwiney, [1904] 2 Ir. E. 15 186 Crawshaw Bailey, In re (1852), Bail Ot. Oas. 66 208 Croft v. London and North Western Bail. Oo. (1863), 3 B. & S. 436; 32 L.J. Q. B. 113; 11 W. E. 360; 7 L. T. 741 142, 168,169 Oromford Oanal Oo. v. Cutts (1848), 5 Eail. Oas. 442 128, 129 Crook v. Seaford (Corporation of) (1871), L. E. 6 Ch. 551; 25 L. T. 1; 19 W. B. 938 54 Crumbie v. Wallsend Local Board, [1891] 1 Q. B. 503; 60 L. J. Q. B. 392; 64 L. T. 490; 55 J. P. 421 170 Cuekfield Burial Board, Me, Ex parte Abergavenny (Earl of) (1855), 19 Beav. 153; 24 L. J. Oh. 585; 3 W. B. 142 48 D. Dare Valley Eail. Co., In re (1868), L. B. 6 Eq. 429; 37 L. J. Oh. 719 199, 222, 223, 224, 225, 236,238, 259, 241, 242 Dare Valley Eail. Co. and Ehys, In re (1869), L. B. 4 Oh. 554; 38 L. J. Ch. 417; 20 L. T. 291, 717; 17 W. E. 717 ...187, 194, 197, 235 Darley Main Colliery Oo. v. Mitchell (1886), 11 App. Oas. 127; 55 L. J. Q. B. 529; 54 L. T. 882; 51 J. P. 148 170 Dashwood, Ex parte (1857), 26 L. J. Oh. 299; 3 Jur. N. S. 103 ... 282 Daubney v. Manchester, &c. Eail. Co. (1847), 10 L. T. (O. S.) 283.. 100 Davies v. London Corporation, [1913] 1 Oh. 415; 82 L. J. Oh 286- 108 L. T. 546; 77 J. P. 294; 11 L. G. E. 595; 57 S. J. 341- 29 Times L. B. 315 3S1 ; 352 Davies v. South Staffordshire Eail. Oo. (1851), 21 L J M O 52- 15 Jur 1133; 2 L, M. & P. 599 .....' '. 189 Davis, Ex parte (1858), 3 De G. & J. 144; 27 L. J. Ch. 712- 4 Jur N. S. 1029 •. 256 TABLE OF CASES. xxvii Dav — Dou PAGE Davis v. Witney Urban District Council (1899), 63 J. P. 279. ..341, 511 Dawson v. Great Northern and City Bail. Co., [1905] 1 K. B. 260; 74 L. J. K. B. 190; 92 L. T. 137; 69 J. P. 29; 21 Times L. E, 114 81, 83, 170 Dawson v. Midland Rail. Co. (1872), L. B. 8 Ex. 8; 42 L,. J. Ex. 49; 2i W. E. 56 450 Dtarberg v. Letchford (1895), 72 Lt. T. 489 250 De Beauvoir's Trusts, Be (1860), 2 De G. E. & J. 5; 29 L. J. Ch. 567; 6 Jur. N. S. 593; 2 L. T. 364; 8 W. E. 425 279 De Grey's (Earl) Entailed Estate, In re, (1887) W. N. 241; 32 S. J. 108 251, 255 De Keyser's Eoyal Hotel, Ltd. v. E., (0. A.) [1919] 2 Oh. 197; 88 L. J. Ch. 415; 120 L. T. 396; 63 S. J. 445; 35 Times L. E. 418; (H. L.) [1920] A. 0. 508; 89 L. J. Oh. 417; 122 L. T. 691; 64 S. J. 513; 36 Times L. E. 600 1, 334, 335, 336 Denman (J. L.) & Co. v. Westminster Corporation, [1906] 1 Oh. 464; 75 L. J. Ch. 272; 94 L. T. 370; 54 W. B. 345; 70 J. P. 185; 4 L. G. E. 442; 22 Times L. E. 270 352 Denton v. Strong (1874), L. E. 9 Q. B. 117; 43 L. J. Q. B. 41 ... 197 Derby Municipal Estates, In re (1876), 3 Ch. D. 289; 24 W. E. 729 254, 260 Divers, Re (1855), 1 Jur. N. S. 995 282 Dixie v. Wright (1863), 32 Beav. 662 250 Dixon v. Caledonian Eail. Co. (1880), 5 App. Cas. 820; 43 L. T. 513; 29 W. E. 249 133, 135, 137 Dixon v. Great Western Eail. Oo., [1897] 1 Q. B. 300; 66 L. J. Q. B. 132; 75 L. T. 539; 45 W. E. 226 450, 452 Dixon v. White (1883), 8 App. Cas. 833 96 Dodd's Estate, Be (1870), 19 W. E. 741; 24 L. T. 542 259 Dodd v. Salisbury and Yeovil Eail. Oo. (1859), 1 Giff. 158; 33 L. T. (O. S.) 254, 311; 5 Jur. N. S. 782 28 Doe d. Armistead v. North Staffordshire Eail. Oo. (1851), 16 Q. B. 526; 20 L. J. Q. B. 249; 15 Jur. 944 18, 21, 22, 101 Doe d. Hudson v. Leeds and Bradford Eail. Oo. (1851), 16 Q. B. 796; 20 L. J. Q. B. 486; 15 Jur. 946 90, 101 Dos d. Hutchinson v. Manchester, &c. Eail. Oo. (1845), 15 L. J. Ex. 208; 2 0. & K. 162; 15 M. & W. 687; 9 Jur. 949 271 Doe d. Hyde v, Manchester (Mayor, &c. of) (1852), 12 0. B. 474; 5 De G. & S. 249; 16 Jur. 189 68, 69, 70 Doe d. Payne v. Bristol and Exeter Eail. Co. (1840), 6 M. & W. 320; 2 Eail. Cas. 75 18, 21, 22, 214 Donaldson v. Mayor of South Shields (1899), 68 L. J. Oh. 162; 79 L. T. 685 24, 25, 28, 44 Donisthorpe & Manchester, Sheffield & Lincolnshire Eail. Oo., In re, [1897] 1 Q. B. 671; 66 L. J. Q. B. 399; 76 L. T. 371; 45 W. E. 386; 13 Times L. E. 311 219, 220 Douglas and Belfast Corporation, In re, [1909] 2 Ir. E. 30 191 Douglass v. London and North Western Eail. Oo. (1856), 3 K. & J. 173; 3 Jur. N. S. 181 271 Doulton v. Metropolitan Board of Works (1870), L. E. 5 Q. B. 333; 39 L. J. Q. B. 165; 18 W. E. 790 203 xxviii TABLE OF OASES. Dow — Eas PAGE Dowling's Trusts, In re (1876), 45 L. J. Oh. 568; 24 W. E. 729... 263, 265 Dowling v. Pontypool, &c. Bail. Oo. (1874), L. B. 18 Eq. 714; 43 L. J. Oh. 761 18, 19, 20, 22, 73 Doyne's Traverses, In re (1889), 24 L. E. Ir. 287 67, 81, 91 Drake v. Greaves (1886), 33 Oh. D. 609; 56 L. J. Oh. 133; 55 L. T. 353; 34 W. E. 757 256, 275, «1 Drake v. Trefusis (1875), L. E. 10 Oh. 364; 23 W. E. 762; 33 L. T. 85 255, 260 Dreyfus and Paul, Be (1893), 9 Times L. E. 358; 37 S. J. 357 ... 193 Drummond and Davie's Contract, Be, [1891] 1 Oh. 524 249 Dublin Corporation and Baker, In re, Ex parte Thompson, [1912] 1 Ir. E. 498 272 Dublin (Lord Mayor of) v. Dowling (1880), 6 L. E. Ir. 502 158, 356, 359 Dublin Corporation, In re, Ex parte Dowling (1881), 7 L. E. Ir. 173 282 Dublin (South) City Meat Market, In re, Ex pmte Keatley (1890), 25 L. E. Ir. 265 245 Dudley Canal Oo. v. Grazebrook (1830), 1 B. & Ad. 59 128, 129, 303, 453 Dudley (Corporation of), In re (1881), 8 Q. B. D. 86; 51 L. J. Q. B. 121; 45 L. T. 733 93, 129, 130, 338, 342, 344, 347, 513 Duffy's Estate, In re, [1897] 1 Ir. E. 307 305 Dun (Biver) Navigation v. North Midland Eail. Oo. (1838), 1 Eail. Oas. 135 25 Dungey v. London (Mayor, &e. of) (1869), 38 L. J. O. P. 298; 20 L. T. 921; 17 W. E. 1106 6 Dunhill v. North Eastern Eail. Oo., [1896] 1 Oh. 121; 65 L. J. Ch. 178; 73 L. T. 644; 44 W. E. 231; 12 Times L. E. 91 307 Dunn v. Birmingham Canal Co. (1872), L. E. 8 Q. B. 42; 42 L. J. Q. B. 34; 27 L. T. 683; 21 W. E. 266 453 Durrant v. Branksome Urban District Council, [1897] 2 Oh. 291; 66 L. J. Oh. 653; 76 L. T. 739; 46 W. E. 134 342, 511 Dye v. Patman (1898), 46 W. E. 200; 62 J. P. 135 356 Dyson, In re, Ex parte Huddersfield Corporation (1882), 46 L. T. 730 98 Dyson and Eowke, In re, [1896] 2 Oh. 720; 74 L. T. 759; 65 L. J. Oh. 791; 45 W. E. 28 50 Dyson v. Hornby (1851), 4 De G. & Sm. 481 140 E. Eagle v. Chariag Cross Eail. Oo. (1867), L. E. 2 C. P. 638; 36 L. J. 0. P. 297; 16 L. T. 593; 15 W. E. 1016.. .115, 152, 153, 190, 316 Eastbourne (or Bastham) v. Blackburn Eail. Oo. (1854), 9 Ex. 758; 23 L. J. Ex. 199; 2 W. E. 377 232, 235 East Fremantle Corporation v. Annois, [1902] A. 0. 213; 71 L. J. P. C. 39; 85 L. T. 732 149, 341 East London Eail. Co., Ex parte, In re King's Leasehold Estates (1873), L. E. 16 Eq. 521; 29 L. T. 288; 21 W. E. 881 178 TABLvE OF CASES. xxix Eas — Ell PAGE East London Bail. Co., In re, Oliver's Claim (1890), 24 Q. B. D. 507; 63 L. T. 147; 38 W. E. 312 189, 219, 220 Bast London Bail. Oo. v. Whitechurch (1874), L.B. 7 H. L. 81; 43 L. J. M. 0. 159; 30 L. T. 412; 22 W. B. 665 25, 300, 319 Bast London Union v . Metropolitan Bail. Oo. (1869), L. B. 4 Ex. 309; 38 L. J. Ex. 225 230, 271 East and West India Dock Co., In re (1890), 44 Oh. D. 38; 38 W. B. 516; 62 L. T. 239 63 East and West India Dock Oo. v. Gattke (1851), 3 Macn. & G. 155; 20 L. J. Oh. 217 88, 107, 173, 208, 224, 233 East and West India Dock Oo. v. Kirk (1887), 12 App. Cas. 738; 57 L. J. Q. B. 295; 58 L. T. 158 190, 191 East and West India Dock Oo. and Birmingham Bail. Co. v. Brad- shaw (1849), 5 Bail. Cas. 527 192 Eastern Counties Bail. Co., Ex parte (1848), 5 Bail. Oas. 210 98 Eastern Counties Bail. Oo. v. Hawkes (1855), 5 H. L. C. 331; 24 L. J. Ch. 601; 3 W. B. 609; 7 Bail. Cas. 188 60 Eastern Counties and London and Blackwall Bail. Cos. v. Mar- riage (1860), 9 H. L. 0. 32; 31 L. J. Ex. 73; 8 W. B. 748; 7 Jur. N. 8. 53; 8 W. B. 758 7, 34 Eastham (or Eastbourne) v. Blackburn Bail. Oo. (1854), 9 Ex. 758; 23 L. J. Ex. 199; 2 W. B. 377 232, 235 Eccleshill Local Board, In re (1880), 13 Oh. D. 365; 49 L. J. Oh. 214; 28 W. B. 536 139, 140 Ecclesiastical Commissioners, Ex' parte (1870), 39 L. J. Ch. 623.. 278 Ecclesiastical Commissioners v. London and South Western Bail. Co. (1854), 14 C. B. 743; 23 L. J. 0. P. 177; 18 Jur. 911 287 Ecclesiastical Commissioners v. Commissioners of Sewers (1880), 14 Ch. D. 305; 28 W. B. 824 206, 352 Eckersley v. Mersey Docks and Harbour Board, [1894] 2 Q. B. 667; 71 L. T. 308 188 Eden v. North Eastern Bail. Oo., [1907] A. 0. 400; 76 L. J. K. B. 940; 97 L. T. 254; 71 J. P. 450; 23 Times L. B. 685; 51 S. J. 623 133 Eden v. Thompson (1863), 2 H. & M. 6 276, 283 Edinburgh and District Water Trustees v. Olippens Oil Co. (1902), 87 L. T. 275 222 Edinburgh, Perth, &c. Bail. Co. v. Philip (1857), 2 Macq. H. L. (Sc.) 514; 3 Jur. N. S. 249; 5 W. B. 377 67 Edinburgh Street Tramways Co. v. Lord Provost, &c. of Edinburgh, [1894] A. 0. 456; 63 L. J. Q. B. 769; 71 L. T. 301; 6 E. 317... 333 Edmeade, In re (1860), 8 W. B. 327; 6 Jur. N. S. 986 47 Edmundson, Re (1851), 17 Q. B. 67; 21 L. J. M. C. 193 182 Edwardes v. Barrington (1902), 85 L. T. 650; 50 W. B. 358. ..10, 124 Edwards, Ex parte (1871), L. B. 12 Eq. 389; 40 L. J. Oh. 697; 25 L. T. 149; 19 W. B. 1047 82 Egremont (Lord), Re (1848), 12 Jur. 618 250 Eldon (Earl) v. North Eastern Bail. Oo. (1899), 80 L. T. 273... 109, 119 Elementary Education Acts, In re, [1909] 1 Ch. 55; 78 L. J. Ch. . 281; 99 L. T. 862; 73 J. P. 22; 25 Times L. E. 78 246 Elliot, Re, Ex parte South Devon Bail. Co. (1848), 2 De Gr. & Sm. 17; 12 Jur. 445 .« 188, 189 xxx TABLE OF CASES. Ell— Fal PAGE Elliot v. North Eastern Bail. Co. (1863), 10 H. L. 0. 333; 32 L. J. Oh. 402; 9 Jur. N. S. 555; 8 L. T. 337; 11 W. R. 604... 95, 129, 303 Elliot v. South Devon Rail. Oo. (1848), 2 Ex. 725; 17 L. J. Ex. 262; 5 Rail. Oas. 500 45, 312 Ellis and Ruislip-Northwood U. C, In re, [1920] 1 K. B. 343; 88 L. J. K. B. 1258; 83 J. P. 273; 17 L. G. R. 607; 35 Times L. R. 673; 122 L. T. 98 367, 368 Ely (Dean, &c. of) v. Peterborough, Wisbeach, &c. Rail. Co., (1869) W. N. 201 59 Emanuel Hospital v. Metropolitan District Rail. Oo. (1869), 19 L. T. 692 . 239 Emmanuel Hospital, Ex parte (1908), 24 Times L. R 283 Emsley v. North Eastern Rail. Co., [1896] 1 Ch. 418; 65 L. J. Ch. 385; 74 L. T. 113; 60 J. P. 182; 12 Times L. R. 219 ....79, 92, 152 English, Be (1865), 13 W. R. 932; 11 Jur. N. S. 434 282 English's Settlement, In re (1888), 39 Oh. D. 556; 57 L. J. Oh. 1048; 60 L. T. 44; 37 W. R. 191 264 Errington v. Metropolitan District Rail. Oo. (1882), 19 Oh. D. 559; 51 L. J. Oh. 305; 46 L. T. 443; 30 W. R. 663 8, 31, 74, 86, 127, 134, 136, 137, 305 Escott v. Newport Corporation, [1904] 2 K. B. 369; 73 L. J. K. B. 693; 90 L. T. 348; 52 W. R. 543; 68 J. P. 135; 20 Times L. R.- 158 72, 154 Esdaile, Re, Esdaile v. Esdaile (1886), 54 L. T. 637 9, 10, 76 Esdaile v. Metropolitan and District Rail. Cos. (1881), 46 J. P. 103 10, 76 Esdaile v. Payne (1888), 13 App. Oas. 613; 58 L. J. Oh. 299; 59 L. T. 568; 37 W. R. 273; 53 J. P. 100 10, 76 Eton College, Ex parte (1851), 20 L. J. Ch. 1; 15 Jur. 45 5 Eton College (Provost of), Ex parte, In re London and Birming- ham Rail. Co. (1842), 3 Rail. Oas. 271; 6 Jur. 908 280 Evans, Me (1873), 42 L. J. Ch. 357 273 Evans' Settlement, In re (1880), 14 Oh. D. 511 261 Evans and Glamorgan 0. O, In re (1912), 76 J. P. 468; 10 L. G. R. 805; 56 S. J. 668; 28 Times L. R. 517 375 Evans v. Lancashire and Yorkshire Rail. Co. (1853), 1 E. & B. 754; 22 L. J. Q. B. 254; 17 Jur. 878 196 Evans v. Merthyr Tydvil U. D. O, [1899] 1 Ch. 241; 68 L. J. Oh. 175; 79 L. T. 578 291 Eversfield v. Mid Sussex Rail. Co. (1858), 3 De G. & J. 286; 1 Giff. 153; 28 L. J. Oh. 107; 5 Jur. N. S. 776 28 Eyre's Trusts, Be, (1869) W. N. 76 188, 313 Eyton v. Denbigh, &c. Rail. Oo. (1868), L. R. 6 Eq. 14; 7 Eq. 439; 37 L. J. Oh. 669 63 Falkingham v. Victorian Railway Commissioners, [1900] A. 0. 452- 69 L. J. P. 0. 89; 82 L. T. 506 242 Falkner v. Somerset and Dorset Rail. Oo. (1873), L. R. 16 Eq. 458; 42 L. J. Oh. 851 15, 37, 38, 40, 43, 45, 313 TABL*E OF CASES. xxxi Fal— Fis page Palls v. Belfast and Ballymena Rail. Co. (1849), 12 Ir. L. R. 233. 34 Farlow, Ex parte (1831), 2 B. & Ad. 341 123 Farmer v. London and North Western Rail. Co. (1888), 20 Q. B. D. 788; 59 L. T. 542; 36 W. R. 590 302 Farmer v. Waterloo and City Rail. Co., [1895J 1 Ch. 527; 64 L. J. Oh. 338; 72 L. T. 225; 43 W. R. 363; 59 J. P. 295; 11 Times L. R. 210 11, 18, 73, 93, 104 Farrar v. Cooper (1890), 44 Ch. D. 323; 59 L. J. Oh. 506; 62 L. T. 528; 38 W. R. 410 108, 172 Faversham Charities, Be (1861), 5 L. T. 787 257 Faviell v. Eastern Counties Rail. Co. (1848), 2 Ex. 344; 17 L. J. Ex. 223 190, 191, 242 Fenwick v. East London Rail. Co. (1875), L. R. 20 Eq. 544; 44 L. J. Ch. 602 30, 33, 444 Fergusson v. London, Brighton and South Coast Rail. Co. (1864), 3 De G. J. & S. 653; 33 Beav. 103; 33 L. J. Ch. 29; 9 L. T. 134; 11 W. R. 1088 37 Fernley v. Limehouse Board of Works (1899), 68 L. J. Ch. 344; 80 L. T. 351; 63 J. P. 310 350, 351, 352 Fernley v. Limehouse Board of Works (1900), 82 L. T. 524; 64 J. P. 328 350, 352, 530 Ferrand v. Corporation of Bradford (1856), 21 Beav. 412; 25 L. J. Ch. 389; 27 L. T. (O. S.) 11; 2 Jur. N. S. 175 14 Ferrar v. Commissioners of Sewers in the City of London (1869), L. R. 4 Ex. 1, 227; 38 L. J. Ex. 102; 19 L. T. 485; 21 L, T. 295; 17 W. R. 709 6, 147, 148, 232, 234, 235 Ferrers v. Stafford and Uttoxeter Rail. Oo. (1872), L. R. 13 Eq. 524; 41 L. J. Ch. 362 204 Field v. Carnarvon and Llanberis Rail. Co. (1867), L. R. 5 Eq. 190; 37 L. J. Oh. 176; 18 L. T. 534; 16 W. R. 273. ..93, 95, 144, 173 Finch v. Great Western Rail. Co. (1879), 5 Ex. D. 254 450 Finchley Electric Light Oo. v. Finchley U. 0., [1903] 1 Ch. 437; 72 L. J. Ch. 297; 88 L. T. 215; 51 W. R. 375; 67 J. P. 97; 1 L. G. R. 244; 19 Times L. R. 238 71, 72 Finck v. London and South Western Rail. Oo. (1890), 44 Oh. D. 330; 58 L. J. Oh. 350; 59 L. J. Ch. 458; 60 L. T. 350; 62 L. T. 881; 37 W. R. 350; 38 W. R. 513; 5 Times L. R. 209 ...18, 20, 21, 22, 29, 73 Finlay v. Bristol and Exeter Rail. Oo. (1852), 7 Ex. 409; 21 L. J. Ex. 117 54 Finnis and Young to Forbes and Pochin (No. 1) (1883), 24 Oh. D. 587; 52 L. J. Oh. 140; 48 L. T. 813; 32 W. R. 65 50, 59 Finsbury, &o. Savings Bank (Trustees of), Ex parte, (1886) W. N. 150 251 Fisher, In re, [1894] 1 Oh. 450; 63 L. J. Oh. 235; 70 L. T. 62; 42 W. R. 241 256, 262, 275, 527 Fisher v. Fisher (1874), L. R. 17 Eq. 340; 43 L. J. Oh. 262; 29 L. T. 720; 22 W. R. 638 275 Fisher v.. Great Western Rail. Co., [1911] 1 K. B. 551; 80 L. J. KB. 299; 103 L. T. 885; 55 S.J. 76; 27 Times L. R. 96... 201, 326 Fisher v. Pimbley (1809), 11 East, 188 242 xxxii TABLE OF CASES. Fit— Ful page Fitzhardinge (Lord) v. Gloucester and Berkeley Canal Co. (1872), L. R. 7 Q. B. 776; 41 L. J. Q. B. 316; 27 L. T. 196; 20 W. B. 800 185, 201, 203, 223 Fleming v. Newport Bail. Co. (1883), 8 App. Cas. 265 108, 126, 150, 154 Flemon's Trusts, In re (1870), L. E. 10 Eq. 612; 40 L. J. Oh. 86. 262, 277 Fletcher v. Birkenhead Corporation, [1907] 1 K. B. 205; 76 L. J. K. B. 218; 96 L. T. 287; 71 J. P. Ill; 5 L. G. R. 293; 23 Times L. B. 195 145, 147, 148, 152, 160 Fletcher v. Great Western Kail. Co. (1860), 5 II. & N. 689; 29 L. J. Ex. 253; 8 W. B. 501 132 Fletcher v. Lancashire and Yorkshire Bail. Co., [1902] 1 Ch. 901; 71 L. J. Oh. 590; 50 W. E. 423; 66 J. P. 631; 18 Times L. B. 417 , 133, 139, 141 Flower, Ex parte (1866), L. R. 1 Ch. 599; 36 L. J. Ch. 193; 12 Jur. N. S. 872 98, 177, 274, 277, 299 Flower v. London, Brighton and South Coast Bail. Co. (1865), 2 Dr. & Sm. 330; 34 L. J. Ch. 540; 12 L. T. 10; 13 W. B. 518... 31 Fobbing (Commissioners of Sewers for) v. E. (1886), 11 App. Cas. 449; 56 L. J. M. O. 1; 55 L. T. 493; 34 W. E. 721; 51 J. P. 227 181 Fooks, Re (1849), 2 Macn. & G. 357 97 Fooks v. Wilts., &c. Bail. Co. (1846), 5 Hare, 199; 4 Bail. Cas. 210 89, 91 Ford v. Metropolitan and Metropolitan District Eail. Cos. fl886"), 17 Q. B. D. 12; 55 L. J. Q. B. 296; 54 L. T. 718; 34 W. B, 426; 50 J. P. 661; 1 Cab. & Ell. 593 152, 157 Ford i. Plymouth, &c. Eail. Co., (1887) W. N. 201 90, 92 Fortescue v. St. Matthew, Bethnal Green, Vestry, [1891] 2 Q. B. 170; 60 L. J. M. O. 172; 65 L. T. 256; 55 J. P. 758 520 Forth Bridge Bail. Co. v. Dunfermline Guildry, [1909] S. C. 493; [1910] S. C. 316 " 137 Foster v. London, Chatham and Dover Eail. Co., [1895] 1 Q. B. 711; 64 L. J. Q. B. 65; 71 L. T. 855; 43 W. E. 116 24, 138, 304 Foster v. Sheffield Corporation (1895), 72 L. T. 549; 59 J. P. 404. 201 Fotherby v. Metropolitan Bail. Co. (1867), L. B. 2 C. P. 188- 36 L. J. C. P. 88; 15 L. T. 243; 15 W. E. 112; 12 Jur. N. S. 1005 87, 174, 207 Fox v. Amhurst (1875), L. E. 20 Eq. 403; 44 L. J. Ch. 666.. .291, 293 Frank Warr & Co. v. London County Council, [1904] 1KB 713- 73 L. J. K. B. 362; 90 L. T. 368; 52 W. E. 405- 68 J P 335; 20 Times L. E. 346; 2 L. G. E. 723 10, 124 Fraser v. City of Fraserville, [1917] A. C. 187; 86 L J P O 91- 116 L, T. 258; 33 Times L. E. 179 108. 109 French i>. London, Tilbury and Southend Eail. Co. (1886), 2 Times L. B. 395 152 Frere and Staveley Taylor & Co. and North Shore Mill Co., In re [1905] 1 K. B. 366; 74 L. J. K. B. 208; 92 L. T. 194; 53 W. B 242; 21 Times L. E. 188 195 Fullerton's Will, In re, [1906] 2 Ch. 138; 75 L. J. Ch. 552; 94 T ^ T - 667 258,259 TABLE OF OASES. xxxiil Fur— Gil pagk Furness and Willesden U. C, In re (1906), 70 J. P. 25; 22 Times L. R. 52 82 Furness Bail. Oo. v. Cumberland Co-operative Building Society (1884), 52 L. T. 144 155, 156 Furniss v. Midland Rail. Co. (1868), L. R. 6 Eq. 473 40 G. Galliers v. Metropolitan Rail. Oo. (1871), L. R. 11 Eq. 410; 40 L. J. Oh. 544; 19 W. R. 795 272 Galloway v. London (Mayor, &o. of) (1866), 12 Jur. N. S. 182 ... 211 Gallowav v. London (Mayor, &c. of) (1866), L. R. 1 H. L. 34; 2 De G. & S. 213; 35 L- J. Oh. 477; 14 L. T. 865; 13 W. R. 701; 12 Jur. N. S. 747 25, 28, 45 Gamston (Rector of), Ex parte (1876), 1 Ch. D. 477; 33 L. T. 803; 24 W. R. 359 255 Gard v. Commissioners of Sewers (1884), 28 Oh. D. 486; 49 L. T. 325 350, 352, 531 Gardner v. Charing Cross Rail. Co. (1862), 2 J. & H. 248; 31 L. J. Oh. 181; 5 L. T. 418; 10 W. R. 120; 8 Jur. N. S. 151. ..36, 41, 42, 56 Gaselee, In re, [1901] 1 Oh. 923; 70 L. J. Oh. 441; 84 L. T. 386; 49 W. R. 372 262, 278 Gasket, Ex parte, In re Manchester and Leeds Rail. Co. (1876), 2 Oh. D. 360; 45 L. J. Oh. 368; 24 W. R. 752 283, 284 Gaskell v. Somersetshire 0. 0. (1920), 84 J. P. 93; 18 L. G. R. 245 371, 372 Gedling Rectory, Re (1885), 53 L. T. 244 263 Gedye v. Commissioners of Works, [1891] 2 Ch. 630; 60 L. J. Oh. 587; 65 L, T. 359; 39 W. R. 598 261, 271, 273 Genders v. London 0. 0., [1919j 1 Oh. 1; 84 L.J. Ch. 42; 112 L. T. 365; 79 J. P. 121; 13 L. G. R. 14; 59 S. J. 58; 31 Times L. R. 34 44, 45 Gerard (Lord) and Beecham, In re, [1894] 3 Ch. 295; 63 L. J. Ch. 695; 71 L. T. 272; 42 W. R. 678 63 Gerard (Lord) and London and North Western Rail. Co., In re, [1894] 2 Q. B. 915; [1895] 1 Q. B. 459; 63 L. J. Q. B. 764; 64 L. J. Q. B. 260; 72 L. T. 142; 43 W. R. 374 131, 135, 190, 191, 195 Gething v. Fotheringham (1865), 13 W. R. 96 191 Gibbon v. Paddington Vestry, [1900] 2 Ch. 794; 69 L. J. Ch. 746; 83 L. T. 136; 49 W. R. 8; 64 J. P. 727; 16 Times L. R. 538 ... 351 Gibson v. Hammersmith Rail. Go. (1863), 32 L. J. Ch. 337; 8 L. T. 43; 2 Dr. & Sm. 603; 9 Jur. N. S. 221; 11 W. R, 299. ..39, 116 Gifford and Bury Town Council, In re (1888), 20 Q. B. D. 368; 57 L. J. Q. B. 181; 58 L. T. 522; 36 W. R. 468; 52 J. P. 119... 340, 509 Gilbert and Wright, In re (1903), 68 J. P. 143; 20 Times L. R. 164.. 198 Giles v. London, Chatham and Dover Rail. Co. (1861), 1 Dr. & Sm. 406; 30 L. J. Oh. 603; 5 L. T. 479; 9 W. R. 587; 7 Jur. N. S. 509 95, 206 Gillard v. Cheshire Lines Committee (1883), 32 W. R. 943 152 C. C xxxiv TABLE OF CASES. Gla— Gow PAGE Glamorganshire Canal Navigation Oo. v. Nixon's Navigation Co. (1901), 85 L. T. 53; 17 Times L. E. 184, 647 95, 129 Glasgow (City of) Union Eail. Oo. v. Caledonian Bail. Oo. (1871), L. E. 2 H. L. (Sc.) 160 30, 32, 305 Glasgow (City of) Union Eail. Oo. v. Hunter (1870), L. E. 2 H. L. (Sc.) 78 159, 162, 164, 165, 166 Glasgow Corporation v. Glasgow and South. Western Eail. Co., [1895] A. C. 376; 64 L. J. P. 0. 171; 72 L. T. 809; 59 J. P. 788 146 Glasgow ("Lord Provost, &c. of) v. Farie (1888), 13 App. Cas. 657; 58 L. J. P. C. 33; 60 L. T. 274; 37 W. E. 627 132, 136, 137 Glasgow and South Western Eail. Oo. v. Bain (1893), 21 E. 134... 137 Gloucester (Dean, &c. of), Ex parte (1850), 19 L. J. Oh. 400 268 Glover v. North Staffordshire Eail. Co. (1851), 16 Q. B. 912; 20 L. J. Q. B. 376; 15 Jur. 673 151, 152 Glyn v. Aberdare Eail. Co. (1859), 6 C. B. N. S. 359; 28 L. J. C. P. 271; 5 Jur. N. S. 1011 212, 232 Goldberg & Sons v. Liverpool Corporation (1900), 16 Times L. E. 320; 82 L. T. 362 31 Goldsmiths' Company v. West Metropolitan Eail. Co., [1904] 1 K. B. 1; 72 L. J. K. B. 931; 89 L. T. 428; 68 J. P. 41; 52 W. E. 21; 20 Times L. E. 7 78 Gonty and Manchester, Sheffield and Lincolnshire Eail. Co., In re, [1896] 2 Q. B. 439; 65 L. J. Q. B. 625; 75 L. T. 239; 45 W. E. 83; 12 Times L. E. 617 23, 24, 44, 138, 194, 205, 221, 303 Goodson v. Eichardson (1874), L. E. 9 Ch. 221; 43 L. J. Oh. 790; 30 L. T. 142; 22 W. E. 337 45, 71, 72 Gordon v. St. Mary Abbott's, Kensington (Vestry of), [1894] 2 Q. B. 742; 63 L. J. M. 0. 193; 71 L. T. 196 350, 351 Gore Langton's Estates, In re (1875), L. E. 10 Ch. 328; 44 L. J. Ch. 405; 32 L. T. 785; 23 W. E. 842 253, 264, 265 Gosling, Ex parte, E. v. Hungerford Market Co. (1833), 4 B. & Ad. 596 123 Gough's Trusts, In re, Ex parte Great Western Eail. Co. (1883), 24 Ch. D. 569; 53 L. J. Oh. 200; 49 L. T. 494; 32 W. E. 147 276 Gough and Aspatria, &c. Water Board, In re, [1903] 1 K. B. 574; [19041 1 K. B. 417; 72 L. J. K. B. 285; 73 L. J. K. B. 228; 88 L.' T. 421; 90 L. T. 43; 51 W. E. 590; 52 W. E. 552; 67 J. P. 137; 68 J. P. 229; 20 Times L. E. 129 110, 111 Gough and Liverpool (Mayor, &c. of), In re (1890), 6 Times L. E. 453 195 Gough v. Liverpool (Mayor, &c. of) (1891), 7 Times L. E. 581; 64 L. T. 596; 65 L. T. 512; 55 J. P. 648, 789 356, 359 Gough v. Liverpool (Mayor, &c. of) (1892), 8 Times L. E. 247, 323 221, 225, 356 Gould v. Staffordshire Potteries Waterworks Oo. (1850), 5 Ex. 214; 19 L. J. Ex. 281; 6 Eail. Cas. 568; 1 L. M. & P. 264; 14 Jur. 528 116, 200, 202, 216 Gower's Walk Schools and London, Tilbury and Southend Eail. Co., In re (1889), 24 Q. B. D. 40, 326; 59 L. J. Q. B. 162; 62 L. T. 306; 38 W. E. 343 14, 145, 152, 153, 165, 358 TABLE OF CASES. xxxv 67 E. v. Barton and Immingbam Ligbt Bailway, Ex parte Simon, [1912] 3 K. B. 72; 81 L. J. K. B. 964; 76 J. P. 344 197, 386 E. v. Bedfordshire 0. 0., Ex parte Sear, [1920] 2 K. B. 465; 89 L. J. K. B. 425; 123 L. T. 50; 84 J. P. 97; 18 L. G. E. 249; 36 Times L. E. 369 371 > 372 E. v. Biram (1852), 17 Q. B. 969; 16 Jur. 640 202, 217 E. v. Birmingham and Oxford Junction Eail. Co. (1851), 15 Q. B. 635, 647, n ; 20 L. J. Q. B. 304 56, 79, 87, 207 E. v. Boyce Oombe (1863), 32 L. J. M. C. 67; 11 W. E. 441 183 E. «. Bristol Docks Co. (1810), 12 East, 429 154 E. v. Bristol and Exeter Eail. Co. (1838), 2 Eail. Oas. 99; 11 A. & E. 202, n 90, 238, 239 E. v. Brown (1867), L. E. 2 Q. B. 630; 36 L. J. Q. B. 322; 16 L. T. 827; 15 W. E. 988; 8 B. & S. 456 109, 127, 451 E. v. Burrow (1884), The Times, 24 Jan. 1884 (C. A.); The Times, 22 Nov. 1884 (H. L.) sub nom. Metropolitan and Metropolitan District Eail. Cos. v. Burrow 115, 117, 118 E. v. Burslem Local Board (1859), 1 E. & E. 1077; 29 L. J. Q. B. 242; 6 Jur. N. S. 696; 8 W. E. 584 344 E. v. Caledonian Eail. Co. (1851), 16 Q. B. 19; 20 L. J. Q. B. 147; 15 Jur. 396 17, 443 E. v. Cambrian Eail. Co. (1869), L. E. 4 Q. B. 320; 10 B. & S. 315; 38 L. J. Q. B. 198; 20 L. T. 437; 17 W. E. 667 198, 199 E. v. Cambrian Eail. Co. (1871), L. E. 6 Q. B. 422; 40 L. J. Q. B. 169; 25 L. T. 84; 12 W. E. 1138 8, 9, 160 E. v. Chelsea (Vestry of St. Luke's) (1871), L. E. 6 Q. B. 572; 7 Q. B. 148; 41 L. J. Q. B. 81; 25 L. T. 914; 20 W. E. 209.. .147, 148 E. v. Combe (Boyce) (1863), 32 L. J. M. 0. 67; 11 W. E. 441... 183 E. v. Commissioners of Woods and Eorests (1850), 15 Q. B. 761; 19 L. J. Q. B. 497; 15 Jur. 35 81 E. v. Cork JJ., [1910] 2 Ir. E. 421 23 E. v. Cottle (1851), 16 Q. B. 412; 20 L. J. M. 0. 162; 15 Jur. 721 45, 312 E. v. Darlington Local Board (1865), 35 L. J. Q. B. 45; 6 B. & S. 562; 13 W. E. 789; 10 Jur. N. S. 1169; 10 L. T. 603 ...342, 512 E. ^.Eastern Counties Eail. Co. (1841), 2 Q. B. 347; 11 L. J. Q. B. 66, 178; 3 Eail. Oas. 22; 6 Jur. 180; 2 G. & D. 1 155 E. v. Eastern Counties Eail. Co. (1843), 12 L. J. Q. B. 271; 3 Eail. Oas. 466; 7 Jur. 628 226 E. v. Bast London Eail. Co., Ex parte Barnes (1867), 17 L. T. 291. 178 E. v. E. & W. India Docks and Birmingham Junction Eail. Oo. (1853), 22 L. J. Q. B. 380; 2 E. & B. 466; 17 Jur. 1181; 1 W. E. 409 444 E. v. Edwards (1884), 13 Q. B. D. 586; 53 L. J. M. 0. 149; 51 L. T. 586; 49 J. P. 117 182, 222, 228, 233 E. v. Farrant (1887), 20 Q. B. D. 58; 57 L. J. M. C. 17; 57 L. T. 880; 36 W. E. 184; 52 J. P. 116 181 TABLE OF CASES. lv B.. PAGE E. v. Pisher (1862), 3 B. & S. 191; 32 L. J. M. 0. 12; 9 Jur. N. S. 571; 7 L. T. 325; 11 W. E. 69 127, 450, 451 E. v. Gaisford, [1892] 1 Q. B. 381; 61 L. J. M. 0. 50; 66 L. T. 24; 56 J. P. 247 : 181 E. v. Gardner (1837), 6 A. & E. 112; 1 Jur. 181; 1 N. & P. 308; 6 L. J. K. B. 130 213 E. (War Secretary) v. Goff, [1905] 2 Ir. E. 121 203, 218 E. v. Great Northern Bail. Co., In re Cooling (1849), 14 Q. B. 25; 19 L. J. Q. B. 25; 6 Bail. Oas. 246; 14 Jur. 128 152, 210 E. v. Great Northern Eail. Oo. (1876), 2 Q. B. D. 151; 46 L. J. Q. B. 4; 35 L. T. 551; 25 W. E. 41 77, 177, 178, 180, 232 E. v. Great Western Eail. Co. (1852), 1 E. & B. 253; 22 L. J. Q. B. 65 66 E. v. Great Western Eail. Co. (1893), 62 L. J. Q. B. 572; 69 L. T. 572 67 B.». Halifax Local Board (1865), 14 L. T. 447 238 E. v. Hannay (1874), 44 L. J. M. 0. 27; 31 L. T. 702; 23 W. E. 164 182 E. v. Hertfordshire (Justices of) (1845), 6 Q. B. 753; 9 Jur. 731; 14 L. J. M. 0. 73 239 E. v. Hungerford Market Oo. (1832), 4 B. & Ad. 327; 1 N. & M. 112 79, 80, 87, 207 B. v. Hungerford Market Co., Ex parte Gosling (1833), 4 B. & Ad. 596 123 E. v. Kennedy, [1893] 1 Q. B. 533; 62 L. J. M. 0. 168; 68 L. T. 454; 41 W. E. 380; 57 J. P. 346 83, 179, 183 E. v. Lancaster and Preston Eail. Oo. (1845), 6 Q. B. 759; 14 L. J. Q. B. 84; 3 Eail. Cas. 724; 9 Jur. 303 208, 225, 241 B. v. Leake (1833), 5 B. & Ad. 469; 2 N. & M. 595 ...24, 138, 303, 304 B. v. Liverpool and Manchester Eail. Co. (1835), 4 A. & E. 650; 6 N. & M. 186; 1 H. & W. 689 124 B. v. London (Lord Mayor, &c. of) (1867), L. E. 2 Q. B. 292; 16 L. T. 280 5, 6, 207 E. v. London Dock Oo. (1836), U.iE. 163; 6 N. & M. 390; 2 H. & W. 267; 5 L. J. K. B. 195 156 E. v. London and Greenwich Bail. Oo. (1843), 3 Q. B. 166; 3 Bail. Oas. 138; 6 Jur. 892; 11 L. J. Q. B. 187 94 E. v. London and North Western Bail. Co. (1854), 3 E. & E. 443; 23 L. J. Q. B. 185; 18 Jur. 993 206, 214, 221, 222, 225, 234, 238, 240 E. v. London and North Western Eail. Co. (1863), 9 L. T. 423; 12 W. E. 208 210 E. v. London and North Western Bail. Co., [1894] 2 Q. B. 512; 63 L. J. Q. B. 695; 58 J. P. 719 133, 197, 207, 454 E. v. London and North Western Bail. Co., [1899] 1 Q. B. 921; 68 L. J. Q. B. 685; 80 L. T. 782 198 E. v. London and Southampton Bail. Oo. (1839), 10 A. & E. 33; 2 P. & D. 243; 1 Bail. Oas. 717; 8 L. J. Q. B:. 220 ...122, 123, 179 B. v. London and South Western Eail. Co. (1848), 12 Q. B. 775; 17 L. J. Q. B. 326; 5 Eail. Cas. 669; 12 Jur. 973 42, 80, 94 E. v. Manchester and Leeds Bail. Co. (1838), 8 A. & E. 413; 8 L. J. Q. B. 66; 3 N. & P. 439; 2 Jur. 857 240 lvi TABLE OF OASES. • B. PAGE R. v . Manchester, Sheffield, and Lincolnshire Rail. Co. (1854), 4 B. & B. 88; 2 W. R. 591; 1 Jur. N. S. 419 178, 232 R. v. Manchester, Sheffield, and Lincolnshire Rail. Co. (1867), L. R. 2 Q. B. 336; 36 L. J. Q. B. 171; 16 L. T. 173; 15 W. R. 676 211 R. v. Manley Smith (or North London Rail. Co.) (1881), 51 L. J. Q. B. 241; 30 W. R. 272 217 R. e. Manley Smith (1893), 63 L. J. Q. B. 171; 10 R. 611 200 R. v. Manley Smith, In re Church and London School Board (1892), 67 L. T. 197; 40 W. R. 333; 56 J. P. 729; 8 Times L. R. 310 87, 104, 203, 209, 216, 218 R. v. Manley Smith, In re Westfield and Metropolitan Rail. Cos. (1883), 12 Q. B.D. 481; 53 L. J. Q. B. 115; 32 W. R. 275 ...203, 216, 218 R. v. Maryport and Carlisle Rail. Co. ,(1850), 15 L. T. (O. S.) 134... 78 R. v. Metropolitan Board of Works (1863), 3 B. & S. 710; 32 L. J. Q. B. 105; 11 W. R. 492; 8 L. T. 238; 9'Jur. N. S. 1008 154 R. v. Metropolitan Board of Works (1869), L. R. 4 Q. B. 358; 38 L. J. Q. B. 201; 10 B. & S. 391; 17 W. R. 1094 151, 156, 159 R. v. Metropolitan Commissioners of Sewers (1852), 1 E. & B. 694; 22 L. J. Q. B. 234; 17 Jur. 787; 1 W. R. 286 344 R. v. Metropolitan Rail. Co., Ex parte Horrocks (1863), 32 L. J. Q. B. 367; 11 W. R. 910; 8 L. T. 663; 4 B. & S. 315; 10 Jur. N. S. 204 206, 222, 225, 234, 238 R. v. Metropolitan Rail. Co. (1865), 13 L. T. 444 294 R. v. Metropolitan Rail. Co., Ex parte Knock (1867), 17 L, T. 291. 78 R. v. Middlesex (Clerk of the Peaoe), [1914] 3 K. B. 259; 83 L. J. K. B. 1773; 111 L. T. 579; 79 J. P. 7 47, 75, 161, 297 R. v. Middlesex (Sheriff of), Be Somers and Metropolitan Rail. Co. (1862), 31 L. J. Q. B. 261; 10 W. R. 717; 8 Jur. N. S. 617.. 178, 206 R. v. Middlesex (Sheriff of), Be Walker and London and Black- wall Rail. Co. (1842), 3 Q. B. 744; 3 G. & D. 549; 12 L. J. Q. B. 88; 7 Jur. 323, 1154; 3 Rail. Oas. 396 94, 211, 217 R. v. Mountford, [1906] 2 K. B. 814; 75 L. J. K. B. 1003 163 R. v. Nene Outfall Commissioners (1829), 9 B. & C 875- 4 \[ & r. 647 ; ; ' ; 9 R. v. North London Rail. Co. (or Manley Smith) (18811, 51 L. J. Q. B. 241; 30 W. R. 272 2 17 R. v. Pearce, Ex parte London School Board (1898), 67 L J Q. B. 842; 78 L. T. 681; 14 Times L. R. 465 167", 380 R. v. Pease (1832), 4 B. & Ad. 30; 1 N. & M. 690; 2 L. J.' M. 0. 26 * 250 151 159 R. v. Perkin (1845), 7 Q. B. 165; 9 Jur. 686 '.... ' 214 R. v. Poulter (1887), 20 Q. B. D. 132; 57 L. J. Q. B. 138- 58 L, T. 534; 36 W. R. 117; 52 J. P. 244 123, 127, 142,'l68, 179 R. o. Rand (1866), L. R. 1 Q. B. 230; 35 L. J. M. C. 157 ...' ' 239 R. v. Rochdale Improvement Commissioners (1856), 2 Jur. N. S. 861 117, 123', 181 R. v. Rynd (1863), 16 Ir. C. L. R. 29 155 R. v. St. Luke's, Chelsea, Vestry (1871), L. R. 6 Q. B 572- 7 Q. B. 148; 41 L. J. Q. B. 81; 25 L. T. 914; 20 W. R. 209. ..147, 148 TABLE OF CASES. lvii R. — Ran page E. v. St. Marylebone Vestry (1887), 20 Q. B. D. 415; 57 L. J. M. 0. 9; 58 L. T. 180; 36 W. E. 271; 52 J. P. 534 361 E. v. Scard (1894), 10 Times L. E. 545; 27 W. E. 540 118, 239, 240 E. -c. Sheffield and Manchester Rail. Co. (1839), 11 A. & E. 194; 1 Eail. Gas. 537 238, 241 E. v. Sheward (or Steward) (1880), 5 Q. B. D. 179; 9 Q. B. D. 741; 49 L. J. Q. B. 329, 716 240 E. v. Smith. See E. v. Manley Smith. E. v. South Devon Eail. Co. (1850), 15 Q. B. 1043; 20 L. J. Q. B. 145; 15 Jur. 464 197, 198 E. v. South Holland Drainage Committee (1838), 8 A. & E. 429; 1 P. & D. 79 68, 104, 224, 239, 241 E. «. South Wales Eail. Co., Ex parte Eichards (1849), 13 Q. B. 988; 6 Eail. Cas. 197; 18 L. J. Q. B. 310; 13 Jur. 1095 ...214, 224, 238 E. v. South Wales Eail. Co. (1850), 14 Q. B. 902; 19 L. J. Q. B. 272; 6 Eail. Cas. 489; 14 Jur. 823 48, 303 E. v. Stone (1866), L. E. 1 Q. B. 529; 35 L. J. M. C. 208; 14 L. T. 552; 14 W. E. 791 178, 183, 206 E. u. Sunderland (Justices of), [1901] 2 K. B. 357; 70 L. J. K. B. 946; 85 L. T. 183; 65 J. P. 599 181 R, v. Sutton Harbour Commissioners (1853), 2 W. E. 10; 22 L. T. (O. S.) 86 199 E. v. Vaughan (1869), L. E. 4 Q. B. 190; 38 L. J. M. C. 49; 17 W. E. 115 122, 158, 179, 183, 224, 23S E. v. Wallasey Local Board (1869), L. R. 4 Q. B. 351; 38 L. J. Q. B. 217; 10 B. & S. 428; 21 L. T. 90; 17 W. R. 766 341, 511 R. v. Warwickshire (Sheriff of) (1841), 2 Eail. Cas. 661 213 E. v. Warwickshire (Sheriff of) (1854), 3 W. E. 164; 24 L. T. (O. S.) 211 210, 211, 239 E. v. Waterford and Limerick Eail. Co. (1852), 2 Ir. O. L. 580 ... 451 E. v. West Midland Eail. Co. (1862), 11 W. E. 857 199 E. v. Westminster High Bailiff, Ex parte London County Council, [1903] 2 K. B. 189; 72 L. J. K. B. 600; 88 L. T. 834; 52 W. E. 10, 109; 67 J. P. 302; 19 Times L. E. 506; 1 L. G. E. 569 217 R. v. Woods and Forests (Commissioners of) (1850), 15 Q. B. 761; 19 L. J. Q. B. 497; 15 Jur. 35 81 R. v. Wycombe Rail. Co. (1867), L. R. 2 Q. B. 310; 36 L. J. Q. B. 121; 15 L. T. 610; 15 W. R. 489 30 R. v. York and North Midland Rail. Co. (1853), 1 E. & B. 178, 858; 22 L. J. Q. B. 41, 225; 7 Rail. Cas. 266; 17 Jur. 62; 1 W. R. 35 66, 67 Radams' (W.) Microbe Killer Co. v. Leather, [1892] 1 Q. B. 85; 61 L. J. Q. B. 38; 65 L. T. 604; 40 W. R. 83 22.6 Railstone v. York, &c. Eail. Co. (1850), 15 Q. B. 404; 19 L. J.. Q. B. 464; 14 Jur. 1021 209, 216, 232, 235 Ramsden v. Manchester and Altrincham Rail. Co. (1848), 1 Ex. 723; 5 Rail. Cas. 552; 12 Jur. 293 15, 67, 71, 90, 92 Rangeley v. Midland Rail. Co. (1868), L. R. 3 Oh. 306; 37 L. J. Ch. 313; 18 L. T. 69; 16 W. R. 547 29, 93 Ranlcen v. East and West India Docks and Birmingham Junction Rail. Co. (1850), 12 Beav. 298; 19 L. J. Ch. 153; 14 Jur. 7 ...67, 296 lviii TABLE OF CASES. Rap — Rio PAGE Eaper v. Crystal Palace and South. London Bail. Go. (1868), 18 L. T. 8; 16 W. R. 413 61 Baphael v. Thames Valley Rail. Co. (1867), L. R. 2 Oh. 147; 36 L. J. Ch. 209; 16 L. T. 1; 15 W. B. 322 60 Bawlings v. Metropolitan Bail. Oo. (1868), 37 L. J. Ch. 824; 18 L. T. 871 56, 74 Bay v. Walker, [1892] 2 Q. B. 88; 61 L. J. Q. B. 718 309, 314 Bayner, Ex parte (1878), 3 Q. B. D. 446; 47 L. J. Q. B. 660; 39 L. T. 232 200, 340, 509 Bead v. Victoria Station and Pimlico Bail. Co. (1863), 11 W. B. 1032; 9 Jur. N. S. 1061; 1 H. & 0. 826; 32 L. J. Ex. 167 ... 177, 205, 206, 224, 234, 2,38 Beading v. Hamilton (1862.), 5 L. T. 628 262 Beaston's Estate, In re (1872), L. B. 13 Eq. 564 257 Beddin v. Metropolitan Board .of Works (1862), 31 L. J. Oh. 660; 7L. T. 6; 10W. B. 764; 4 De G. P. & J. 532 39 Beeve, Ex parte, In re Manor of Lowestoft and Great Eastern Bail. Co. (1883), 24 Oh. D. 253; 52 L. J. Oh. 912; 49 L. T. 523; 32 W. B. 309 48, 273 Beeve v. Gibson, [1891] 1 Q. B. 652; 60 L. J. Q. B. 451; 39 W. B. 420 275 Regent's Oanal Oo. u. London School Board, (1885) W. N. 4 48 Regent's Canal and Dock Co. v. London County Council, [1912] 1 Oh. 583; 81 L. J. Oh. 377; 106 L. T. 745; 76 J. P. 353; 10 L. G. B. 358; 56 S. J. 309; 28 Times L. B. 248 39 Regent's Canal Co. v. Ware (1857), 23 Beav. 575; 26 L. J. Ch. 566; 29 L. T. (O. S.) 274; 3 Jur. N. S. 924; 5 W. R. 617... 57, 140, 228 Eehoboth Chapel, In re (1875), L. B. 19 Eq. 180; 44 L. J. Oh. 375; 31 L. T. 371; 23 W. B. 405 254 Eeynolds, In re (1876), 3 Oh. D. 61; 35 L. T. 293; 24 W. B. 991. 259 Bhodes' Will, In re (1886), 31 Ch. D. 499; 55 L. J. Oh. 477; 54 L. T. 294; 34 W. B. 270, 501 251 Bhodes v. Airedale Drainage Commissioners (1876), 1 C. P. D. 402; 45 L. J. C. P. 861; 35 L. T. 46; 24 W. B. 1053 187, 194, 222, 235, 236 Bhondda and Swansea Bail. Oo. v. Talbot, [1897] 2 Ch. 131; 66 L. J. Ch. 570; 76 L. T. 694; 13 Times L. R. 450 127 Rhys v. Dare Valley Rail. Oo. (1874), L. R. 19 Eq. 93; 23 W. R. 23 139 Eichard and Great Western Rail. Co., In re, [1905] 1 K. B. 68; 74 L. J. K. B. 9; 91 L. T. 724; 69 J. P. 17; 53 W. E. 83; 21 Times L. E. 37 134, 141, 170, 194, 224, 226 Richards v. De Winton, Eichards v. Evans, [1901] 2 Oh. 566; [19031 1 Oh. 507; 70 L. J. Oh. 719; 72 L. J. Oh. 269; 84 L. T. 831; 88 L. T. 333; 50 W. B. 87; 65 J. P. .696 290, 291 Eichards v. Scarborough Public Market Oo. (1853), 23 L. J. Ch. 110 31 Eichards v. Swansea Improvement and Tramways Oo. (1878), 9 Ch. D. 425; 38 L. T. 833; 26 W. E. 764 36, 37, 39, 40, 41 Richardson o. Elmit (1876), 2 C. P. D. 9; 36 L. T. 58 56 TABLE OF OASES. Hx Ric — Rua PAUE Richardson v. South Eastern Eail. Co. (1851), 11 C. B. 154; 15 Jur. 660; 20 L. J. C. P. 236; (1852), 21 L. J. 0. P. 122; 15 C. B. 810; 16 Jur. 151 (Exoh. Oh.) 209, 216 Richmond v. North London Rail. Oo. (1868), L. R. 5 Bq. 352; 3 Oh. 679; 37 L. J. Oh. 273, 886; 18 L. T. 8; 16 W. R. 449. ..79, 85 Ricket v. Metropolitan Rail. Oo. (1865), 34 L. J. Q. B. 257; 13 W. R. 455 (Exch. Oh.); (1867), L. R. 2 H. L. 175; 36 L. J, Q. B. 205; 16 L. T. 542; 15 W. R. 937 (H. L.) ...116, 145, 148, 150, 151, 156, 157, 158, 159 Ricketts v. East and West India Docks and Birmingham Junction Rail. Oo. (1852), 12 0. B. 160; 21 L. J. 0. P. 201; 7 Rail. Oas. 295; 16 Jur. 1072 450 Riddell v. Lanarkshire and Ayrshire Rail. Oo. (1904), 6 F. (Ot. of Sess.) 432 200 Riddell v. Newcastle and Gateshead Water Co. (1879), The Times, 14 June, 1879 110 Rigby v. Bennett (1882), 21 Oh. D. 559; 48 L. T. 47; 31 W. R. 222; 47 J. P. 217 130 Righton v. Righton (1867), 36 L. J. Oh. 61 56, 57 Ringer, Ex -parte (1909), 73 J. P. 436; 7 L. G. R. 1041; 53 S. J. 745; 25 Times L. R. 718 371 Ripley v. Great Northern Rail. Co. (1875), L. R. 10 Oh. 435; 31 L. T. 869; 23 W. R. 685 165 River Dun Navigation v. North Midland Rail. Oo. (1838), 1 Rail. Oas. 135 25 River Roden Oo. v. Barking Urban District Council, (1902) W. N. 86, 103; 18 Times L. R. 542, 608 95, 176 River Wear Commissioners o. Adamson (1877), 2 App. Oas. 743; 47 L. J. Q. B. 193; 37 L. T. 543; 26 W. R. 217 1 Roberts v. Charing Cross, Euston and Hampstead Rail. Co. (1903), 87 L. T. 732; 19 Times L. R. 160 149, 150, 160 Roberts v. Gwyrfai District Council, [1899] 1 Ch. 583; 2 Oh. 608; 68 L. J. Ch. 233, 757; 81 L. T. 465; 48 W. R. 51; 63 J. P. 181; 16 Times L. R. 2 303, 342, 512 Robertson v. City and South London Rail. Oo. (1904), 20 Times L. R. 395; 68 J. P. 280 186, 217 Robertson v. Wrexham, Mold, &c. Rail. Oo. (1869), 17 W. R. 137... 6a Robinson's Settlement Trusts, In re, [1891] 3 Ch. 129; 60 L. J. Ch. 776; 65 L. T. 244; 39 W. R. 632; 7 Times L. R. 488 258 Roderick v. Aston Local Board (1877), 5 Ch. D. 328; 46 L. J. Oh. 802; 36 L. T. 328; 25 W. R. 403 343, 344, 511 Rogers v. Hull Dock Oo. (1863), 4 N. R. 494; 12 W. R. 1101; 11 L. T. 42; affd., 34 L. J. Ch. 165; 11 L. T. 463; 13 W. R. 217; 10 Jur. N. S. 1245 75, 90 Rosenberg v. Cook (1881), 8 Q. B. D. 162; 51 L. J. Q. B. 170; 30 W. R. 344 304, 312 Ross v. York, &c. Rail. Oo. (1849), 18 L. J. Q. B. 199; 5 Rail. Cas. 516; 5 D. & L. 695 218 Row, In re (1874), L. R. 17 Eq. 300; 43 L. J. Ch. 347; 29 L. T. 824 259 Ruabon Brick and Terra Ootta Co. v. Great Western Rail. Co., [1893UCh. 427; 62 L. J. Ch.483; 68L.T. 110; 41 W. R. 418... 136, 137 lx TABLE OF CASES. RUC — St. PAGE Buck's Trusts, In re (1895), 13 B. 637 265 Bugby Portland Cement Oo. v. London and North Western Bail. Co., [1908] 2 K. B. 606; 77 L. J. K. B. 1096; 98 L. T. 880; 72 J. P. 245; 24 Times L. B. 561 128, 133 Bussell v. Wakefield Waterworks Oo. (1875), L. E. 20 Bq. 474; 44 L. J. Ch. 496; 32 L. T. 685; 23 W. B. 887 45 Buthin, &o. Bailway Act, In re, Ex parte Hughes' Trustees (1886), 32 Ch. D. 438; 56 L. J. Oh. 30; 55 L. T. 237; 34 W. B. 581... 385 Byan v. Great Southern and Western Bail. Oo. (1892), 32 L. E. Ir. 15 452 Byder, In re (1888), 37 Ch. D. 595; 57 L. J. Oh. 459; 58 L. T. 783 263 S. Sadd v. Maldon, &c. Bail. Oo. (1851), 6 Ex. 143; 20 L. J. Ex. 102; 6 Bail. Cas. 779 29, 30 St. Alban's, Wood Street (Sector of), Be (1891), 66 L. T. 51 ...251, 257 265 281 283 St. Alphage (Parson, &c. of), In re, (1886) W. N. 154; 55 L. T. 314 257 St. Bartholomew's Hospital, Be (1859), 4 Drew. 425 280 St. Bartholomew's Hospital (Governors of), Ex parte (1875), L. E. 20 Eq. 369; 32 L. T. 652 284 St. Botolph, Aldgate (Vicar of), Ex parte, [1894] 3 Oh. 544 ...252, 255 St. Dunstan's-in-the-West Charity Schools, In re (1871), L. B. 12 Eq. 537; 24 L. T. 613; 19 W. E. 887 274 St. James's and Pall Mall Electric Light Oo. v. B. (1904), 73 B. J". K. B. 518; 90 B. T. 344; 68 J. P. 288 150, 378 St. John Baptist College, Oxford, Ex parte, In re Metropolitan and District Eailways Act (1882), 22 Oh. D. 93; 51 L. J. Oh. 268; 48 L. T. 331; 31 W. B. 55 262 St. John's Church, Eulham (Minister and Churchwardens of), Ex parte (1857), 28 L. T. (O. S.) 173 256 St. Katharine (Hospital of), Ex parte (1881), 17 Oh. D. 378; 44 L. T. 52 , 275 St. Katherine's Dock iOo., Be (1844), 3 Bail. Oas. 514; 14 W. B. 978 280 St. Leonard's, Shoreditch, Vestry v. London Oounty Council, [18951 2 Q. B. 104; 64 L. J. Q. B. 615; 72 L. T. 802; 43 W. B. 598- 59 J. P. 423; 11 Times L. B. 420 301, 302, 357 St. Margaret, Leicester (Prebend of), Be (1864), 10 L. T. 221 ... 265 St. Martin's, Birmingham (Bector of), Ex parte (1870), L B 11 Eq. 23; 40 L. J. Oh. 69; 23 L. T. 575; 19 W. B. 95 252 St. Mary, Battersea (Vestry of) v. Oounty of London and Brush Provincial Electric Lighting Co., [1899] 1 Oh. 474- 68 L J Ch. 238; 80 L. T. 31 79, 506 St. Mary Woolnoth and St. Mary Woolchurch Haw and Oitv and South London Bail. Co., In re, [1903] 2 1 B 728- 72 L J K. B. 936; 88 L. T. 530; 67 J. P. 221; 19 Times L. B. 363-' affd., H. L., [1905] A. 0. 1; 74 L. J. K. B. 147; 92 L. T. 34- 21 Times L.E. 127; 69 J. P. 101 113 TABLE OF CASES. Ixi St. — Sen PAGE St. Pancras Burial Ground, In re (1866), L. B. 3 Eq. 173; 36 L. J. Oh. 52; 14 W. E. 576 252, 273, 274 St. Paul v. Birmingham, &c. Bail. Oo. (1853), 11 Hare, 305; 21 L. T. (0. S.) 226; 17 Jur. 1176 96 St. Paul's Schools, Pinsbury, Be (1883), 52 L. J. Oh. 454; 48 L. T. 412; 31 W. E. 424 279 St. Sepulchre's Westminster Estate, Be (1864), 4 De G. J. & S. 232; 33 L. J. Oh. 372; 10 Jur. N. S. 298; 91. T. 819; 12 W. E. 499 4 St. Stephen, City of London (Churchwardens of) v. Great Northern and City Eail. Co. (1902), 86 L. T. 390; 66 J. P. 373; 50 W. E. 395; 18 Times L. E. 350 302 St. Thomas' Church Lands, Bristol (Trustees of), Ex parte, (1870) W. N. 192; 23L. T. 135 268 St. Thomas' Hospital, In re (1863), 11 W. E. 1018 256 St. Thomas' Hospital (Governors of) v. Charing Cross Eail. Co. (1861), 1 J. & H. 400; 30 L. J. Ch. 395; 4 L. T. 13; 9 W. E. 411; 7 Jur. N. S. 256 35, 36, 50 Salisbury (Marquis of) v. Great Northern Eail. Oo. (1852), 17 Q. B. 840; 21 L. J. Q. B. 185; 16 Jur. 740 79, 90, 101 Salisbury (Marquis of) v. Great Northern Eail. Oo. (1858), 5 0. B. N. S. 174; 28 L. J. O. P. 40; 7 W. E. 75; 5 Jur. N. S. 70.. .70, 444 Salisbury (Marquis of) and London and North Western "Eail. Co., In re (1879), reported [1892] 1 Oh. 75, n 120, 121, 140, 286, 287 Salmon v. Eandall (1838), 3 Myl. & Or. 439 26 Salter v. Metropolitan District Eail. Co. (1870), L. E. 9 Eq. 432; 39 L. J. Ch. 567 38 Sandbach Charity Trustees v. North Staffordshire Eail. Co. (1878), 3 Q. B.D.I; 47L. J. Q. B. 10; 37 L. T. 391; 26 W. E. 229. ..203, 218 Sanders, In re (1894), 70 L. T. 755 276 Sanderson v. Oockermouth Eail. Co. (1850)), 19 L. J. Ch. 503; 3 H. & Tw. 327 60 Saunderton Glebe Lands, In re, [1903] 1 Oh. 480; 72 L. J. Ch. 276; 88 L. T. 267; 51 W. E. 522 267 Scales v. Pickering (1828), 4 Bing. 448; 1 M. & P. 195 25 Schmarr, In re, [1902] 1 Oh. 326; 71 L. J. Oh. 219; 86 L. T. 71; 50 W. E. 245; 18 Times L. E. 270 275, 281, 282 Schwinge v. London and Blackwall Eail. Oo. (1855), 3 Sm. & Giff. 30; 24 L. J. Oh. 405; 1 Jur. N. S. 368; 3 W. E. 260 42, 107, 206, 208, 209 Scottish North Eastern Eail. Co. v. Stewart (1859), 3 Macq. H. Tj. (Sc.) 382; 5 Jur. N. S. 607; 7 W. E. 458 67 Searby v. Tottenham Eail. Oo. (1867), L. E. 5 Eq. 409 307, 308 Secretary of State for Eoreign Affairs v. Charlesworth, Pilling & Co., [1901] A. 0. 373; 70 L. J. P. 0. 25; 84 L. T. 212 112 Secretary of State for War and Hurley's Contract, In re, [1904] 1 Ir. E. 354 299 Sellors v. Matlock Bath Local Board (1885), 14 Q. B. D. 928; 52 L. T. 762 341, 511 Senior, Ex parte, In re South Yorkshire, &c. Eail. Co. (1849), 18 L. J. Q. B. 333; 14 Jur. 1093; 7 D. & L. 36 200, 207 Ixii TABLE OF CASES. Sen— Ske PAGE Senior *. Metropolitan Bail. Co. (1863), 2 H. & 0. 258; 32 L. J. Ex. 225; 8 L. T. 544; 11 W. E. 836; 9 Jur. N. S. 802.. .115, 153, 316 Sewart's Estate, In re (1874), L. E. 18 Eq. 278; 30 L. T. 355; 22 W. E. 655 263, 277 Sewell v. Harrow and Uxbridge Bail. Co. (1902), 19 Times L. E. 130; 20 Times L. E. 21 83 Seymour v. London and South. Western Eail. Oo. (1859), 5 Jur. N. S. 753; 33 L. T. (O. S.) 280 79 Sharpe v. Metropolitan District Eail. Oo. (1879), 4 Q. B. D. 645... 202, 217 Shaw and Birmingham (Mayor, &o. of), In re (1884), 27 Oh. D. 614; 54 L. J. Oh. 51; 51 L. T. 684; 33 W. E. 74 139, 543 Shaw and Eonaldson, In re, [1892] 1 Q. B. 91; 61 L. J. Q. B. 141.. 193 Sheffield (Mayor, &o. of), Ex parte (1856), 21 Beav. 162; 25 L. J. Oh. 587; 2 Jur. N. S. 31; 4 W. E 70 253 Sheffield (Mayor of) and St. William's Eoman Catholic Chapel and Schools, In re, [1903] 1 Oh. 208; 72 L. J. Oh. 71; 88 L. T. 157; 51 W. E. 380 257 Sheffield (Vicar of), Ex parte (1904), 68 J. P. 313 250, 278 Shelfer v. City of London Electric Lighting Co., [1895] 1 Oh. 287; 64 L. J. Ch. 216; 72 L. T. 34; 43 W. E. 238 32 Shepherd v. Norwich (Mayor, &c. of) (1885), 30 Oh. D. 553; 54 L. J. Oh. 1050; 53 L. T. 251; 33 W. E. 841; 1 Times L. E. 545 77, 78, 105, 107, 192 Shipton-under-Wychwood (Sector of), Ex parte (1871), 19 W. E. 549 254 Shrewsbury (Earl of) v. North Staffordshire Eail. Co. (1865), L. E. 1 Eq. 593; 35 L. J. Oh. 156; 12 Jur. N. S. 63; 13 L. T. 648; 14 W. E. 220 55 Shrewsbury (Earl of) v. Wirrall Eailways Committee, [1895] 2 Ch. 812; 64 L. J. Oh. 850; 73 L. T. 234; 44 W. E. 19 198, 203 Shoreham Aerodrome Case, The (In re A Petition of Eight), [1915] 3 K. B. 649; 54 L. J. K. B. 1961; 113 L. T. 575; 115 L. T". 419; 60 S. J. 694; 32 Times L. E. 699 334 Sidney v. North Eastern Eail. Co., [1914] 3 K. B. 629; 83 L. J. K. B. 1640; 111 L. T. 677 110 Sidney v. North Eastern Eail. Co., [1916] 2 K. B. 760; 86 L. J. K. B. 142; 61 S. J. 28; 116 L. T. 444 200 Siegenberg v. Metropolitan District Eail. Oo. (1883), 49 L. T. 554; 32 W. E. 333 37, 80 Simcoe v. Pethick, [1898] 2 Q. B. 555; 67 L. J. Q. B. 919- 79 L. T. 432 291 Simpson u. Lancaster and Carlisle Eail. Co. (1847), 15 Sim 580- 4 Eail. Cas. 625; 11 Jur. 879 73, 85 Simpson v. South Staffordshire Water Works Co. (1865), 4 De & J. & S. 679; 34 L. J. Ch. 380; 11 Jur. N. S. 453; 12 L. T. 360; 13 W. E. 729, 808 25, 26, 29 Simpson v. Westminster Palace Hotel Oo. (1860), 8 H L 712- 2 L. T. 707; 6 Jur. N. S. 985 '. 45 Sims v. Commercial Eail. Oo. (1838), 1 Eail. Cas. 431 73 Sion College, Be (1888), 57 L. T. 743 4 Skerratt v. North Staffordshire Eail. Co. (1848), 2 Ph 475- 17 L. J. Oh. 161; 5 Eail. Gas. 166; 12 Jur. 46 [ 196 TABLE OF CASES. lxiii Sli— Son PAGE Slipper v. Tottenham and Hampstead Junction Bail. Co. (1867), L. E. 4 Eq. 112; 36 L. J. Oh. 841; 16 L. T. 446; 15 W. E. 861 126, 299 Smith, In re, Ex parte London and North Western Eail. Oo. (1888), 40 Oh. D. 386; 58 L. J. Oh. 108; 60 L. T. 77; 37 W. E. 199 257, 261 Smith v. Birmingham Gas Oo. (1834), 1 A. & E. 526; 3 N. & M. 771; 3 L. J. K. B. 165 54 Smith v. Great Western Eail. Oo. (1877), 3 App. Cas. 165; 2 Oh. D. 250; 47 L. J. Oh. 97; 37 L. T. 645; 26 W. E. 130 ...8, 74, 134, 135, 169 Smiths. Smith (1868), L. E. 3 Ex. 282; 38 L. J. Ex. 37... 304, 305,311 Smith's (William) Estate, In re (1870), L. E. 9 Eq. 178; 18 W. E. 369 262, 277 Smith's Leaseholds, Be (1866), 14 W. E. 949 253 Solway Eail. Co. v. Jackson (1874), 1 Eettie (Sc.) 831 126, 154 Somers and Metropolitan Eail. Co., Re, E. v. Middlesex (Sheriff ofj (1862), 31 L. J. Q. B. 261; 10 W. E. 717; 8 Jur. N. S. 617 178, 206 Somerset and Dorset Eail. Co., Be (1870), 21 L. T. 656; 18 W. E. 332 63 Somerville, Ex parte. See South Eastern Eail. Oo., In re 247 Souch v. East London Eail. Co. (1874), L. E. 16 Eq. 108; 42 L. J. Oh. 477; 21 W. E. 590; 22 W. E. 566 71 South City Market Co., In re, Ex parte Bergin (1884), 13 L. E. Ir. 245 297 South Eastern Eail. Co., In re, Ex parte Somerville (1883), 23 Oh. D. 167; 52 L. J. Ch. 438; 48 L. T. 116; 31 W. E. 518 247 South Eastern Eail. Oo. v. Associated Portland Cement Manufac- turers (1900), Ltd., [1910] 1 Ch. 12; 79 L. J. Ch. 150; 101 L. T. 865; 74 J. P. 21; 54 S. J. 80; 26 Times L. E. 61 ...23, 44, 60, 127 South Eastern Eail. Oo. v. London 0. C, [1915] 2 Oh. 252; 84 L. J. Oh. 756; 113 L. T. 392; 79 J. P. 545; 13 L. G. E. 1302; 59 S. J. 508 108, 115, 316 South Eastern Eail. Oo. u. Eichardson (1852), 15 0. B. 810; 21 L. J. O. P. 122; 16 Jur. 151 200, 215, 218 South Eastern Eail. Oo. and Wiffin's Contract, In re, [1907] 2 Ch. 366; 76 L. J. Ch. 481; 97 L. T. 676 23, 167, 303 Southport and Lytham Tramroad Act, 1900, In re, [1911] 1 Oh. 120; 80 L. J. Oh. 137; 104 L. T. 154 385 South Staffordshire Eail. Oo. v. Hall (1851), 20 L. J. Ch. 397; 6 Eail. Oas. 389; 15 Jur. 322; affirmed, 3 Macn. & G. 353; 16 Jur. 93 107, 208 South Wales Eail. Co., Be (1851), 14 Beav. 418; 15 Jur. 1145; 20 L. J. Oh. 534; 6 Eail. Oas. 151 98, 245 South Wales Eail. Oo. v. Eichards (1849), 18 L. J. Q. B. 310; 6 Eail. Oas. 197; 13 Q. B. 988; 13 Jur. 1095 214, 224, 238 Southwark and Vauxliall Water Co. v. Wandsworth District Board of Works, [1898] 2 Oh. 603; 67 L. J. Ch. 657; 79 L. T. 132: 47 W. E. 107; 62 J. P. 756 149 South Yorkshire, &c. Eail. Co., In re, Ex parte Senior (1849), 18 L. J. Q. B. 333; 14 Jur. 1093; 7 D. & L. 36 200, 207 lxiv TABLE OF CASES. Sow— Sto PAGE Sowry, In re (1873), L. B. 8 Oh. 736; 29 L. T. 233; 21 W. E. 717 257 Spackman v. Great Western Eail. Co. (1855), 1 Jur. N. S. 790; 26 L. T. (0. S.) 22 40, 42 Sparrow v. Oxford, &c. Eail. Oo. (1852), 2 De G. M. & G. 94, 108; 9 Hare, 436; 21 L. J. Oil. 731; 16 Jur. 703 6, 15, 35, 40, 79 Speer's Trusts, In re (1876), 3 Oh. D. 262; 24 W. E. 880 255 Spencer v. Metropolitan Board of Works (1882), 22 Ch. D. 142; 52 L. J. Oh. 249; 47 L. T. 459; 31 W. E. 347 104, 107, 208 Spencer-Bell and London and South Western Eail. Co., Be (1883), 33 W. E. 771 139, 294 Spillers & Baker and Leetham & Sons, In re, [1897] 1 Q. B. 312; 66 L. J. Q. B. 326; 76 L. T. 35; 45 W. E. 241; 13 Times L. E. 152 195 Spitalfields School and Commissioners of Woods and Forests, In re (1871), L. E. 10 Eq. 671; 22 L. T. 569; 18 W. E. 799 274 Spooner's Estate, In re (1854), 1 K. & J. 220 245 Spurstowe's Charity, In re (1874), L. E. 18 Eq. 279; 43 L. J. Ch. 512; 30 L. T. 355; 22 W. E. 566 257 Stafford's Charity, In re, (1887) W. N. 252; 57 L. T. 846 251, 264 Staffordshire, &o. Canal Co. v. Birmingham Canal Co. (1866), L. E. 1 H. L. 254; 35 L. J. Oh. 757 23, 303 Stainton v. Woolrych and Metropolitan Board of Works (1857), 26 L. J. Oh. 300; 23 Beav. 225; 3 Jur. N. S. 257; 5 W. E. 305 ... 347 Stamps v. Birmingham, &c. Eail. Oo. (1848), 2 Ph. 673; 17 L. J. Ch. 431; 6 Eail. Oas. 123 85 Standish v . Liverpool (Mayor, &c. of) (1852), 1 Drew. 1 93 Staples, Ex -parte (1852), 1 De G. M. & G. 294; 21 L. J. Oh. 251.. 263 Starr v. London (Corporation of) (1869), L. E. 7 Eq. 236; 20 L. T. 937 206 Stead's Mortgaged Estates, In re (1876), 2 Oh. D. 713; 45 L. J. Ch. 634; 35 L. T. 465; 24 W. E. 698 272 Stebbing v. Metropolitan Board of Works (1870), L. E. 6 Q. B. 37; 40 L. J. Q. B. 1; 19 W. E. 73; 23 L. T. 530 ...112, 113, 225, 239 Steele v. Liverpool (Mayor, &c. of) (1866), 14 W. E. 311; 7 B. & S. 261 81 Steele u. Midland Eail. Oo. (1866), L. E. 1 Ch. 275; 14 W. E. 367; 12 Jur. N. S. 218; 14 L. T. 3 23, 37 Steele v. Midland Eail. Oo. (1869), 21 L. T. 387 105 Sterry's (or Perry's) Estate, Be (1855), 3 W. E. 561; 1 Jur. N. S. 917 274 Stevens, Ex parte (1848), 2 Ph. 772; 13 Jur. 2; 5 Eail. Cas. 437... 97 Stevenson v. North British Eail. Co. (1902), 4 P. (Ct. of Sess.) 224 71 Stewart, In re (1889), 41 Oh. D. 494; 60 L. T. 737; 37 W. E. 484.. 247 Stockport, Timperley, &c. Eail. Co., Re (1864), 33 L. J. Q. B. 251; 10 L. T. 426; 10 Jur. N. S. 614 142, 163, 164, 165, 166 Stockton and Darlington Eail. Co. v. Brown (1860), 9 H. L. C. 246; 8 W. E. 708; 6 Jur. N. S. 1168 30, 31, 136 Stone v. Commercial Eail. Co. (1839), 4 Myl. & Cr. 122; 9 Sim. 621; 1 Eail. Cas. 375 94, 206, 208, 223 TABLE OP OASES. lxv Sto — Sym page Stone v. Yeovil (Mayor, &e. of) (1876), 2 C. P. D. 99; 1 C. P. D. 691- 1 0. &D. 701; 46 L. J. 0. P. 137; 45 L. J. C. P. 657; 36 L T 279; 34 L. T. 874; 25 W. E. 240; 24 W. B, 1073 ...14, 142, 143, 144, 152, 168, 173, 174, 249 Stoneham v. London, Brighton and South Coast Eail. Co. (1871), L. E. 7Q. B. 1; 41 L. J. Q. B. 1; 25 L. T. 788; 20 W. E. 77... 293 Storer v. Great Western Eail. Co. (1839), 2 Y. & C. (Ch.) 48; 6 Jur. 1009; 3 Eail. Oas. 106; 12 L. J. Ch. 65 60' Stourbridge Canal Co. v. Dudley (Earl of) (1860), 30 L. J. Q. B. 108; 3 E. & E. 409; 7 Jur. N. S. 329; 3 L. T. 449; 9 W. E. 158 453 Strabane E. 0., Ex parte, [1910] 1 Ir. E. 135 294 Strathmore Estates, In re (1874), L. E. 18 Eq. 338 267 Stratton v. Metropolitan Board of Works (1874), L. E. 10 0. P. 76; 44 L. J. M. 0. 33; 31 L. T. 673; 23 W. E. 447 301, 302 Streatham and General Estates Co. v. Public Works Commissioners (1888), 4 Times L. E. 766; 52 J. P. 615 119, 214, 226 Stretton v. Great Western and Brentford Eail. Co. (1870), L. E. 5 Ch. 751; 40 L. J. Ch. 50; 23 L. T. 379; 18 W. E. 1078 ...60, 67, 69 Stringer and Eiley Bros., In re, [1901] 1 K. B. 105; 70 L. J. K. B. 19; 49 W. E. Ill 197, 243 Stroud v. Watts (1846), 3D. & L, 799; 10 Jur. 497 214 Sudeley (Lord) and Baines & Co., In re, [1894] 1 Oh. 334; 63 L. J. Ch. 194; 70 L. T. 549; 42 W. E. 231. 50 Summers v. Holborn Board of Works, [1893] 1 Q. B. 612; 62 L. J. M. C. 81; 68 L. T. 226; 41 W. E. 445; 57 J. P. 326 520 Sunderland (Freemen, &c. of), Ex parte (1852), 1 Drew. 184; 16 Jur. 370 274 Sutton Harbour Improvement Commissioners 511 Uxbridge and Bickmansworth Bail. Co., In re (1890), 43 Oh. D. 536: 59 L. J. Ch. 409; 62 L. T. 347; 38 W. B. 644 ...55, 64, 66, 87, 207, 384 V. Vale of Neath Bail. Co., Be, (1866) W. N. 78 253 Vane v. Cockermouth Bail. Co. (1865), 12 L. T. 821 ; 13 W. B. 1015. 28 Vaudrey's Trusts, Be (1861), 3 Giff. 224; 30 L. J. Oh. 885; 7 Jur. N. S. 753 279' Vaughan v. Tafi Vale Bail. Oo. (1860), 5 H. & N. 679; 29 L. J. Ex. 247; 6 Jur. N. S. 899; 2 L. T. 394; 8 W. B. 549 150, 151, 159- W. Wade, Be (1849), 1 H. & Tw. 202 49* Wadham t\ North Eastern Bail. Oo. (1884), 14 Q. B. D. 747; 16 Q. B. D. 227; 54 L. J. Q. B. 344; 55 L. J. Q. B. 272; 51 L. T. 684; 52 L. T. 894; 33 W. B. 215; 34 W. B. 342; 49 J. P. 299; 1 Times L. B. 148 156, 158, 1S» Wainwright r. Bamsden (1839), 5 M. & W. 602; 9 L. J. Ex. 120; 1 Bail. Cas. 714 127 Wakefield ■/■. Llanelly Bail, and Dock Co. (1865), 3 De G. J. & S. 11; 13 W. E. 823; 12 L. T. 509; 11 Jur. N. S. 456; 34 Beav. 245 193, 194, 228- Wakefield Local Board v. West Biding, &c. Bail. Co. (1865), L. E. 1 Q. B. 84; 6 B. & S. 794; 10 Oox, 0. 'O. 162; 35 L. J. M. C. 69; 14 W. E. 100 181 Wale v. Westminster Palace Hotel Co. (1860), 8 C. B. N. S. 276; 7 Jur. N. S. 26; 9 W. E. 14 4, 232, 234 Walker's Estate, In re (1853), 1 Drew. 508; 22 L. J. Ch. 888; 17 Jur 706; 1 W. E. 378; 21 L. T. (O. S.) 148 250- Walker and Beckenham Local Board, Be (1884), 50 L. T. 207; 48 J. P. 264 198, 233, 344 Walker and London and Blackwall Bail. Co., Be, B. v. Middlesex (Sheriff of) (1842), 3 Q. B. 744; 3 Bail. Oas. 396; 3 G. & D. 549; 12 L. J. Q. B. 88; 7 Jur. 323, 1154 94, 211, 217 Walker v. Ware, &c. Bail. Co. (1866), L. B. 1 Eq. 195; 35 L. J. Ch. 94; 35 Beav. 52; 12 Jur. N. S. 18; 14 W. B. 158 ...61, 102, 230 Walshaw v. Brighouse Corporation, [1899] 2 Q. B. 286; 15 Times L. E. 403 511 Warburton v. Haslingden Local Board (1879), 48 L. J. Q. B. 451.. 340, 519 Ward, In re (1862), 11 W. E. 88 235 Ware and Begent's Canal Oo., Be (1854), 9 Ex. 395; 23 L. J. Ex. 145; 7 Bail. Oas. 780 (and see Begent's Oanal Oo. v. Ware) ... 169, 224, 299- Ware v. London, Brighton and South Coast Bail. Oo. (1883), 52 L. J. Ch. 198; 47 L. T. 541; 31 W. E. 228 306 Ware v. Eegent's Canal Oo. (1858), 3 De G. & J. 212; 28 L. J. Oh. 153 \ 45, 46, 154 Warr (Prank) & Oo. p. London County Council, T19041 1KB 713; 73 L. J. K. B. 362; 90 L. T. 368; 52 W. E. 405- 68 J P 335; 20 Times L. E. 346; 2 L. G. E. 723 10 124 TABLE OF CASES. l x i x "Wat— Wig page Waterloo (or Waterton) v. Burt (1870), 39 L. J. Oh. 425; 18 W. B. 683 293 Watts v. Watts (1874), L. E. 17 Eq. 217; 43 L. J. Ch. 77; 29 L. T. 671; 22 W. E. 105 56 Wear (Eiver) Commissioners v. Adamson (1877), 2 App. Cas. 743; 47 L. J. Q. B. 193; 37 L. T. 543; 26 W. E. 217 1 Webb v. Direct London and Portsmouth Eail. Co. (1851), 9 Hare, 129; 1 De G. M. & G. 521; 21 L. J. Ch. 337; 16 Jur. 323 ...60, 88 Webb v. Manchester and Leeds Eail. Co. (1839), 4 Myl. & Or. 116; 1 Eail. Cas. 576 24 Webster's Settled Estates, Be (1854), 2 Sm. & Giff., Appx. vi... 263, 264 Weld v. South Western Eail. Co. (1864), 32 Beav. 340; 33 L. J. Ch. 142; 11 W. E. 448; 9 Jur. N. S. 510 66 Wells v. Chelmsford Local Board (1880), 15 Ch. D. 108; 49 L. J. Oh. 827; 43 L. T. 378; 29 W. E. 381; 45 J. P. 6 271 Western Counties Eail. Co. i>. Windsor and Annapolis Eail. Co. (1882), 7 App. Cas. 178; 51 L. J. P. 0. 43; 46 L. T. 351 1 Westfield and Metropolitan Eail. Cos., In re, E. v. Manley Smith (1883), 12 Q. B. D. 481; 53 L. J. Q. B. 115; 32 W. E,. 275 ... 203, 216, 218 West India Electric Co. v. Kingston Corporation, [1914] A. C. 986; 83 L. J. P. O. 380; 111 L. T. 1038 ". 30 West Lancashire Eural District Council v. Lancashire and York- shire Eail. Co., [1903] 2 K. B. 394; 72 L. J. K. B. 675; 89 L. T. 139; 51 W. E. 694; 67 J. P. 410; 19 Times L. E. 625; 1 L. G. E. 788 444 Westminster Corporation v. London and North Western Eail. Co., [1905] A. 0. 426; 74 L. J. Oh. 629; 93 L. T. 143; 54 W. E. 129; 3 L. G. E. 1120; 69 J. P. 425; 21 Times L. E. 686 ...72, 506 Westminster (Dean and Chapter of), Ex parte (1854), 23 L. J. Oh. 144; 18 Jur. 1113 268 West Yorkshire Tramways Act, 1906, In re, [1913] 1 Ch. 170; 82 L. J. Ch. 98; 108 L. T. 18; 11 L. G. E. 78; 57 S. J. Ill; 29 Times L. E. 115 385 Whatley v. Morland (1833), 2 Dowl. P. C. 249; 2 0. & M. 347; 3 L. J. Ex. 58 193 Wheeler v. Metropolitan Board of Works (1869), L. E. 4 Ex. 303; 38 L. J. Ex. 165 301 White's Charities, In re, Charity Commissioners v. London Cor- poration, [1898] 1 Ch. 659; 67 L. J. Oh. 430; 78 L. T. 550; 46 W. E. 478 72 White v. Commissioners of Public Works (1870), 22 L. T. 591 ... 118 Whitehouse v. Wolverhampton, &c. Eail. Co. (1869), L. E. 5 Ex. 6; 39 L, J. Ex. 1; 21 L. T. 558; 18 W. E. 147 ...135, 142, 169,454 Whitfield (Incumbent of), Be (1860), 1 J. & Ii. 610; 9 W. E. 764; 30 L. J. Ch. 816; 7 Jur. N. S. 909 254 Whitling (or Whiting), Be (1861), 9 W. E. 830; 7 Jur. N. S. 754.. 263 Whitmore v. Smith (1860), 29 L. J. Ex. 402; 5 H. & N. 824; (1861), 31 L. J. Ex. 107; 5 L. T. 618; 8 Jur. N. S. 514; 10 W. E. 253; 7 H. & N. 509 (Exch. Ch.) 196, 235, 241 Wight's Devised Estates, Be (1857), 6 W. E. 718 256 Wigram v. Fryer (1887), 36 Oh. D. 87; 56 L. J. Oh. 1098; 57 L. T. 255; 36 W. E. 100 96, 152, 153 lxx TABLE OF OASES. Wil— Woo PA QK Wild v. Woolwicli B. 0., [1910] 1 Gh. 35; 79 L. J. Oh. 126; 101 L. T. 580; 74 J. P. 33; 8 L. G. E. 203; 54 S. J. 64; 26 Times L. B. 67 41, 42, 80, 352, 353 Wilkes' Estate, In re (1881), 16 Oh. D. 597; 50 L. J. Oh. 199 ... 268 'Wilkins v. Birmingham (Mayor, &c. of) (1883), 25 Ch. D. 78; 53 L. J. Oh. 93; 49 L. T. 468; 32 W. R. 118; 48 J. P. 231 ...68, 81, 82, 122, 356, ,357 Wilkinson, Ex parte (1843), 3 De Q. & 8m. 633; 19 L. J. Ch. 257; 14 L. T. (O. S.) 171; 14 Jur. 301 269- Wilkinson v. Hull, &o. Rail, and Dock Oo. (1882), 20 Oh. D. 323; 51 L. J. Ch. 788; 46 L. T. 455; 30 W. E. 617 29, 31 Willesden Local Board and Wright, In re, [1896] 2 Q. B. 412; 65 L. J. Q. B. 567; 75 L. T. 13; 44 W. E. 676; 60 J. P. 708 198, 233, 344 Willey v. South Eastern Bail. Oo. (1849), 1 Macn. & G. 58; 18 L. J. Ch. 201; 1 H. & Tw. 56; 6 Ea.il. Oas. 108; 13 Jur. 241 ...93,99 Williams' Estate, In re (1871), L. E. 12 Eq. 488 274 Williams v. Aylesbury, &c. Eail. Oo. (1873), 28 L. T. 547; 21 W. E. 819 61, 102, 230 Williams v. Aylesbury, &c. Eail. Co. (1874), L. E. 9 Oh. 684; 43 L. J. Ch. 825; 31 L. T. 521 256 Williams v. East London Eail. Co. (1869), 18 W. E. 159; 21 L. T. 524 299 Williams v. Great Eastern Eail. Oo. (1868'), 16 W. E. 821; 18 L. T. 458 61 Williams v. South Wales Eail. Oo. (1849), 3 De G. & 8m. 354; 13 Jur. 443; 13 L. T. (O. S.) 6 91 Wilson's (Sir Thomas) Estate, Me (1862-3), 3 De G. J. & S. 410; 2 J. & H. 619; 32 L. J. Ch. 191; 9 Jur. N. S. 1043; 7 L. T. 772; 11 W. E. 295 267,287 Wilson v. Poster (1859), 26 Beav. 398; 28 L. J. Ch. 410; 5 Jur. N. S. 113; 7 W. E. 172 264 Wilson i . West Hartlepool Eail. Oo. (1865), 2 De G. J. & S. 475; 34 Beav. 187; 34 L. J. Oh. 241; 11 L. T. 692; 11 Jur. 124; 13 W. E. 361 54, 55 Wimbledon and Dorking Railway Act, In re (1863), 9 L. T. 703... 97 Winchester (Bishop of) v. Mid-Hants Eail. Oo. (1867), L. E. 5 Eq. 17; 37 L. J. Oh. 64; 17 L. T. 161; 16 W. E. 72 57,61 Winchester College (Warden of), Ex parte (1865), 14 W. E. 788; 14 L. T. 543 253 Winder, Ex parte (1877;), 6 Ch. D. 696; 46 L. J. Oh. 572- 25 W. E. 768 271, 273 Windsor, &c. Eail. Co., Re (1849), 12 Beav. 522 282 Wing v. Tottenham and Hampstead Junction Rail. Co. (1868), L. E. 3 Oh. 740; 37 L. J. Ch. 654; 16 W. E. 1098 102, 230' Withington Local Board v. Manchester Corporation, [18931 2 Oh. 19; 62 L.J. Oh. 393; 68 L. T. 330; 41 W. E.306; 57 J. P. 340.. 31, 32 Wombwell v. Barnsley (Mayor, &c. of) (1877), 36 L. T. 708 203 Wood's Estate, In re (1871), L. R. 10 Eq. 572; 40 L. J. Oh. 59... 269- Wood's Estate, In re (1886), 31 Ch. D. 607; 55 L. J. Oh 488- 54 L. T. 145; 34 W. E. 375 .' 4 Wood's Settled Estates, In re (1875), L. E. 20 Eq. 372 259' TABLE OF OASES. lxxi Woo— Zic PAGE Wood v. Boucher (18710, L- &• 6 Oh. 77; 10 Eq. 572; 40 L. J. Oh. 112; 23 L. T. 723; 19 W. E. 234 264 Wood v. Charing Cross Rail. Oo. (1864), 33 Beav. 290 67, 171 Wood v. Epsom and Leatherhead Bail. Oo. (1860), 8 O. B. N. S. 731; 30 L. J. O. P. 83 73 Wood v. Iillies (1892), 61 L. J. Oh. 158 172 Wood v. North Staffordshire Bail. Oo. (1849), 3 De Q. & 8m. 368; 13 Jur. 466 208 Wood v. Stourbridge, &c. Bail. Co. (1864), 16 C. B. N. S. 222 155 Woodburn's Trust, Be (1866), 13 L. T. 237 282 Woodford Land and Building Co. v. Woodford U. O. (1921), 19 L. G. B. 559 371, 372 Wood Green Gospel Hall Charity, In re, Ex parte Middlesex 0. C, [1909] 1 Ch. 263; 78 L. J. Oh. 193; 100 L. T. 194 279 Woolwich Borough Council, Ex parte, [1908] W. N. 56; 24 Times I,. B. 370 257 Wootton's Estate, In re (1866), L. B. 1 Eq. 589; 35 L. J. Ch. 305.. 268 Wootton's Trusts, Be (1863), 7 L. T. 620; 1 N. B. 193 56 Worsley v. South Devon Bail. Oo. (1851), 16 Q. B. 539; 20 L. J. Q. B. 254; 15 Jur. 970 101, 210, 211 Wright, Ex parte (1831), 2 B. & Ad. 348 123 Wright v. Howson (1888), 4 Times L. E. 386 193 Wrigley v. Lancashire and Yorkshire Bail. Co. (1863), 4 Giff. 352; 9 Jur. N. S. 710; 8 L. T. 267 19 Wyatt v. Gems, [1893] 2 Q. B. 225; 62 L. J. M. 0. 158; 17 Oox, C. C. 679; 69 L. T. 456; 42 W. B. 28; 57 J. P. 665 520 Wycombe Bail. Co. v. Donnington Hospital (1866), L. B. 1 Ch. 268; 14 W. B. 359; 12 Jur. N. S. 347; 14 L. T. 179 ...58, 174, 229 Yarmouth (Mayor, &c. of) v. Simmons (1878), 10 Ch. D. 518; 47 L. J. Ch. 792; 38 L. T. 881; 26 W. B. 802 17 Yates, Ex parte (1869), 17 W. B. 872; 20 L. T. 940 282 Yates v, Blackburn (Mayor, &c. of) (1860), 6 H. & N. 61; 29 L. J. Ex. 447; 2 L. T. 746 190, 201 Yeadon Local Board and Yeadon Waterworks Co., In re (1889), 41 Ch. D. 52; 58 L. J. Oh. 563; 60 L. T. 550; 37 W. B. 360... 340, 510 York and North Midland Bail. Co. v. B. (1853), 1 E. & B. 178, 858; 22 L. J. Q. B. 41, 225; 7 Bail. Cas. 266; 17 Jur. 62; 1 W. B. 35 66,67 Youl, In re (1873), L. B. 16 Eq. 107; 42 L. J. Oh. 900 252 Young v. Leamington (Mayor, &c. of) (1883), 8 ApJ>. Cas. 517; 52 L. J. Q. B. 713; 49 L. T. 1; 31 W. E. 925 54 Young v. North British Bail. Co. (1888), 15 B. (H. L.) 32 70 Ystalyfera Iron Co. v. Neath and Brecon Bail. Co. (1873), L. B. 17 Eq. 142; 43 L. J. Ch. 476; 29 L. T. 662; 22 W. B. 149 ...65, 79, 84 Z. Zick v. London United Tramways, Ltd., [1908] 2 K. B. 126; 98 L. T. 841; 72 J. P. 257; 24 Times L. E. 577; 52 S. J. 456. ..81, 124 ( lxxii ) TABLE OF STATUTES. PAGE 37 Hen. VIII. c. 12 10, 76 18 & 19 Car. II. o. 8 (Aot for the Rebuilding of London after the Great Fire) 315 29 Car. II. c. 3 (Statute of Frauds) 56 57 Geo. III. u. xxix. (Metropolitan Paving Act, 1817 (" Michael Angelo Taylor's Act")) 41, 42, 43, 256, 262, 277, 346, 350*— 352*, 520—531 11 Geo. IV. c. lxx. (Hungerford Market Act) 123 6 & 7 Will. IV. c. 71 (Tithe Act, 1836) 9 7 Will. IV. & 1 Vict. c. 83 (Parliamentary Documents Deposit Act, 1837) 434 2 & 3 Vict. u. 71 (Metropolitan Police Courts Act, 1839) 181, 433 5 & 6 Vict. c. 55 (Regulation of Railways Act, 1842) 33 c. 79 (Railway Passenger Duty Act, 1842) 617 c. 94 (Defence Act, 1842) 335*, 336* 379, 489—498, 500, 502, 503 6 & 7 Vict. c. 73 (Solicitors Act, 1843) 198, 203 .8 & 9 Vict. c. 16 (Companies Clauses Act, 1845) 53, 54, 74 c. 18 (Lands Clauses Consolidation Act, 1845) 389 — 435 s. 1 4* s. 2 47* s. 3 8* 12, 17, 47* 180*, 210* 239 a. 5 6* a. 6 17 ». 7 47*— 52* 57, 76, 174, 248, 588 ». 9 57*— 59* 143, 173* 174* ». 10 : 62*, 63* s. 11 62*, 63*, 312 s. 12 33* s. 13 33* 305 s. 14 33, 52* s. 15 59* s- 16 9, 65*— 67*, 87, 90, 147, 207 s. 17 65*— 67* s. 18 15, 17, 42, 55, 67*— 88*, 143, 185, 209 s. 19 77* s. 20 77* s- 21 42 186*, 209* Text, pp. 1 — 387. Appendix of Statutes, pp. 389 — 615. Folios with an asterisk [*] denote that the Act or section in question is specially dealt with. Folios in block type [654] denote the pages in the Appendix where the statute in question is printed. TABLE OF STATUTES. lxxiii 8 i: 9 Vict. c. 18 (Lands Clauses Consolidation Act, 1845), page s. 22 56, 102, 103, 177*, 222 s. 23 56, 74, 86, 87, 103, 175, 185*, 192, 196, 199, 200, 205* 223 s. 24 86, 102, 181* 183, 222, 233 s. 25 56, 86, 189*— 191* 313 3 . 26 189, 191*, 192*, 313 3 . 27 189, 192*, 313 s. 28 189, 192*, 313 a. 29 66, 189, 191* 192*, 313 a. 30 189, 191*, 192* 313 s. 31 196*, 313 s. 32 193*, 313, 539 s. 33 189*, 313, 539 s. 34 115, 201*— 204*, 217* 313, 327 s. 35 194, 197*, 198, 203, 313, 386, 539 g. 36 191*, 313, 539 s. 37 56, 199*, 237, 241*, 313, 539 s. 38 56, 87, 143, 201, 209*, 215*, 216, 217, 313 s. 39 56, 103, 209* 211, 313 s. 40 56, 103, 210*, 313 s. 41 56, 103, 211* 313 s. 42 56, 103, 212*, 313 s. 43 56, 103, 212*, 213*, 313 s. 44 56, 103, 212* 313 s. 45 56, 103, 213* s. 46 56, 103, 213*, 216 s. 47 56, 103, 213* a. 48 56, 103, 212* s. 49 56', 103, 143, 161, 168, 219, 227*, 230 s. 50 56, 103, 230 a. 51 56, 115, 215*, 217* s . 52 56, 218* a. 53 56, 218*, 247 „. 54 56, 213* s. 55 56, 213* a. 56 56, 213* 57 56 213* »'. 58 .'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.".'.'.'.'.'.'.52,' 70,' 98^ ' 143,' 173,' 175*',' 186, 271 a. 59 52, 70, 98, 175*, 186, 213 a. 60 52, 70, 175*, 186, 213 a. 61 52, 70, 175* 186, 213 a. 62 52, 70, 175* 177*, 186, 213 s. 63 143, 161, 168, 173, 183, 186, 213 s. 64 52, 70, 175*, 186*, 202, 237 •■ s . 65 52, 70, 175* 187*, 237 s. 66 52, 70, 175*, 187 s 67 52, 70, 175*, 187 s. 68 7, 11, 14, 75, 86, 92, 100, 102, 103, 104, 125, 143, 147, 153, 160, 167, 169, 170, 187, 200, 204, 208, 209, 212, 216, 217, 223, 231*— 235*, 340, 348 a. 69 248* 249* 250* 253*— 9*, 258—265, 269, 280, 288, 365, 543 a 70 248, 250, 252, 262*— 265*, 365, 543 a 71 248* 249*, 250* 269, 288, 365, 543 3 72 248, 249*, 365, 543 Text, pp. 1 — 387. Appendix of Statutes, pp. 389 — 615. Folios with an asterisk [*] denote that the Act or section in question is specially dealt with. Folios in block type [654] denote the pages in the Appendix where the statute in question is printed. lxxiv TABLE OF STATUTES. 8 & 9 Vict. c. 18 (Lands Clauses Consolidation Act, 1845), page s. 73 248, 266*, 267* 269, 288, 365, 543 s. 74 248, 258, 267* 268*, 365, 543 s. 75 269*, 270*, 365, 543 s. 76 Gft, 92, 176, 228, 270*, 271*, 272, 288, 365, 543 e. 77 176, 228, 270* 271*, 288, 365, 543 s. 78 270, 271*, 272* 365, 543 s. 79 270, 273*, 274*, 365, 543 s. 80 94, 97, 98, 177, 274*— 284*, 299, 365, 543 s. 81 49, 244* s. 82 245*, 246*, 247* e. 83 247*, 295 s. 84 89*, 91, 92, 93, 94, 105, 365, 371, 560, 561 591 592 s. 85 13, 60, 61, 65, 67, 84, 86, 89*— 105*,' 107, 139, 143, 176, 231, 250, 274, 296, 365, 371, 383, 560, 561, 591, 592, 606 s. 86 89*, 92*— 96*, 365, 371, 560, 561, 591, 592 s. 87 89*, 92*— 94*, 231, 250, 365, 371, 560, 561, 591, 592 B . 88 89*, 92*— 96* 365, 371, 560, 561, 591, 592 s. 89 89*, 92*— 94*, 105*, 106*, 365, 371, 560, 561, 591, 592 o. 90 90*, 92*— 94*, 105* 365, 371, 560, 561, 591, 592 e. 91 94, 247* B . 92 35*— 44*, 78, 80, 94, 209, 299, 358, 386, 541, 614 s. 93 34, 44*, 45* 442 s. 94 34* 215 s. 95 120*, 121*, 285* 287* s. 96 120*, 121*, 285, 286*, 287* s. 97 120* 121*, 285, 288* s. 98 120*, 121*, 285, 288* e. 99 285, 289* s. 100 285, 289* s. 101 285 s. 102 176, 285.290* s. 103 285, 290* s. 104 285, 290*, 291* s. 105 285, 290*, 291* a. 106 176*, 285, 292* o. 107 176*, 2S5, 292* a. 108 285, 293*, 294* ». 109 285, 295* a. 110 285, 294* s. Ill 285, 295* s. 112 285, 295* s. 113 285, 295* s. 114 285, 296* s. 115 9, 2S5, 297* s. 116 9, 285, 297* s. 117 9, 235, 298* s. 118 9, 285, 298* s. 119 41, 126, 224, 285, 298* 299* s. 120 285 s. 121 68, 77, 83, 102, 103, 162, 177*— 180*, 183, 185, 187, 205, 206, 222, 231, 233, 285, 357, 365 s. 122 180*, 285 Text, pp. 1—387. Appendix of Statutes, pp. 389—615. Folios with an asterisk [*] denote that the Act or section in question is specially dealt with. Folios in block type [654] denote the pages in the Appendix where the statute in question is printed. TABLE OF STATUTES. lxxv 8 & 9 Vict. u. 18 (Lands Clauses Consolidation Act, 1845), page s. 123 78* h. 124 52, 68*— 70*, 90, 91, 128, 360, 542 s. 125 52, 68*— 70*, 90 s. 126 52, 68*— 70*, 90 s. 127 ...304*— 9*, 312, 314, 339, 365, 375, 556, 569, 611 s. 128 44, 305, 310, 311*— 314*, 349, 375, 442, 569 s. 129 305, 313*, 314, 349, 375, 569 s. 130 188*, 305, 314, 349, 375, 569 s. 131 305, 314* s. 132 314* s. 133 47, 285, 299*— 302*, 357, 366, 549 s. 138 62 s. 140 218 s. 145 237* Schedule A 244 Schedule B 244 u. 20 (Railways Clauses Consolidation Act, 1845) 11, 15, 22, 29, 32, 33, 74, 79, 95, 127, 128, 131*— 136*, 141, 143, 144, 145, 148, 165, 168, 183, 197, 305, 333, 365, 372, 376, 380, 440—457, 461, 463, 517, 556, 578, 579, 586, 590, 611, 617 u. 33 (Railways Clauses Consolidation (Scotland) Act, 1845) 135, 586, 590 10 & 11 Vict. c. 14 (Markets and Fairs Clauses Act, 1847) 387 c. 15 (Gas Works Clauses Act, 1847) 11 c. 17 (Waterworks Clauses Act, 1847) 11, 14, 23, 74, 128, 130, 132, 134*, 135*, 136, 145*, 146*, 147* 148, 160,. 161, 163, 183, 184, 343, 457, 460—467, 513 e. 27 (Harbours, Docks and Piers Clauses Act, 1847)... 23, 386 c. 34 (Towns Improvement Clauses Act, 1847) 369, 386 c. 38 (Land Drainage Act, 1847) 377 <;. 65 (Cemeteries Clauses Act, 1847) 387 u. cclxxx. (London City Improvement Act, 1847) 82 11 & 12 Vict. u. 43 (Summary Jurisdiction Act, 1848) 182, 233 i=. 63 (Public Health Act, 1848) 341 13 & 14 Vict. c. 60 (Trustee Act, 1850) 51 u. 83 (Abandonment of Railways Act, 1850) 304, 383 14 & 15 Vict. «. 70 (Railways (Ireland) Act, 1851) 67, 81, 389 15 & 16 Vict. c. 79 (Inelosure Act, 1852) 292, 420 c. 81 (County Rates Act, 1852) 302 16 & 17 Vict. c. 107 (Customs Consolidation Act, 1853) 380 17 & 18 Vict. c. 67 (Defence Act, 1854) 499 c. 97 (Inclo3ure Act, 1854) 292, 420, 467—9 c. 125 (Common Law Procedure Act, 1854) 87, 187, 197, 207, 232, 233, 235, 271 18 & 19 Vict. c. 58 (Duchy of Lancaster Lands Act, 1855) 607 u. 120 (Metropolis Management Act, 1855) 346, 347, 348, 349, 353, 537 c. 124 (Charitable Trusts Act, 1855) 59 Text, pp. 1 — 387. Appendix of Statutes, pp. 389 — 615. Folios with an asterisk [*] denote that the Act or section in question is specially dealt with. Folios in block type [654] denote the pages in the Appendix where the statute in question is printed. Ixxvi TABLE OF STATUTES. I'AQK 19 & 20 Vict. c. 83 (Coastguard Service Act, 1856) 380 c. 112 (Metropolis Management Amendment Act, 1856).. 346 21 & 22 Vict. c. 73 (Stipendiary Magistrates Act, 1858) 181 c. 104 (Metropolis Management Amendment Act, 1858).. 346 22 & 23 Vict. c. 21 (Queen's Remembrancer Act, 1859) 500 23 & 24 Vict. c. 106 (Lands Clauses Consolidation Acts Amendment Act, 1860) 3, 47, 62, 280, 335, 345, 393, 394, 435— 8 c. 112 (Defence Act, 1860) 500—504 24 & 25 Vict. c. 133 (Lan.". Drainage Act, 1861) 377 25 & 26 Vict. c. 93 (Thames Embankment Act, 1862) 13 c. 102 (Metropolis Management Amendment Act, 1862).. 346, 347, 349, 350 26 & 27 Vict. c. 92 (Railways Clauses Act, 1863) 442, 443, 457—8, 613 c. 112 (Telegraph Act, 1863) 378, 600, 601, 605 27 & 28 Viet. c. 57 (Admiralty Lands and Works Act, 1864) 380 u. 114 (Improvement of Land Act, 1864) 375 <;. 121 (Railways Construction Facilities Act, 1864). ..55, 383 u. cccxxii. (Metropolitan District Railways Act, 1864)... 206 28 & 29 Vict. c. 126 (Prisons Act, 1865) 380 29 & 30 Vict. c. 122 (Metropolitan Commons Act, 1866) 585, 589, 598 30 & 31 Vict. c. 127 (Railway Companies Act, 1867) 63, 94, 95, 96, 99, 100, 144, 176, 383, 413, 458 ■31 & 32 Vict. c. 110 (Telegraph Act, 1868) 378 c. 119 (Eegulation of Railways Act, 1868) 219*, 220*, 226, 368, 438, 440, 459, 601, 602 c. cviii. (Metropolitan District Railway Act, 1868) 314 32 & 33 Vict. c. 18 (Lands Clauses Consolidation Act, 1869) ...3, 202* 203*, 280, 345, 438—9, 440 c. 41 (Poor Rate Assessment and Collection Act, 1869).. 302 i.-. 73 (Telegraph Act, 1869) 378 c. 114 (Abandonment of Railways Act, 1869) 304, 383 33 & 34 Vict. u. 70 (Gas and Water Works Facilities Act, 1870) ...14, 387 v. 75 (Elementary Education Act, 1870) 12 <;. 78 (Tramways Act, 1870) 333, 384 34 & 35 Vict. c. 41 (Gas Works Clauses Act, 1871) 31 c. 43 (Ecclesiastical Dilapidations Act, 1871) 577 35 & 36 Vict. c. 44 (Court of Chancery (Funds) Act, 1872) 248, 406, 409, 413, 414, 543, 544 36 & 37 Vict. c. 66 (Judicature Act, 1873) 170, 207 37 & 38 Viet. c. 40 (Board of Trade Arbitrations, &c. Act, 1874) 618 38 & 39 Vict. c. 33 (Metropolis Local Management Act, 1875) 346 c. 36 (Artizans' and Labourers' Dwellings Improvement Act, 1875) . 6 * 68 c. 55 (Public Health Act, 1875) 14, 54, 130, 148, 200, 303, 304, 338*— 345*, 346, 348, 355, 364, 366, 463, 506—512, 513, 515, 516, 517, 519, 520, 538, 547, 563, 571, 584 Text, pp. 1 — 387. Appendix of Statutes, pp. 389 — 615. Folios with an asterisk [*] denote that the Act or section in question is specially dealt with. Folios in block type [654] denote the pages in the Appendix where the statute in question is printed. TABLE OF STATUTES. Ixxvii PAGE 38 & 39 Viot. e. 66 (Statute Law Revision Act, 1875) 62, 431, 434, 436 o. 77 (Judicature Act, 1875) 275 39 & 40 Vict. c. 56 (Commons Act, 1876) 585, 589, 59G c. 62 (Sale of Exhausted Parish Lands Act, 1876) 258 40 & 41 Vict. c. 57 (Supreme Court of Judicature (Ireland) Act, 1877) 408, 409, 410 c. cexxxv. (Metropolitan Street Improvements Act, 1877). 153 41 & 42 Vict. c. 32 (Metropolis Management and Building- Acts Amend- ment Act, 1878) 346 c. 42 (Tithe Act, 1878) 10 c. 76 (Telegraph Act, 1878) ...378*, 379* 600 — 4, 604, 605 42 & 43 Vict. c. 36 (Customs Buildings Act, 1879) 380 c. 49 (Summary Jurisdiction Act, 1879) 181, 182 c. 64 (Artizans' and Labourers' Dwellings Act (1868) Amendment Act, 1879) 316 c. 78 (Supreme Court of Judicature (Officers) Act, 1879). 218 e. exeviii. (Metropolis Management (Thames River Pre- vention of Floods) Amendment Act, 1879). 346, 353* 44 & 45 Viet. v. 41 (Conveyancing and Law of Property Act, 1881) ... 572 u. 44 (Solicitors' Remuneration Act, 1881) 247, 256, 284 u. cli. (Midland Railway Company (Additional Powers) Act, 1881) ..." 16 45 & 46 Vict. c. 14 (Metropolis Management and Building Acts (Amendment) Act, 1882) T 346 c. 15 (Commonable Rights Compensation Act, 1882) ...292, 420, 469—472 c. 38 (Settled Land Act, 1882) 251, 252, 255, 259, 260, 261, 262, 267, 277, 280 c. 50 (Municipal Corporations Act, 1882) ...47, 302, 345*, 437 c. 54 (Artizans' Dwellings Act, 1882) 316 c. 75 (Married Women's Property Act, 1882) 249, 407 c. cexxii. (Metropolitan Street Improvements Act, 1882). 153 c. clxxxix. (London and South Western Railway Act, 1883) ." 302 46 Vict. c. 15 (Lands Clauses (Umpire) Act, 1883) 3, 192, 398, 439 46 & 47 Vict. c. 37 (Public Health Act, 1875 (Support of Sewers) Amendment Act, 1883) 74, 130, 343*, 463. 512—514 c. 39 (Statute Law Revision Act, 1883) 438 47 & 48 Vict. u. 43 (Summary Jurisdiction Act, 1884) ...431, 432, 433, 435 c. 51 (Prisons Act, 1884) 380 50 & 51 Vict. c. 26 (Allotments and Cottage Gardens Compensation for Crops Act, 1887) 576 c. 48 (Allotments Act, 1887) 370, 515, 517 51 & 52 Vict. c. 25 (Railway and Canal Traffic Act, 1888) 604 c. 29 (Lloyd's Signal Stations Act, 1888) 387 Text, pp. 1 — 387. Appendix of Statutes, pp. 389 — 615. Folios with an asterisk [*] denote that the Act or section in question is specially dealt with. Folios in block type [654] denote the pages in the Appendix where the statute in question is printed. Ixxviii TABLE OF STATUTES. PAGE 51 & 52 Vict. o. 41 (Local Government Act, 1888) 59, 345, 346, 348, 381, 437, 515, 571 c. 42 (Mortmain and Charitable Uses Act, 1888) ...558, 610 52 & 53 Vict. u. 30 (Board of Agriculture Act, 1889) 292 c. 49 (Arbitration Act, 1889) 34, 108, 188*— 200*, 233, 235, 236, 241, 243, 329, 340, 386, 396, 397, 398, 399, 472—8, 617, 618 v. 63 (Interpretation Act, 1889) 3, 181, 182, 390, 391, 392, 414, 434, 485 53 & 54 Vict. u. 5 (Lunacy Act, 1890) 49 u. 44 (Judicature Act, 1890) 256, 275* 277, 281 u. 65 (Allotments Act, 1890) 370, 515, 517 u. 69 (Settled Land Act, 1890) 260, 261 u . 70 (Housing of the Working Classes Act, 1890) ...68, 141, 205, 221, 260, 261, 301, 316, 330, 354*— 365*, 368, 482, 531—547, 547, 548, 549, 550, 554, 556 M & 55 Vict. c. 39 (Stamp Act, 1891) 543 c. 40 (Brine Pumping (Compensation for Subsidence) Act, 1891) 387, 565 c. 54 (Ranges Act, 1891) 504 c. 65 (Lunacy Act, 1891) 50 c. 67 (Statute Law Revision Act, 1891) 389, 391, 414, 433, 441, 460 c. 76 (Public Health (London) Act, 1891) 39, 346, 349, 350, 596 55 & 56 Vict. c. 19 (Statute Law Revision Act, 1892) 183, 406 — 414, 420, 431, 432, 435, 436, 437, 457 c. 27 (Parliamentary Deposits and Bonds Act, 1892) ... 384*, 385*, 613—614 c. 31 (Small Holdings Act, 1892) 370 c. 43 (Military Lands Act, 1892) 380 c. 59 (Telegraph Act, 1892) 605 56 & 57 Vict. c. 54 (Statute Law Revision (No. 2) Act, 1893) 438 c. 68 (Isolation Hospitals Act, 1893) 380 c. 73 (Local Government Act, 1894) 141, 345, 515—518 57 & 58 Vict. c. 17 (Supreme Court of Judicature (Procedure) Act, 1894) 220 c. 46 (Copyhold Act, 1894) 289 v. 56 (Statute Law Revision Act, 1894) 394, 395 u. 57 (Diseases of Animals Act, 1894) 380 v . 60 (Merchant Shipping Act, 1894) 380 u. ccix. (Manchester Corporation Act, 1894) 316 58 Vict. c. 11 (Lands Clauses (Taxation of Costs) Act, 1895) ...3, 175, 187, 202*, 203*, 218* 386, 402, 438, 440 58 & 59 Vict. u. 16 (Finance Act, 1895) .' 244 i!. 35 (Naval Works Act, 1895) 380 59 & 69 Vict. v. 48 (Light Railways Act, 1896) 316, 353, 385*, 386* 614 — 7, 618, 619 Text, pp. 1 — 387. Appendix of Statutes, pp. 389 — 615. Folios with an asterisk [*] denote that the Act or section in question is specially dealt with. Folios in block type [654] denote the pages in the Appendix where the statute in question is printed. TABLE OF STATUTES. l xx i x PAGE 4)0 & 61 Vict. c. 43 (Military Manoeuvres Act, 1897) 380 u. cxxxiii. (City of London Sewers Act, 1897) 520 u. ccxlii. (London County Council (Improvements) Act, 1897) 316, 353 •61 & 62 Vict. c. 22 (Statute Law Revision Act, 1898) 439, 469 €2 & 63 Vict. c. 14 (London Government Act, 1899)... 257, 265, 302, 346, 348 c. 19 (Electric Lighting (Clauses) Act, 1899) 387 o. 30 (Commons Act, 1899) 377, 589, 591, 600 c. cclxvi. (London County Council (Improvements) Act, 1899) 316 63 & 64 Vict. u. 56 (Military Lands Act, 1900) 380 c. 59 (Housing of the Working Classes Act, 1900) 354 1 Edw. VII. c. cclxxi. (London County Council (Tramways and Im- provements) Act, 1901) 75 2 Edw. VII. c. 42 (Education Act, 1902) 608 -3 Edw. VII. c. 24 (Education (London) Act, 1903) 608 c. 30 (Railways (Electrical Power) Act, 1903) 383 u. 39 (Housing of the Working Classes Act, 1903) 354, 355 6 Edw. VII. u. 25 (Open Spaces Act, 1906) 381 7 Edw. VII. u. 9 (Territorial and Reserve Forces Act, 1907) 380 u. 15 (Salmon and Fresh Water Fisheries Act, 1907) 377 c. 53 (Public Health Acts Amendment Act, 1907) ...338, 339, 344*, 345*, 380, 518— S20 u. cxxxvi. (National Trust Act, 1907) 596 8 Edw. VII. u. 25 (Naval Lands (Volunteers) Act, 1908) 380 c. 28 (Agricultural Holdings Act, 1908) 373, 576, 577, 580, 592, 598 c. 33 (Telegraph (Construction) Act, 1908) 379, 604, 605 c. 36 (Small Holdings and Allotments Act, 1908) 330, 370*— 5*, 482, 567—581, 591, 593, 599 c. 47 (Lunacy Act, 1908) 49, 50 o. 48 (Post Office Act, 1908) 379, 606—7 c. 69 (Companies (Consolidation) Act, 1908) 54, 230 "9 Edw. VII. c. 44 (Housing, Town Planning, &c. Act, 1909) 316, 354, 355, 357, 358, 360, 361, 362, 364, 365, 366*, 367*, 368*, 369*, 533, 534, 535, 537, 539, 543, 547—559, 560, 561, 566 c. 47 (Development and Road Improvement Funds Act, 1909) 316, 375*— 7*, 385, 581—587, 619 10 Edw. VII. & 1 Geo. V. u. 8 (Finance (1909-10) Act, 1910) 322 c. 34 (Small Holdings Act, 1910) 370, 375* 1 & 2 Geo. V. c. 6 (Perjury Act, 1911) 193, 433, 475 2 & 3 Geo. V. u. 19 (Light Railways Act, 1912) 385*, 386*, 615, 618 3 & 4 Geo-V. c. 28 (Mental DeBciency Act, 1913) 380 4 & 5 Geo.V. c. 7 (Agricultural Holdings Act, 1914) 598 5 Geo.V. c. 4 (Land Drainage Act, 1914) 377 c. 8 (Defence of the Realm Consolidation Act, 1914) 336 Text, pp. 1 — 387. Appendix of Statutes, pp. 389 — 615. Folios with an asterisk [*] denote that the Act or section in question is specially dealt with. Folios in block type [654] denote the pages in the Appendix where the statute in question is printed. lxxx TABLE OF STATUTES. PAGE 5 Geo. V. c. 22 (Universities and Colleges (Emergency Powers) Act, 1915) 255 5 & 6 Geo. V. c. 48 (Fishery Harbours Act, 1915) 377 6 & 7 Geo. V. c. 38 (Small Holding Colonies Act, 1916) 370, 375* 593, 597— 9 c. 40 (Telegraph (Construction) Act, 1916) ...378, 604— S c. 63 (Defence of the Realm (Acquisition of Land) Act, 1916) 330, 336, 483 8 & 9 Geo. V. u. 26 (Small Holding Colonies (Amendment) Act, 1918) 375, 593, 598 u. 39 (Education Act, 1918) 608 9 & 10 Geo. V. c. 21 (Ministry of Health Act, 1919) 59 c. 35 (Housing, Town Planning, &c. Act, 1919) ...354, 355, 356, 358, 359, 360, 364, 365, 366*, 367*, 368* 532, 534, 536, 539, 540, 541, 542, 544, 545, 546, 550, 551, 552, 553, 557, 558, 559—567, 597 c. 57 (Acquisition of Land (Assessment of Compensa- tion) Act, 1919) 2, 5, 75, 111, 141, 317*, 318, 319*— 333*, 336, 337, 338, 339, 340, 344, 350, 352, 353, 354*, 355* 361, 362, 363, 365, 367, 370*, 371, 372, 373, 374, 376, 378, 379, 380, 382, 478—488 (Rules 484—8), 539, 540, 557, 559, 611 c. 58 (Forestry Act, 1919) 377, 582,587—590 c. 59 (Land Settlement (Facilities) Act, 1919) 370,371, 372*— ,5*, 568, 569„ 570, 574, 575, 576, 580, 591—7, 597 u. 99 (Housing (Additional Powers) Act, 1919) 369 u. 100 (Electricity (Supply) Act, 1919) 387,609 10 & 11 Geo. V. c. 17 (Increase of Rent and Mortgage Interest (Re- strictions) Act, 1920) 123 u. 55 (Emergency Powers Act, 1920)... 336*, 337* 505—6 c. 56 (Places of Worship Enfranchisement Act, 1920) lxxxi c. 79 (Defence of the Realm (Acquisition of Land) Act, 1920) 336 11 & 12 Geo.V. u. 19 (Housing Act, 1921) 354, 369 c. 51 (Education Act; 1921) 380*, 608—612 c. 55 (Railways Act, 1921) 385, 616,619 Defence Acts, 1842 to 1875 335, 336 Inclosure Acts, 1845 to 1899 585, 589, 596 Charitable Trusts Acts, 1853 to 1894 380,609 University and College Estates Acts, 1858 to 1898 255, 258, 259 Telegraph Acts, 1863 to 1916 378*, 387, 604, 605 Settled Land Acts, 1882 to 1890 259, 260, 264, 573, 574, 597, 599 Military Lands Acts, 1891 to 1903 336 Text, pp. 1 — 387. Appendix of Statutes, pp. 389 — 615. Folios with an asterisk [*] denote that the Act or section in question is specially dealt with. Folios in block type [654] denote the pages in the Appendix where the statute in question is printed. ( lxxxi ) ADDENDA. Page 264, note (g), add — As to service on Welsh Commissioners and Queen Anne's Bounty, see Ex parte Great Western Bail. Go., (1922) W. N. 148. Page 364, note (/), add— Of. Conron v. London 0. G. (1922), 38 Times L. E. 380. The Places of Worship Enfranchisement Act, 1920, which gives trustees holding a leasehold interest in the site of a place of worship powers, under certain conditions, to acquire the freehold of the site, incorporates the Lands Clauses Act, 1845, and the minerals sections (sects. 77 — 85) of the Railway Clauses Act, 1845, with certain modi- fications. As arbitrations may arise under this Act it has been thought advisable to print it here. PLACES OP WORSHIP (ENFRANCHISEMENT) ACT, 1920. (10 & 11 Geo. V. c. 56.) Bight of Trustees holding Leasehold Interest in Place of Worship to acquire Freehold. 1. — (1) Where premises held under a lease to which this Act applies are held upon trust to be used for the purposes of a place of worship, whether in conjunction with other purposes or not, and the premises are being used in accordance with the terms of the trust, the trustees, notwithstanding any agreement to the contrary (not being an agree- ment against the enlargement of the leasehold interest into a freehold contained in a lease granted or made before the passing of this Act), shall have the right as incident to their leasehold interest to enlarge that interest into a fee simple, and for that purpose to acquire the freehold and all intermediate reversions: Provided that — (a) if the premises exceed two acres in extent, the trustees shall not be entitled to exercise the right in respect of more than two acres thereof; and (b) this Act shall not apply where the premises are used or are proposed to be used for the purposes of a place of worship 'in contravention of any covenant contained in the lease under which the premises are held or in any "lease superior thereto; and c / lxxxii ADDENDA. (c) this Act shall not apply where the premises form part of land which has been acquired by or is vested in any municipal, local or rating authority or in the owners thereof for the purposes of a railway, dock, canal or navigation under any Act of Parliament Provisional Order or Order having the force of an Act of Parliament and the freehold reversion in the premises is held or retained by such owners for those purposes. (2) The leases to which this Act applies are leases (including under- leases and agreements for leases or underleases), whether granted or made before or after the passing of this Act, for lives or a life or for a term of years where the term as originally created was a term of not less than twenty-one years, whether determinable on a life or lives or not. Procedure for acquisition of Reversionary Interests. 2. Por the purpose of acquiring such reversionary interests as afore- said, the Lands Clauses Acts shall apply as if the trustees had been authorised to acquire the premises by a. special Act incorporating the Lands Clauses Acts and sections seventy-seven to eighty-five of the Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), subject, however, to the modifications set out in the Schedule to this Act, arid to the following modifications: — (a) All questions of disputed compensation shall be settled by a single arbitrator, who shall be appointed, and whose remu- neration shall be fixed, in default of agreement, by the judge of the county court, and the arbitrator shall be deemed to be an arbitrator within the meaning of the Lands Clauses Acts, and the provisions of those Acts with respect to arbitration shall, subject to the provisions of this Act, apply accordingly: (b) The consideration payable in respect of any intermediate rever- sion may, at the option of the person entitled to that reversion, be an annual rentcharge for a term corresponding to the unexpired residue of the term of the reversion: (c) In determining the amount of any compensation the value of any buildings erected, or improvements made by the trustees, shall be excluded: (d) No allowance shall be made on account of the acquisition being compulsory : (e) In determining the amount of compensation in any case where the rent reserved under the lease is less than the full annual value of the land, the compensation, so far as it is payable in respect of the interest of the lessor expectant on the expira- tion of the term of the lease, shall not be ascertained on the basis of the rent so reserved, but, subject always to the fore- going provisions of this section, on the estimated full value of the land at the expiration of the term of the lease. ADDENDA. lxxxiii Power to require Trustees to Sell in Certain Cases. 4. If the person who was entitled to the freehold reversion in the lands at the time when the interest of the trustees in the lands was enlarged into a fee simple, or the successor in title of that person, proves to the satisfaction of the Charity Commissioners that any pre- mises the estate in fee simple in which has been acquired by the trustees under this Act, or any part thereof, are let or are habitually used for any purpose or purposes other than those specified in the trusts upon which the estate in fee simple is held the Commissioners shall, unless it appears to them that such use was due to inadvertence and will be discontinued, by order determine such letting or user, and for this purpose may declare void any contract for, and may prohibit by injunc- tion the continuance of, any such letting or user, or may order that the premises or that part thereof shall be sold, and any order so made shall be enforceable by the same means and be subject to the same provisions as are applicable under the Charitable Trusts Acts, 1853 to 1894, to any orders made thereunder. Definitions. 5. In this Act, unless the context otherwise requires, — The expression " place of worship " means any church, chapel, or other building used for public religious worship, and includes a burial ground, Sunday or Sabbath school, caretaker's house or minister's house attached to or used in connexion with and held upon the same trusts as a place of worship: The expression " freehold reversion " means the estate of fee simple in the premises subject to the lease held by the trustees and any lease superior thereto; and, where the premises subject to the lease consist of land of copyhold or customary tenure, includes the interest of the tenant by copy of court roll or the customary tenant subject to the lease held by the trustees and to any lease superior thereto as well as the interest of the lord of the manor: The expression " intermediate reversion " means any leasehold in- terest in the land (whether under a lease or underlease or under an agreement for a lease or underlease) superior to the lease held by the trustees: The expression " the county court " means the county court for the district in which the place of worship is situate: The expression " trustees " means the persons in whom the lease- hold premises are for the time being vested for the purposes of a place of worship under any trust whether express or implied and includes their predecessors in title. Short Title and Extent. 6. — (1) This Act may be cited as the Places of Worship (Enfran- chisement) Act, 1920. (2) This Act shall not extend to Scotland or Ireland. IXXXIV ADDENDA. SCHEDULE. Modifications of the Lands Clauses Acts and Sections 77 to 85 of the eailways clauses consolidation act, 1845. (1) The use of the premises as a place of worship, whether in conjunction with other purposes or not, shall be deemed to be the undertaking or the railway and the trustees shall be deemed to be the promoters of the undertaking or the railway company. (2) Section one hundred and twenty-three of the Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), limiting the time for com- pulsory purchase, shall not apply. (3) If the trustees propose to sell the premises or any part thereof, sections one hundred and twenty-eight to one hundred and thirty-two of the Lands Clauses Consolidation Act, 1845, shall apply as if the premises or part thereof were superfluous lands within the meaning of those sections, and as if section one hundred and twenty-eight of that Act read as follows: — ' " Before the promoters of the undertaking dispose of any such superfluous lands they shall . . . first offer to sell the same to the person who was entitled to the freehold reversion in the lands at the time when the interest of the trustees in the lands was en- larged into a fee simple or the successor in title (if any; of that person ; and if that person or his successor in title, as the case may be, refuse to purchase the same, or cannot after diligent inquiry be found, then the like offer shall be made to the person or to the several persons whose lands shall immediately adjoin the lands so proposed to be sold, such persons'being capable of entering into a 'contract for the purchase of such lands; and where more than one such person shall be entitled to such right of pre-emption such offer shall be made to such persons in succession, one after another, in such order as the promoters of the undertaking shall think fit." (4) The arbitrator shall, so far as practicable, in assessing com- pensation, act on his own knowledge and experience, but, subject as aforesaid, at any arbitration held under this Act the arbitrator shall hear, by themselves or their agents, the parties, and shall hear witnesses, but shall not, except in such cases as the arbitrator may otherwise direct, hear counsel or more than one expert witness on either side. (5) The Lord Chancellor may make rules fixing a scale of costs to be applicable on an arbitration under this Act, and an arbitrator under this Act may, notwithstanding anything in the Lands Clauses Acts, determine the amount of costs, and shall have power to disallow as costs in the arbitration the costs of any witness whom he considers to have been called unnecessarily, and any other costs which he considers to have been caused or incurred unnecessarily, and, if he thinks the circumstances such as to justify him in so doing, to order that each of the parties shall bear their own costs. (6) There may be contained in the award of the arbitrator a finding that the claimant, after having been requested in writing by the trustees so to do, has failed to deliver to the trustees a statement in writing of the amount claimed, giving sufficient particulars and in sufficient time to enable the trustees to make a proper offer, and, where such a finding is contained in the award, the provisions of the Lands Clauses Acts as to costs of arbitrations shall apply as if the trustees had offered the same sum or a greater sum than that found to be due by the award: Provided that this provision shall not apply unless the written request' for particulars contained a notice of the effect of this provision. (7) Land includes easements in or relating to land. A TREATISE ON THE PRINCIPLES OF THE LAW OF COMPENSATION. INTRODUCTION. The sovereign power of every state has authority to appropriate for purposes of public utility lands situate within the limits of its jurisdiction (a), and with the advance of civilisation it has been found necessary to delegate a similar power to bodies or corpora- tions, whether trading for profit or not, so as to enable them to establish and conduct enterprises of public utility. But it is not deemed politic that this authority or power should be exercised so as to interfere with security in the enjoyment of private property, or that private property should be confiscated for public purposes without payment to the owner of its fair value. "It is a well- established principle that, unless no other interpretation is possible, justice requires that statutes should not be construed to enable the land of a particular individual to be confiscated without pay- ment" (b). In England, the law which provides for the protection of private (a) This power is termed in the United States " Eminent Domain.'' As to the extent of and limitations on the Royal Prerogative, see post, p. 334. (5) Att.-Gen. v. Be Keysets Royal Hotel, [1920] A. C. 508, at p. 576, per Lord Parmoor; of. Barring/ton's case (1610), 8 Rep. 138, a; River Weir Com- missioners t. Adamson (1877), 2 App. Cas. 743; Western Counties Rail. Co. v. Windsor and Annapolis Rml. Co. (1882), 7 App. Cas. 178; Commissioner of Public Works (Cape Colony) v. Logan, [1903] A. C. 355; Commonwealth of Australia v. Eazeldell, Ltd., [1921] 2 A. C. 373. C. 1 INTRODUCTION. interests, where it is required to appropriate lands for public pur- poses, has acquired the name of the " Law of Compensation." The Lands Clauses Consolidation Acts form the only complete code (c) dealing with the law of compensation, but, especially of recent years, so many variations and modifications of this code have been enacted, that it has been found necessary to divide this treatise into two Books ; the first dealing with the code contained in the Lands Clauses Acts, the second dealing with the variations and modifications above mentioned (d) . It is, however, essential to bear in mind that none of these variations or modifications con- stitutes in itself a complete code, and that in practically all cases some part of the machinery of the Lands Clauses Acts is still applicable. The most important of the modifications is the Acquisition of Land (Assessment of Compensation) Act, 1919, which applies in all cases of the compulsory acquisition of land by any government department or any local or public authority. The general considerations which led to its enactment, and the terms of the statute itself, are dealt with in the second Book (e). (o) See the Reports of the Ministry of Reconstruction Committee dealing with the law and practice relating to the acquisition and valuation of land for public purposes (1918-9), in which a new code is suggested. (d~) The Railways and Waterworks Clauses Acts, owing to their close con- nection with the Lands Clauses Acts, have been dealt with in the first Book. (e) Post, p. 315. BOOK I. CHAPTER I. INCORPORATION OF THE LANDS CLAUSES ACTS . The code of the Lands Clauses Acts is contained in the Lands Lauds Clauses Clauses Consolidation Act, 1845 (a), the Lands Clauses Consolida- ° 3 ' tion Act Amendment Act, 1860, the Lands Clauses Consolidation Act, 1869, the Lands Clauses (Umpire) Act, 1883, and the Lands Clauses (Taxation of Costs) Act, 1895. The first three of these Acts are to be construed as one Act (b), and 'may be cited together in all instruments and documents (c) as the Lands Clauses Con- solidation Acts, 1845, 1860, 1869 (d). In Acts passed after 1889 the expression " Lands Clauses Acts " includes, as respects England and Wales, the Acts of 1845, 1860, 1869 and 1883, and any Act for the time being in force amending them (e). Hence the Lands Clauses (Taxation of Costs) Act, 1895, is included in the expres- sion "Lands Clauses Acts," and that compendious expression is adopted throughout this work. The preamble of the Lands Clauses Act, 1845, explains the Why L. 01. reasons which led to its enactment: — "the expediency of com- wa8 ' enacted, prising in one general Act sundry provisions usually introduced into Acts of Parliament relative to the acquisition of lands required for undertakings or works of a public nature, and to the compen- sation to be made for the same; and that as well for the purpose of avoiding the necessity of repeating such provisions in each of the (a) For the history of this Aot, see Clifford's History of Private Bill Legis- lation, vol. 1, p. 103; vol. 2, p. 524. (6) L. CI. Acts, 1860, s. 8; 1869, s. 4. (e) Interpretation Aot, 1889, s. 35 (1). (d) L. 01. Act, 1869, ». 4. («) Interpretation Act, 1889, ». 23 (a). The meaning of the phrase, as applicable to Scotland or Ireland', is stated in s. 23 (b), (c). 1(2) INCORPORATION" OF THE LANDS CLAUSES ACTS. Incorporation of L. CI. Acta into special Acts. S. 1. "Every undertaking " includes undertakings of a public nature. Incorporation of L. CI. Acts several Acts relating to such undertakings, as for insuring greater uniformity in the provisions themselves." There is no necessity to make special provision for the incorpora- tion of the Lands Clauses Acts into Acts authorizing the acquisition of lands required for undertakings or works of a public or com- mercial character. By section 1 of the Lands Clauses Act, 1845, it is enacted, that " This Act shall apply to every undertaking authorized by any Act which shall hereafter be passed, and which shall authorize the purchase or taking of lands for such under- taking, and this Act shall be incorporated with such Act; and all the clauses and provisions of this Act, save so far as they shall be expressly varied or excepted by any such Act, shall apply to the undertaking authorized thereby, so far as the same shall be applic- able to such undertaking, and shall, as well as the clauses and provisions of every other Act which shall be incorporated with such Act, form part of such Act, and be construed together therewith as forming one Act " (/). In other words, the Lands Clauses Acts form a code of law applicable to all undertakings of the character indicated, except so far as they are specifically modified by sub- sequent Acts (g) or by the Acts authorizing the particular under- taking. It will be found, however, that, in nearly all local and personal or private Acts in which powers are given for the com- pulsory acquisition of lands, there is a section which incorporates the Lands Clauses Acts, and that they are also incorporated by a considerable number of public Acts which give to local authorities the power of taking lands compulsorily for the purposes of drainage and other public works, such as the Housing of the Working Classes (g). Tho words " every undertaking " include every case in which lands are required for undertakings of a public or quasi-publio nature; but an Act in the nature of a Private Estate Act, and passed for the purpose of giving a lease priority over certain charges and incumbrances, has been held not to incorporate the Lands Clauses Act, 1845 (h). Tho Lands Clauses Acts are incorporated not only into Acts of (/) See In re Wood's Estate (1886)„ 31 Oh. D. 607, at pp. 617, 618; 55 L. J. Oh. 488; Re St. Sepulchre's, Westminster, Estate (1864), 33 L. J. Oh. 372. But see post, p. 319. O) See Book II. (h) Wale v. Westminster Pulaoe Hotel Co. (1860), 8 C. B. N. S. 276; of. Re Sion College (1888), 57 L. T. 743. INCORPORATION OF THE LANDS CLAUSES ACTS. & Parliament subsequently passed for authorizing undertakings of a into Acts public nature, but also into similar Acts originally passed before passed and the year 1845, but varied since that date by the provisions of a subsequently fresh Act. In Lancashire and Yorkshire Rail. Co. v. Evans (i), . Bomilly, M. B., said : "Whenever a company is compelled to come for a fresh Act of Parliament to vary the provisions of an old Act, the legislature imposes it on the company as a condition that they shall import into the old Act the Lands Clauses Act, and that all its principles shall apply to such Act." The provisions of the Lands Clauses Acts do not apply where L - cl ; Acts they are expressly varied or excepted by the special Act or a sub- rated if ap- sequent general Act (k), and in any case are incorporated only so Pjj? a ° le and far as they are applicable to the undertaking authorized by the pressly varied special Act. It is not essential that any clauses or series of clauses should in express language be varied or excepted, where the special Act contains provisions which cannot be construed so as to be con- sistent with their application (I). Such inconsistency must be clearly established. In B. v. Lord Mayor of London (m), Blackburn, J., in deliver- ing the judgment of the court, says, " The Lands Clauses Consolidation Act was passed to make a general code regulating the manner in which lands might be taken under the authority of Parliament, and compensation made for injury occasioned by what was thus legalized by the legislature; and we think that, in con- struing any Act of Parliament passed since that Act, we ought to suppose that the legislature intended to follow this code, except where, by the express language of the special Act, or by necessary intendment from its provisions, it appears that the intention of the legislature was in some particulars to depart from that general code and substitute something else." In Metropolitan District Bail. Co. v. Sharpe (w), it was decided that provisions introduced into the special Act for the appointment of an arbitrator in a manner inconsistent with the provisions of the (t) (1851), 15 Beav. 322; S. C, at law, 22 L. J. Q. B. 254; cf. Ex parte Eton College (1851), 20 L. J. Ch. 1. (k) Cf ., for instance, Acquisition of Land (Assessment of Compensation) Act, 1919 (9 & 10 Geo. 5, o. 57), s. 7, post, pp. 329, 330. (J) Cf. City # South London Sail. Co. v. London Comity Council, [1891] 2 Q. B. 513; 60 L. J. M. C. 99, 149. (m) (1867), L. R. 2 Q. B. 292. (») (1880), 5 App. Oas. 425; 50 L. J. Q. B. 14. 6 INCORPORATION OF THE LANDS CLAUSES ACTS. Lands Clauses Act, 1845, but containing no mention of costs, did not vary the provisions as to the costs of an arbitration contained in the Lands Clauses Act, 1845. Lord Selborne, referring to the clause in question of the special Act, says (o), " That clause is to be read, so far as it can be read, with the general provisions con- tained in the Lands Clauses Consolidation Act. ... In construing Acts of Parliament of this kind, and adjusting the general provisions in the general Act to the particular provisions of the special Act, considerations of reason and justice, and the universal analogy of such provisions in similar Acts of Parliament, are proper to be borne in mind, and ought to have much weight and force " (p). The Lands Clauses Act, 1845, is not applicable where a com- pliance with its provisions would, divert money to purposes other than those specified in the special Act (q) . Provisions for Section 5 of the Lands Clauses Act, 1845, contains provisions for sion or incor- the incorporation of portions of the Act (with or without express poratiou of variations or exceptions), by reference to the various introductory L. 01. Act. headings under which the series (or fasciculi) of clauses dealing with special parts of the subject are arranged, and the same pro- visions are applicable where it is desired to except any portion of the Act in express language. When any portion of the Lands Clauses Acts is expressed to be incorporated or excepted in the words of any introductory heading descriptive of the series of clauses which follow, the whole of that poition is incorporated or excluded which is contained in the series of clauses between such heading and the next introductory heading (r). Clauses which refer to the same subject-matter, but which are not in the series expressly excluded by reference to the introductory heading, are not excepted from the special Act so far as they may be applicable (s) . Where words Where a portion of the Lands Clauses Acts is expressed to be those of an incorporated or excepted in language other than that contained in O) At p. 431. O) Of. Sparrow v. Oxford, $o. Bail. Co. (1852), 21 L. J. Oh. 731; Great Western Bail. Go. v. Swindon, ij'o. Bail. Co. (1884), 9 App. Cas. 787; 53 L. J. Ch. 1075; affirming S. C '., 22 Oh. D. 677. (?) In re Cherry's Settled Estates (1862), 31 L. J. Ch. 351; followed In re Mills' Estate (1886), 34 Ch. D. 24; 56 L. J. Ch. 60. (r) Ferrar v. Commissioners of Sewers (1869), L. R. 4 Ex. 227; 38 L. J. Ex. 102; Dmigey v. Mayor, §c. of London (1869), 38 L. J. O. P. 298. (s) .ffi. v. Lord Mayor of London (1867), L. R. 2 Q. B. 292. INCOKPOKATION OF THE LANDS CLAUSES ACTS. 1 the introductory headings, it is a question of construction how far introductory any clause or series of clauses are comprised in the words of incor- ea mg ' poration or exclusion (£). In Broadbent v. Imperial Gas Co. (u), it was held that, where a special Act incorporated the Lands Clauses Act, 1845, except so much as related exclusively to the purchase and taking of lands by compulsion, section 68 was not excepted, although all the sections 16 — 68 inclusive are included under the same introductory heading, — "and with respect to the purchase and taking of lands otherwise than by agreement." In that case the special Act pro- vided that no nuisance or injury should be caused to adjoining land, and it was held that section 68, although not excluded, did not take away the right of action for nuisance (x) . (t) Eastern Counties, §e. Rail. Co. v. Marriage (1860), 9 H. L. C. 32, at p. 41; 31 L. J. Ex. 73; Hammersmith Rail. Co. v. Brand (1869), L. K. 4 H. L. 171, 203, 208; 38 L. J. Q. B. 265; of. Lang v. Kerr, Anderson # Co. (1878), 3 App. Cas. 529. («) (1857), (C. A.) 26 L. J. Ch. 276; (H. L.) 7 H. L. O. WO, 612; 29 L. J. Ch. 377. (x) Broadbent v. Imperial Gas, $e. Co. (1859), 7 H. L. C. 600; 29 L. J. Ch. 377; of. Hammersmith Rail. Co. v. Brand (1869), L. H. 4 H. L. 171, at p. 221; 38 L. J. Q. B. 265. CHAPTER II. DEFINITION OF LANDS. Lands. Definition in s. 3, L. CI. Act, 1845. "Mes- suages." " Tene- ments." ' ' Heredita- ments." "Of any tenure." Lands are the subject-matter of the law of compensation. Mines are included under "lands" and if required may be purchased in the first instance either by agreement or compulsorily (a). Section 3 of the Lands Clauses Act, 1845, defines lands >as " messuages, lands, tenements, and hereditaments of any tenure." This definition is subject, however, to the general words with which the section commences. " The following words and expres- sions, both in this and the special Act, shall have the several meanings hereby assigned to them, unless there be something either in the subject or context repugnant to such construction." The term " messuage " is substantially equivalent to house (b). In Co. Litt. 6 a, n. (2), it is said that " Tenement is a large word used to pass not only lands and other inheritances which are holden, but also offices, rents, commons, profits a prendre out of lands and the like, wherein a man hath any possible tenement, and whereof he is seised ' ut de libero tenemento .' But hereditament is the largest of all in that kind, for whatsoever may be inherited is an hereditament, be it corporeal or incorporeal, real or personal, or mixt." And Blackstone (Comm. vol. 2, p. 16) says that "Incorporeal hereditaments are principally of ten sorts — advow- sons, tithes, commons, ways, offices, dignities, franchises (c), corrodies or pensions, annuities, and rents" (d). The words " of any tenure " in section 3 do not limit the appli- cation of the definition of hereditaments to such incorporeal (a) Eolliday v. Mayor, $c. of Wakefield, [1891] A. C. 81; 60 L.. J. Q. B. 361; Smith v. Great Western Sail. Co. (1887), 3 App. Cas. 165; 47 L. J. Ch. 97; Errington v. Metropolitan District Rail. Co. (1882), 19 Ch. D. 559; 51 L. J. Ch. 305. Vide post, p. 127. (b) Vide post, pp. 36 — 38. (e) It. v. Cambrian Sail. Co. (1871), "L. R. 6 Q. B. 422; 40 L. J. Q. B. 169; cf. Great Western Sail. Co. v. Swindon, #c. Sail. Co. (1884), 9 App. Cas. 787, at p. 802; 53 L. J. Ch. 1075; Hopkins v. Great Northern Sail. Co. (1877), 2 Q. B. D. 224, 237; 46 I,. J. Q. B. 265. (d) In re Brewer (1876), 1 Ch. D. 409. DEFINITION OF LANDS. hereditaments as are capable of tenure, but are to be construed as meaning "of whatever tenure, if any"; and so far as the definition clause is concerned, lands, as there defined, include easements (e). It must be remembered, however, that although in the definition clause lands include easements, yet, in dealing with the subsequent sections of the Lands Clauses Act, 1845, the context must in all cases be specially considered. There is no power under the Lands Clauses Acts to compel the creation of an easement over lands (/). In Great Western Rail. Co. v. Swindon, &c. Rail. Co. (g) it was decided that section 16 of the Lands Clauses Act, 1845, did not apply to the taking of an easement: but in this case the power to take the easement was given under the provisions of the special Act. In a case which was decided before the Tithe Act, 1836, it Tithes. was held that the rector or vicar is not interested in the land out of which the tithe arises, that his interest only accrues when the tithe has arisen, and that he is not entitled to compen- sation, since it was competent for the owner from whom the land had been purchased to use the land in such a way as not to produce tithe (h). The charge created under the Tithe Act, 1836, " in the nature of a rent-charge issuing out of the lands charged therewith " is not a rent-charge on the inheritance (i) . It appears to follow that the owner of tithe has no such rent-charge as would entitle him to claim compensation under sections 115 — 118 of the Lands Clauses Act, 1845 . But when a tithe rent-charge has been specially constituted so as to be an incorporeal hereditament (k), such tithe rent-charge would be properly subject-matter for compensation. (e) Great Western Bail. Co. v. Sioindon, . J. Ch. 417); In re Metropolitan District Bail. Co. and Cosh (1880), 13 Gh. D. 607; 49 L. J. Ch. 277; B. v. Cambrian Bail. Co. (1871), L. R. 6 Q. B,. 422, 431; 40 L.. J. Q. B. 169; Hopkins v. Great Northern Bail. Co. (1877), 2 Q. B. D. 224, 227; 46 L, J. Q. B. 265; of. Mayor, $e. of Birkenhead v. L. # N. W. Bail. Co. (1885), 15 Q. B. D 572, at p. 578; 55 I*. J. Q. B*. 48; Be Lancashire § Yorkshire Bail. Co. and Marl of Derby's Contract (1909), 100 L. T. 44. {f) Hill v. Midland Bail. Co: (1882), 21 Ch. D. 143; 51 L. J. Ch. 774; explained in Great Western Bail. Co. v. Swindon, > e " meaning, surrounded in every part by lines. I think it is manifest that a broader interpretation of it must be adopted in order to give effect to the Act. If it be necessary to say what it does mean, I say I think it means sketched or represented, or so shown that the landowners would have notice that the land might be taken" (/). This decision gives a wide interpretation to the word " de- lineated." The width of the definition has been questioned in the Court of Appeal (k), Fry, L. J., saying, " I cannot help thinking that Hall, V.-C, in Dowling's case (I), put as wide an interpre- tation upon the word ' delineated ' as it could possibly bear. (0 P. 740. (/) Ci. Wrigley v. Lancashire # Yorkshire Rail. Co. (1863), 9 Jur. N. S. 710, which is distinguished from this case by Hall, V.-C. (7c) Protheroe v. Tottenham, §c. Rail. Co., [1891] 3 Ch. 278, 290. (/) (1874), L. E. 18 Eq. 714; 43 L. J. Ch. 761. 2(2) 20 LANDS AUTHORIZED TO BE TAKEN. Limits of deviation. Centre line of an under- taking must be within limits of deviation. Whether it is not rather wider than I should put upon it is a point on which I need express no opinion." And more recently in the Scottish Courts it has been held that a notice to take land was invalid in that no boundary line was shown on one of the four sides of a plot which was proposed to be taken, and two of the other boundary lines being parallel there existed from a reasonable point of view a doubt as to the limits of the land to be taken (m) . The difficulty, however, arises rather in the application than in the statement of the principle, and Protheroe v. Tottenham, dc. Rail. Co. shows that plans should be prepared with sufficient accuracy to prevent the recurrence of similar questions, and to give clear notice to the landowner that his lands are required to be taken (w). In Dowling v. Pontypool, dc. Bail. Co. (o), the evidence of engineers, as experts, on the construction of the plans was held to be inadmissible. When, in the case of the introduction of bills containing a form of clause similar to that specified above (p), it is the intention of parties to apply for power to make any lateral deviation from the line of the. proposed work, the limits of such deviation are defined upon the deposited plan, and all lands included within such limits are marked thereon. The purpose for which limits of deviation are introduced into plans is, to allow a certain latitude in the construction of the centre line of the works authorized, and they are not intended to define the area within which promoters of undertakings may purchase and take lands. It is only in an indirect way that limits of deviation affect the area of lands which the promoters of the undertaking are authorized to purchase or take. They prescribe the lateral deviations beyond which the centre line of the undertaking shall not extend, and it would be inconsistent with their powers if the promoters of the undertaking purchased or took lands with the object of placing the oentre line of the undertaking outside the authorized boundaries (q). The word "deviation" simply means shifting the work in its entirety from one side to another, and does not imply a right not only to alter the situation of the work, but in doing so to dispense (m) Coats v. Caledonian Rail. Co. (1904), 6 F. 1042. («) Protheroe v. Tottenham, #o. Sail. Co., [1891] 3 Ch. 278; ef. Finclc v. L. # 8. W. Rail. Co. (1890), 44 Oh. D. 330; 59 L, J. Oh. 458. (o) See note (I), ante, p. 19. (p) Ante, p. 18. ( ? ) Pinek v. L. $ 8. W. Rail. Co. (1890), 44 Ch. D. 330; 59 L. J. Ch. 458; Protheroe v. Tottenham, §o. Rail. Co., [1891] 3 Ch. 278. LANDS AUTHORIZED TO BE TAKEN. 21 with one-half or two-thirds of it (r) . The limits of deviation Limits of have not the same application to the widening of an existing special cases, line (s), or to a junction with an existing line (t), as to a new line of railway. In Doe d. Payne v. Bristol and Exeter. Rail. Co. (u), it was decided that the limits of deviation do not prevent a company from taking, for purposes other than the line of railway, lands delineated in the deposited plans outside such limits. In his judgment (x), Alderson, B., states what is meant by "line "Line of of railway": "With respect to the deviation, which seems to be ral way ' the principal point upon which the opinion of the Court was sought to be obtained, as a guide for the construction of Acts of Parliament of this kind in future, it appears to me, I own, to be a very simple question. In the parliamentary plans a line is laid down, and a certain deviation from that line is permitted to take place. . . . What is 'the line' laid down in the parliamentary plans? what line across the face of the country does it represent? It appears to me that it represents the medium filum vice of the railway which is to be thereafter made; and the deviation which is to be allowed is to be a deviation between the medium filum vice of the railway, as described by the parliamentary plans, and the medium filum vice of the railway which is ultimately to be laid down; and if between these two corresponding points an interval of not more than one hundred yards exists, measured in a hori- zontal level, the deviation does not exceed that which is allowed by the Act of Parliament to be made. . This provision, as it appears to me, does not extend to more than the line of railway : it does not extend to slopes and embankments." In Doe d. Armistead v. North Staffordshire Rail. Co. («/), an action of ejectment for lands in Staffordshire, Patteson, J., said (2), " But it is contended, secondly, that as to fifteen perches, the entry was not lawful, and being bad in part, is bad altogether: first, because they are beyond the line of deviation. (r) Herroti v. fiathmines $ Rathgar Improvement Commrs., [1892] A. C. 498. (s) Finch v. L. $ S. W. Rail. Go. (1890), 44 Ch. D. 330, 337, 347; 59 L. J. Ch. 458. (0 Cardiff Rail. Co. v. Taff Vale Rail. Co., [1905] 2 Ch. 289, in which the opinion of Kay, J., in Winch's case, supra, was 'adopted and applied. («) (1840), 6 M. & W. 320. (») At p. 345. (. C. (1905), 93 L. T. 126; Att.-Gen. v. London # South Western Rail. Co. (1905), 21 T. L. R. 220; G. C. Rail. Co. v. Balby-with-Hextlwpe U. D. C, [1912] 2 Ch. 110. (m) In re Gonty and Manchester, Sheffield # Lincolnshire Rail. Co., [1896 | 2 Q. B. 439; 65 L. J. Q. B. 625; cf. Caledonian Rail. Co. v. Turcan, [1898] A. C. 256; 67 L. J. P. C. 69; South Eastern Rail. Co. ». Associated Portland Cement Manufacturers (1900), Ltd., [1910] 1 Ch. 13. 24 LANDS AUTHORIZED TO BE TAKEN. an individual, provided that such use is not inconsistent with the statutory duties or ultra vires, and is not an infringement of the rights of other persons (n) . Construction Where the language used in the incorporating Act or Acts is Act? 601 " not ambiguous, it is to be construed in its ordinary and literal meaning, and it makes no difference whether the powers have been conferred upon a company for the purpose of making profit or upon a corporation or public body for the purpose of carrying out a public improvement. In Donaldson v. Mayor, do. of South Shields (o), the corporation were empowered to execute certain defined street works, and gave a notice to treat, including lands not required for such works, but intending to re-sell such lands to recoup a part of their expenses. It was held that they were not entitled to acquire any part of the lands not actually required for the street works. In cases of ambiguity, the rule of construction has been applied that a public company or individuals who claim special privileges under statutory powers are bound to satisfy the Courts that the Act or Acts on which they rely confer such privileges with suffi- cient clearness (p) . In Webb v. Manchester and Leeds Rail. Co. (q), Cottenham, L. C, says, "The powers are so large — it may be necessary for the benefit of the public — but they are so large, and so injurious to the interests of the individuals, that I think it is the duty of every Court to keep them most strictly within those powers ; and if there be any reasonable doubt as to the extent of their powers, they must go elsewhere and get enlarged powers; but they will get O) B. v. Leake (1833), 5 B. & Ad. 469; Att.-Gen. v. Great Eastern Mail. Co. (1879), 5 App. Cas. 473; 49 D. J. Oh. 345; Bonner v. Great Western Bail. Co. (1883), 24 Ch. D. 1; Grand Junction Canal Co. v. Petty (1888), 21 Q. B. D. 273; 57 L. J. Q. B. 572; Fosters. London, Chatham $ Dover Mail. Co., [1895] 1 Q. B. 711; 64 L. J. Q. B. 65; In re Gonty and Manchester, Sheffield $• Lincolnshire Rail. Co., [1896] 2 Q. B. 439; 65 D. J. Q. B. 625; Att.-Gen. v. Teddington V. D. C, [1898] 1 Oh. 66; 67 L. J. Ch. 23; Att.- Gen. v. Eanwell V. D. C, [1900] 2 Ch. 377; 69 L. J. Ch. 626; Lancashire § Yorkshire Bail. Co. v. Davenport (1906), 4 T,. G. R. 425; Taf Vale Rail. Co. v. Pontypridd V. D. C. (1905), 93 L. T. 126; Att.-Gen. v. PontyprM V. D. C, [1906] 2 Oh. 257. (o) (1899), 68 L. J. Ch. 162. (p) Clowes v. Staffordshire Potteries Waterworks Co. (1872), L. R. 8 Oh. 125; 42 L. J. Ch. 107; Lamb v. North London Bail. Co. (1869), L. R. i Ch. 522. (?) (1839), 4 Myl. & Gr. 116. LANDS AUTHORIZED TO BE TAKEN. 25 none from me by way of construction of their Act of Parlia- ment " (r). In many private Acts of Parliament special clauses are intro- Special duced which embody agreements between the promoters of the ^"rating undertaking and persons whose interests are affected. There can agreements, be no reason why such agreements should be construed adversely to the promoters, since they are put in at the instance of particular parties, who either act with greater caution than other parties, or with a desire to make a better bargain for themselves than other parties have made (s) . It has been said that the principle of construing special Acts Construction strictly against the promoters where the language is ambiguous (t) pu t,iic bodies, is not equally applicable in the case of a public body on which powers have been conferred to carry out works of a public character (u) . The word "undertaking" has been construed to include "the Construction whole undertaking," and it has been held that compulsory powers dertaking." cannot be enforced for the purpose of carrying out a portion only of the works, if there is a clear intention not to complete the rest. In Agar v. Regent's Canal Co. (x), Lord Eldon, on the motion of a landowner, restrained the company from proceeding to acquire lands, on the ground that the Court was satisfied that the company 0) Cf. Parker v. Great Western Sail. Co. (1844), 7 Macn. & G. 253, at p. 288, per Tindal, O. J.: "It is to be observed, that the language of these Acts of Parliament is to be treated as the language of the promoters of them. They ask the legislature to confer great privileges upon them, and profess to give the public certain advantages in return. Therefore, Acts passed under such circumstances should be construed strictly against the parties obtaining them but liberally in favour of the public"; Att.-Oen. v. Barnet District Gas and Water Co. (1910), 74 J. P. 193, per Loreburn, L. O.: "I think one ought to scan very jealously tie language of an Act which bestows powers like these." See also Scales v. Pickering (1828), 4 Eing. 448; River Dun Navigation v. North Midland Rail. Co. (1838), 1 Rail. Oas. 135; Simpson v. South Staffordshire Waterworks Co. (1865), 34 L. J. Ch. 380; Clowes v. Staffordshire Potteries Waterworks Co. (1872), L. R. 8 Ch. 125; 42 L. J. Ch. 107. (s) East London Rail. Co. v. Whitechurch (1874), L. R. 7 H. I>. 81; 43 L. J. M. C. 159; and see Blackpool Corporation v. Starr Estate Co., Ltd., [1922] 1 A. C. 27, post, p. 319. (*) This rule is limited to cases- of ambiguity: Donaldson v. Mayor of South Shields (1899), 68 Ii. J. Ch. 162. («) North London Rail. Co. v. Metropolitan Board of Works (1859), 28 L. J. Ch. 909; Galloway v. Mayor and Commonalty of London (1866), I>. R. 1 H. L. 34; cf. Quintan v. Corporation of Bristol (1874), L. R. 17 Eq. 524. (») (1814), 1 Swanst. 250, n. 26 LANDS AUTHORIZED TO BE TAKEN. were unable to carry out the whole of their undertaking, and that diey were not authorized to put in force their powers for the purpose of completing a portion only of the undertaking (y) . Any person whose property is interfered with under parliamentary authority has a right to require that the promoters shall comply with the letter of the enactment so far as it makes provisions in his behalf, and no Court can remodel arrangements sanctioned or relax conditions imposed by Act of Parliament (z) . In Cohen v. Wilkinson (a), a shareholder was held entitled to an injunction restraining the company from proceeding to make a portion only of the undertaking, with the intention of not com- pleting the whole. The Master of the Rolls says, " The obligation to complete the work appears to me to be co-extensive with the authority to make it. Neither this Act, nor any of these Acts, contain authority to substitute a less work, or part of the whole, and if the governors or directors of the company take on themselves to determine that they will not perform the whole work but will apply the capital, collected on the faith of the whole work being completed, in completing only a part of it, I am of opinion that the determination is without authority, and contrary to the provi- sions of the Act of Parliament " (6). Construction ]\f or can ^ ue worc j "undertaking" include the construction of Act. any works beyond those specified in the special Act or Acts. As Lord Westbury, L. C, says, with reference to the effect of the incorporation of the general Act into the special Act, " the general Act must be looked at with reference to the powers conferred upon companies of dealing with land when acquired; but it is to the special Act that you must especially have regard for the purpose of ascertaining what I may call the contract between the landowner and the company, and the power which the company has conferred upon it of taking the land of the landowner" (c). And more recent cases have turned on the construction of the special Act or (y) Cf. Mayor of King's Lynn v. Pemberton (1818,), 1 Swanst. 244; Salmon v. Randall (1838), 3 Myl. & Cr. 439; Herron v. Rattmines and Rathgar Improvement Commissioners, [1892] A. C. 498. (z) Herron v. Rathmines and Ruthgar Improvement Commissioners, [1892] A. C. 498. («) (1849), 18 L. J. Oh. 378. (4) Colman v. Eastern Counties Rail. Co. (1846), 10 Beav. 1. (c) Simpson v. South Staffordshire Waterworks Co. (1865), 34 L. J. Ch. 380, at p. 387. LANDS AUTHORIZED TO BE TAKEN. 27 Acts in question and the extent and manner of the incorporation of the general Act (d) . In Att.-Gen. v. Bamet District Gas & Water Go. (d) it was emphasized in the Court of Appeal that the construction placed on another special Act formed no ground of decision upon the question of the true construction of the (special Act under consideration. In Mayor of Cardiff v. Cardiff Waterworks Co. (e), the company were proceeding to lay down waterpipes which, though suitable for the area within which they had power to supply water, were admittedly intended to carry water beyond the limits authorized by the statute. Wood, V.-C, -restrained the company from pro- ceeding, on the ground that by laying down pipes intended for the supply of a larger area than that defined by Parliament, they contemplated entering upon streets for purposes other than those of the incorporating Acts. Lands are not required for the purposes of the undertaking Lands cannot when it is intended to employ them for collateral objects ; although collateral ° r such objects may be convenient or necessary for carrying out the purposes, undertaking authorized. In Bentinck v. Norfolk Estuary Co. (/), a company obtained an Act incorporating the Companies Clauses Acts and the Lands Clauses Acts, but not the Railways Clauses Acts, and were em- powered to make and maintain upon the lands in question certain cuts and works, with authority to take and use such of the said lands as might be necessary for that purpose. The company claimed the right of taking the lands in question in order to obtain materials for the purpose of executing a portion of their works not immediately contiguous. It was held by the Lords Justices, confirming the judgment of Page-Wood, V.-C, that although it might be convenient or necessary for the company to take earth and soil from the land in question, they could not do so under their Act, which did not contemplate the fact of a landowner giving up his land for the purpose of digging materials or for any (. J. Ex. 102; Att.-Gen. v. Eastern Counties, §c. Rail. Co. (1842), 10 M. & W. 263; 12 L. J. Ex.106; cf. Harrison v. Southwark § Vauxhall Water Co., [1891] 2 Ch. 409; 60 L>. J. Ch. 630. (w) Cf. Jshbury Railway Carriage Co. v. Riche (1875), L. R. 7 H. L. 653; 44 L. J. Ex. 185; Att.-Gen. v. G. E. Rail. Co. (1880), 5 App. Cas. 473; 49 L. J. Ch. 545. (x) (1860), 9 H. L. C. 246; City of Glasgow Union Rail. Co. v. Caledonian Rail. Co. (1871), L, R. 2 H. L. (So.) 160. LANDS AUTHORIZED TO BE TAKEN. 31 to what extent it will be useful to them to exercise their statutable powers." In Kemp v. South Eastern Bail. Co. (y), Lord Hatherley, L. C, says, " I think it very important that the principle laid down in the case of Stockton and Darlington Rail. Co. v. Broivn should be considered as settled, and that the Court should be saved from a deluge of affidavits as to whether land is required or not, by simply saying that the Court will take the engineer's word for it, when he gives it with a reasonable appearance of accuracy." In Flower v. London, Brighton and South Coast Rail. Co. (2), Kindersley, V -C, held that an affidavit of the company's engineer, merely stating that "the land was or would be required for the purpose of the Act," did not give sufficient information to the Court to enable the Court to say that the company were bond fide taking the lands for the purposes of the Act. This case was decided on the ground of the insufficiency of the evidence contained in the engineer's affidavit, and does not in any way conflict with the principle laid down in Stockton and Darlington Rail. Co. v. Brown (a) . The onus of proving the want of bona fides rests upon the party .opposing the purchase (6). Where the purpose for which the land is required is expressly Liability for authorized by the special Act, the company are not bound to nulsance - choose some other site more convenient to other persons in order to prevent a nuisance (c). Section 9 of the Gasworks Clauses Act, 1871, does not exonerate the undertakers from proceedings for nuisance, and a gas company has no authority so to construct its works as to occasion a nuisance (d). (y) (1872), L. B. 7 Oh. 364; 41 L. J. Ch. 404. 0) (1865), 2 Dr. & Sm. 330; 34 L. J. Ch. 540, quoted with approval in Kemp's case, supra. (a) Richards, v. Scarborough Public Market Co. (1853), 23 L. J. Ch. 110; Wilkinson v. Hull, $0. Rail, and Pock Co. (1882), 20 Ch. D. 323; 51 L. J. Ch. 788; Errington v. Metropolitan District Rail. Co. (1882), 19 Ch. D. 559; 51 L. J. Ch. 305. (b) Errington •. Metropolitan District Rail. Co. (1882), 19 Ch. D. 559; 51 L. J. Ch. 305. (c) London, Brighton $ South Coast Rail. Co. v. Truman (1885), 11 App. Cas. 45; 50 L. J. Ch. 354; cf. Goldberg $ Sons v. Liverpool Corporation (1900), 16 T. L. B. 320. (d) Jordcson v. Sutton, %c. Gas Co., [1899] 2 Ch. 217; 68 L. J. Ch. 457; ■ of. with respect to hospitals, Metropolitan Asylum District v. Hill (1881), 6 App. Cas. 193; 50 L. J. Q. B. 353; Withington L. B. v. Manchester Corpora- 32 LANDS AUTHORIZED TO BE TAKEN IX SPECIAL CASES. PART II. — SPECIAL CASES. Special case.s The limits within which the promoters of the undertaking may promoters can purchase and take, or ma} r be compelled to purchase and take, orteiTlands ^ an ^ s > depend in a few cases on provisions of a special character. 1. Lands for Extraordinary Purposes. For extra- j n a number of special Acts, and particularly in those which ordinary L .... purposes. nave reference to the construction of railways, the promoters of the undertaking are authorized to purchase, by private treaty and agreement, some specified quantity of land for extraordinary pur- poses. Under this provision, lands, up to the specified amount, may be acquired by agreement as additional accommodation becomes necessary. In City of Glasgoul Union Rail. Co. v. Caledonian Rail. Co. (e), Lord Westbury expressed a doubt whether lands within the limits of deviation could be regarded as lands acquired for extraordinary purposes by private treaty. It was unnecessary to decide the question, because the time for the exercise of compulsory powers had expired prior to the acquisition of the lands. S. 45, Rail. Section 45 of the Railways Clauses Act, 1845, defines extra- ordinary purposes, where the undertaking authorized is the con- struction of a railway, to be — " The making and providing additional stations, yards, wharfs, and places for the accommodation of passengers, and for receiving, depositing, loading or unloading goods or cattle to be conveyed upon the railway, and for the erection of weighing machines, toll houses, offices, warehouses, and other buildings and conveniences : The making convenient roads or ways to the railway, or any other purpose which may be requisite or convenient for the forma- tion or use of the railway." If the purpose is authorized by the special Act, the railway company, so long as they act bond fide, are the sole judges whether it is necessary to take the lands in question for such purposes (/) . 01. Act, 1845. turn, [1893] 2 Ch. 19; 62 L,. J. Ch. 393; Att.-Gen. v. Nottingham Corporation, [1904] 1 Ch. 673; 73 L. J. Oh. 512; and to electric light stations, Shelf er v. City of London E. L. Co., [1895] 1 Ch. 287; 64 L. J. Ch. 216; Colwell v. St. Pancras B. C, [1904] 1 Ch. 707; 73 L. J. Oh. 275; Midwood f Co., Ltd. v. Manchester Corporation, [1905] 2 K. B. 597. O) (1871), L. R. 2 H. L. (So.) 160. (/) City of Glasgow Union Rail. Co. v. Caledonian Rail. Co. (1871), L. B. LANDS AUTHORIZED TO BE TAKEN IN SPECIAL CASES. 33 Section 12 of the Lands Clauses Act, 1845, empowers owners to s - 12 > L - cl - sell to the promoters of the undertaking lands required for extraordinary purposes ; section 13 empowers the promoters of the s. 13. undertaking to sell such lands from time to time, and to purchase other lands for a like purpose, provided that at no time they hold more than the prescribed quantity ; section 14 prohibits the pur- s. 14. chase by the promoters of the undertaking of more than the prescribed quantity of lands required for extraordinary purposes from owners who would be under disabilitj^, except for the powers of that and the special Act. Bramwell, L. J., expressed the opinion that sections 12 and 13 seemed to be intended to enable the promoters to acquire land which, at the time of the passing of the special Act, was not supposed to be required for the under- taking (#). 2. Lands for Temporary Purposes. Sections 30 — 44 of the Eailways Clauses Act, 1845, prescribe the For tempo- method by which, and the purposes for which, lands may be taken gs 3Q _ ii for temporary use during the construction of a railway. Rail. Cl. Act, To entitle the railway company to enter upon or take lands under these sections, they must be able to show that the taking is necessary (h), and for a purpose authorized by the special Act. The words " the purposes aforesaid " insection 32 refer only to the purposes mentioned in that section. A work is not " necessary " within the meaning of section 16 of the Railways Clauses Act, 1845, simply because it enables the company to execute their works more economically (i) . A mortar mill (i), and a tramway (fc), have been held not to be necessary within this section. The purchase-money or compensation under these sections is assessed, paid, or deposited in accordance with the provisions of the Lands Clauses Acts. Section 14 of the Regulation of Railways Act, 1842 (5 & 6 Vict. c. 55), gives railway companies certain powers of entering upon 2 H. L. (So.) 160; Stockton and Darlington Rail. Co. v. Brown (1860), 9 H. L. C. 246. Vide ante, p. 30. (ff) Hooper v. Bourne (1877), 3 Q. B. D. 258, at p. 272; 47 L. J. Q. B. 437. (h) Morris v. Tottenham, $c. Rail. Co., [1892] 2 Ch. 47; 61 L. J. Ch. 215. (i) Fenwicb v. Eust London Rail. Co. (1875), L. R. 20 Eq. 544; 41 L. J. Ch. 602. (Jc) Morris v. Tottenham, §c. Rail. Co., [1892] 2 Ch. 47; 61 L. J. Ch. 215. c. 3 34 LAXDd AUTHORIZED TO BE TAKEN IN SPECIAL CASES. adjoining lands for the purpose of repairing or preventing accidents. 3. Intersected Lands. Part of a House, etc. Small portions Section 94 of the Lands Clauses Act, 1845, provides that if the lands. r " ' " works authorized intersect any lands, so as to leave on either side a S. 94, L. 01. piece of land less than half a statute acre, or of less value than the Act, 1845. expense of making the prescribed communications, and if the owner has not other lands adjoining such piece of land, and requires the communications to be made, the promoters of the undertaking may require the owner to sell to them such piece of land. By this section the promoters of the undertaking cannot compel an owner to part with his piece of land, where it exceeds half a statute acre, if it is of greater value than the expense of making the prescribed communications ; and the section further provides, that the same tribunal which assesses the value of such piece of land shall also inquire what would be the expense of making the prescribed communications, if required so to do by either party. "Such land." The words "such land" refer to the introductory heading " small portions of intersected land," and the section has a general application, including lands situate in a town or built upon which are excepted from the operation of section 93 {I). It does not apply where the portion of severed land gave access to the sea for bathing, fishing, shooting, and other conveniences (m) . In pro- ceedings before a jury under this section both parties pay their own costs, since the sections relating to costs in the Lands Clauses Act, 1845, do not apply (re), but if the proceedings are taken before an arbitrator, the arbitration would come within the Arbitration Act, 1889, which enables the arbitrator to award costs (o). Two cases There are two cases in which the promoters of the undertaking mustbe^aken can be compelled to purchase and take lands, although such lands though not are n ot shown on the deposited plans, and are not required for the purposes of the undertaking. (I) Eastern Counties and London and Blackwall Rail. Cos. v. Marriage (1860), 9 H. L. C. 32; 31 L. J. Ex. 73. O) Falls v. Belfast, §o. Sail. Co. (1849), 12 Ir. L. R. 233. (») Cobb v. Mid Wales Rail. Co. (1866), L. R. 1 Q. B. 342; 35 L. J. Q. B. 117. (o) Arbitration Act, 1889, o. 2, sched. I. (i), and s. 24; Appendix, p. 472. LANDS AUTHORIZED TO BE TAKEN IN SPECIAL CASES. 35 1 . Section 92 of the Lands Clauses Act, 1845, enacts : " That no *; p « * onl y . of a house, party shall at any time be required to sell or convey to the &c. cannot be promoters of the undertaking a part only of any house or other en- .building or manufactory, if such party be willing and able to sell and convey the whole thereof." Questions have arisen on nearly every word in this section,, owing to the anxiety of promoters to escape the very onerous conditions which in some cases it imposes upon them. In many special Acts, and in some Acts of more general application, a section has been introduced, that promoters taking a part of a house, or other building, or manufactory, shall not be compelled to take the whole, unless the tribunal before which the compensation is assessed shall be of opinion that, by severing a portion of any house, other building, or manufactory, they cause material damage to the remainder ; provided that the company make compensation for any damage sustained by the owners thereof, or other parties interested therein, by severance or otherwise, or that may arise to the remainder of the premises in consequence of portions thereof being taken (p) . A provision that such parts of the line as piassed through a piece of land should be arched over so as to afford the owner communication between the severed portions was held not to exclude the operation of section 92 (q). A party on whom the notice as to part of a house or other Who is able building or manufactory is rightly served is " a party able to sell ^je. and convey the whole thereof." This point appears to have been assumed without discussion in Grosvenor v. Hampstead Junction Rail. Co. (r), but is discussed in Governors of St. Thomas' Hospital v. Charing Cross Rail. Co. (s). A leaseholder or other termor is a party able and willing to sell Termor is within the meaning of the section, so far as his term extends. seo ti on . The owner of the fee would exercise his option in respect of the reversion (t). The words in the section, " shall at any time be required," must " Shall at be read as equivalent to " shall at any time be compelled," and the required." owner may, up to the time of compulsion, assert his right not to O) Of. Caledonian Rail. Co. v. Turcan, [1898] A. C. 256; 67 L. J. P. C. 69; post, p. 43. (g) Sparrow v. Oxford, 4-0. Bail. Co. (1852), 21 L. J. Ch. 731. (r) (1857), 26 L. J. Ch. 731. (s) (1861), 30 L. J. Ch. 395. (<) Pulling v. London, Chatham # Dover Rail. Co. (1864), 33 L. J. Ch. 505. 3(3) 86 LANDS AUTHOEIZED TO BE TAKEN IN SPECIAL CASES. House. Structure adapted to occupation purpose. Not neces- sarily for residence. convey unless he has precluded himself by a counter equity (u). He has riot so precluded himself by offering to sell a part only at a prioe which the company have refused to adopt (m) . Any structure adapted for one occupation or purpose is a house, no part of which can be taken if the owner, by counter-notice, requires the company to take the whole. It is essential that a or structure should be adapted for one occupation or purpose, and two semi-detached villas, built for the purpose of separate habitations, are not constituted one house by the continuity of open space beneath the roof above the party walls and by a continuous system of drains and gutters (x). The old St. Thomas' Hospital was held to fall within the meaning of the word " house " (?/). Ic is not necessary that the structure should be adapted exclusively or primarily for purposes of residence. This question was fully discussed in the Court of Appeal in Richards v. Swansea Improvement and Tramways Co. (z). The plaintiff was owner of a leasehold house and buildings and of five freehold cottages abutting on the back of the house and buildings. The plaintiff used the house as a dwelling-house, and the shop and the buildings as a candle manufactory, candle store, bread store, and provision store. One of the cottages had been turned into a storehouse, and had been made to communicate with the house and buildings, and was used as a back entrance to them. The Court of Appeal, confirming the decision of the Court below, held that the cottage and house and buildings formed one house within the 92nd section of the Lands Clauses Consolidation Act, 1845. In his judgment, James, L. J., says : " Now, if the whole of this had been used by the plaintiff for his own residence merely as a private house there could be no question, as it seems to me, that the whole was one house ; and although I have had occasion more than once to consider the matter, I am still of opinion, and will repeat it, that according to my view a house is not the less a house because it is a public-house or an inn ; that it is not the less a house because it comprises or is used for the purpose of a shop, or because it comprises or is used for the purpose of a workshop or storehouse. Then, this being a house, all connected with one course of occupation and user, the plaintiff uses some of the rooms O) Gardner v. Charing Cross Rail. Co. (1862), 31 L. J. Ch. 181. (x) Harme v. South Devon Rail. Co. (1875), 32 E. T. 1. Qy~) Governors of St. Thomas' Hospital v. Charing Cross Rail. Co. (1861), 30 L. J. Ch. 395. (z) (1878), 9 Oh. D. 425. LANDS AUTHORIZED TO BE TAKEN IN SPECIAL CASES. 37 for living in, first in his own person, and afterwards by his servants ; he uses other parts of it for selling goods, other parts for making bread, other parts for making candles, other parts for grinding corn, and other parts for stables in which the horses are lodged that he finds it convenient to use. It seems to mc, that unless we are to start with a proposition that a house ceases to be a house, either partly or partially, because part of it is used for the purpose of business, that this is as much a house as if it had been originally built in the exact shape in which it now is, and every room in the house as they are placed had been used for the purpose of a private residence." If, as a fact, a house is held in one occupation, it makes no difference that it is held under different demises, or under a title which is derived from different sources (a) . The word "house" is used in its legal sense and comprises House is used more than the actual structure, and includes land which, beinff m lts g ' ^ ' s> sense. necessary for its convenient .use and occupation, would pass under the grant of a house (6). It does not include land in the occupa- tion of any owner for the time being which is subsidiary to or necessary for his mere personal use and convenience, nor land held with a house for the purpose of more conveniently carrying on a trade or business (c) ; nor does it include portion of a private avenue, a quarter of a mile from the mansion, over which the company propose to carry a bridge (d) . The garden, which is a piece of land attached to a house for its House convenient use and occupation, is part of such bouse (e); and land, '«!^ e e s n . » designed to be a garden to an unfinished house, is part of such house (/) . The ornamental portions of a nursery garden are (a) S. C; MacGregor v. Metropolitan Sail. Co. (1866), 14 L. T. 354; Siegen- berg v. Metropolitan District Rail. Go. (1883), 49 L. T. 554. (b) Low v. Staines Reservoirs Joint Committee (1900), 64 J. P. 212. (o) Co. Ldfct. 56 b; Shep. Touch, pp. 89 — 94; Steele v. Midland Rail. Co. (1866), L. E.. 1 Ch. 275; Pulling v. London, Chatham $ Lover Rail. Co. (1864), 33 L. J. Ch. 505; Fergussmi v. London, Brighton # South Coast Rail. Co. (1864), 33 L. J. Ch. 29; Faikner v. Somerset and Dorset Rail. Co. (1873), L. R. 16 Eq. 458; 42 L. J. Ch., 851; Barnes v. Southsea Rail. Co. (1884), 27 Ch. D. 536. (a) Allhusm v. Ealing and South Harrow Rail. Co. (1898), 78 L. T. 285, 396. («) Cole y. West London, $o. Rail. Co. (1859), 28 L. J. Ch. 767; Eeioson v. London and South Western Rail. Co. (1860), 2 L. T. 369; King v. Wycombe Rail. Co. (1860), 29 L. J. Ch. 462. (/) Alexander v. Crystal Palace Rail. Co. (1862), 31 L. J. Ch. 500; Grosvenor v. llampstead Junction Rail. Co. (1857), 26 L. J. Ch. 731. 38 LANDS AUTHORIZED TO BE TAKEN IN SPECIAL CASES. not a nuraery garden used for purposes of business. House includes "curtilage. " Other building. properly called garden, and are part of a house (g) ; but such portions as are merely used for the purpose of trading in flowers , and fruit would more properly be called field, and are not part of a house (h) . Where the owner of a house had entered into an agreement to get occupation of a neighbouring field for the purpose of adding it to his garden, it was held in Chambers v. London, Chatham £ Dover Hail. Co. (i), that though it might be contemplated to make such field into part of a house, yet that this had not been done at the time of giving the notice to treat, and that consequently the company could not be compelled to take the whole. In Mar son- v. London, Chatham & Dover Rail. Co. (k), it was held that an open piece of land in front of a public-house, which, formed the only means of approach by vehicles to the front door, and which had been treated as passing with the house by every demise of the public-house since 1802, came within the definition of a curtilage, and was part of the public-house, as being necessary for its convenient occupation. Where a man had bought a piece of land, and had built on it a house, inclosing the land partly with a wall and partly with an ornamental hedge, so as to make it one entire and complete thing, and had formed a back entrance, it was held that the company could not take a portion of the road forming such back entrance without taking the whole (I) . But where the owner of a house had bought land on the further side of a private road, and had erected thereon a stable, coachhouse, two cottages, greenhouse, &c., and a company had served notice to treat for the stables, &c. on the further side of the private road, it was held that the stables, &o. were not part of the house, and would not have passed under a conveyance of the house (m) . The words "other building " are not inserted in the section in order to limit the application of the word " house," but in order to extend its provisions to other things, which are not in the ordinary ' (a) Salter v. Metropolitan District Rail. Co. (1870), L. R. 9 Eq. 432; 39, L. J. Ch. 567. (h) Falkner v. Somerset and Dorset Rail. Co. (1873), L. R. 16 Eq. 458; 42 L. J. Ch. 851. (i) (1863), 8 L. T. 235. (ft) (1868), L. R. 6 Eq. 101; 37 L, J. Ch. 483. (I) Barnes v. Southsea Rail. Co. (1884), 27 Ch. D. 536. Of. Caledonian Rail. Co. v. Turoan, [1898] A. O. 256; 67 L. J. P. C. 69. («) Kerford v. Seacombe, $o. Rail. Co. (1888), 57 L. J. Ch. 270. LANDS AUTHORIZED TO BE TAKEN IN SPECIAL CASES. 39 sense houses, but are buildings in the nature of houses, although in ordinary language they would not be called houses, and to buildings connected with manufactories (n) . They do not include entire undertakings such as that of the Kegent's Canal and Dock Company (o). The word "manufactory" is only applicable to a place where a Manufactory; manufacturing process is carried on. In Reddin v. Metropolitan Board of Works (p), Lord Westbury, L. C, held that the collec- tion of dust was not a manufacturing process (q), and that therefore a shop used in connection with the business of a dust collector was not part of a manufactory. It has also been held that the prepara- tion of packing requisites and the packing of tea for delivery to customers is not a manufacture, and that the premises used for these purposes are not a manufactory (r). In Gibson v. Hammer- smith Rail. Co. (s) the word " manufactory " was held to include includes trade trade fixtures, since trade fixtures are annexed to and form part of the premises, subject to the tenant's right of removal during his term . Where a manufactory exists, a liberal construction is adopted in Over what deciding over what space such manufactory extends. In Richards factory v. Swansea Improvement and Tramways Co. (t), it was held in the extends. Court of first instance that it is sufficient if the main use is for manufacturing purposes, and that so long as the business is carried on as a whole it does not matter that the processes are for different manufactures producing different results, and in the Court of Appeal Brett, L. J., expressed his concurrence, though the case was not decided on that ground. It is not necessary that every part of what would reasonably be called a manufactory should actually be in use for the purpose of manufacture at the date of the notice to treat (u) . (n) Grosvenor v. Hampstead Junction Rail. Co. (1857), 26 L. J. Gh. 731, per Turner, L. J.; cf. Richards v. Swansea Improvement and Tramways Co. (1878), 9 Ch. D. 425; dicta of Brett and Cotton, L. JJ., pp. 434, 437; followed and applied, Regent's Canal and Book Co. v. L. C. C, [1912] 1 Ch. 583. (o) Regent's Canal and Dock Co. v. L. C. C, [1912] 1 CSh. 583. (p) (1862), 31 L. J. Ch. 660. (q) Cf. Public Health (London) Act, 1891, «. 22. (r) BeningUm v. Metropolitan Board of Works (1885), 54 L. T. 837. (s) (1863), 32 L. J. Ch. 337. (0 (1878), 9 Ch. D. 425, 434. («) Brook v. Manchester, Sheffield and Lincolnshire Rail. Co., [1895] 2 Ch. 571; 64 L. J. Gh. 890. 40 LANDS AUTHOEIZED TO BE TAKEN IN SPECIAL CASES. In Spackman v. Great Western Bail. Co. (x), it was held that cottages separated from the rest of the manufactory by a road, but used as the only warehouses in connection therewith, were part of the manufactory. With the cottages was a dwelling-house, and the Vice-Chancellor doubted whether such dwelling-house was or was not part of the manufactory. InFurniss v. Midland Rail. Co. («/), a mill-goit and weir, which occasionally supplied motive power to a manufactory, were held to be part of such manufactory. In Sparrow v. Oxford, dc. Bail. Co. (z), land included within the same wall with tinplate works, and used for deposit of ashes from the works, was held to be part of the manuf actory, although the two portions of the property were separated by a road over which a stranger had a right of way. S. 92 The Lands Clauses Act, 1845, does not empower the promoters tunnel*. ° °^ the undertaking to comjjel an owner to create an easement over his land ; and where part of a house or other building or manu- factory is tunnelled under or arched over, the company must, under section 92, take the whole (a), unless express provision to the contrary is inserted in the special Act. This principle is not affected by the decision in Great Western Rail. Co. v. Swindon, dc. Rail. Co. (a). Time at which The time at which it is to be determined whether any lands are applies. P ar t °I a house or other building or manufactory is the time of giving the notice to treat, and apart from mala fides it is immaterial when or how the state in which lands are at the moment of giving the notice to treat has been brought about (c) . Counter- When the promoters of the undertaking give a notice to treat for lands which are part of a house or other building or manu- factory, the owner, if desirous to avail himself of the provisions in section 92, should give a counter-notice that he is willing and able to sell and convey the whole, and that he requires the promoters to O) (1855), 1 Jur. N. S. 790. (y) (1868), L. B. 6 Eq. 473. (s) (1852), 21 L. J. Ch. 731. («) Falkner v. Somerset and Dorset Rail. Co. (1873), L. R. 16 Eq. 458; 42 L. J. Ch. 851; Pinchin y. London and Black wail Rail. Co. (1855), 24 L. J. Ch. 417; Fvmiss v. Midland Rail. Co. (1868), L. It. 6 Eq. 473. (4) (1884), 9 App. Cas. 787; 53 L. J. Ch. 1075. (c) Ric-hards v. Swansea Improvement and Tramways Co. (1878), 9 Ch. D. 425. notice. LANDS AUTHORIZED TO BE TAKEN IN SPECIAL CASES. 41 take the whole (d) . If, after such a counter-notice has been given, the promoters proceed to put in force their compulsor}' powers for the purpose of taking such lands only as are comprised in the notice to treat, the owner is entitled to apply for an injunction to restrain them, and on the hearing of the application for such injunction the question will be decided, whether the notice to treat includes lands which are " part of a house or other building or manufactory " (e). The counter-notice (/), requiring the company to take the whole Form of of any house or other building or manufactory, is not required to be "otic'e 9 *" in any particular form. It may be verbal ( 1845 - to mean " the parties, whether company, undertakers, commis- sioners, trustees, corporations, or private persons, by the special Act empowered to execute works or undertakings, of whatever nature, which shall by the special Act be authorized to be executed." The Commissioners of Works and Public Buildings are included in this definition (a), and it is wide enough to embrace every case which in practice would arise (b). The persons authorized, or who can be compelled to sell and Owners. convey lands to the promoters of the undertaking, are in the Lands Clauses Act, 1845, denominated "owners." Section 3 defines the term " owner " : — " Where under the provisions of this S. 3, L. CI. or the special Act, or any Act incorporated therewith, any notice ' shall be required to be given to the owner of any lands, or where any act shall be authorized or required to be done with the consent of any such owner, the word ' owner ' shall be understood to mean any person or corporation who, under the provisions of this or the special Act, would be able to sell and convey lands to the promoters of the undertaking" (c). Section 7 completes the definition of owner, by describing what S. 7, L. CI. persons or corporations are enabled to sell and convey lands to the c ' promoters of the undertaking. It is the general intention of this section to give every class of persons and corporations the power to sell and convey, since an omission might render the completion of 0) In re Edmeade (1860), 6 Jar. N. S. 986. (b) Ci. s. 133 and cases thereon (post, p. 300); Lands Clauses Act, 1860, ss. 6, 7; Municipal Corporations Act, 1882, ss. 5, 107. As to the scope of the Acquisition of Land (Assessment of Compensation) Act, 1919, vide post, p. 319. (c) These words incrud© a mortgagee with a power of sale: M. v. Middlesex (Clerk of the Pea.ee), [1914] 3 K. B. 259. 48 PROMOTERS AND OWNERS. an undertaking impossible, except through a fresh application to Parliament. Section 7 commences with a general power enabling all parties to sell and convey any lands, or any interest in lands, of which they are possessed, or to which they are entitled, to the promoters of the undertaking. These general words do not include the Crown, whose rights are not affected without special mention by an Act of Parliament (d). The section then particularizes certain parties : — Corporations. Corporations. — It was held, in B. v. South Wales Bail. Co. (e), that a corporation, which was a railway company, was not enabled to sell the soil of the line of railway where the special Act coni tained no express powers of purchase, and where there was no authority to cross the line on the level. Where express powers are given by a special Act, it is immaterial that the corporation received no notice of the intention to apply to Parliament for them (/) . In In re Chelsea Waterworks Co. (g), it was held that, though the company had no power, under their own special Acts, to sell lands upon which their water pipes were laid, yet if a special Act authorized the compulsory taking of any of the company's land for the purpose of another undertaking the purchase-money might be paid to the company as absolute owners. Tenants in tail or for life. Tenants in tail or for life. — It was held in In re Cuckfield Burial Board, Ex parte Earl of Abergavenny (h), that estates inalienably settled by Act of Parliament could be purchased or taken by the promoters, and that the tenant for life could bar his heirs in tail and all remaindermen, except the Crown, which is not bound by any Act of Parliament, without being named. An equitable tenant for life may contract for the sale of lands ; but the trustees in whom the legal estate is vested are necessary parties to the conveyance (i). A tenant for life by selling under the provisions of the Lands Clauses Act becomes entitled to have the costs of re-investment (0Z. (p). If the owner desires to have the price settled by arbitra- tion, he can initiate proceedings by giving notice to the promoters before they have issued their warrant to the sheriff to summon a jury (q). If assessment of price by a jury is desired, and the promoters do not issue a warrant, the owner can proceed by mandamus (r) . Kindersley, V -C, in Haynes v. Haynes (s), said : " I consider that a notice to treat constitutes the relation of vendor and pur- chaser to a certain extent, and for certain purposes that some of the consequences flowing from an actual contract might also flow from a notice to treat. The particular lands are fixed ; neither party can get rid of the obligation, the one to take, the other to give up ; and such is the meaning to be attributed to those expres- sions which have dropped from different judges as to its being a contract, but to no further extent is it a contract on the part of the landowner ; but if the company and the landowner, after the notice, come to an agreement, that is an enforceable contract " (t). The notice to treat, not being a contract between the promoters and an owner, does not require to be stamped as such (u) ; and it does not constitute a debt, owing or accruing, which can be attached under K. S. C, 0. XLV. r. 1. (x). A notice to treat and a settlement of price together constitute a complete and binding contract between the parties, and it is not necessary that the provisions of the Statute of Frauds should be complied with (y). Such contract can be enforced by either party (o) S. P., at p. 493; Birmingham. § Oxford Junction Sail. Co. v. R. (1851), 15 Q. B. 647, n.; 20 L. J. Q. B. 304. (p) Lands Clauses Act, 1845, a. 22. Vide post, p. 177. (. J. Ch. 503; Lytton v. Great Northern Bail. Co. (1855), 2 Jur. N. S. 436; of. South Eastern Bail. Co. v. Associated Portland Cement Manufacturers (1900), Ltd., [1910] 1 Ch. 12. (o) Morgan v. Milman (1852), 3 De G. M. & G. 24; Milnes v. Gery (1807), 14 Ves. 400. (.P) By grave v. Metropolitan Board of Works (1886), 32 Oh. D. 147; 55 L. J. Ch. 602. (q) Webb v. Direct London and Portsmouth Bail. Co. (1851), 1 De G. M. & G. 521. (>-) Eastern Counties Bail. Co. v. Haiokes (1855), 24 L. J. Ch. 601. (s) Stretton v. Great Western and Brentford Bail. Co. (1870), L. R. 5 Ch. 751; 40 L. J. Ch. 50; Great Western Bail. Co. v. Swindon, $c. Bail. Co. (1884), 9 App. Cos. 787; 53 L. J. Ch. 1075. (t) See as to this; Cooke v. London C. C, [1911] 1 Ch. 604, and post, p. 293. PURCHASE OF LANDS BY AGREEMENT. 61 of whose claims the promoters were cognizant, has, in relation to his security, all ordinary remedies, and is entitled, in default of payment, to an assignment of the land comprised in his security (w) . Promoters who have entered on lands under agreement, or in Owners have accordance with their powers, but who have failed to pay the pur- anTnpTid* chase-money, are liable to the owners, who are not deprived of vendor, their rights as unpaid vendors, being in no different position from vendors of land to any other person. There are two remedies open to an unpaid vendor : the one is to force a sale, and the other is to ask for rescission of the contract and for possession. In Walker v. Ware, dc. Co. (a?), a company had entered on Lien. lands in accordance with the provisions contained in section 85 of the Lands Clauses Act, 1845, but had failed to pay the purchase- money. Lord Komilly, M. E., held, that the plaintiff had a lien over the lands for his unpaid purchase-money, and that the Court of Chancery would enforce such lien by sale, although the railway had been made over the land, and was opened for public use, for the public have no rights as against the unpaid vendor (y!) .. Land, when sold to enforce a lien for unpaid purchase-money, is freed and discharged from all claims of the company or the public (z). Where a lien has been declared in favour of an unpaid vendor Enforcement against a railway company, and an order made for the sale of g a i e ie a n / land, then, pending the sale, a receiver should be appointed with a appointment direction to the company to give immediate possession, and an injunction against the use of the land should not be granted, because such injunction would make the land valueless to either party (a) . But where an order had been made that the company should pay purchase-money and interest, with a declaration that («) Martin v. London, Chatham and Dover Rail. Co. (1866), L. R. 1 Ch. 501; 35 L. J. Oh. 795. O) (1866), L. R. 1 Eq. 195; 35 L. 3. Ch. 94; of. Wing v. Tottenham. |-c. Sail. Co. (1868), L. R. 3 Ch. 740; 37 L. J. Ch. 654; Saper v. Crystal Palace. #o. Sail. Co. (1868), 18 L. T. 8. (y) Cf. Williams v. Aylesbury, §e. Sail. Co. (1873), 28 L. T. 547; Williams v. Great Eastern Sail. Co. (1868), 18 L. T. 458. (z) Mitnm v. Isle of Wight Sail. Co. (1870), L. R. 5 Ch. 414; 39 L. J. Oh. 522. (a) S. C; Lycett v. Staford and TJttoxeter Sail. Co. (1872), L. R. 13 Eq. 261; 41 L. J. Ch. 474; Bishop of Winchester v. Mid-Hants Sail. Co. (1867), L. R. 5 Eq. 17; 37 L. J. Oh. 64: of. Pell v. NortJmmpton, §c. Sail. Co. (1867), L. R. 2 Ch. 100; 36 L. J. Ch. 319. 62 PURCHASE OF LANDS BY AGREEMENT. Power to sell in considera- tion of a rent- charge. wner of rent-charge is not in position of an unpaid vendor. the unpaid vendor was entitled to a lien on the lands in respect of the purchase-money, interest, and costs, and that in default of payment the unpaid vendor was to be at liberty to apply to enforce such lien, but there was no order for sale, the Court on default of payment, and on evidence that the land was unsaleable, granted an injunction to restrain the company from running trains over or from continuing in possession of the land (6). Where an unpaid vendor of land taken by a railway company has commenced an action to enforce his lien, the Court will not grant, an injunction or the appointment of a receiver against the company before judgment has been obtained in the action, even though the company admit their liability (c) . James, L. J., points out in his judgment (c) the uselessness of appointing a receiver, except as a step in the procedure for the purpose of enforcing a lien already declared. Where the purchase-money has been ordered to be paid, but has not been declared to be a charge upon the land, the vendor is not entitled under the liberty to apply- to enforce by petition a lien on the land for the sum due (d) . Sections 10 and 11 of the Lands Clauses Act, 1845, of which the operation is extended by section 2 (e) of the Lands Clauses Act, 1860, so as to include persons under disability, authorize the sale of lands in consideration of an annual rent-charge, and make such rents a charge on the tolls or rates, if any, payable under the special Act. A rent reserved as the consideration before the sale of land in distinction from the payment of a sum in gross, is a rent-charge under sections 10 and 11 (/). If such rents are not paid within thirty days, section 11 provides for their recovery by action or by distress of the goods and chattels of the promoters of the undertaking (g) . The person to whom any such rent-charge is payable does not stand in the ordinary position of an unpaid vendor, and is not entitled to a declaration of lien in respect of arrears in payment of the rent- (6) Allgood v. Merrybent, §o. Sail. Co. (1886), 33 Oh. D. 571; 55 L. J. Oh. 743. (c) Latimer v. Aylesbury and Buckingham Rail. Co. (1878), 9 Ch. D. 385. (d) All. -Gen. v. Siltingbotirne and Sheerness Rail. Co. (1865), L. R. 1 Eq. 636. (e) Post, p. 436. S. 1 of the Act of 1860 has been repealed by the Statute Law Revision Act, 1875 (38 & 39 Vict. c. 66). (/) In re Lord Gerard and Beec/wm's Contract, [1894] 3 Ch. 295; 63 L. J. Oh. 695. (g) For the method of levying distress, see s. 138, post, p. 431. PURCHASE OF LANDS BY AGREEMENT. 63 charge (h) . But where lands are sold to a railway company in consideration of a rent-charge, the parties may agree to its being secured by a power of re-entry until satisfaction of arrears, and such an agreement gives the owner of the rent-charge a right to enter against a receiver of the undertaking appointed by the High Court (i) . The owner of a rent-charge is entitled to payment of rent in Form of order priority to any other class of creditors, and the form of the order remedies. 6 MS in Eyton v. Denbigh, &c. Rail. Co. (k) is one which would generally be applicable. The declaration made was, " That the owners of the several rent-charges mentioned in the chief clerk's .certificate are entitled to a charge upon all the lands of the company comprised in their several deeds of charge, and upon all the earnings and profits of the undertaking of the company, in priority to all ether the creditors of the company, and that they are, as between themselves, entitled to be paid such rent-charges pari passu." Where a scheme of arrangement has been filed under the Scheme of Railway Companies Act, 1867, the Court has jurisdiction under arran S emen • section 7 of that Act to stay proceedings by unpaid landowners. This jurisdiction will not be exercised unless the scheme proposes some reasonable provision for the payment of a landowner's claims, and the railway company submits to a decree in his favour (7), nor in an action for specific performance, except upon the terms of the company submitting to a decree (m) . But where .a special Act restrained actions against a company by creditors, except with the leave of the Court, the Court refused leave where it was not shown that the company had the means of paying and did not pay (n) . Where a landowner had obtained a declaration of lien, and was about to be put in possession, he was held entitled to object to a scheme involving the sale of the superfluous lands (o) . Where a deposit has been made under the Standing Orders of Abandon- ment. (A) Earl of Jersey v. Briton Ferry Floating Sock Co. (1869), L. R. 7 Eq. 409. (») In re Manchester and Mttford Sail. Co. (1880), 14 Ch. D. 645; 49 L. J. Oh. 454. (k) (1868), L. R. 7 Eq. 439; 6 Eq. 14; 37 L. J. Ch. 669. (0 In re Cambrian Rail. Co.'s Scheme (1868), E. R. 3 Oh. 278; Griffith v. ■Cambrian Rail. Co. (1869), 21 L. T. 290. Of. In re East and West India ■I>ock Co. (1890), 44 Oh. Bi. 38, 62. (m) Robertson v. Wrexham, Mold, §o. Rail. Co. (1869), 17 W. R. 137. (») In re Parry and Jones (1869), 18 W. R. 416. (o) In re Somerset and Dorset Rail. Co. (1870), 21 L. T. 656. 64 PURCHASE OF LANDS BY AGREEMENT. Parliament, and it is enacted that if the railway is not completed and opened by the time fixed, the deposit shall be applicable towards the compensation of landowners and other persons whose property has been interfered with, or who have been subjected to injury or loss in consequence of the compulsory powers of taking property conferred upon the promoters, the service of a notice to treat is not in itself an exercise of the compulsory powers of taking property, and an owner who has received a notice to treat is not entitled to priority in compensation out of the fund deposited (p) . An Abandonment Act enacted that compensation should be made to the owners and occupiers, or other persons interested in land, for all injury or damage sustained by them respectively by reason of the purchase not being completed pursuant to a contract or notice. It was held that an owner on whom the company had served a notice to treat was entitled to claim as creditor in respect of any loss or damage that he might have sustained, either by reason of contracts entered into, or by reason of notice to treat, against the surplus of the fund deposited, pari passu with other creditors (p) . (p) In re Vxbridge and Siokinansworth Sail. Co. (1890), 43 Ch. D. 536; 59 L. J. Ch. 409 ; the questions arising on the abandonment of railways are dealt with more fully post, p. 383. 65 CHAPTER VI. THE NOTICE TO TREAT. Section 16 of the Lands Clauses Act, 1845, enacts that the whole s. 16, L. ci. of the capital of the undertaking shall be subscribed, before it is „ '.,.,,', . Capital to be lawful to put into force any of the powers in relation to the com- subscribed pulsory taking of land for the purpose of the undertaking. But p„iaory C ° m * where, under the special clauses of an Act of Parliament, a powers, company is prohibited from taking certain lands, but empowered to acquire over such lands a right in the nature of an easement, and any dispute is to be settled by a tribunal other than that prescribed in the Lands Clauses Act, 1845, section 16 of the Lands Clauses Act, 1845, does not apply, and an injunction to restrain the company from proceeding to acquire such easement, until the whole of the capital of the undertaking has been subscribed, will not be granted (a) . Section 16 applies to the purchase and taking of land otherwise than by agreement, and there is a difference of opinion whether an entry on lands under section 85 is justified although the provisions of section 16 have not been complied with. The point is discussed by Lords Watson and Bramwell in Great Western Rail. Co. v. Sivindon, dc. Rail. Co., but the decision in 1 that case apparently turned upon the terms of the special sections in the private Act, and there was some divergence of opinion (6). Section 17 makes the certificate of two justices sufficient evidence S. 17, L. 01. xi .1 Act, 1845. that the whole capital is subscribed. In the absence of fraud, the certificate is conclusive against an owner that the provisions of section 16 have been complied with (c). The certificate of two justices is not a condition precedent to the Certificate not • i - i i i_ ■ required if putting compulsory powers in force, where this would be mcon- inconsistent sistent with the provisions of the special Act. Such certificate is ™^ 8 P ecial («) Great Western Mail. Co. v. Swindon, %c. Rail. Co. (1884), 9 App. Cas. 787; 53 L. J. Oh. 1075. (6) S. C, at pp. 803, 810. (e) Ystaltffera Iron Co. v. Neath and Brecon Mail. Co. (1873), L. E. 17 Eq. 142; 43 L. J. Oh. 476. C. 5 66 THE NOTICE TO TEEAT. not required in the case of a branch railway authorized to be made by an existing company (d) ■ Ss. 16 and Sections 16 and 17 only apply where lands are purchased or taken to compulsory under compulsory powers. They are a protection to owners and powers. no (- to promoters ; and being only applicable where it is intended to enforce compulsory powers, they cannot be set up as a defence against an owner who is willing to sell and convey his lands, but requires the value to be assessed by one of the methods prescribed in the Lands Clauses Act, 1845 (e). toatnot ^e mere service of a notice to treat is not necessarily a step in necessarily compulsory procedure. The owner on whom such notice is served o" oompulsory mav be either a willing vendor, or determined not to part with his powers. l an d except under compulsion ; and until this is decided, a notice to treat is a neutral proceeding, which may or may not be followed by compulsory process (/). In Guest v. Poole and Bournemouth Rail. Co. (e), a company, after having given a notice to treat, raised as a defence against an action by the owner for a mandamus to compel the issue of a warrant under section 29 of the Lands Clauses Act, 1845, that the capital had not been subscribed in accordance with the provisions of sections 16 and 17. It was held that this defence could not be maintained, and that sections 16 and 17 did not apply, since the owner was willing to convey, so soon as the price had been fixed in accordance with the provisions of the Lands Clauses Act, 1845, and the company were not putting in force their compulsory powers. The case of R. v. Amber gate, dc. Rail. Co. (g), was decided after the judgment in R. v. York and North Midland Rail. Co. (h) had been given in the Queen's Bench, but before that judgment had been reversed in error ; and, therefore, a mandamus, ordering a company to complete a line of railway, was on the face of it good. The answer to the mandamus by the company was, that the capital had not been subscribed and could not be procured . Judgment was given for the defendants, on the ground that the mandamus (d) S. v. Great Western Rail. Co-. (1852), 22 L. J. Q. B. 65; Weld v. South Western Rail. Co. (1864), 33 L. J. Oh. 142. («) Guest v. Poole $ Bournemouth Rail. Co. (1870), L. E. 5 C. P. 553; 39 L. J. 0. P. 329. (/) See In re Uxbridge and Rickmansworth Rail. Co. (1890), 43 Ch. D. 536; 59 L. J. Oh. 409. (g) (1853), 22 L. J. Q. B. 191. (A) (1852), 22 L. J. Q. B, 41, 225. THE NOTICE TO TREAT. 67 in substance commanded the company to exercise compulsory powers, and therefore to do that which sections 16 and 17 of the Lands Clauses Act, 1845, declared to be illegal. It is difficult to see how a case similar to that of R. v. Amber gate, dc. Rail. Co. could now arise, since it is a well recog- nised principle that when a company has been given powers in the ordinary form to make and maintain statutory works, this does not impose any obligation either to make or to maintain (i) : but the principles of interpretation of sections 16 and 17 are still applicable. Where the requisite capital has been subscribed, and the pro- Notice to meters are desirous to put in force their compulsory powers for the treat- purchase or taking of lands, the first step is to give a notice to treat or a notice of similar effect (fc) . In the case of compulsory taking, the right of entry under section 85 is a right not inde- pendent of, but consequent upon the landowner and the promoters being placed, by the notice to treat, in a position analogous to that of vendor and purchaser (I) . Until a notice to treat has been given, unless the omission arises Necessity of from acquiescence of the owner, or from a bond fide mistake on the treat 6 ° part of the promoters, or from their inability to serve the same, the promoters do not bring themselves within the protection of the special Act, and are liable to be proceeded against as persons inter- fering, or threatening to interfere, with private rights (m). Pub- What notices lication of the appointment of an arbitrator under the Railways to a notkie en (Ireland) Act, 1851, is equivalent to service of a notice to treat to treat - under the Lands Clauses Act, 1845 (n). The publication of the (0 R. v. York and North Midland Bail. Co. (1853), 22 L. J. Q. B. 225 Edinburgh, Perth, $o. Rail. Co. v. Philip (1857), 2 Macq. H. L. (So.) 574 Scottish North Eastern Rail. Co. v. Stewart (1859), 3 Macq. H. L. (Sc.) 382 R. v. a. W Rail. Co. (1893), 62 L. J. Q. B. 572. (k) S. 18, Lands Clauses Act, 1845. (I) Tiverton, §o. Rail. Co. v. Loosemore (1884), 9 App. Gas. 480, at p. 503, per Lord Watson; 53 L. J. Oh. 812. (rn) Stretton v. Great Western and Brentford Rail. Co. (1870), L. E. 5 Ch. 751; 40 L. J. Oh. 50; Ramsdenv. Manchester, $o. Rail. Co. (1848), 1 Ex. 723; Ranken v. East and West India Docks, Sje. Rail. Co. (1850), 19 L. J. Ch. 153; Perks v. Wycombe Rati. Co. (1862), 10 W. R. 788; Wood v. Charing Cross Rati. Co. (1864), 33 Beav. 290; Martin v. London, Chatham and Dover Rail. Co. (1866), K R.. 1 Ch. 501; 35 L. J. Ch. 795; University Life Assurance Co. v. Metropolitan Rail. Co., (1866) \V. N. 167; Thomas v. Barry Dock and Rail. Co. (1889), 5 Times L. R. 360. (») Re Doyne's Traverses (1889), 24 L. R. Ir. 287. 5 (2) 68 THE NOTICE TO TEEAT. requisition under section 6 (c) of the schedule to the Artizans and Labourers Dwellings Improvement Act, 1875, was held to have the same force as a notice to treat, and an owner affected by it .can- not afterwards create a new interest (o). The Act of 1875 has been repealed, but there are similar provisions in the Housing of the Working Classes Act, 1890 (p). A notice of intention to take lands after the expiration of six months under a special Act, though not a notice to treat, was held to bind the promoters to proceed with the purchase of the premises within a reasonable time after the expiration of six months (q) . Not necessary j t j g no) . nec6Ssarv to serve a notice to treat where a tenant is m case 01 t7 yearly required to give up possession under section 121 (r). tenancies. . ..... Acauiescence an owner > "J acquiescence, waives his claim to a notice to of owner in treat, he cannot, in subsequent proceedings, take advantage of an notice? elTlng irregularity which his own conduct has brought about (s) . An owner may preclude himself by his conduct from questioning the validity of a notice to treat (t). Ss. 124, 125, Sections 124, 125 and 126 of the Lands Clauses Act, 1845, make Act' 1845.' provisions in respect of interests in lands which, through mistake Interests in or inadvertence, the promoters have failed or omitted duly to tTbepn^-** 64 P urcnasc or f° r "which they have failed or omitted to pay com- chased pensation . through mistake. These sections only protect promoters who through bond fide Mistake must mistake or inadvertence have omitted to purchase or pay compen- sation for any interest in lands on which they have entered (w) ; " the provision in section 124 is intended to be a shield of protection for persons who have entered into possession, and not a weapon of (o) Wilkins v. Mayor, $o. of Binning/tarn (1883), 25 Ch. D. 78; 53 L. J. Ch. 93; cf\ London C. 0. v. Wihon'i Executors, [1916] 1 K. B. 837. (p) Post, pp. 358, 540. (?) Morgan v. Metropolitan Rail. Co. (1868), L. E. 4 C. P. 97; 38 L. J. C. P. 87; Tyson v. Mayor, §c. of London '(1871), L. E. 7 C. P. 18; 41 L. J. O. P. 6. (r) Syers v. Metropolitan Board of TJ'orJcs (1877), 36 L. T. 277, per Jessel, M. E., at p. 278. This dictum has been followed. (s) R. v. South Holland Drainage Committee (1838), 8 A. & E. 429; Tmeer v. Eastern Counties Rail. Co. (1843), 3 Eail. Gas. 374. (0 Thomas v. Law (1866), L.. E. 2 Ch. 1, per Kindersley, V.-C, at p. 3 (n); 36 L. J. Ch. 201. Cf. Lynch v. Commissioners of Sewers (1886), 32 Ch. D. 72, at p. 81; 55 L. J. Oil. 409. (w) Hyde v. Mayor of Manchester (1852), 5 De G. & S. 249; Thomas v. Barry Lock and Rail. Co. (1889), 5 Times L. E. 360. THE NOTICE TO TREAT. 69 offence against one who has not quitted possession " (x). They do not apply where the promoters, being aware of an interest in lands, have neglected to deal with the owner in the manner pointed out in their statutory powers (y) . If promoters are in possession of lands to which they have not acquired a complete title, not through any fault of their own, but solely on account of mistake or inadvertence, section 124 applies, and the mode in which, or the contract under which, they have entered into possession of such lands is immaterial (z) . Section 124 enacts that, whether the period allowed for the S. 124, L. CI. purchase of lands shall have expired or not, the promoters shall Act ' 1845 ' remain in the undisturbed possession of such lands, provided within six months after notice of an estate, right, interest, or charge, which they have omitted duly to purchase or pay compensation for, in case the same shall not be disputed by the promoters, and in case the same shall be disputed then within six months after the right shall have been finally established at law in favour of the party claiming the same, the promoters shall purchase or pay compensa- tion for the same, and for mesne profits, the amount to be assessed as in other cases where interests in lands are purchased or taken . If the company do not dispute the claimant's title, they are if claimant's entitled to remain in undisturbed possession for six months, and no ^j™^ action for ejectment can be maintained within that period (a). In the same case, Erie, C. J., giving the judgment of the Court, intimates an opinion that the six months begin to run from such time as the claimant's title is brought to the notice of the promoters, in order that they may have an opportunity of considering its validity (a) . Section 124 does not interdict an action of ejectment, but authorizes the Court to give the promoters the benefit of the Act by staying execution after the right of the landowner has been ascer- tained. But if the company do dispute the claimant's title, then if claimant's an action for recovery of the lands can at once be commenced ; and tltle dlB P ute • if such action is finally decided in the claimant's favour, execution O) Omagh U. D. 0. v. Henderson, [1907] 2 Ir. R. 310, per Pallet, C. B. (#) Martin v. London, CJiatham and Dover Bail. Co. (1866), L. R. 1 Gh. 501; 35 L. J. Oh. 795; Strelton v. Great Western td BorUng Bail. Co. (1861), 31 L. J. Q. B. 95. 70 THE NOTICE TO TREAT. will be stayed during six months, in order that the promoters may have time to comply with the provisions of the section, so as to make good any defect in their title (6). The period of six months does not commence to run until there has been a final determination in favour of the claimant (c), in which case, semble, it is the duty of the claimant to make a claim which it would have been possible for the promoters to satisfy, and not that of the promoters to serve a notice to treat (c) . S. 125, L. 01. Section 125 enacts that, in assessing compensation to be paid for ' ' any interest in lands omitted to be purchased by mistake or inadvertence, improvements made by the promoters are not to be taken into account. S. 126, L. 01; Section 126 enacts that, where the title of an owner, whose ' ' interest in lands has not been purchased through mistake, is dis- puted by the promoters, and determined in the owner's favour, the promoters shall pay full costs and expenses of the litigation, to be taxed, if necessary, by the regular officer. These costs include costs as between solicitor and client (d) . Ss. 58—67, Sections 58—67 of the Lands Clauses Act, 1845, contain the 1845." ' provisions which apply, if an owner, by reason of absence from the Owner who is kingdom, is prevented from treating, or if he cannot, after diligent kingdom or inquiry, be found. Compensation in such cases is assessed by a cannot be surveyor, and the amount deposited ; and if the owner is dis- satisfied, he is entitled to an arbitration to decide whether the sum deposited is a sufficient compensation (e). S. 18. Section 18 of the Lands Clauses Act, 1845, prescribes the persons Form of to whom and the form in which a notice to treat is required to be treat. given (/). The form of a notice to treat is defined as follows:— " The promoters by such notice shall demand from such parties (*) Salisbury (Marquis of) v. Great Northern Bail. Co. (1858), 28 L. J. C. P. 40; Doe d. Hyde V. Mayor of Manchester (1852), 12 O. B. 474. (e) Caledonian Mail. Co. v. Davidson, [1903] A. 0. 22; 72 L. J. P. C. 25. (d) Doe d. Hyde v. Mayor of Manchester, supra; Yovng v. North British Sail. Co. (1888), 15 E. (H. L.) 32; Caledonian Sail. Co. v. Davidson, [1903] A. O. 22, 35. (e) Vide -post, pp. 175, 186. (/) Where lands are mortgaged the mortgagees ought to be served at the same time as the mortgagor, otherwise proceedings in the absence of the former will not bind them ; but the mortgagees may be served at a later date after it has become apparent that the compensation assessed is not sufficient to pay off the mortgages: Cooke v. London C. C, [1911] 1 Ch. 604. THE NOTICE TO TREAT. 71 the particulars of their estate and interest in such lands, and of the claims made by them in respect thereof ; and every such notice shall state the particulars of the land so required, and that the promoters of the undertaking are willing to treat for the purchase thereof, and as to the compensation to be made to all parties for the damago that may be sustained by them by reason of the execution of the works." It is not competent for the promoters to give a notice to treat For whole for less than the whole interest of the owner in the land required m eres ° n y ' to be taken. Where the promoters had given a second notice to treat, containing a reservation as to any interest they might acquire under a prior notice to treat given to other persons, it was held that the reservation did not affect the claim of the owner, and that he was entitled to formulate and bring forward a claim for the whole interest to which he alleged he was entitled (h). But where a notice to treat has been validly withdrawn, the promoters are entitled to proceed to the assessment of compensation upon a fresh notice (i) . Where promoters have entered into an agreement with a lessor to take certain lands, there is no obligation upon them to serve a notice to treat upon the lessee except as regards such portions of the lands leased as they may require at the date of the notice (k) . If they subsequently require to take further portions of the land subject to the lease, it would be competent for them to serve a second notice to treat on the lessee for such additional land . In the event of the promoters requiring to take land under a Land under a , , . , . , ... , , , „ public street public street or highway, it is necessary m the absence 01 any or highway, special provision in the private Act to serve a notice to treat on the owners of the sub-soil (I). It is now settled that the interest of a public authority in the surface of a street extends only to so much thereof whether above or below the surface (m) as is necessary for the control, protection and maintenance of the street as a highway (h) He Chilworth Gunpowder Co. and Manchester Ship Canal Co. (1891), 8 Times L. K. 79. (*) Ashton Vale Iron Co. v. Mayor, §o. of Bristol, [1901] 1 Ch. 591; 70 L. J. Ch. 230. (A) Stevenson v. North British Bail. Co. (1902), 4 F. (Ct. of Sess.) 224. (0 Hamsden v. Manchester, %o. Hail. Co. (1848), 1 Ex. 723; Goodson a. Hichardson (1874), I>. K. 9 Ch. 221; 43 L. J. Ch. 790; cf. Souch v. £>< > London Hail. Co. (1874), L. B. 16 Eq. 108. (ni) Finchley Electric Light Co. v. Finchley V . C, [1903] 1 Ch. 437. 72 THE NOTICE TO TREAT. for public use, and does not extend to the sub-soil (m) or usque ad coelum (n) . It has not been usual in practice for owners to insist on a notice to treat in respect to their interest in the sub-soil under streets or highways, since in the majority of cases no substantial claim could be maintained, but the fact that a claim may only be nominal in amount does not affect the legal rights of the parties, ii nd the owner of the sub-soil is entitled to the same protection as a surface owner (o). The presumption that half the soil of the road is intended to pass to a purchaser under a conveyance of land described as bounded by a public thoroughfare, is equally applicable to streets in a town as to highways in the country (p) ; but this presumption may be rebutted by evidence of surrounding circumstances which lead to the inference that no part of the soil of the highway was intended to pass or did pass (q) . In the case of lessees, the question whether the right of the lessee extends over the same area as the right of the owner will turn upon the terms of the lease in each case, but it is doubtful whether the presumption would be as strong in the case of a lease as in the case of a grant (r) . ■Where a corporation had statutory powers to erect poles and posts on, in, over or under any street or road, and these poles and posts were sunk in the soil to a considerable depth below the surface, it was held that this did not constitute a taking of the land necessitating a notice to treat, and that the owner's right, if any, was to claim compensation for injurious affection (s). A company entitled to appropriate and use the sub-soil and under-surface without being required wholly to take the lands of the owner, must comply with the provisions of the Lands Clauses O) Tunbridge Wells Corporation v. Ba-ird, [1896] A. C. 434; 65 L. J. Q. B. 451; Vestry of St. Mary, Battersen v. County of London and Brush Provincial Electric Lighting Co., [1899] 1 Ch. 474; 68 L. J. Ch. 238; cf. Municipal Council of Sydney v. Young, [1898] A. 0. 457; Westminster Corporation v. London and North Western Rail. Co., [1905] A. C. 426. (») Finchley Electric Light Co. v. Finchley U. C, [1903] 1 Ch. 437. (o) Goodson v. Richardson (1874), L. R. 9 Ch. 221; 43 L. J. Ch. 790. (p) In re White's Clmrities, Charity Cc-mmissioners v. London Corporation, [1898] 1 Ch. 659; 67 L. J. Ch. 430; Westminster Corporation v. London and North Western Rail. Co., [1905] A. C. 426; 74 L. J. Ch. 629. (g) Mappin Bros. v. Liberty $ Co., [1903] 1 Ch. 118; 72 L. J. Ch. 63. (»•) Haynes v. King, [1893] 3 Ch. 439; 63 L. J. Ch. 21; Landrock v. Met. List. Rail. Co. (1886), 3 Times £,. R. 162. (s) Escott v. Newport Corporation, [1904] 2 K. B. 369. THE NOTICE TO TREAT. 73 Act, 1845, as to the purchase of lands, and serve the usual notice to treat (t) . It is important that the notice to treat should accurately indicate Notice should the position and area of the lands required to be taken by the describe lands promoters (u). The notice should also give full information to in question, the owner of the land that it is to be taken for the purposes of the railway, but need not go into details as to the particular purposes for which it is taken (a). Provided that the description of the lands is not ambiguous, no special form is required, and the following form is a convenient one to adopt : " The lands of which particulars are contained in the schedule hereto, and which said lands, so required, are, for the better description thereof, delineated on the plan attached hereto, and delivered herewith, and are thereon distinguished by a red colour" (y). Where the promoters, who had no power to compel the creation of an casement, described land in a notice to treat as fronting on a " proposed road," which road the landowner subsequently decided not to make, it was held that the reference in the notice to treat was merely descriptive, and that the proposed road could not be regarded as an actually made road (0) . Where a company gave a notice to treat for a stable only, and the subsequent conveyance to them granted the premises with all rights, &c. enjoyed as part thereof, it was held that the company were entitled to use the approach road to the stable, and that the notice to treat was sufficient (a) . A notice to treat that is bad as to part is bad altogether as it cannot be divided (b). If it is intended to purchase or take minerals for the purpose of Notice should SUGClfv if the undertaking, this intention should be specifically stated in the minerals are notice to treat. In ordinary cases, the sub-soil is not required in to be taken, order to carry out a statutory undertaking, and in the case of railway and waterworks companies, minerals are specially excepted (f) Farmer v. Waterloo and City Rail. Co., [1895] 1 Ch. 527; 64 L. J. Ch. 338. (u) Kemp v. London, Brighton and South Coast Rail. Co. (1839), 3 Jur. 403; Protheroe v. Tottenham, #c. Rail. Co., [1891] 3 Ch. 278. O) Wood v. Epsom, §0. Rail. Co. (1860), 30 L. J. C. P. 83. (y) Bowling v. Ponlypool, Caerleon, §a. Rail. Co. (1874), L. R. 18 Eq. 714; 43 E. J. Ch. 761; Finch v. London and South Western Rail. Co. (1890), 44 Ch. D. 330; 59 L. J. Oh. 458; Sims v. Commercial Sail. Co. (1838), 1 Rail. Cas. 431; Simpson v. Lancaster and Carlisle Rail. Co. (1847), 15 Sim. 580. Cf. Wood v. Epsom, §c. Rail. Co. (1860), 30 E. J. O. P. 83. (2) In re London School Board and Foster (1903), 87 L. T. 700. («) Bayley v. Great Western Rail. Co. (1884), 26 Ch. D. 434, 451. (J) Coats v. Caledonian Rail. Co. (1904), 6 F. 1042. 74 THE NOTICE TO TREAT. Notice need not be stamped. Signature of notice to treat. Owners not compelled to send in claim unless they desire arbitration. from an ordinary purchase, unless they are included in express terms (c) . There is without doubt power to include minerals in a notice to treat, if they are required by the promoters (d) . The notice to treat need not be stamped either when served or on production in an action for specific performance (e). If the special Act incorporates the Companies Clauses Act, 1845, the notice to treat can be signed in accordance with the provisions of section 139 : — " Every summons, notice, or other such document,, requiring authentication by the company, may be signed by two directors, or by the treasurer or secretary of the company, and the same may be in writing or in print, or partly in writing and partly in print." Where this form is not applicable, or has not been followed, the notice to treat should be authenticated by the seal of the company (/) . The notice to treat demands from owners the particulars of their estate and interest in the lands required, and of the claims made by them in respect thereof . There is nothing to compel the owners of lands to supply the particulars demanded in the notice to treat (g) ; and if they are not desirous of coming to an amicable arrangement with the promoters, there is no reason why they should do so. It is an optional proceeding so far as the owners are cpneerned, except where they elect to have the amount of compensation assessed by arbitration, in which case (section 23) they are required to state the nature of the interest in respect of which compensation is claimed. If particulars are given, they should be such as would enable the promoters to meet the just claim of the owner by ascertaining what is the true value of the land, and offering him compensation accordingly, and the quantity as well as the quality of the estate or interest of the owner should be (c) Vide post, p. 132; Railways Clauses Act, 1845, ss. 77 — 85, post, pp. 452— 454; Waterworks Clauses Act, 1847, S3. 18 — 27, post, pp. 463—466; cf. Public Health (Support of Sewers) Act, 1883, post, pp. 343, 512. (d) Errington v. Metropolitan District Rail. Co. (1882), 19 Ch. D. 559; 51 L. J. Ch. 305; Smith v. Great Western Rail. Co. (1878), 3 App. Cas. 165; 47 L. J. Oh. 97; Holliduy v. Mayor, #c. of Wakefield, [1891] A. C. 81; CO L. J. Q. B. 361. (e) Rawlings v. Metropolitan Rail. Co. (1868), 37 L. J. Ch. 824. (/) Vide ante, pp. 53, 54. (g) That such particulars have not been supplied is not a good plea to an action for a mandamus: Birch v. Vestry of Si. Manjlebone (1869), 20 L. T. 697. Cf. Book II., p. 326, as to costs under the Act of 1919. THE NOTICE TO TREAT. 75 stated (h) . The cases which have been decided have arisen on similar words in section 68 (i). The inability to get information of the nature of the interest claimed by parties with whom they are treating is, in many cases, a hindrance to promoters who desire to make a reasonable offer of compensation ; provisions are included in certain private Acts (it) Except under whereby an owner is compelled to give sufficient particulars of his Acts, interest, subject to a penalty in payment of costs (I). The notice to treat must be given to "all the parties interested Persons to in such lands, or to the parties enabled by this Act to sell and should be convey or release the same, or such of the said parties as shall, S lven - after diligent inquiry, be known to the promoters of the under- taking" (to). It is a question of convenience to the promoters, whether they give the required notice to parties who, indepen- dently of the Lands Clauses Act, 1845, can give a good title, such as trustees with an absolute power of sale ; or to the parties enabled by that Act to sell and convey and release lands, and who can treat, not only for their own interests, but also for interests in reversion, remainder, or expectancy. Subsequent proceedings for the purpose of obtaining a good title, and the question of parties to a conveyance, depend upon the interest of the parties with whom the promoters have elected to treat (w) . The expression " all parties interested " includes all persons who All parties interested have any security charged on lands required to be taken. An equitable mortgagee is included (o), and so, too, is an annuitant with a charge on surface buildings (p) . An ordinary tithe rent- charge has been held not to be a charge upon the inheritance, and (A) Healey v. Thames Valley Bail. Co. (1864), 34 L. J. Q. B. 52. (i) Cameron v. Charing Cross Rail. Co. (1864), 33 L. J. C. P. 313; Healey v. Thames Valley Rail. Co. (1864), 34 L. J. Q. B. 52; Lovering v. City of London, %o. Subway Co. (1891), 7 Times L. R. 301, 600. (k) E.g., London County Council (Tramways and Improvements) Act, 1901, a. 44. (V) And for similar provisions in Acquisition of Land (Assessment of Com- pensation) Act, 1919, see post, p. 326. (m) S. 18, L. CI. Act, 1845. (n) In re Pigotl and Great Western Rail. Co. (1881), 18 Ch. D. 146; 50 L. J. Ch. 679. (o) Martin v. London, Chatlwm and Lover Rail. Co. (1866), L. R. 1 Ch. 501; 35 L. J. Ch. 795; cf. Cooke v. London O. C, [1911] 1 Ch. 604; and R. v. Middlesex (Clerk of the Peace), [1914] 3 K. B. 259. (y) University Life Assurance Co. v. Metropolitan Rail. Co., (1866) W. N. 167; Rogers v. Hull Lock Co. (1863), 34 L. J. Ch. 165. 76 THE NOTICE TO TREAT. the holders of such tithe rentcharge would not be "parties in- terested" (q). In some cases special provisions have been intro- duced into private Acts giving either indemnity or compensation to the owners of " tithes " which constitute annuities or periodical sums of money charged on land under the Act 37 Hen. 8, e. 12 /(r). Where the goodwill of a business depends on the personal skill of the owner, it does not pass to a mortgagee of the trade premises, and the trader and not the mortgagee is in this case entitled to compensation (s) . Trustees. \\ here estates are settled in the names of trustees, a question may arise as to the proper parties with whom the promoters should deal by giving a notice to treat. If a trustee has an absolute power of sale, and the promoters are willing to accept a title given by the exercise of such power, it is sufficient to serve a notice to treat on the trustee, and the tenant for life or other beneficiary should not be served. with a notice to treat, or in any way made a. party to the proceedings, since apart from any of the enabling provisions in section 7 of the Lands Glauses Act, 1845, such trustee has a power of selling the pro- perty included in the trust to any company who have been autho- rized to become purchasers. But promoters cannot, under section 7 of the Lands Clauses Act, 1845, omit to serve a notice to treat on any cestui que trust who is of full age and under no personal disability, where the trustees cannot sell without his consent. It was never intended that trustees should be enabled to treat with and give a title to pro- moters, to the exclusion of the persons really interested. Even where trustees can sell without the consent of their cestui que trust, who is tenant for life, the promoters may elect to treat with the tenant for life, and having so elected they must pay the purchase- money into Court for the benefit of the beneficiaries, and not to the trustees. Unless trustees have an absolute power of sale, the proper parties to carry on the proceedings against the promoters (q) Bailey v. Badlmm (1885), 30 Oh. D. 84; 54 L. J. Ch. 1067. (r) See Re Esdaile, Esdaile v. Esdaile (1886), 54 L. T. 637; Payne v. Esdaile (1888), 13 App. Oas. 613; 58 L. J. Ch. 299; Esdaile v. Metropolitan District Rail. Co. (1881), 46 J. P. 103. (s) Cooper v. Metropolitan Board of Works (1883), 25 Ch. D. 472; 53 L. J. Ch. 109. THE NOTICE TO TREAT. 77 are the beneficiaries and not the trustees (t) . If there is a doubt as to the power of a trustee to sell, a notice to treat should be served on the cestui que trust, and a title should only be accepted under the provisions of the Lands Clauses Act, 1845. In addition to the question of dealing with trustees and cestuis Interests in que trusteni, promoters have to determine in what way they shall expectancy, deal with owners having interests in remainder, reversion, or expec- tancy . Except in the case of married women entitled to dower, or 'lessees or occupiers, it is sufficient to serve a notice to treat on the tenant for life or person for the time being entitled to the benefit of rent and profits, and such person has power to bind remainder- men or reversioners. There is no difference whether the estates are Equitable legal or equitable, although in the latter case trustees must join in the conveyance (w) . The exception of lessees is most material, since a very large Lessees, amount of lands taken for public purposes will be in the hands of lessees. Every lessee or sub-lessee is entitled to a separate notice to treat, except under section 121 (%), and no lessee or sub-lessee can represent more than his own immediate interest (y) . If any owner entitled to be served with a notice to treat is not so served, he can enforce the ordinary legal remedies against the promoters, who, so far as his interest is concerned, have not brought themselves within the protection of their statutory powers. Sections 19 and 20 of the Lands Clauses Act, 1845, prescribe the Service of method in which a notice to treat should be served on individuals or on corporations (s). The service of a notice to treat is not valid unless it is such as to bind both the promoters and the parties interested (a) . If the special Act prescribes a particular person, on whom notice should be served, a notice is not validly served, except on such (f) Peters v. Lewes and East Grinstead Rail. Co. (1881), 18 Ch. D. 429; 50 L. J. Ch. 839; In re Pigott and Great Western Rail. Co. (1881), 18 Ch. D. 146; 50 L. J. Ch. 679. («) Lippineott v. Smyth (1860), 29 E. J. Ch. 520. {%) The dictum of Jessel, IE. E.., in Syers v. Metropolitan Board of Work? (1877), 36 E. T. 277, 278, has been followed. (y) Abrahams v. Mayor, §o. of London (1868), L. K. 6 Eq. 625; 37 L. J. Ch. 732; cf. Brandon v. Brandon (1864), 34 L. J. Ch. 333; Re Chilworth Gun- powder Co. and Manchester Ship Canal Co. (1891), 8 Times L. R. 79. (z) Appendix, p. 395. («) R. v. Great Northern Rail. Co. (1876), 2 Q. B. D. 151, 155; 46 L. J. Q. B. 4; Shepherd v. Corporation of Norwich (1885), 30 Ch. D. 553; 54 L. J. Ch. 1050. 78 THE NOTICE TO TREAT. person (b). Servioe upon an occupier, who was the owner's agent to collect the rents of the property included in the notice, is not a service on the owner, unless he has been authorized by the owner to accept such service (c). Acceptance of service of a bad counter- notice by the solicitors of a railway company does not bind the company (d) . Time for >phe time within -which notice to treat must be served, where to treat. ' such notice is followed by the exercise of compulsory powers, is fixed either by the provisions of the special Act, or by section 123 of the. Lands Clauses Act, 1845, which enacts that : " The powers of the promoters of the undertaking for the com- pulsory purchase or taking of lands for the purposes of the special Act, shall not be exercised after the expiration of the prescribed period, and, if no period be prescribed, not after the expiration of three years from the passing of the special Act." In the computa- tion of the three years, the day of the passing of the Act must be excluded. Where an Act had received the Royal Assent on August 9th, 1899, it was held that a notice served on August 9th, 1902, was within the prescribed period (e). If the notice is not actually served on the proper person within the prescribed period, it cannot be adopted by him after the expiration of such period, even by serving a counter-notice under section 92 (/). If, however, no limit of time as to the exercise of compulsory powers is fixed in the Acts of Parliament under which the pro- moters are incorporated, no inference can be made that a reason- able time is intended (g). Service of The giving of a notice to treat within the prescribed time, notice to treat ' , „ ... _ . . within pre- although no further step is taken, is a sumcient exercise of their scribed time compulsory powers by the promoters, and enables them, after its (J) R. v. Metropolitan Rail. Co. (1867), 17 L. T. 291; Earl of Harrington t. Metropolitan Mail. Co. (1866), 13 L». T. 583, 658. As to service on solicitor of a company, cf. R. v. Mary port and Carlisle Hail. Co. (1850), 15 L. T. 0. S. 134. (e) Shepherd v. Corporation of Noricich (1885), 30 Ch. D. 553; 54 L. J, Ch. 1050. (d) Treadwell v. London and South Wester}) Sail. Co. (1884), 54 L. J. Ch. 565. (e) Goldsmiths' Company v. West Metropolitan Rail. Co., [1904] 1 ~K. B. 1; 72 L. J. K. B. 931. (/) Treadwell v. London and South Western Rail. Co. (1884), 54 L. J. Ch. 565; but see R. v. Metropolitan Rail. Co. (1867), 17 L. T. 291. (g) ThicMesse v. Lancaster Canal Co. (1838), 4 M. & W. 472. THE NOTICE TO TREAT. 79 expiration, and at any time before the expiration of the time enables pro- ., , . , ' . 1 moters to use limited for the completion of the works, to take subsequent pro- compulsory ceedings for obtaining possession of lands required by them (h). P ™*™- Though the time Limited for the completion of the works has expired, yet if the company bond fide requires the land, and some step has been taken -bond fide which alters the status quo ante, there would be a continuing obligation upon the company to take the land, and a corresponding obligation upon an owner to part with his land on receiving due compensation. But where a notice to treat has been given, and no further step has been taken either by the promoters or the landowner, and the period for completing the works has expired, neither the promoters nor the landowner, unless the delay can be explained, can claim the benefit of the notice (i) . The time limit does not apply to alterations and repairs executed under section 17 of the Railways Clauses Act, 1845 (fc). The effect of a notice to treat, as an element in the formation of Effect of a contract, has already been considered (I), but the general nature treat- of the relationship which it creates between the promoters and an owner is of great importance. The notice to treat, when once properly given, is binding on the It is binding promoters, and after giving such notice they can be compelled, within a reasonable time, to take all subsequent steps necessary for ascertaining the amount of compensation due to the owner. This was settled in R. v. Hungerford Market Co. (m), and has not since been questioned. The promoters cannot rescind a valid notice to treat in order to give another applying to a smaller quantity of the same lands (re) . (K) Tiverton, $o. Rail. Co. v. Loosemore, (1884), 9 App. Cas. 480, 495; 53 L. J. Oh. 812; Seymour V. London and Smith Western Bail. Co. (1859), 5 Jur. N. S. 753; Sparrow v. Oxford, Worcester, $c. Sail. Co. (1852), 21 L. .T. Ch. 731; Marquis of Salisbury v. Great Northern Rail. Co. (1852), 21 L. J. Q. B. 185; Kemp v. South Eastern Rail. Co. (1872), L. R. 7 Ch. 364, 372; 41 L. J. Ch. 404; Birmingham and Oxford Junction Rail. Co. v. R. (1851), 20 L. J. Q. B. 304. (*) Tiverton, %c. Rail. Co. v. Loosemore (1884), 9 App. Cas. 480, at p. 489; 53 L. J. Ch. 812; Richmond v. North London Rail. Co. (1868), L. R. 3 Ch. 679; 37 L. J. Oh. 886; Kemp v. South Eastern Rail. Co. (1872), L. R. 7 Ch. 364, 372; 41 L. J. Oh. 404; Ystalyfera Coal and Iron Co. v. Neath and Brecon Rail. Co. (1873), L. R. 17 Eq. 142; 43 E. J. Ch. 476; cf. Hedges v. Metro- politan Rail. Co. (1860), 28 Beav. 109. (Jc) Emsley v. North Eastern Rail. Co., [1896] 1 Ch. 418; 65 L. J. Ch. 385. (?) Ante, p. 55. (m) (1832), 4 B. & Ad. 327. Vide post, p. 87. (») Tawney v. Lynn and Ely Rail. Co. (1847), 16 L. J. Ch. 282. 80 THE NOTICE TO TREAT. Two excep- tions. (1.) Counter- notice under s. 92. (2.) Commie- But where a notice to treat has been validly withdrawn, the pro- moters are in the same position as if no notice to treat had been given : they may give a second notice in respect of the land com- prised in the first notice, or any part thereof (o), and no compensa- tion is payable by way of damages for the withdrawal (p). In Morgan v. Metropolitan Bail. Co. (q), the company was required to give six months' notice before entering upon or taking any lands under the powers of their Acts. The company gave notice to the plaintiffs of their intention to take, at the expiration of six months, a tenement for which the plaintiffs were rated. It was held that such notice of intention to take lands, although it did not purport to be a notice under, or contain the particulars mentioned in, section 18 of the Lands Clauses Act, 1845, bound the defend- ants to proceed with the purchase of the premises within a reason- able time. Kelly, C. B., in delivering the judgment of the Court, says, " Then comes the question, whether it was obligatory on the defendants to take the premises at all. Ever since the case of R. v. Hungerford Market Co. (r) it has uniformly been held that, wherever a company is entitled to take lands compulsorily under the power* of an Act of Parliament, if they gave notice of their intention to take, that is an exercise of their option from which they cannot recede, and the notice operates as a contract or an undertaking by them to become the purchasers. That case was decided in 1832, and it has never yet been questioned." There are only two exceptions to the universality of this rule. (1.) Where a counter-notice is given under section 9'2, the pro- moters cannot be compelled to proceed to take the whole of a house or other building or manufactory (s) . (2 . ) Where notice has been given by commissioners acting for fo^exerativif t ' le P uw i° on behalf of the executive for the purpose of ascertaining (©) Ashton Vale Iron Co. v. Mayor, $c. of Bristol, [1901] 1 Cli. 591; 70 L. J. Ch. 230; Coats v. Caledonian Rail. Co. (1904), 6 F. 1042. (p) Wild v. Woolwich. B. C, [1910] 1 Ch. 35; cf. Book II., p. 328. (?) (1868), L. R. 3 C. P. 553; i C. P. 97; 37 L. J. C. P. 265; 38 L. J. C. P. 87. (r) (1832), 4 B. & Aid. 327. Vide post, p. 87. (s) King v. Wycombe Sail. Co. (1860), 29 L. J. Ch. 462; Grienon v. Cheshire Lines Committee (1874), L. R. 19 Eq. 83; 44 L, J. Ch. 35; S. v. London and South Western Bail. Co. (1848), 17 J. J. Q. B. 326; Siegenbenj y. Metropolitan District Rail. Co. (1883), 49 L.. T. 554; Beuington v. Metro- politan Board of Works (1885), 54 L.. T. 837; cf. Morrison v. Great Eastern Rail. Co. (1885), 53 L. T. 384; Thompson v. Tottenham, §c. Rail. Co. (1892), 67 L. T. 416. Vide ante, pp. 35 et seqq. THE NOTICE TO TREAT. 81 merely the price at which land will be sold, it has been held that the special provisions of the Act enabled the commissioners to withdraw such notice (s). This case is of very limited application, and the principle does not apply to corporations or trustees for public purposes who are not directly representatives of the Crown (t). The notice to treat does not prevent an owner dealing with his It fixes property, provided he does not increase the burdens of the com- rf*^^.^ pany (w), but it is so far binding that it fixes the interest in land taken, respect of which the owner can claim compensation, and determines the time at which the value of that interest shall be considered for the purposes of the assessment of purchase-money or compensation. In other words, the interest in respect of which compensation has to be assessed cannot be varied after receipt of the notice to treat ; but must be valued rebus sic stantibus just as it is at the moment when the notice to treat is given (v) . The same rule applies to the publication of the appointment of an arbitrator under the Railways (Ireland) Act, 1851, which is equivalent to a notice to treat under the Lands Clauses Act, 1845 (x). An agreement for the creation of an interest in lands entered. Equitable into prior to the service of the notice to treat would entitle the beneficiary under such agreement to receive a notice to treat and to claim compensation for his equitable interest. Where an equity had been raised between the lessee of a building estate and his lessor, which would have entitled the lessee to claim an extension of time under a building agreement, it was held that a company proceeding under compulsory powers could not disregard the interest created by the equity (y) ; but where a notice to treat has been given to a building owner in respect of some of the land (s) R. v. Commissioners of Woods and Forests (1850), 19 L>. J. Q. B. 497. (I) Steele v. Mayor, go. of Liverpool (1886), 7 B. & S. 261; Birch v. St. Marylebone Vestry (1869), 20 L. T. 697. («) Mercer v. Liverpool, &c. Sail. Co., [1904] A. C. 461, 465; 73 L. J. K. B. 960; Dawson v. Great Northern and City Rail. Co., [1905] 1 K. B. 260; 74 L. J. K. B. 190; Ziok v. London United Tramways, Limited, [1908] 2 K. B. 126. (v) Penny v.' Penny (1868), L. K. 5 Eq. 227, 236; 37 L. J. Oh. 340. (») Re Doyne's Traverses (1889), 24 L. R. Ir. 287; WilUns v. Mayor, Sjc. of Birmingham (1883), 25 Ch. D. 78; 53 L. J. Ch. 93; cf. London C. C. v. Wilson's Executors, [1916] 1 K. B. 837. (y) Birmingham and District Land Co. v. London and North Western Rail. Co. (1888), 40 Ch. D. 268. c. 6 82 THE NOTICE TO TREAT. included in a building agreement, such building agreement still remains binding so far as the promoters and the owner are con- cerned (z) . Date at which J n practice it is generally agreed that the amount of compen- compensation , D » i i i • i assessed. sa'ioii shall be assessed as from the date ot the. inquiry, or from the date when the promoters would take, or hud taken, possession of ( he lands in question for the purpose of their undertaking ; but if the claimant can prove that he has suffered loss between the time of his receiving notice to treat and his dispossession by the promoters, he is entitled to claim for it (a). In Ex parte Edivards (b), the owner, after receipt of the notice to treat, agreed to let the property for three years to a person who had previously occupied part of it as a weekly tenant. But it was held that the tenant could not recover any compensation from the undertakers. Eomilly, M. R., said, "I am of opinion that the owner's power of dealing with his property is concluded when the notice to treat is served, and that a lease granted subsequently to that period to a tenant cannot properly be compensated for." The case of Tyson v. Mayor, dc. of London (c), decides that where the promoters, in accordance with provisions contained in a special Act, have expressed, by some act from which they cannot recede, their intention to take certain lands, the value of any interest taken must be assessed as at the time when such act was complete. In this case a notice had been served under section 64 of the London City Improvement Act, 1847 (10 & 11 Vict, c. eclxxx.), which provides that all persons in the actual possession of any lands to be taken, as owners, leaseholders, tenants-at-will, or lessees for a year or any shorter time or otherwise, should, at the expiration of six months from and after notice in writing from the corporation, peaceably and quietly deliver up possession of such lands, but no such possession to be delivered up until such payment or deposit of purchase or compensation money should have been made, as is directed by the Lands Glauses Act, 1845. Willcs, J., says in his judgment, " That notice, when it is given, whether it be in such a form as to include a notice to treat or not, has an (z) In re Furness and Willesden U. JO. C. (1905), 22 Times L. R. 52. (a) Cranwell v. Mayor of London (1870), L. R. 5 Ex. 284; 39 L. J. Ex. 193. (6) (1871), L. R. 12 Eq. 389; 40 L. J. Oh. 697; Wilkins v. Mayor of Birmingham (1883), 25 Ch. D. 78; 53 L,. J. Ch. 93. Cf. Carnochan ». Norwich and Spalding Hail. Co. (1858), 20 Beav. 169. (o) (1871), L. R. 7 O. P. 18; 41 L. J. C. P. 6. THE NOTICE TO TREAT. 83 equally binding effect on the parties concerned. It is not to be treated as merely an intimation that the promoters will take, if they afterwards make up their minds to give a notice to treat. That being so, it appears to me, that the period of giving such notice is the period to which all questions relating to the right of compensation must be refered." Where a lease contained a proviso that in case of any part of As between the land leased being compulsorily taken, it should be lawful for i e8Be e. the lessor to re-enter upon and re-possess it, it was hold that the notice to treat had the effect of bringing the proviso into opera- tion, and that the lessor was entitled to the commercial value of the land taken as freed from the lease (d) . But where a notice to treat had been given to a lessee whose lease contained a proviso enabling the lessor to re-enter for the purpose of building, it was held that the lessor was not entitled to take advantage of such provision in order to enhance the value of his interest on a purchase by a railway company, or to defeat the claim of the lessee to com- pensation (e) . Where no proceedings had been taken under a notice to treat, but subsequently thereto the lessor in accordance with the terms of the lease had given the lessee notice to terminate his tenancj^ at the expiration of three months, it was held that the giving of the notice to treat was immaterial, and that the amount of compensa- tion could be determined by a magistrate under section 121 (/). So long as no new interest is created which would increase the Power of burdens of the promoters, the owner who has received a notice to with lan( j s treat has power to deal with the land the subject of the notice, or after notice to with the adjoining lands alleged to be injuriously affected (g) . In Metropolitan Rail. Co. v. Woodhouse (h), Stuart, V.-C, restrained an owner from selling property comprised in a notice to treat ; but it would have been sufficient for the company to have (d) In re Morgan and London and North Western Bail. Co., [1896] 2 Q. B. 469; 66 L. J. Q. B. 30; In re Athlone 'Rifle Range, [1902] 1 lr. K. 433. 0) Johnson v. Edgware, $c. Rail. Co. (18S6), 14 L. T. 45. '(/) B. v. Kennedy, [1893] 1 Q. B. 533; 62 L. J. M. 0. 168; Bexley Heath Rail. Co. v. North, [1894] 2 Q. B. 579; 64 L. J. M. C. 17. O) Mercer v. Liverpool, §o. Bail. Co., [1904] A. C. 461; 73 L. J. K. B. 960; Dawson v. Great Northern and City Rail. Co., [1905] 1 K. B. 200; 74 L. J. K. B. 190; Sew ell v. Harrow, #c. Bail. Co. (1902), 19 Times L. R. 130; 20 Times L. R. 21. (A) (1865), 34 L. J. Oh. 297. 6(2) 84 THE NOTICE TO TREAT. In case of injurious affection. How long notice binds owner. given notice to any intending vendee, and in that case they would not have been bound by an interest created subsequently to the notice to treat. The principle that an interest in land created subsequently to the date of the notice to treat cannot form the subject of com- pensation has been extended to the case of adjoining land of the same owner alleged to be injuriously affected. It has been held that after such notice the promoters have a legal right, after com- plying with the statutory conditions, to execute works so as to damage the property of the owner on whom the notice has been served (i) . In Kemp v. South Eastern Rail. Co. (k), Lord Hatherley, L. C, said : "A notice to treat, given by a company, is perfectly good, so long as the company are empowered to carry into effect their works under the Act of Parliament and no longer. It may be given the day before the compulsory powers to take the land expire, and then it will last until the time for which that land is wanted, namely, the time for making the works, has also expired, but no longer." But this dictum must be taken to be modified by the decision of the House of Lords in Tiverton, dc. Rail. Co. v. Loosemore (I) . In that case the company served on the landowner a notice to treat a few days before the expiration of the three years limited for the compulsory purchase of lands. A correspond- ence ensued, no agreement was come to, and the compensation was not assessed. Thirteen days before the expiration of the five years limited for the completion of works, the company entered under section 85 of the Lands Clauses Act, 1845, and proceeded to make the railway against the objection of the landowner. It was held that whether the railway could or could not have been completed within the thirteen days the entry was lawful, and that the com- pany were entitled to remain and complete the railway after the expiration of the five years, the landowner being entitled to com- pensation under the provisions of the Lands Clauses Acts. (j) Mercer v. Liverpool, $c. Sail. Co., [1903] 1 K. B. 652; 72 L. J. K. B. 128, per Stirling, L. J.; [1904] A. C. 461; 73 L. J. K. B. 960. (ft) (1872), L. R. 7 Oh. 364, at p. 372;. 41 L. J. Ch. 404; cf. Ystalyfera Iron Co. v. Neath and Brecon Rail. Co. (1873), L. R. 17 Eq. 142; 43 L. J. Ch. 476. (0 (1884), 9 App. Gas. 480; 53 L. J. Ch. 812; cf. Hedges v. Metropolitan Sail. Co. (1860), 28 Beav. 109; Midland Sail. Co. v. Great Western Sail. Co., [1908] 2 Oh. 644; [1909] A. O. 445. THE NOTICE TO TREAT. 85 In the same case Earl Cairns said (m) : "There have been Effect of cases in which a railway company has given a notice to a land- rights of owner to treat for the purchase of land, and no further step has been owner and taken either by the company or the landowner, and the extended pr ' '''"' '"' period for completing the works has expired, and the question has been raised, Could the company in that state of things proceed with its notice to treat and assess the compensation under the Lands Clauses Act ? Were such a case now to arise, I should be disposed to think, as I was disposed to think in Richmond v. North London Rail. Co. (n), that if nothing more was done, and the company have slept on their rights, and certainly if the delay cannot be explained, they should be held to be disabled from going on with any compulsory purchase, and in such a case the landowner should, I think, be held to be disabled also . The parties have been content to let the time run out. There is no rei interventus, nothing which requires to be undone. The whole matter has been a project merely, and as a project it has come to an end." Where notice to treat has been served within the time limited for the exercise of compulsory powers of purchase of land, but no further step of any kind has been taken until after the expiration of the time limited for the completion of the works, the company cannot claim to proceed under the notice (o) . The clause in the special Act, which fixes a limit of time for the completion of the works of the undertaking, is a disabling clause, and not an enabling one ; and although a notice to treat may become invalid if not followed up within this limit, the promoters cannot claim to take no steps under a notice to treat until such limit is reached (p) . There is nothing to prevent the promoters giving to the same More than owner more than one notice to treat for lands required by them (q) ; ^y be given but any lands comprised in a notice to treat are so far bound, and to same O) At p. 489. O) Richmond v. North London Rail. Co. (1868), L.. R. 5 Eq. 352; 3 Ch. 679; 37 L. J. Oh. 273, 886. (o) 8. C; Hedges v. Metropolitan Rail. Go. (1860), 28 Beav. 109. (p) Baker v. Metropolitan Rail. Co. (1862), 32 L. J. Ch. 7. (q) Simpson v. Lancaster and Carlisle Rail. Co. (1847), 15 Sim. 580; Stamps v. Birmingham, Wolverhampton and Stour Valley Rail. Co. (1848), 17 L. J. Ch. 431; affd. S. C, 2 Ph. 673; Coats v. Caledonian Rail. Co. (1904), 6 F. 1042. 86 THE NOTICE TO TREAT. Summary of steps subse- quent to notice to treat. unless such notice is validly withdrawn (r) no subsequent notice can, in respect of such lands, have any effect on the relationship between the promoters and owner which such first notice to treat has created (s) . A .subsequent notice to treat may increase but may not diminish the quantity of the lands proposed to be taken. Where the surface has already been purchased a notice to treat can be given for the minerals., and it makes no difference that the strata are horizontal and not vertical (t). The steps to be taken by either party, after a notice to treat has- been given, form the subject of the succeeding chapters, but they may briefly be summarized under the following heads : — The promoters upon making a deposit, and giving a bond iu accordance with section 85 of the Lands Clauses Act, 1845, have power to enter upon the lands comprised in the notice to treat (u). After such entry has been made, the owner, under section 68 or section 23, can take the initiative in instituting proceedings for the assessment of the value of the lands entered upon. If the promoters are not desirous of entering upon lands until after the assessment of their value, and the payment or deposit of the amount, in accordance with the provisions of the Lands Clauses Act, 1845, then the first step, after giving a notice to treat, is to bring the question of value before the prescribed tribunal. If the question is one for the decision of two justices, then (section 24) either party may apply for a summons ordering the other party to appear before the justices at a time and place mentioned in the summons (x) . If the question is one which the owner desires to have settled by arbitration, and which is within the authority of an arbitrator, then (section 25), unless a single arbitrator is agreed on, each party is required at the request of the other to appoint an arbitrator, and subsequent proceedings will follow in accordance with the pro- visions of the Lands Clauses Act, 1845 («/). (r) Ashton Vale Iron Co. v. Mayor, %o. of Bristol, [1901] 1 Ch. 591 ; 70 L. J. Ch. 230. (s) Tau-ney v. Lynn and Ely Rail. Co. (1847), 16 I». J. Ch. 282; cf. Barker v. North Staffordshire Rail. Co. (1848), 2 De G. & S. 55. (f) Errington v. Metropolitan District Rail. Co. (1882), 19 Ch. D. 559; 51 L. J. Ch. 305. («) Post, p. 89. (x) Post, p. 181. (y) Post, p. 185. THE NOTICE TO TREAT. 87 If the question is one for decision by a jury, the initiative cannot directly be taken by the owner, and there is no provision for summoning a jury except by the issue of the warrant of the promoters (sections 23, 38) (z). If promoters refuse to issue the warrant for summoning a jury, Compelling the owner is entitled, after the lapse of a reasonable time, to apply P" -0 " 10 * 618 *° „ ii- proceed, lor a mandamus ordering the promoters to take all necessary steps, in accordance with the provisions of their incorporating Acts, for the purpose of assessing compensation (a). Since the Common Law Procedure Act, 1854 (section 68) (&), an action for a mandamus to compel the promoters to issue their warrant to a sheriff for summoning a jury can be maintained (c) independently of any other mode of relief . The issue of a mandamus is within the discretion of the Court ; and in Tiverton, dc. Rail. Co. v. Loosemore (d), Lord Blackburn intimated that this discretion might not be exercised in favour of a landowner who improperly delayed his application till the com- pany could make no use of the land (e). It is no answer to an action for a mandamus that the whole amount of capital has not been subscribed as required by section 16 of the Lands Clauses Act, 1845, since the notice to treat is not necessarily an exercise of the powers of this Act in relation to the compulsory taking of land (/) . Nor is it any answer that the time prescribed for the exercise of the compulsory powers has expired before the application for the mandamus (g), if the notice to treat has been given within the prescribed time. An owner is not, however, entitled to relief on equitable grounds Equitable where a notice to treat has been given him, and the promoters take r ^^ s of (s) Post, p. 206. (a) It. v. Sungerford Market Co. (1832), IB.ft Ad. 327. (b) The procedure is now governed by R. S. C, 0. LIII. Vide post, p. 207. (o) Fotherby v. Metropolitan Bail. Co. (1867), L. R. 2 C. P. 188; 36 L. J. C. P. 88; Morgan v. Metropolitan Sail. Co. (1868), L. R. 4 C. P. 97; 38 L. J. C. P. 87; cf. B. v. Manley Smith, In re Church and London School Board (1892), 67 L. T. 197. id) (1884), 9 App. Oas. 480, at p. 497; 53 L. J. Ch. 812. (e) Cf. Ex parte Quiche (1864), 12 L. T. 580. (/) Guest v. Poole, §o. Bail. Co. (1870), L. R. o C. P. 553; 39 L. J. O. P. 329; cf. In re Uxbridge and Rickmansworth Rail. Co. (1890), 43 Ch. D. 536; 59 L. J. Oh. 409. (g) Birmingham, $c. Rail. Co. v. B. (1851), 15 Q. B. 647, u.; 20 L. J. Q. B. 304. 88 THE NOTICE TO TltJGAT. no further steps (h) . The principle is that the right to compensa- tion under the Act is given as the sole remedy, and that the land- owner has no option to repudiate the right to compensation and recover the land (i) . It is different where, under all the circum- stances, an equity has been created in the owner's favour, because then the High Court will order the promoters to take all subsequent steps necessary for enforcing the owner's equity (fc). Injunction Conversely, when the promoters have given a notice to treat, and to try right to the person who has received it claims compensation, the promoters compensation. oannot; ^ injunction or other procedure restrain the proceedings for the purpose of trying the question whether or not there is a right to compensation (I). (A) Lind v. Isle of Wight Ferry Co. (1862), 7 L. T. 416; Adams v. London and Blachwall Rail. Co. (1850), 19 E. J. Oh. 057. (») Tiverton, §o. Rail. Co. v. Loosemore (1884), 9 App. Cas. 480, at p. 491, per Cairns, L. C. ; 53 L. J. Qh. 812; Webb v. Direct London and Portsmouth Rail. Co. (1851), 1 Do G. M. & G. 521; Lind v. Isle of Wight Ferry Co. (1862), 7 L. T. 416. (k) Baker v. Metropolitan Rail. Co. (1862), 32 L. J. Ch. 7; luge v. Birming- ham, Sfo. Rail. Co. (1853), 3 De G. M. & G. 658. (I) East and West India Bock Co. v. Gattke (1851), 20 L. J. Ch. 217; North London Rail. Co. v. Great Northern Rail. Co. (1883), 11 Q. B. D. 30; 52 L. J. Q. B. 380; London and Blackwall Rail. Co. v. Cross (1886), 31 Ch. I). 354; 55 E. J. Qh. 313; cf. Sutton Harbour Improvement Commissioners v. Kitchens (1851), 21 E. J. Ch. 73; Birmingham and District Land Co. v. L. §■ N. W. Rail. Co. (1887), 36 Ch. D. 650; (1888), 40 Ch. D. 268 (C. A.). 89 CHAPTEB VII. ENTRY ON LANDS BEFORE PURCHASE. Sections 84 — 91 of the Lands Clauses Act, 1845, contain the pro- Entry on visions which apply with respect to the entry on lands by promoters lands tefore i , . o payment or oi the undertaking. Such entry, on lands which are required to deposit of be purchased or permanently used by the promoters, is rendered n^J"* 6 " expressly unlawful (a), except by consent of the owners and occu- By consent, piers or until after the promoters shall either have paid to every party having any interest in such lands, or deposited in the bank (6), the purchase-money or compensation agreed or awarded to be paid to such parties respectively for their respective interests. There are, however, two exceptions to this general enactment. Promoters may, under section 84, without previous consent, enter For purpose on lands for the purpose merely of surveying and taking levels of ° surve y ln &- such lands, and of probing or boring to ascertain the nature of the soil, and of setting out the line of the works, after giving not less than three, nor more than fourteen, days' notice to the owners or occupiers — 'making compensation for any damage thereby occa- sioned to the owners or occupiers. Where a company had entered without giving the notice required under section 84, but stating that they did not intend to proceed any further without giving the required notice, the Court refused an injunction, making no order on the motion and reserving the costs (c) . The second exception is that where lands are required for per- For per- manent uses, the promoters may enter after complying with all the maDen uee - requirements contained in sections 85 — 88. An entry on lands under the provisions of sections 85 — 88 is not a putting in force of the powers of the Lands Clauses Act, or of the special Act in relation to the compulsory purchase or taking of (a) Of. Birmingham and District Land Co. v. London and North Western Rail. Co. (1888), 40 Oh. D. 268. (6) Of. By grave v. Metropolitan Board of Works (1886), 32 Oh. D. 147; 55 L. J. Oh. 602. (c) Fooks v. Wilts, #c. Rail. Co. (1846), 5 Hare, 199. 90 ENTRY ON LANDS BEFORE PURCHASE. Penalties. lands (d). Hence, an owner cannot claim an injunction to prevent such entry on the ground that the capital of the company has not been duly subscribed under section 16 of the Lands Clauses Act, 1845(e). The words in section 85 giving a right of entering upon and using lands were fully considered in Tirerlmi, rtv. Rail. Co. v. Loosemore (/), and it was held that the power of using was not a limitation on the power of entry, and that the power of entering and using was equivalent to a power to the company to convert to their own use, and that where the entry had originally been lawful the right of the company did not cease at the end of the live years limited for the completion of the works of the undertaking. Sections 89, 90, give special penalties, recoverable by proceed- ings before a court of summary jurisdiction, if the promoters wilfully enter on lands required to be purchased or permanently used, without compliance with the provisions of the Lands Clauses Acts and their special Acts. On the other hand promoters are protected if under a bond fide mistake they have omitted to deal with some interest before entry (g). A consent to permit the promoters to enter on any lands cannot be revoked when once given, so as to place the promoters in the position of trespassers. The effect of such consent is to bring the promoters under the protection of their statutory powers, and the only remedy of the owner is to take the necessary steps to compel If no consent the assessment and payment of compensation (//). If no consent motors are ^ as ^ 6en g lven > an d the promoters have not complied with the trespassers. statutory' conditions as to entry on lands, they can be proceeded against as trespassers by any owner who has an interest in the lands (i) . The principle is that all statutory conditions which Consent can not be revoked. (d) Marquis of Salisbury v. Great Northern Rail. Co. (18(32), 17 Q. B. 810; 21 L. J. Q. B. 185. (e) Great Western Rail. Co. v. Swindon, ifc. Rail. Co. (1884), 9 App. Cas. 787; 53 L. J. Ch. 1075; A. Ford v. Plymouth, $c Rail. Co., (1887) W. N. 201. (/) (1884), 9 App. Cas. 480; 53 L. J. Ch. 812. The position of an ease- ment in this connection is identical with the position of a freehold: Midland Rail. Co. v. Great Western Rail. Co., [1909] A. O. 445. (osited should be paid into the Bank of England (Law Courts Branch) in the name and with the privity of the paymaster-general, to bo placed to his account there to the credit of the parties interested in or entitled to sell and convey the lands entered upon, and is subject to the control and disposition of the Chancery Division of tho High Court (b). The cashier of the bank is required to give a receipt for such money, specifying for what purpose and to whose credit it has been paid in (c) . If tin: office of the paymaster-general is at any time closed, the money to be deposited may be paid into the bank to the appropriato credit (d) ■ Money may be paid in to " the account of the landowner " (e), and where it had been paid into a special bank at a landowner's request, and such bank had failed, it was held that the loss fell on the landowner (/) . (y) See sueli cases as Dixon v. White (1883), 8 App. Gas. 833; Bell v. Earl Dudley, [1895] 1 Ch. 182; 64 L. J. Ch. 291; Butterknoivle Colliery Co. v. Bishop Auckland Industrial Co-operative Co., [1906] A. C. 305. (z) Bridges v. Wilts, $o. Rail. Co. (1847), 16 L. J. Ch. 335. (a) Langham v. Great Northern Rnil. Co. (1847), 16 L. J. Ch. 437. (b) S. 86, as modified, (e) S. 86. (d) S. 88. («) Poynder v. Great Northern Rail. Co. (1847), 16 L. J. Ch. 444. (/) St. Paul v. Birmingham, §o. Rail. Co. (1853), 11 Hare, 305. ENTRY ON LANDS BEFORE PURCHASE. 97 The money, when deposited in the bank, is a security for the Money de- performance of the conditions of the bond which is required to be seourity'for given by the promoters. The procedure on an application for the * ulfi lment of interim or permanent investment of or for payment of dividends in respect of such money, or for the payment out of such money, is dealt with in Chap. XVII. (g) . There is no power in the Court to which application is made to Power of deal with the money deposited in any other way than is directed C °Jf V*" deal by the Lands Clauses Act, 1845, or the Settled Land Acts. In Martin v. London, Chatham and Dover Rail. Co. (h), Stuart, V.-C, transferred the money deposited by way of security under section 85 to a suit instituted by mortgagees, and ordered that it should stand as a security for their debt. This decision was reversed on appeal by Lord Cran worth, L. C, who said (i) : " The 8,400L was deposited upon the express contract, or express right, created by the statute, that it should stand as security for such sum as the jury should award to be sufficient compensation for the lands which the company should take, and I think that if it was trans- ferred by arrangement into the name of the cause, the Court can have no more right to deal with that fund, so as to give it a different direction, than they could have had if it had stood simpliciter in the mode pointed out by the statute. Therefore I think that the Vice-Chancellor was clearly wrong in the conclusion at which he arrived." Where the condition of the bond has been fulfilled, the Court When con- will, on the application of the promoters, order the payment to them fuifiu e a. of the money deposited, and has no power to charge on the fund any costs which the promoters are liable to pay under section 80 (Jc), or may be liable to pay in incidental proceedings (I) . The pro- duction of the bond is evidence that the condition has been fulfilled for the performance of which the bond was given (m) . Where the (g) Post, p. 262. (h) (1886), L. R. 1 Oh. 501; 35 L. J. Cli. 795; In re Fooks (1849), 2 Macn. & G. 357. '(«') At p. 505. (A) Jix parte Stevens (1848), 13 Jur. 2; In re Neath and Brecon Rail. Co. (1874), L. R. 9 Ch. 263; 43 L. J. Ch. 277. (l~) Ex parte Great Northern Rail. Co. (1848), 16 Sim. 169; lie Birmingham, Wolverhampton, $c. Sail. Co. (1863), 1 H. & M. 772; In re Wimbledon and Dorking Railway Act (1863), 9 E. T. 703. (m) Re London and North Western Rail. Co. (1872), 26 L. T. 687. c. 7 98 ENTRY ON LANDS BEFORE PURCHASE. conditions of the bond have been satisfied, the company are entitled upon a petition by themselves and the obligee of the bond to have the money deposited repaid to them without proving that the pur- chase-money of the land has been paid to the persons really entitled to it (n) . The costs of the vendors, appearing as respondents to consent, are not allowed (o) unless there are special circum- stances (p), and the proceedings now take place at chambers under a summons (q) . The promoters are entitled to have the deposit paid out to them on an affidavit that the owner has received his purchase-money and costs under an agreement. As a rule the owner should join in the application, or a copy should be served on him(r). But service has been dispensed with where a considerable time has elapsed since the conveyance ;of the lands (s), or where the consent in writing of the vendor has been obtained (t). When con- If the condition of the bond has not been fulfilled, the Court has fulfilled. a discretion to order the application of the money deposited, in such manner as it shall think fit, for the benefit of the parties for whose security it has been deposited. In this case an owner can apply for payment out of the fund in Court of costs due under section 80 (w). A petition (or summons) may be presented adversely to the company by whom the deposit has been made (x). If the value of the lands taken, and compensation, are assessed at an amount greater than the fund deposited for security, the difference has been ordered to be paid into Court (y) . Where money has been wrongfully paid into Court on the valuation of a surveyor under sections 58, 59, the condition of the bond is not (») Ex parte Midland Sail. Co., [1904] 1 Ch. 61; 73 L. J. Ch. 64. (o) In re Eolman's Settlement, (1877) W. N. 272. (p) He Tottenham, and Hampntead Junction Rail. Co. (1866), 14 W. R. 669. (?) R. S. C, 0. LV r. 2 (1), (2), (7). Vide post, Chap. XVII., p. 262. Application may be by summons whatever the amount; particulars as to the affidavit required, &c. are set out in Annual Practice, 1922, pp. 969, 970. (r) In re South Writes Rail. Co. (1851), 14 Beav. 418; Ex parte Eastern Counties Rail. Co. (1848), 5 Rail. Cas. 210. (s) In re Lancashire and Yorkshire Rail. Co. (1886), 55 L. T. 58. (t) Ex parte Iluddersfield Corporation, hi re Dyson (1882), 46 L. T. 730. (a) Ex parte Flower (1866), L. R. 1 Ch. 599; 36 L. J. Ch. 193; Ex parte Morris (1871), L. R. 12 Eq. 418; 40 L. J. Ch. 543; cf. Re Birmingham, Wolverhampton, 4-0. Rail. Co. (1863), 1 H. & M. 772. (x) In re Mutlow's Estate (1879), 10 Ch. D. 131; 48 L. J. Ch. 198. (y) Ashford v. London, Chatham and Dover Rail. Co. (1866), 14 L. T. 787; Ex parte London, Tilbury and, Southend Rail. Co. (1852), 1 W. R. 533. ENTRY ON LANDS BEFORE PURCHASE. 99 fulfilled, and the money will not be repaid until the value of the land has been duly assessed by arbitration or a jury (z). In addition to the security of the deposit, promoters are required, Bond required under section 85, to give to any party interested in or entitled to promoters, sell and convey the lands, on which entry has been made, a bond under their common seal, if they be a corporation, or if they be not a corporation, under the hands and seals of the promoters, or any two of them, with two sufficient sureties, to be approved of by two justices (or, in the case of railway companies, by the Board of Trade (a)), when the parties differ, in a penal sum equal to the sum so to be deposited, conditioned for payment to such party, or for deposit in the bank for the benefit of the parties interested, of all such purchase-money and compensation as may be determined to be payable by the promoters in respect of the lands so entered upon, together with interest thereon, at the rate of five pounds per centum per annum, from the time of entering on such lands until such purchase-money or compensation shall be paid to such party or deposited in the bank. The form of bond specified in the statute (b) should be exactly Form of bond, followed. Words inserted in the bond making the penalty payable " on demand " (c), or " at any time hereafter " (d), do not satisfy the provisions of the Act, and are grounds for an injunction. In Hosking v. Phillips (e), the bond was conditioned on payment or deposit, " or otherwise for the benefit of the parties," &c, and it was held that the introduction of the words "or otherwise" invalidated the bond. If the bond gives to any party the full protection contemplated by the section, and there is merely a formal variance, which does not in any way affect his interests, an objection to the validity of the bond will not be entertained . In Willey v. South Eastern Bail. Co. (/), the bond was con- ditioned on payment to the plaintiff or his representatives only. This was held to be sufficient under the circumstances, and the in- junction was refused. (z) Ex parte London and South Western Sail. Co. (1869), 38 L. J. Ch. 527. (a) Railway Companies Act, 1867, s. 36. (b) Vide infra, Appendix, p. 413. (c) Roynder v. Great Northern Rail. Co. (1847), 16 E. J. Ch. 444; Langham v. Great Northern Rail. Co. (1847), 16 L. J. Ch. 437. (d) Cotter v. Metropolitan Rail. Co. (1864), 10 E. T. 777. (e) (1848), 18 E. J. Ex. 1. (/) (1849), 18 L. J. Oh. 201. 7(2) 100 ENTRY ON LANDS BEFORE PURCHASE. In case of tenants in common. Approval of sureties. Interest at 5 per cent. Effect of entry on lands under s. 85. If notice to treat given within time limited for exercise of compulsory powers, entry under s. 85 may be sub- sequent. If there are tenants in common, a bond conditioned for payment to them, " their heirs, executors, administrators, or assigns," is irregular, and separate bonds should be given (g) . The approval of sureties is an ex parte proceeding before jus- tices (h) ; but, in the case of railway companies, the Board of Trade approver or disapproves after hearing both sides (i) . Provided that the authorized approval is given, the solicitors to the company- may be appointed sureties (k) . The bond provides for payment of interest at the rate of five per centum per annum from time of entry until payment or deposit of purchase-money or compensation (I). The five per centum is payable on the amount of purchase-money or compensa- tion, assessed in accordance with the provisions of the Lands Clauses Act, 1845, and is therefore payable on a sum recoverable under section 68, owing to the neglect of the promoters to issue their warrant within twenty -one days (m) . After the deposit by way of security has been duly made, and the bond has been properly executed, it is lawful for the promoters to enter upon lands required to be purchased or permanently used. The effect of section 85 is not, however, to vest any lands in the promoters, and the owner's title is not divested. The power of entry is given as ancillary to, and for the purposes of, the other statutory powers ; and after entry a company has nothing more than a possessory right, enabling it to utilize the lands entered upon for the purposes of their undertaking (n) . It is settled law that the powers under section 85, even in the case of a compulsory purchase, are not compulsory powers, and that if notice to treat has been given within the time fixed for the exorcise of compulsory powers for the purchase or taking of lands, subse- quent proceedings can, after the expiration of such time, be taken in accordance with section 85 . (g) Langham v. Great Northern Rail. Co. (1847), 16 L. J. Ch. 437; Daubney v. Manchester, §0. Rail. Co. (1847), 10 L. T. (0. S.) 283. (K) Bridges v. Wilts, &;o. Rail. Co. (1847), 16 L. J. Ch. 335. (i) Railway Companies Act, 1867, s. 36. (k) Langham v. Great Northern Rail. Co. (1847), 16 L. J. Ch. 487. (?) See In re Baltimore Extemion Rail. Co., B.r parte Daly, [1895] 1 Ir. R. 169. (rn) In re Aberdare Rail. Co. (I860), 8 W. R. )603. (») See Tiverton, §o. Rait. Co. v. Loosemore (1884), 9 App. Cas. 480; 53 L. J. Ch. 812. "'" "~" : f\ NM \ V 4 ; ' 13NTRY ON LANDS BEFORE PURCHASE 101 .'•.(■ <_'.'"-'' The case of Doe d. Armistead v. North Staff ordshire~Rail . Co. (o) decided that, where a company had taken possession under section 85 within the time limited for the exercise of compulsory powers for the purchase or taking of lands, they might continue in possession afterwards, although all the steps for completing their title had not been then taken. The case of Marquis of Salisbury v. Great Northern Rail. Co. (p) decided that, if all steps had been taken under section 85, except actual entry on the lands, the company had power to enter after the expiration of the time limited for the exercise of com- pulsory powers for the purchase or taking of lands . This case was approved in the subsequent case of Tiverton, dc. Rail. Co. v. Loosemore (q), where it was held that where a notice to treat had been given within the time limited for the compulsory purchase of lands, an entry, bond fide made under section 85 by the railway company, thirteen days before the expiration of the time limited for the completion of the works, was justified, and that the trans- action must go forward, either party being entitled to put in force the provisions of the Lands Clauses Acts for the purpose of com- pleting the transaction. • The result of the cases is that, provided the promoters act bond fide and without laches, and give a notice to treat within the time limited for the exercise of the powers of compulsory purchase of lands, they may enter on such lands at any time before the expira- tion of the time limited for the completion of the works, and that the Court will .not enter upon the inquiry whether, as a fact, sufficient time has been left for the completion of the works within the statutory limit. Promoters, who have entered on lands in accordance with the No action provisions of section 85, are protected by their statutory powers, 2™swho' and no action for the recovery of such lands can be brought against h » T e complied them by the owner (r), either before or after the expiration of the l. ci. Act, statutory period limited for the completion of the authorized 1845 - works (q) . Such owners are not entitled to equitable relief, but (o) (1851), 20 L. J. Q. B. 249; of. Worsley v. South Devon Rail. Co. (1851), 20 L. J. Q. B. 254. (p) (1852), 21 L. J. Q. B. 185. (?) Tiverton, §o. Rail. Co. v. Loosemore (1884), 9 App. Cas. 480; 53 L. J. CJi. 812. (r) Doe d. Armistead v. North Staffordshire Rail. Co. (1851), 20 L. J. Q. B. 249; Doe d. Hudson v. Leeds and Bradford Rail. 'Co. (1851), 20 L. J. Q. B. 486; Worsley v. South Devon Rail. Co. (1851), 20 X,. J. Q. B. 254. 102 ENTRY ON LANDS BEFORE PUEOHASE. Owner not must avail themselves of the procedure provided in sections 22, 68 equitable° and 121 of the Lands Clauses Act, 1845 (s). If the promoters do relief. not s t r ictly comply with all the requirements of section 85, they are in the position of trespassers, and can be proceeded against as such (t) ; and the High Court has power, on the trial of an action for wrongful entry, to make a declaration as to the plaintiff's interest in the lands in question instead of remitting the matter to be dealt with under the Lands Clauses Acts (w) . Remedy of When lands have been entered upon, and their value assessed or vakieof lands agreed, the owner is in the position of an ordinary unpaid vendor, has been anc i the Court will enforce his lien by sale and the appointment of a receiver (x), or by injunction restraining the undertakers from using the land if it turns out to be unsaleable, even though the railway has been made on the land, and has been opened for public use (y) . This lien on the land is both for the purchase-money and also for money payable to the owner as compensation for damage by severance and injury to his adjoining land, unless such com- pensation is the subject of a separate agreement between him and the company (z). Power of Sections 22, 68 and 121 of the Lands Clauses Act, 1845. afford owner to compel assess- full protection to an owner whose lands have been entered upon, entered u^on" aLl ^ ^he P ower 0I initiating proceedings to assess the value of such lands is in the hands of the owner. Compensation Where the compensation claimed does not exceed 501. (a), or is two justices. i n respect of a tenancy not greater than for a year, or from year to year (6), the amount is to be assessed by two justices. Section 24 enables either party to initiate proceedings before two justices (c). (s) Tiverton, S;c. Bail. Co. v. Loosemore, supra ; Adams v. •London and Black- wall Mail. Co. (1850), 19 L. J. Ch. 557. WheTe there is an original equity affecting the owner, the L. 01. Act, 1845, does not take it away: I>uke of Norfolk v. Tennanl (1852), 9 Hare, 746. {t) Perks v. Wycombe Rail. Co. (1862), 3 Giff. 662. («) Birmingham and District Land Co. v. London and North Western Sail. Co. (1888), 36 Ch. D. 650; 40 Ch. D. 268. (*) Munns v. Isle of Wight Rail. Co. (1870), L. R. 5 Oh. 414; 39. L. J. Ch. 522. , (y) Williams v. Aylesbury, §o. Rail. Co. (1873), 28 L. T. 547; Allgood v- Merrybent, §c. Rail. Co. (1886), 33 Ch. D. 571; 55 L. J. Ch. 743. (z) Walker v. Ware, $a. Rail. Co. (1866), L. R. 1 Eq. 195; 35 L. J. Ch. 94; Wing v. Tottenham, 4-0. Rail. Co. (1868), L. R. 3 Ch. 740; 37 L, J. Ch. 654; Munns v. Isle of Wight Rail. Co. (1870), L. R. 5 Oh. 414; 39 L. J. Oh. 522. («) S. 22. (6) S. 121. (c) Vide post, p. 181. ENTRY ON LANDS BEFORE PURCHASE. 103 In all oases which are not comprised under sections 22 and 121, the owners of lands entered upon by the promoters can prooeed under section 68. Under this section, the owner is entitled to have the amount of Arbitration, compensation settled either by arbitration or by the verdict of a jury. If the owner desire to have the compensation settled by arbitration, it is lawful for him to give notice in writing to the promoters of his desire, stating in such notice the nature of his interest in the land in respect of which he claims compensation, and the amount of compensation which he claims. Unless the promoters are willing to pay the amount of compensation claimed, and to enter into a written agreement for that purpose within twenty-one days after the receipt of such notice, the same is settled by arbitration in the manner provided by the Act (d) . It is materia] to observe that, where the promoters decline to act, all steps necessary for the assessment of compensation by arbitration can be initiated and carried through by the owner. If the owner desires to have the amount of compensation settled Jury. bj r a jury, it is lawful for him to give notice in writing of his desire to the promoters, stating in such notice the nature of his interest in the land in respect of which he claims compensation, and the amount of compensation which he claims (e). Unless the pro- moters are willing to pay the amount of compensation claimed, and enter into a written agreement for that purpose, they are required, within twenty -one days after the receipt of such notice, to issue their warrant to the sheriff to summon a jury for settling the same in the manner provided in the Lands Clauses Act, 1845 (/). In default of issuing their warrant, the promoters become liable to pay to the owner the amount of compensation which he claims ; and the same may be recovered by him, with costs, by action in any of the superior Courts (g) . The Lands Clauses Act, 1845, has no machinery which enables the owner to issue his warrant to the sheriff for summoning a j\iry ; but section 68 makes promoters, who have entered on lands, liable to pay the whole amount which the owner claims, unless, in com- pliance with his request, they take the necessary steps for summon- ing a jury within twenty-one days (g). (d) Vide post, p. 185. («) S. 23. (/) Ss. 39—50. (g) Vide post, p. 208. 104 ENTRY ON LANDS BEFORE PURCHASE. There must An owner can only bring an action for the amount claimed on be an actual „ "^ . . tit entry on lands failure oi the promoters to summon a j ury, where mere has been for a. 68 to an en (- r y on ] anc i S) anc [ no t where there has been a notice to treat given without entry (h). " Taking " in section 68 means actual taking, as distinct from serving a notice to treat, or any other kind of constructive taking (i). The appropriation and user of subsoil under a special Act has been held to be equivalent to a taking of lands (fc) . In Barker v. Metropolitan Bail. Co. (I), the company entered into arrangements with the tenant of premises and received from him the key . The lessor gave the company notice of the amount of his claim, and of the nature of his interest in the premises, and required them to issue their warrant to summon a jury, and, upon their neglecting to do so, brought an action for the amount claimed. It was held that these facts warranted the jury in finding, that the company had actually taken the premises, and, consequently, that they were liable for the amount claimed. Where there jf ] anc [ s have been entered on by the promoters for the purposes IliiS D66I1 .. actual entry, of permanent user, the owner can elect to proceed under section 68, °™ er ? an , , although the entry has been irregular, provided that it is not a. 68. ultra vires. This principle is analogous to that adopted in the case of R. v. South Holland Drainage Committee (m). It was held in this case that the not receiving a notice to treat was an irregularity which could be waived by acquiescence ; and it was further held that the party, who by his conduct had conduced to such irregu- larity, could not afterwards be heard to complain of it. Lord Denman says in his judgment, " The ground of my decision Ib, that this party is not competent to make the objections which he now brings before me." But where a plaintiff did not know the plans of the Commissioners of Sewers until after the negotiations were at an end, it was held that he was not estopped from disputing the validity of the notice under which the Commissioners claimed (Ji) Burlnnxlww v. Birmingham and Oxford Junction Sail. Co. (1850), 20 Lt. J. Ex. 246; S. v. Manley Smith, In re Church and London Sciiool Board (1892), 67 L. T. 197. (s) Spencer v. Metropolitan Board of Works (1882), "22 Oh. D. 142, at p. 173, per Bowen, L. J.; 52 L. J. Oh. 249. (£) Farmer v. Waterloo and City Mail, Co., [1895] 1 Oh. 527; 64 L. J. Ch. 338; cf. Metropolitan Sail. Co. v. Fowler, [1893] A. C. 416; 62 L. J. Q. B. 553. (0 (1864), 17 O. B. N. S. 785. {m) (1838), 8 A. & E. 429. ENTRY ON LANDS BEFORE PURCHASE. 105 to take his property (n) ; and the case is different where the notice to treat is irregular and invalid, through being served on an agent not authorized by the owner to accept service (o). Section 89 of the Lands Clauses Act, 1845, enacts, that if pro- "Wilful entry, rnoters wilfully enter and take possession of lands required to be purchased or permanently used, without the consent of the ■owner (p), before payment or deposit of purchase-money, they shall forfeit to the party in possession of such lands the sum of 101., in addition to the damage they have caused, and that such penalty and damage can be recovered before two justices ; and further, that if the promoters continue in unlawful possession after conviction in the aforesaid penalty, they shall be liable to forfeit 251. per day, recoverable by action in any of the superior Courts. There is a proviso that promoters shall not be subject to the above penalties if they have bond fide and without collusion paid the compensation agreed or awarded to any person whom they reasonably believed to be entitled thereto, or have deposited it in the bank for the benefit of the parties interested in the lands, or made such deposit by way of security in respect thereof as thereinbefore (section 85) mentioned, although such person may not have been legally en- titled thereto. Section 90 provides that, in an action for the recovery of the penalty of 251. per day, the decision of the justices as to the right of entry by the promoters shall not be conclusive. An entry is " wilful," within section 89, when there is an absence •of honest belief, on the part of the promoters, of the existence of conditions which would perfect their right of entry. Where a company had entered on lands after a valuation made by a surveyor appointed by two justices, one of whom was a share- holder in the company, but this was not known, it was held that this irregularity did not make the company liable as for a wilful entry (q). hx the case of Hutchinson v. Manchester, dc. Bail. Co. (r), it was decided, on the terms of a section in the special Act, which ■differed in certain respects from those of section 89 of the Lands (») Lynch v. Commissioners of Sewers (1886), 32 Ch. D. 72; 55 L. J. Ch. 409. (o) Shepherd t. Corporation of Norwich (1885), 30 Ch. D. 553; 54 L. J. Oh. 1050. (j>) S. 84. (?) Steele v. Midland RoM. Co. (1869), 21 L,. T. 387. (r) (1846), 15 L. J. Ex. 293. 106 ENTRY ON LANDS BEFORE PURCHASE. Clauses Act, 1845, that a continuance in possession might be unlawful and render the company liable to penalties, although the- original entry had not been wilful. This case is important in its general bearing, because the section giving a penalty for the con- tinuance of unlawful possession of lands by the company contained a proviso similar to that in the Lands Clauses Act, 1845, section 89, exempting the company from such penalty, where the money had been paid or deposited bond fide and without collusion ; and it was held, that the proviso should be construed liberally, and that it applied where money had been honestly deposited, although in fact such deposit had not been made in accordance with the re- quirements of the special Act. 107 CHAPTER VIII. COMPENSATION FOE LANDS PURCHASED. When a notice to treat has been given, or the promoters have Basis of claim entered on lands under section 85 of the Lands Clauses Act, 1845, g a5;i ! n inpen " the owner and the promoters have to consider on what basis the claim for compensation should be assessed, in order that the amount may be settled by agreement or the determination of a competent tribunal. It must be borne in mind that promoters have no powers, other Proceedings than those comprised in their special Acts and the Acts therewith conditions ' incorporated, to enter upon or take lands against the wish of the imposed not owners. It is incumbent on promoters to comply with all condi- w ith. tions and limitations imposed upon them, and, unless they have so complied, any interested owner can restrain them by injunction from taking, as against him, further proceedings (a). The owner cannot compel the promoters to proceed on an invalid notice to treat (&). It has long been settled as a rule of practice that the Courts will Injunction not interfere in the assessment of compensation under the Lands try fight to ° Clauses Acts on the ground that the owner is claiming in respect compensation, of a wrong title or in respect of an interest for which he is not entitled to compensation (c) . The principle is that the owner is (a) Schwinge v. London and Blackwall Rail. Co. (1855), 24 L. J. Gh. 405; Spencer v. Metropolitan Board of Works (1882), 22 Oh. D. 142; 52 L. J. Ch. 249; Great Western Rail. Co. v. Swindon, $o. Rail. Co. (1882), 22 Ch. D. 677; (1884), 9 App. Oas. 787; 53 L. J. Oh. 1075. (6) Shepherd v. Corporation of Norwich (1885), 30 Ch. D. 553; 54 L. J. Ch. 1050; Guest v. Poole and Bournemouth Rail. Co. (1870), L. E,. 5 O. P. 553, 559, per Brett, I>. J.; 39 L. J. O. P. 329. (o) East and West India Dock Co. v. Gattke (1851), 20 L. J. Ch. 217; South Staffordshire Rati. Co. v. Hall (1851), 20 L. J. Ch. 397; Brierley Hill L. B. v. Pearsall (1884), 9 App. Cas. 595, at p. 601; 54 L. J. Q. B. 25; London and Blackwall Rail. Co. v. Cross (1886), 31 Ch. D. 354; Birmingham, and District Land Co. v. London and North Western Rail. Co. (1888), 40 Ch. L\ 268. 108 COMPENSATION FOR LANDS PURCHASED. entitled to have his claim assessed as brought forward by him under the provisions of the Lands Clauses Acts, and that questions of title or of validity of claim are not within the jurisdiction of the assessing tribunals, and will be left to be determined in subse- quent proceedings. As regards arbitrations, no difference has been made by the Judicature Acts (d) ; the Arbitration Act, 1889 (e), affords an additional argument in favour of the practice against granting an injunction or mandamus. It contains (/) a special provision enabling any arbitrator or umpire, at any stage of the proceedings under a reference, to state, in the form of a special case for the opinion of the Court, any question of law arising in the course of the reference. In many cases, this will be a con- venient form of procedure to adopt with a view to save unnecessary expense (g). Section 19 also empowers the Court to direct the arbitrator to state in the form of a special case, for the opinion of the Court, any question of law arising in the course of the reference, and the Court in a proper case would exercise this power in a reference under the Lands Clauses Acts. The application should be made to a master by summons under E,. S. C, 0. LIV. r. 12a (g) . In Scotland the procedure is different, and an action for interdict under similar circumstances can be maintained (h). The Arbitration Act, 1889 (i), also gives the arbitrator or umpire power to state his award as to whole or part, in the form of a special case for the opinion of the Court. ie°^lue 8 of tl0n Tne " >as ^ s on w hi cn compensation for lands taken is to be lands to assessed is the value of the lands to the owner as it existed at the date of the notice to treat and not their value, when taken, to the promoters (k) . (d) North London Sail. Co. v. Greed Northern RaM. Co. (1883), 11 Q. B. D. 30; 52 L. J. Q. B. 380; Kitts v. Moore, [1895] 1 Q. B. 253; 61 L. J. Ch.152. (e) Appendix, p. 472; of. Farrar v. Cooper (1890), 44 Ch. D. 323; 59 L. J. Oh. 506. And see the text-books on the subject, Isuch as Russell on Arbitration. (/) S. 19. (g) Vide post, p. 194. (h) Fleming v. Newport Rail. Co. (1883), 8 App. Cas. 265. (0 S. 7. (K) Corrie v. MacDermott, [1914] A. C. 1056; Cedar Rapids Manufacturing and Power Co. v. Lacoste, [1914] A. O. 569; In re Lucas and Chesterfield Gas and Water Board, [1909] 1 K. B. 16; Fraser v. City of Fraservdlle, [1917] A. C. 187; of. Pastoral Finance Association, Ltd. v. The Minister, [1914] A.C. 1083. The proposition? which follow are set out in » slightly different form by Eve, J., in South Eastern Rail. Co. v. London C. C, [1915] 2 Ch. 252,258. owner. COMPENSATION FOR LANDS PURCHASED. 109 All advantages which the land possesses, present or future, Including in the hands of the owner may bo taken into consideration (I), future* and and the owner is entitled to have the price assessed in reference advantages, to those advantages which will give the land the greatest value. The value of an owner's interest is not properly compensated by assessing the amount of pecuniary benefits obtained by past user in disregard of possible benefits in the future (m) . The pro- bability of a more profitable future use is one such advantage which may be taken into consideration. Thus land which may probably be used for building purposes must not be valued on the same basis as purely agricultural land (-re). But although But not such prospective value is a necessary element in the assessment of com- tne ^on- r °° pensation, such value must be entirely excluded where it would struotion of arise from the construction of the particular works authorized works, by the Act which gives compulsory powers (o) . It is a recog- nized principle to exclude from the assessment of compensation any enhancement or diminution in value consequent on the construction of works authorized by the special Act under which the assessment is made. In Penny v. Penny (p), Wood, V.-C, says : — " As to the value of the interest, it appears to me clear that the plaintiff's interest is not to be treated as having been increased through an act of the Board of Works. One might as well value the interest of the improvements which have taken place in consequence of the houses having been thrown down and other constructions made, and so on. It is not the interest which has been acquired by the Board that has to be estimated, but the value of the interest taken from the person with whom the Board deals. . The scheme of the Act I take to be this, that every man's interest shall be valued rebuff sic stantibus, just as it occurs at the very moment when the notice to treat was given." The increased value of lands by reason of any advantage over Special market value. (I) Cedar Rapids Manufacturing and Power Co. v. Lacoste, [1914] A. C. 569; In re Lucas and Chesterfield Gas and Water Board, [1909] 1 K. B. 16; Fraser v. City of Fraserville, [1917] A. C. 187. (m) Trent-Stoughton v. Barbados Water Supply Co., [1893] A. C. 502; but ef. Eldon {Earl) v. North Eastern Bail. Co. (1899), 80 L. T. 723. (») R. v. Brown (1867), L. R. 2 Q. B. 630. (o) In re Lucas and Chesterfield Gas' and Water Board, [1909] 1 K. B. 16; Cedar Rapids Manufacturing and Bower Co. v. Lacoste, [1914] A. C. 569; Fraser v. City of Fraserville, [1917] A. C. 187. (?) (1868), L. R. 5 Eq. 227. 110 COMPENSATION FOE LANDS PURCHASED. and above the bare agricultural value is merely the price which possible intended undertakers would give. That price must be tested by the imaginary market which would have ruled had the land been exposed for sale before any undertakers had secured any powers or acquired the other subjects which made the undertaking as a whole a realized possibility (q). In assessing the value of any probable future advantages it is the present value alone of such advantages that falls to be determined (q) . In the case of In re Lucas and Chesterfield Gas and Water Board (r), Fletcher Moulton, L. J., summarises thus the results of the earlier decisions (s) : " The decided cases seem to me to have hit upon the correct solution of this problem. To my mind they lay down the principle that where the special value exists only for a 2>articular j)urehaser who has obtained powers of compulsory purchase it cannot be taken into consideration in fixing the price, because to do otherwise would be to allow the existence of the scheme to enhance the value of the lands to be purchased under it. But when the special value exists also for other jDOSsible purchasers, so that there is, so to speak, a market, real though limited (t), in which that special value goes towards fixing the market price, the owner is entitled to have this element taken into consideration just as he would be entitled to have tho fertility or the aspect of apiece of land capable of being used for agricultural purposes "'«). Thus the fact that land has peculiar natural advantages for supplying water to a district or area may be taken into considera- tion in the assessment of compensation, and it is not necessary that it should be proved that the land could be similarly used by other (q) Cedar Rapids Manufacturing and Power Co. v. Lacoste, [1914] A. 0. 569, 576. (r) [1909] 1 K. B. 16, 31; approved in Cedar Eapids Manufacturing and Power Co. v. Lacoste, [1914] A. C. 569. (s) In re Countess Ossalinslcy and Manchester Corporation (1883, Q. 13. I).), reported in Browne & Allan's Law of Compensation, 2nd ed., p. 659 ; In re Xyne- mouth Corporation and Duke of horthnmberland (1903), 89 L. T. 557; In re Gough and Aspatria, §0. Water Board, [1904] 1 K. B. 417; and see Rlddell v. Neivcastle, §c. Water Co. (1879), The Times, 14th June (C. A.). (<) " It is evident that while all opportunity of employment for a certain purpose in regard to the position of land to he acquired is to be taken into account, there must come a point where the opportunity becomes so remote as to be negligible ": Odium v. City of Vancouver (1915), 85 L. J. P. C. 95, com- menting with approval on Cedar Rapids Manufacturing and Power Co. '■ Lacoste, supra. («) Of. Sidney v. North Eastern Rail. Co., [1914] 3 K. B. 629. COMPENSATION FOE LANDS PURCHASED. Ill specified competitors (.r) ; and the same principle applies where the land of the claimant, though not in itself adaptable for a reservoir, is so adaptable in conjunction with other adjacent lands belonging to other owners (y) . In such a case an arbitrator would • be bound to treat the enhancement of value as something to be shared by the component pieces of land in such proportion as he thought their relative importance merited (z). Where land had been bought with the intention of building a school upon it, for which purpose it was specially adapted, it was held that in the assessment of compensation the intention to use the site for a school should be taken into consideration, although no school had been built at the date of the service of the notice to treat (a) . " It is no answer to a claim for increased varue by reason of special advantages " to say that the purchasers must necessarily be persons possessing parliamentary powers, and that none such exist at the moment except the one that is actually exercising his com- pulsory powers. In the case of waterworks for public supply promoters must always arm themselves with parliamentary powers, since distribution itself would otherwise be impracticable. But if by its prudence and forethought a public authority had by private negotiation secured a desirable site for a reservoir for the water supply of its own district it would not be in accordance with the practice of Parliament to refuse to it the powers necessary to its effective use for that purpose " (6). The term "special adaptability," which was introduced in con- "Special , . . , . , , „ , , adaptability. nection with undertakings such as reservoirs, and (as Jb letcner Moulton, L. J., points out in the judgment above quoted) is not a happy one, connotes no new principle, being only a compendious expression used to indicate the existence of certain advantages, present or future, whereby the land in question has a special value in a particular limited market. O) In re Gough and Aspatria, $o. Water Board, [1903] 1 K. B. 574; [1904] 1 K. B. 417. (y) In re Tynemouth Corporation and Duke of Northumberland (1903), 89 L. T. 557. (z) In re Lucm tend Chesterfield Gas and Water .Board, [1909] 1 K. B. 16, 33. (a) Bailey v. Isle of Thanet Light Railways Co., [1900] 1 Q. B. 722. (i) In re Lucas and Chesterfield Gas and Water Board, [1909] 1 K. B. 16, per Fletcher Moulton, L. J., at p. 31; cf. Acquisition of Land (Assessment of Compensation) Act, 1919, post, p. 323. 112 COMPENSATION FOE LANDS PURCHASED. whioh^est "" 1 "^ restrictions attaching to the land in the hands of the owner tions attaoh- (including the likelihood of their continuance) must also be taken thf hands of m into consideration. the owner are The Privy Council in delivering their judgment in the case of into account. Corrie v. MacDermott (c), gave the following explanation of the. older authorities : — " In their Lordships' opinion both cases, Hileoat's case (d) and " Stebbing's case (e),are consistent with the general principle above "laid down, and the only difference arose from the application of "that principle to different facts. "Hileoat's case arose upon the question of an exception to a " direction given to a jury . Under an Act of Parliament a railway " company was authorized to take the church of St. M. and certain " ground attached thereto upon the terms that they should only " get possession when with the consent of the bishop of the diocese " and the Archbishop of York a price had been fixed — in the fixing " of such price regard being had to the cost of getting a new site and erecting a new church and compensating the person entitled "to the land not actually forming part of the church, which sum " should be held by the two ecclesiastical persons aforesaid for the "purpose of procuring a new site and erecting a new church, "and for compensating the person entitled as aforesaid. The " bishops agreed with the railway company for the sum of 7,700Z. " odd and indemnity against any claim by the incumbent. " They then offered the incumbent (who was the person entitled "to the land not occupied by the church as aforesaid) the sum of "300L This he refused and raised action. The case was tried " by Wilde, C. J., who directed the jury, first, that the fact of the "bishops fixing 300Z. as a proper sum for compensation did not "bind the plaintiff ; and second, that they were not bound to " estimate the value of the ground to which the plaintiff was "entitled, as land irrevocably appropriated to spiritual purposes, "of which the plaintiff could make no pecuniary advantage, but " that it was competent to them to form this estimate of the value (o) [1914] A. O. 1056 (Lords Dunedin, Atkinson and Sumner and Sir Joshua Williams) . (of) Silcoat v. The Arohbishops of Canterbury and York (1850), 19 L. J. . O. P. 376. (e) Stebbing v. Metropolitan Board of Works (1870), L. R. 6 Q. B. 37; cf. Secretary of State for Foreign Affairs v. Charlcsicorth, Pilling $ Co., [1901] A. C. 373; Sydney Municipal Council v. Young, [1898] A. C. 457. COMPENSATION FOE LANDS PURCHASED. 115 "with reference to all the circumstances that had appeared in "evidence before them. The jury found for the plaintiff and "assessed damages at 1,540L Upon a rule being granted the "Court held that the directions were right. " It seems quite plain that although, as above said by their "Lordships, restrictions must be kept in view, the chance of such " restrictions being discharged must also be kept in view. That was " all that was decided in Hilcoat's case, and in their Lordships' view " rightly decided. Whether under the circumstances of the case the "jury did not give too much is quite another matter, and does not " affect the principles of the case. " In Stebbing's case the ground taken was part of city church- " yards in which any further burial had been prohibited by Order "in Council. The rector claimed that he should be paid for "his freehold interest in the said churchyards the value of the " ground as if it were unrestricted, minus the sum it would cost to "remove the human remains to other ground. The Board of " Works (who had taken the ground) contended that the value to be " assessed was the value of the ground as it stood in the rector's "hands. It was thus decided, and the decision upon principle is " strictly right. The case does not disclose whether the arbitrator " (who had formulated the contended principles to be decided by " the special case) eventually settled that the rector's interest was "pecuniarily nil. There are doubtless indications in the judg- ments that that was the view of the judges. In so saying, " however, they in strictness went beyond their province. Strictly " the rector was entitled to have valued his chance of ever getting " the land in his hands in such a condition as could bring pecuniary "value. But the valuation under the circumstances might well " be nil. " And now it may be remarked that a restriction which prevents " selling, though it must be taken into account, and may very well "affect the value, does in no way reduce the value to nil. To a " judge on the facts in Stebbing's case it might indeed well appear "that the value was nil. For the land could not be sold, for it "was dedicated to spiritual purposes (/), and further its use as far (/) But even so, there may exist a possibility of future sale, such, for instance,, as under a scheme for union of 'benefices, and in assessing the value of the land any such future possibility is rightly taken into consideration: City and Smith London Rail. Co. v. United Parishes of St. Mary Woolnoth and St. Manj Woolchurch Raw, [1903] 2 K. B. 728; [1905] A. 0. 1. c. 8 114 COMPENSATION FOR LANDS PURCHASED. Reinstate- ment. "as profitable, as, e.g., in the matter of fees, was also exhausted, "for the ground was full and no further interments were possible " because of the Order in Council. But other circumstances would " lead to ,a perfectly different result, and as an illustration their " Lordships would refer to a case which, though not at law, was " decided by a judge of authority, the late Lord Shand. A strip " of land in West Princes Street Gardens, below the Castle Rock, " in Edinburgh, was taken by the North British Railway under an "Act of Parliament under terms of paying compensation to the "corporation of Edinburgh, who were the owners of the ground. " By Act of Parliament the corporation was prohibited from ever " building on the land, or alienating it ; but was bound to keep it "for all time as a public garden. " Under the circumstances the railway company contended before " Lord Shand, who was chosen as sole arbitrator, that the land was "worth nothing, and that a mere nominal sum should be paid. " The corporation on the other hand maintained that the true com- "pensation was what would provide another strip of exactly the " same quality ; and as this could only be got by taking Princes " Street itself, that the money value must be estimated at what it "would cost to buy a strip of Princes Street — the most valuable "site in Edinburgh. Lord Shand held both views to be wrong. " He held that, the corporation being restricted, the value could not " be measured by the value of unrestricted land in a similar "position ; but that on the other hand the land was of value to " the corporation who enjoyed it with the rest of the adjoining land, "for the use of the citizens as a garden, which garden would be "so much less valuable because it was smaller, and he assessed on " that view. Their Lordships consider that his judgment pro- " ceeded on correct principles." There are some cases in which the income derived, or probably to be derived, from land would not constitute a fair basis in assessing the value to the owner, and then the principle of reinstatement should be applied. This principle is that the owner cannot be placed in as favourable a position as he was in before the exercise of compulsory powers, unless such a sum is assessed as will enable him to replace the premises or lands taken by premises or lands which would be to him of the same value. It is not possible to give an exhaustive catalogue of all cases to which the principle of reinstatement is applicable. But we may instance churches, schools, hospitals, houses of an exceptional character, COMPENSATION FOR LANDS PURCHASED. 115 and business premises in which the business can only be carried on under special conditions or by means of special licenses (g) . In the Edinburgh case referred to above it was sought to extend the principle of reinstatement to a case in which a portion of a public garden had been taken, but such a contention was rightly set aside by Lord Shand (gg). Where the Conservators of the Eiver Thames had given the Consent of consent required by the special Act to be obtained to plans for ^planT!" 107 building a railway bridge across the Thames, it was held that this consent did not affect their rights as owners of the soil in the bed of the river, and that in respect of such ownership they were entitled to compensation for land taken (h) . In cases under the Lands Clauses Acts where lands have been No set-oft of taken, the contention that the promoters can claim to set off against ^^ oed the value of such lands any enhanced value consequent on the construction of the authorized works to the adjoining lands of the same owner (the "principle of betterment") (i) has been dis- allowed (k) as it has, where lands have not been taken, but only injuriously affected (I). Sections 34, 51 of the Lands Clauses Act, 1845, provide for the Evidence not payment of costs by the promoters unless the amount of compensa- of amount of tion assessed is the same or a less sum than shall have been offered ° ffer - by the promoters of the undertaking. The issue in assessing the amount of compensation is the value to the owner ; and the amount previously tendered is irrelevant, and should not be used in evi^ dence on the inquiry before the arbitrators, or their umpire, or a jury, since the liability to costs is not in the discretion of the tribunal, but is settled by the Act. Parke, B., says : " They [the tribunal] would have no power to take evidence as to the amount (g) London School Board v. South Eastern Rail. Co. (1887), 3 Times L. R. 710; R. v. Burrow (1884), The Times, 24th Jan. 1884 (0. A.); affirmed in H. I»., sub nam. Metropolitan and Metropolitan District Rail. Cos. v. Burrow, The Times, 22nd Nov. 1884. {gg") See the previous page. (Jij Thames Conservators v. Victoria Station, §c. Rail. Co. (1868), D. R. 4 C. P. 59; 38 D. J. O. P. 4; cf. Metropolitan. Board of Works v. Metropolitan Rail. Co. (1868), L.. R. 3 C. P. 612; 4 O. P. 192; 32 L. J. C. P. 281. («) See Book II., v. I., post, p. 315. (7c) South Eastern Rail. Co. v. London C. C, [1915] 2 Ch. 252. (0 Senior v. Metropolitan Rail. Co. (1863), 32 L. J. Ex. 225; Eagle v. Charing Cross Rail. Co. (1867), L. R. 2 C. P. 638; 36 D. J. C. P. 297. 8(2) 116 COMPENSATION FOR LANDS PURCHASED. Compensation includes all loss in conse- quence of eviction from the lands. Damages through removal. Fixtures. Costs of re- moval or loss through forced sale. previously tendered, and could not, therefore, determine the coBts- by the award " (m). The loss to an owner, whose lands are required or have been taken, omitting all questions of injury to adjoining lands, includes not only the actual value of such lands, but all damage directly consequent on the taking thereof under statutory powers. In Ricket v. Metropolitan Rail. Co. (n), there is a dictum of Erie, C. J., which expresses this principle : " As to the argument, that compensation is in practice allowed for the profits of trade where the land is taken, the distinction is obvious. The company, claiming to take lands by compulsory powers, expel the owner from his property and are bound to compensate him for all the loss incurred by the expulsion, and the principle of compensation then is the same as in trespass for expulsion, and so it has been determined in Jubb v. Hull Dock Co." (o). If the owner is in occupation of premises, he is entitled to com- pensation for damages incurred through the necessity of removal, since these are losses consequent on the taking of his property under statutory powers. Such damages include the value of those fixtures which are attached to the freehold. Care must be taken, especially in the case of trade fixtures, that compensation is given to the right claimant, or the promoters may have to pay both the landlord and the tenant in respect of the same fixtures: This ma}" be an important item, if a manufactory is carried on upon the premises in question (p) ; and it is always desirable where possible to agree and schedule the fixtures to be taken into account on the assess- ment of the compensation due to any particular claimant. Mere chattels as distinguished from fixtures are not the subject for compensation, and their value should not be included. Such damages also include the cost of the removal by the owner of his furniture and goods, and the consequent depreciation in the value of furniture which has been specially fitted, but which is not a fixture attached to the freehold. If the claimant is a trader, they will also include any diminution in the value of his stock consequent on its removal or, in the alternative, on a forced sale, if such is shown to be the only practicable course. Where the O) Gould v. Staffordshire Potteries Waterworks Co. (1850), 19 L. J. Ex. 281. O) (1865), 34 L. J. Q. B. 257. (o) (1846), 15 L. 3. Q. B. 403. (p) Gibson v. Hammersmith Sail. Co. (1863), 32 L. J. Ch. 337. COMPENSATION FOR LANDS PURCHASED. 117 claimant incurs a liability to an increased rental or other reason- Increased able expenses in taking equally convenient new premises for the reuta ' purpose of carrying on his business, such increased rental and other expenses should be taken into account in the assessment of com- pensation, an.d this principle applies though the business is not being carried on at a profit (q) . A yearly tenant who received notice from the promoters of an undertaking to give up possession in six months, has been held •entitled to compensation for any expenses to which he had been put by the notice, including, it would seem, any expense incurred by bond fide preparations to leave the premises, notwithstanding that the company subsequently informed the tenant that they should not take possession at the end of the six months (r) . A further item to be taken into consideration is the probable Diminution diminution in the value of the claimant's goodwill in his trade ^ o|^i° consequent on the taking of the premises in which such trade is ■carried on. This claim is often made under the head of loss of goodwill ; but this is not correct, and has a tendency to enhance the amount of compensation in excess of the loss actually incurred. Goodwill is the probability of the continuance of a business con- nection, and its value is fixed at a certain number of years' purchase .according to the nature of the particular trade or business. When lands, however, are taken under compulsory powers, the goodwill is not purchased by the promoters, but remains the property of the trader, and the loss suffered by him is the diminution in its value in consequence of his compulsory ejectment from the premises he is occupying. So far from the goodwill being purchased or destroyed by the promoters, there are many cases in which the ■diminution in its value is hardly appreciable, although the trade premises have compulsorily been taken. If a business is of a wholesale character, or is one which consists of orders from a widely extended area, a compulsory change of trade premises would be productive of small loss. If, in addition, convenient premises can be acquired in the immediate neighbourhood of the premises taken, the loss incurred through diminution in the value -of goodwill becomes merely nominal, and the owner's only claim to compensation is in respect of any reasonable expenses which the (?) B. v. Burrow (1884), The Times, 24th Jan. 1884 (C. A.); affirmed, H. L., sub nom. Metropolitan amd. 'Metropolitan District Bail. Cos. v. Burrow, The Times, 22nd Not. 1884. (r) B. v. Boohdale Improvement Commissioners (1856), 2 Jur. N. S. 861. 118 COMPENSATION FOE LANDS PURCHASED. taking of equally convenient new premises has rendered neces- sary (s) . On the other hand, there are cases in which the diminu- tion in the value of a goodwill may practically equal the entire value of the goodwill. This is the case where a business is retail and local, depending on neighbouring customers, and no suitable premises can be found in the locality within which the business connection extends (t). Although in some cases the goodwill of trade premises passes to a mortgagee, this does not apply where the goodwill 'depends on the personal skill of the owner ; and in such a case the owner, and not the mortgagee, is entitled to compensation awarded for the loss of goodwill (u) . Compensation for loss of trade may be awarded although the claimant has no legal interest in the premises in which the trade is carried on (a;) ; but in such a case the insecurity of his tenure would be a relevant matter in considering the amount due. The fact that business is being carried on at a loss does not disentitle the owner from claiming for trade loss on the ground that if he had not been expropriated he would have had an oppor- tunity of making his business profitable (yi) . The amount of such compensation would be a simple question of fact for the assessing tribunal. Remoteness of j n asse ssing the damage incurred consequent on the taking of such oases. lands under parliamentary powers, the ordinary principles of law as to remoteness of damage apply. Where a market gardener was, by reason of the company taking his garden, unable to warrant his seeds, which in consequence were depreciated in value, the Court, though with some hesitation, held the damage to be too remote and not such as would entitle the claimant in respect thereof to compensation (z) . A claim in respect of the expenses which might (s) Cf . dictum of BramwelL, L». J., in In re Bidder and North Staffordshire Sail. Co. (1879), 4 Q. B. D. 412, 432; 48 h. J. Q. B. 248; R. v. Scard (1894), 27 W. R. 540; R. v. Burrow (1884), The Times, 24th Jan. 1884 (C. A.); affirmed, H. L., sub nom. Metropolitan and Metropolitan District Bail. Cos. v. Burrow, The Times, 22nd Nov. 1884. (t) White v. Commissioners of Public Works (1870), 22 L. T. 591. («) Cooper v. Metropolitan Board of Works (1883), 25 Ch. D. 472; 53 L. J. Oh. 109. (%) Ex parte Cooper, In re North London Rail. Co. (1865), 34 L. J. Ch. 373, 375. (y) R. v. Burrow (1884), The Times, 24th Jan. 1884 (C. A.); affirmed, H. L.,. sub nom. Metropolitan and Metropolitan District Rail. Cos. v. Burrow, The Times, 22nd Nov. 1884. (z) Clarke v. Wandsworth Local Board (1868), 17 L. T. 549; of. Bigg v. COMPENSATION FOR LANDS PURCHASED. 119 be incurred for educating the children of workmen employed in the construction of a reservoir was held to be too remote and too uncertain to entitle the claimant to compensation (a) . The cost of lands does not, of course, determine their value, but Cost an ele- may be a relevant consideration in the assessment of compensation ; and so, too, may be money bond fide spent in improvements by the owner (&). Where a railway company were tenants from year to year of certain lands and served a notice to treat upon the owner before terminating their tenancy it was held that the umpire in making his award was entitled to consider the yearly rent hitherto paid by the railway company as a basis upon which to calculate the value of the lands, as the owner had a reasonable expectation of continuing to receive such a rent, although it was considerably higher than the mere agricultural rent that would be obtainable (c) . Where no special principle has to be applied, the purchase-money Compensation payable to an owner of an estate in fee simple, for lands of which owner in pos- he is in possession, is ascertained by multiplying the highest annual se8Slon - value which he might expect to obtain from such land by the number of years' purchase which the special circumstances require. The number of years' purchase depends on the interest which the property should yield to a purchaser, and should be taken from the recognized tables. Thus, if property should yield to a purchaser four per cent., the number of years' purchase would be twenty- five. The present value of his land, to the owner of a reversionary Compensation interest, who is receiving no present benefit, can be calculated by r e a 7 e raton. 0r & one of the following methods : — Take the case of an owner entitled to a property of the annual value of 100/. on the expiration of a term of twenty years. On the four per cent, table he would be entitled to a sum of 2,500/. at the end of twenty years. The present value of a sum of 2,500/. deferred for twenty years on the four per cent, table is 2,500/. X ■4564 = 1,1411. Corporation of London (1873), L. R. 15 Eq. 376; In re Kilworth Rifle Range, [1899] 2 Ir. R. 305. (a) In re Tynemouth Corporation and Duke of Northumberland (1903), 89 L. T. 557. (fi) Streatham, §c. Estates Co. v. Public Works Commissioners (1888), 52 J. P. 615: affirmed om appeal, not reported; cf. Ex parte Cooper, In re North London Rail. Co. (1865), 34 E. J. Oh. 373. (c) Eld-on {EarV) v. North Eastern Rail. Co. (1899), 80 L. T. 723. 120 COMPENSATION FOE LANDS PURCHASED. The same result would be arrived at by subtracting from 2,500Z. the present value of an annuity of 100/. payable for twenty years. Taking again the four per cent, table, the present value of such an annuity is 100/. X 13'590 = 1,359/. ; and 2,500/. - 1,359?. = 1,141/. The owner in reversion is, in many cases, receiving some present income from his land. Thus, a landlord may be entitled to a rental of 90/. from a property which, if in hand, would be worth. 100/. a year. The present value of his interest to such owner may be calculated by one of the following methods, adopting throughout the four per cent, table : — The value of an annuity of 10/. a year is 10/. X 13'59 = 1359L, and by subtracting this sum from 2,500/., which represents the value of 100/. in perpetuity, we have the sum of 2,364"1/., which is the present value to an owner who is entitled to 90/. a year for twenty years, and then to a reversion of 100/. in perpetuity. Or the present value of an annuity of 90/. a year for twenty years should be calculated, = 1,223'1Z., and added to the value of an annuity of 100/. in perpetuity, deferred for twenty years, = 1,141/. 1,223-1/. + 1,141/. =2,364-1/., which is, of course, the same result as above (c) . Copyholds. If lands are held by copyhold tenure, their value should be assessed on the ordinary basis, and then the cost of enfranchisement should be deducted. Compensation Sections 95—98 (d) deal with the question of enfranchisement to lord for en- . . franchise- and the compensation to be paid to the lord therefor. There is an obligation upon the promoters to procure the enfranchisement of copyhold lands within three months after the enrolment of the conveyance of the lands or within one month after they enter upon and make use of the lands for the purposes of the works. At the expiration of the period so allowed the rights as between the parties are settled, and compensation ought to be assessed with reference to the date when the obligation to enfranchise arose (e). The amount of compensation to be paid for the enfranchisement is to be determined as in other cases of disputed compensation, an allowance being made for all fines, heriots, and other services pay- (c) See Inwood's Tables. (d) See post. Chap. XVIII., p. 285, where the sections are set out. (e) In re Marquis of Salisbury and London and North Western Sail. Co., [1892] 1 Ch. 75, n.; loivther v. Caledonian Rail. Co., [1892] 1 Ch. 73; In re Northumberland (DuJce) and Mayor, §c. of Tynemouth, [1909] 2 K. B. 374. ment. COMPENSATION FOR LANDS PURCHASED. 121 able on death, descent or alienation, or any other matters which would be lost by the vesting of the copyholds in the promoters (/) . Until the lands are actually enfranchised they continue subject to the same fines, heriots and services as were theretofore payable and of right accustomed, so that in fixing compensation there must be taken into account all fines, etc. which would have accrued payable but for the taking of the lands by the promoters, arising between the date when the obligation to enfranchise arose and the date of actual enfranchisement (g) ; and where the land has acquired an improved annual value between those dates, even though it be as a result of the works executed thereon by the promoters themselves, the fines becoming payable are to be assessed according to the improved annual value of the land (h). It is proper for an allowance to be made for interest at four per cent, from the date when the obligation to enfranchise arose until actual p>ayment of the compensation money, subject to the deduction therefrom of the amount of rents and other manorial services received by the lord during that period (i) . The purchase-money payable to a lessee or tenant, as the value Compensation of his term or tenancy, depends on the difference between the te^ntor° f actual rental paid by him and the improved annual rental that the lessee, property is worth. This difference must be multiplied by the number of years' purchase at which the tenant's interest should be valued. This will be determined by the character of the property and by the length of the term or tenancy. If the actual rental of property is 901., and its improved annual rental is 1001., and the property is such that it should be purchased to pay six per cent., and the length of the term is ten years, then the recognized tables would give 7' 360 as the number of years' purchase to be taken, and the capitalized value of the tenant's interest would be ascer- tained by multiplying 101. by 7'360 (j). The interest in lands for which compensation should be assessed, ^.™^ a * 1 ^ 1 is fixed as at the time of service of a notice to treat or some similar nature of a tenancy. (/) Allowance must be made for " quittances ": In re Xorthumberland (Dt'ke) and Mayor, §c. of Tynemouth, [1909] 2 K. B. 374. (g) Lowther v. Caledonian Bail. Co., [1892] 1 Oh. 73; Lec&nfield (Lord) v. London and North Western Mail. Co., [1907] 1 Ch. 38. (h) Lowther v. Caledonian Rail. Co., [1892] 1 Ch. 73. (j.) In re Marquis of Salisbury and London and North Western Rail. Co., [1892] 1 Ch. 75, n.; In re Northumberland (Duke) and Mayor, $c. of Tyne- mouth, [1909] 2 K. B. 374. (/) See Inwood's Tables. 122 COMPENSATION FOR LANDS PURCHASED. If interest of tenant ends before dis- turbance, no compensation. notice, indicating the intention of the promoters to take such lands (k), and no interest subsequently created gives a valid claim for compensation (I) . If, after receiving such notice, the tenant continues in occupation, the benefit of such occupation is in many cases equivalent to the loss which would have been incurred by eviction, and it is then sufficient to consider the value of the premises in question as from the time when possession is required by the promoters. When, however, the effect of a notice to treat or a similar notice is to change the character of an occupation of premises and to make it less valuable, the tenant is entitled to compensation as from the time when such notice was given, and the loss should be assessed r see per Willes, J., in Cranwell v. Mayor of London (to), " During the whole period after the expira- tion of the six months the plaintiff remained in possession, subject to a liability to be turned out at a moment's notice, provided pay- ment were made by the corporation of the purchase-money due to him, if any ; and he was entitled to compensation at the least for the difference between such a position, which was that of a mere tenant at sufferance, and the position of a tenant with a right to retain possession till a fixed and definite period." If a tenant, in consideration of being allowed to continue in occupation, gives up his right to make a claim for disturbance in the character of his tenancy, this is an arrangement which would by its terms disentitle him to compensation under that head (n). Deterioration in the nature of a tenancy consequent on a notice of an intention to take the lands comprised in such tenancy must be distinguished from deterioration in the value of a tenancj' through the taking of surrounding houses. The taking of sur- rounding houses may diminish the value of a tenancy, but the owner has no right to compensation and is not injuriously affected by such taking per se (o). If the interest of a tenant is not interfered with by the pro- moters during the continuance of the tenancy, or if a proper notice to quit in accordance with the terms of a tenancy is given by them (Jc) Tyson v. Mayor, 4-0. of London (1871), L. R. 7 C. P. 18; 41 L. C. P. 6; Wilkins v. Mayor of Birmingham (1883), 25 Ch. D. 78; 53 L. Oh. 93. (I) Vide mite, p. 81. O) (1870), L. R. 5 Ex. 284; 39 L. J. Ex. 193. (») S. v. London and Southampton Rail. Co. (1839), 10 A. & E. 33. (0) B. v. Vaughan (1869), L. R. 4 Q. B. 190; 38 L. J. M. C. 49; v post, pp. 153 et seq. COMPENSATION FOR LANDS PURCHASED. 123 after acquiring the interest of the landlord or by the landlord himself (p), there is no disturbance of the tenant's interest, and no claim for compensation can be sustained (q). The compensation Compensation given under the special terms of the Hungerford Market Aot (r) biUt^of 'con- fer the probability of the continuance of a tenancy could not be trance f claimed under the Lands Clauses Act, 1845 (s), and the tenant was only entitled thereto under the special terms of the particular Act. In Ex parte Cooper, In re North London Rail. Co. (t), compen- sation had been assessed for a lease which turned out to be invalid, having been granted by the executors instead of hf the heir. Kindersley, V -C, directed an inquiry as to the extent to which the lessee had benefited the estate by an outlay made on the faith that the lease was valid, and that the amount of such benefit should be paid to him out of money deposited in the Court. It is, however, submitted that although the lessee was entitled to compensation for trade loss, he was not entitled to compensation for his interest in a void lease. The owner would have been entitled to the value of the estate in possession as benefited by the outlay of the lessee, and in this case the promoters might have been compelled to pay twice over for the same interest. The rights as between the grantor of the void lease and the tenant in respect of expenditure made should be settled inter se, and are independent of the question of the compen- sation . Where, after notice to treat had been given, the mortgagees in possession of the premises purported to take a surrender of the lease and to grant a new lease for a longer period, the lessee was held to be entitled to compensation on the basis of the old lease, as the surrender was void for want of consideration, the mortgagees having no power to create a new tenancy with an extended period after notice to treat had been given. The new lease did not operate (jt?) But see the temporary provisions in the Increase of Rent and Mortgage Interest (Restrictions) Aot, 1920 (10 & 11 Geo. 5, c. 17), especially s. 5 (e). (q) Ex parte Nadin (1848), 17 L. J. Gh. 421; R. v. London and Southampton Mail. Go. (1839), 10 A. & E. 33; Syers v. Metropolitan Board of Works (1877), 36 L. T. 277; Ex parte Merrett (1859), 2 L. T. 471; R. v. Poulter (1887), 20 Q. B. D. 132; 57 L. J. Q. B. 138; of. R. v. Rochdale Improvement Com- missioners (1856), 2 Jur. N. S. 861. (r) 11 Geo. 4,0. lxx. s. 19; Exitparte Farlow (1831), 2 B. & Ad. 341; Ex parte Wright (1831), 2 B. & Ad. 348; R. v. Hungerford Market Co., Ex parte Gosling (1833), 4 B. & Ad. 596. («) Of. Lynch v. Glasgow Corporation (1904), 5 F. 1174 (Ot. of Sess.). (<) (1865), 34 L. J. Oh. 373. 124 COMPENSATION FOE, LANDS PURCHASED. as an absolute surrender of the old lease and consequently the old lease was not void (m). Compensation A mere expectancy, however reasonable, of renewal of a lease °egll orequit- w ^ nofc constitute an interest (x), even if it has led the claimant to able interest expend money on the lands taken (y). But an equitable right to a lease is to be taken into account (z). A mere personal right, not attached as a right to lands taken, is not a matter to be taken into consideration in assessing purchase-money (a) . An a'greement with respect to the use of an office, unless it constitutes a tenancy in law (6) or equity, gives no title to compensation under the Lands Clauses Acts. An agreement " granting and letting " the exclusive right for a term of years to supply refreshments in a theatre with the use of cloakrooms and cellars is not an interest in land which can form the subject of compensation under the Lands Clauses Acts (c) . A right of pre-emption by the owners of lands over adjoining land has been held a personal right only (a) . Effect of "When lands are held subject to special covenants, such covenants, nante C ° Ve ~ s0 ^ ar as ^ ne y an=ect the value of the owner's interest in such lands, must be considered in assessing the amount of compensation pay- able to him. An assessing tribunal is not called upon to deter- mine how such covenants shall be construed, and has only to settle compensation on the basis that the construction of such covenants is rightly stated in the claim made. In Penny v. Penny (d), leasehold premises were to be held by tenants at a low rent so long as they continued to carry on a certain business, and, in the event of their not doing so, the remainder of the term in the lease was to vest in other parties. A notice to treat was given to such other parties, who claimed the whole value of the premises for the remainder of the lease, and were awarded 8,222/!. The tenants submitted their claim to arbitration, and were awarded '4,070Z. It was held that the tenants were entitled (u) Zich v. London United Tramways, Limited, [1908] 2 K. B. 126. (x) Lynch v. Glasgow Corporation (1904), 5 P. 1174 (Ct. of Sess.). (y) R. v. Liverpool, 4-0. Sail. Co. (1835), 4 A. & E. 650. 0) Sweetman v. Metropolitan Bail. Co. (1863), 1 H. & M. 543. (a) Clout v. Metropolitan and District Bail. Cos. (1883), 48 L. T. 257. (6) Municipal Freehold Land Co. v. Metropolitan, §c. Bail. Cos. (1883), 1 Cab. & El. 184. (c) Frank Warr # Co. v. London County Council, [1904] 1 K. B. 713; 73 L. J. K. B. 362; cf. Edwardes v. Barrington (1902), 85 L. T. 650. 00 (1868), L. R. 5 Eq. 227; 37 L. J. Ch. 340. COMPENSATION FOB LANDS PURCHASED. 125 to tho interest in respect of which they had claimed ; but that the other parties had claimed too much, and that their interest must be re-assessed and a deduction made for the contingency, that by a continuance of the existing tenancy they would only receive the low rent then paid by the tenants. It was clearly necessary that a re-assessment should be made. The value of the premises, subject to the contingency in question, could not be arrived at by deducting 4,0701. from 8,222Z., since the measure of benefit received from a covenant by one party cannot be taken as the measure of loss suffered under the same covenant by the other party. Some covenants might be equally beneficial or equally disadvantageous to both covenantor and covenantee (e). A restrictive covenant that a tenant during his' term is not to sell beer other than that purchased of his landlord, enhances, or may enhance, the value of the premises to the landlord, and should be taken into consideration in the assessment of the amount of compensation due to him for loss incurred through the taking of the premises (/). A lease contained a proviso that in case any part of the land should be compulsorily taken the lessor might enter and repossess it. Part of the land having been compulsorily taken, it was held that the claimant (the lessor) was entitled to the benefit of the covenant and to the commercial value of the land taken as freed from the lease (g). A right reserved to a lessee in a mining lease to sink a pit or pits through some part of the surface land under which minerals had been demised to him entitles the lessee to claim 'compensation although the position of such pit or pits is subject to the reasonable approval of the lessor, his heirs, or assigns (h) . Interference with the benefit of a restrictive covenant is a ground for a claim for compensation under section 68 by the owner of the land for the benefit of which the restriction is imposed (i), but the covenantee cannot maintain an action for breach of the covenant (k) . (e) Brandon v. Brandon (1864), 34 L. J. Oh. 333. (/) Bourne v. Mayor of Liverpool (1863), 33 L. J. Q. B. 15; In re Chandler's Wiltshire Brewery Co. and London County Council, [1903] 1 K. B. 569; 72 L. J. K. B. 250. {g) In re Morgan and London "and North Western Mail. Co., [1896] 2 Q. B. 469; 66 L. J. Q. B. 30. (h) In re Masters and Great Western Bail. Co., [1901] 2 K. B. 84; 70 L. J. K. B. 516. (*) Long Eaton Recreation Grounds Co. v. Midland Rail. Co., [1902] 2 K. B. 574; 71 I-. J. K. B. 837. (A) Kirby v. Harrogate Suhool Board, [1896] 1 Ch. 437; 65 L. J. Ch. 376; Manchester, Sheffield and Lincolnshire Rail. Co. v. Anderson, [1898] 2 Ch. 394; 67 L. J. Ch. 568. 126 COMPENSATION FOE LANDS PURCHASED. Promoters cannot exercise power to vary cove- nants. Covenants inconsistent with statu- tory powers. If not ineon- Tho promoters cannot, on acquiring the interests of a landlord or a superior, exercise the powers of varying or putting an end to special covenants, which such landlord or superior has reserved, in order to lessen or take away the claims of a tenant to compensation. Where a company, having acquired the interest of the landlord, gave notice to take part of a clay field, any portion of which the landlord was entitled to reserve at his pleasure, it was held that the tenant was entitled to compensation, and that the occupation of the company was attributable to their statutory powers, and could not be ascribed to an exercise of the powers which the land- lord had reserved (I). When the exercise of compulsory powers produces results incon- sistent with the restrictions contained in a covenant, the party who would be benefited by such restrictions cannot claim damages against the covenantee in respect thereof, since " Lex non cogit ad impossibility,"; and a lessee holding under a lease containing cove- nants restricting his right to assign without the licence of the lessor, is entitled to treat with and make title to a railway company in respect of any part of the lands comprised in the lease without obtaining the licence of the lessor or his assent to an apportion- ment of the. rent reserved (m), as section 119 of the Lands Clauses Act, 1845 (»), provides for the apportionment. In the case of Baity v. De Crespigny (o), Hannen, J., points out in his judgment that the plaintiff could have no claim for compensation against the railway company in respect of the loss suffered by him through breach of the covenant in question. This dictum must be limited to the case where the damage complained of was damage merely to .adjoining property; if the restrictive covenant had given an increased value to the reversioner's interest in the lands taken, he would have been entitled in respect thereof to increased compen- sation (p). When the performance of a covenant is not rendered impossible (I) Solway Rail. Co. v. Jackson (1874), 1 Rettie (Sc), 831; Fleming v. Newport Rail. Co. (1883), 8 App. Cas. 265; cf. In re Masters and Great Western Rail. Co., [1901] 2 K. B. 84; 70 L,. J. K. B. 516. (m) Slipper v. Tottenham and Hampstead Rail. Co. (1867), L>. R. 4 Eq. 112; 36 L. J. Ch. 841. (») Post, p. 298. (o) (1868), L. R. 4 Q. B. 180; 3S L. J. Q. B. 98; and see Matthey v. Curling (1922), 38 Times L. R. 475. (p) Penny v. Penny (1868), E, R. 5 Eq. 227; 37 L. J. Ch. 340; Bourne v. Mayor of Liverpool (1863), 33 Ii. J. Q. B. 15. COMPENSATION FOR LANDS PURCHASED. 127 through the exercise of statutory powers, existing liabilities on such sistent they . „ / s continue in covenant continue in force (q). force. Where under the terms of his lease a lessee voluntarily gives a Lessee giving notice to terminate his lease, he is no longer entitled to recover termine lease, compensation on the footing of the full term in the lease (r). In the assessment of compensation for land taken for railway Accommoda- purposes it may usually be assumed that proper accommodation works, where lands have been severed, will be agreed or deter- mined by justices under sections 68 and 69 of the Railways Clauses ■Consolidation Act, 1845 (s). Under these sections justices have only power to order accommodation works in reference to the present uses of the lands (t). When, therefore, land used for agriculture has a prospective value for building purposes, the com- pensation tribunal, valuing it as building land, should estimate the damage for severance, as if access had been cut off; since the justices, under sections 68 and 69 of the Railways Clauses Con- solidation Act, 1845, could only order accommodation works in reference to the land as then used for 'agriculture, and these would he useless as an access to building land (u) . If the promoters are empowered to acquire, and do acquire Mines and mines and minerals under the surface of the ground, their value mmera s - must be ascertained and paid for, on the same principles as apply to the surface lands. The word "lands" in the Lands Clauses Act, 1845, includes mines, and, apart from special statutory provisions or special agreement, the owner of mines under lands entered upon by the promoters for the purposes of their under- taking, can compel the promoters to take proceedings for the assessment and payment of their value (x) . The Railways Clauses (?) Mills v. East London Union (1872), L. R. 8 O. P. 79; 42 L. J. C. P. 46; Wainwright v. Ramsden (1839), 5 M. & W. 602. (r) R. v. Poulter (1887), 20 Q. B. D. 132; 57 L. J. Q. B. 138. (s) Appendix, pp. 450, 451'. (0 R. v. Fisher (1862), 32 L. J. M. O. 12; R. v. Brown (1867), L. R. 2 Q. B. 630; 36 L. J. Q. B. 322; Great 'Northern Rail. Co. v. McAlister, [1897] 1 It. R. 587; Great Western Rail. Co. v. Talbot, [1902] 2 Oh. 759; 71 L. J. Ch. 835; but see also South Eastern Rail. Co. ir. Associated Portland Cement Manufacturers (1900), Ltd., [1910] 1 Oh. 12. («) R. v. Brown (1867), L. R. 2 Q. B. 630; 36 L. J. Q. B. 322; Rhondda and Swansea Rail. Co. v. Talbot, [1897] 2 Ch. 131; 66 L. J. Ch. 570. (a) Errlngton v. Metropolitan District Rail. Co. (1882), 19 Ch. D. 559; 51 L. J. Oh. 305; of. Midland Rail. Co. v. 'Robinson (1890), 15 App. Cas. 19, 35, ■per Lord Maenaghten; 59 L. J. Oh. 442; Great Western Rail. Co. vl. Bennett !28 COMPENSATION FOR LANDS PURCHASED. Consolidation Act, 1845 (y), and the Waterworks Clauses Act, 1847 (2), and the greater number of the Canal Acts, contain special provisions relating to mines and minerals, and similar provisions will be found in numerous private Acts where the nature of the undertaking renders them applicable (a). But the construction of such provisions will depend upon the particular terms of the special sections (b), and there may be a distinction between sub- jacent and merely adjacent minerals (c). In purchasing lands required for the construction of works of a public character, it is for the most part unnecessary — at least, in the first instance — to purchase the mines and minerals under the surface (d) ; but, unless the provisions of a general Act apply to the undertaking in ques- tion, the promoters should insert such provisions in their special Act as are necessary for their protection. Right to jf ^g incorporating Act contains no specific provisions for adjacent dealing with mines and minerals, then, although the mines and suppor . minerals are not purchased or taken, the promoters acquire the ordinary rights of a purchaser to subjacent and adjacent, support, in (reference to the purposes for which the surface land has been purchased (e) ; and so far as the value of the mines and minerals is thereby diminished to the owner, the loss should be assessed and (1866), L. R. 2 H. L. 27; 36 L,. J. Q. B. 133. In ca 3 63 under s. 121 (ante, p. 68) the owner can initiate a claim: Caledonian Rail . Co. \ . Davidson, [1903] A. C. 22. (y) Appendix, p. 452. (c) Appendix, p. 463. (a) Dudley Canal Co. v. Grazebrooh (1830), IB. i: Ad. 59, distinguished in 1 Knowles § 8om v. Lancashire and Yorkshire Rail . Co. (1889), 14 App. Cas. 248; London and North Western Rail. Co. v. Walker, [1903] A. C. 289; 72 L. J. K. B. 578; Rugby Portland Cement Co. v. London and North Western Mail. Co., [1908] 2 K. B. 606. (b) Cromford Canal Co. v. Cutis (1848), 5 Rail. Cas. 442; Knowles § Sons v. Lancashire and Yorkshire Rail. Co. (1889), 14 App. Cas. 248; London and North Western Rail. Co. v. Walker, [1903] A. C. 289; 72 L. J. K. B. 578; Rugby Portland Cement Co. v. London and North Western Rail. Co., [1908] 2 K. B. 606; Linlithgow (Marquess) v. North British Rail. Co., [1914] A. C. 820. (c) Chamber Colliery Co. v. Rochdale Canal Co., [1895] A. C. 564; 64 L.J. Q. B. 645; New Moss Colliery Co. v. Manchester, Sheffield and Lincolnshire Rail. Co., [1897] 1 Ch. 725; 66 L>. J. Ch. 381; Rugby Portland Cement Co. v. London and North Western Rail. Co., [1908] 2 K. B. 606; Linlithgow (Marquess) v. North British Rail. Co., [1914] A. C. 820. (d) In re Ituddersfield Corporation and Jacomb (1874), L. R. 10 Ch. 92; 44 L. J. Ch. 96. (e) Vide ante, p. 95. COMPENSATION FOR LANDS PURCHASED. 129 compensation should be given. In other words, if the nature of the works, for the purposes of which surface lands are taken, is such as to impose more than the customary restrictions on the working of the minerals by the owner, and thereby to diminish the value to him of his interest in the mines, the assessment of the value of the lands should include the loss to the owner from the diminution of the value of his interest in the mines situate under the lands taken (/). If it could be shown that the Act under which the surface land was taken did not allow of compensation being claimed for the loss occasioned to the mine owner, therle would be a strong argument against the legislature having intended to give a right of support, but it is scarcely probable that in practice such a case would arise (g) . Where an adjacent mine owner, instead of initiating proceedings to ascertain the amount of compensation payable to him for inter- ference with his right of working minerals proper to be left for the security of a canal or the mine, works the minerals, and thereby damages the canal, he is liable in damages (h). This principle would be modified where the private Act creates a special relation- ship as between the mine owner and the company (i) . It was decided in the case of Caledonian Rail. Co. v. Sprot (k), that where there are no special enactments altering the relationship between the parties, an owner who sells land for the construction of works authorized by Parliament upon it, impliedly sells all neces- sary support, both subjacent and adjacent, which is required for the purpose of supporting such works, and cannot, by reason of his (/) London and North Western Sad. Co. v. Evans, [1893] 1 Ch. 16; 62 L. J. Oh. 1; Glamorganshire Canal Co. v. Nixon's Navigation Co. (1901), 85 L. T. 53; Clip-pens Oil Co. v. Edinburgh, #c. Water Trustees, [1904] A. C. 64; 73 L. J. P. C. 32; Jury v. Barnsley Corporation, [1907] 2 Ch. 600. (g) Metropolitan Board of Works v. .Metropolitan Bail. Co. (1868), L. II. 3 O. P. 612; 4 C. P. 192; 32 L. J. C. P. 281. (h) Knoivles # Sons v. Lancashire and Yorkshire Rail. Co. (1889), 14 App. Cas. 248; Cromford Canal Co. v. Cutis (1848), 5 Rail. Cas. 442. (0 Dudley Canal Co. v. Grazebroolc (1830), IB. t Ad. 59. (A) (1856), 2 Macq. H. L. (Sc.) 449; Elliot v. North Eastern Rail. Co. (1863), 10 H. L,. C. 333; 32 L. J. Ch. 402; North Eastern Rail. Co. v. Crosland (1863), 32 L. J. Oh. 353; In re Corporation of Huddersfield and Jacomb (1874), L. R. 10 Ch. 92; 44 D. J. Ch. 96; In re Corporation of Dudley (1881), 8 Q. B. D. 86; 51 L. J. Q. B. 121; cf. Consett Waterworks Co. v. Ritson (1889), 22 Q. B. D. 318, 702; Gfytt Western Rail. Co. v. Cefn Cribbwr Brick Co., [1894] 2 Ch. 157; 63 L. J. Oh. 500; North British Rail. Co. v. Turners, Ltd. (1904), 6 F. (Ot. of Seas.) 900. c. 9 130 COMPENSATION FOR LANDS PURCHASED. having reserved the mines, derogate from his own conveyance by removing that support. This obligation results from the position into which the parties have placed themselves by their contract (I). When the sale of the surface lands does not diminish in any way the right of the owner to work the minerals under the surface in the manner usual in the district, the owner in respect of such minerals suffers no loss, and is entitled to no compensation. Provisions as i n j n re Corporation of Dudley (m), it was held that the Public Health Act, 1875 (38 & 39 Vict. c. 55), imposes on landowners, through whose land a sewer is run under that Act, an obligation to preserve to the sewer subjacent support, and gives them a right to immediate compensation for being deprived of the power to work subjacent mines, but not for the risk of percolation of sewage into subjacent mines. The question of lateral support did not arise in this case, but it was decided on the general rule of law that where the legislature gives power to a public body to do anything of a public character, the legislature means also to give to the public body all rights without which the power would become unavailable, although such a meaning cannot be implied in relation to circum- stances arising accidentally only. The effect of this decision was to throw on local authorities proceeding under the Public Health Act, 1875, an obligation to pay compensation in the first instance for interference with mineral rights where such rights could not be exercised without affecting the necessary subjacent support to a sewer. Hence was passed the Public Health Act, 1875 (Support of Sewers) Amendment Act, 1883 (46 & 47 Vict. c. 37) (n), which applies (o) to local authorities the provisions (p) of the Water- works Clauses Act, 1847, with respect to mines, and defines the expression " support " to include vertical and lateral support. The effect is that (except in cases where the saving clause (section 5) of the Act of 1883 applies (q)) the local authority under the Public Health Acts, 1875 to 1907, is not bound to acquire, in the first instance, vertical or lateral support, and the necessity of making (l) Birmingham, §e. Banking Co. v. lioss (1888), 38 Ch. D. 295, 308; 57 L. J. Ch. 601; Rigby v. Bennett (1882), 21 Ch. D. 559. (m) (1881), 8 Q. B. D. 86; 51 L. J. Q. B. 121; discussed in Jary v. Bamsley Corporation, [1907] 2 Ch. 600. («) Appendix, p. 512. (o) S. 3. G») Ss. 18—27. (g) Jary v. Bamsley Corporation, [1907] 2 Ch. 600. COMPENSATION FOE, LANDS PURCHASED. 131 compensation does not arise until it is proposed to work the mines in question in such a manner as to affect the vertical or lateral support necessary for the maintenance of the sewer. The case of Metropolitan Board of Works v. Metropolitan Rail. Co. (r) is not inconsistent, since it was held under the special statute that the local authority had not by prescription or under the special Act acquired a right of lateral support, and were therefore not entitled to recover compensation. If in this case an easement had been acquired, the claim for compensation could have been maintained (s). In the case of railways which are constructed under the pro- In case of visions of the Railways Clauses Consolidation Act, 1845, it has Waterworks a been held that within the limits prescribed by section 78 of the specific law. Act the statutory purchaser cannot claim the benefit of the right of an ordinary purchaser of the surface to subjacent and adjacent support, the statute having created a specific law for such matters by which alone the rights of the company and the mine owners are regulated (t). "The relation so established between seller and purchaser in regard to all minerals which may be held to be ex- cepted is clearly defined, useful to the promoters, and at the same time fair and just to the mine owner. The latter, who is forced to part with the surface of his land and all uses for which it is available, is not compelled to sell his minerals whilst he is not in a position to ascertain their marketable value or the impediments which might be occasioned to the convenient working of his mineral field by his parting with a strip which intersects it. On the other hand, those who deprive him of the right to a portion of the surface and its uses by compulsory purchase enjoy the benefit of subjacent and adjacent support to their works without payment so long as the minerals below or adjoining these works remain undis- turbed; but it is upon the condition that if they desire such support to be continued they must make full compensation for value and intersectional damage whenever the minerals required for that (r) (1868), L. R. 3 C. P. 612; 4 C. P. 192; 37 L, J. C. P. 281. (s) North London Bail. Co. v. Metropolitan Board of Works (1859), 28 L. J. Oh. 90S; In re Pettiward and Metropolitan Board of Worlcs (1865), 34 L. J. C. P. 301. (*) Great Western Rail. Co. y. Bennett (1866), D. P.. 2 H. L. 27 ; In re Lord Gerard and London and North Western Rail. Co., [1895] 1 Q. B,. 459: the fasciculus of sections in question (ss. 77 — 85) has been referred to as a " new code." 9(2) 132 COMPENSATION FOE LANDS PURCHASED. purpose are approached in working and would in due course be wrought out" (m). Similar considerations would apply to water- works or any undertaking carried out under similar powers (x). As between vendor and vendee, however, the mining sections' (sections 77 — 85) of the Railways Clauses Consolidation Act, 1845 r so far as support is concerned, do not apply to mines outside the prescribed limit; consequently, as between a vendor of land to a railway company and the railway company, upon a purchase subject to those sections, the railway company enjoys a natural right of support for its railway from minerals belonging to the vendor lying under other lands outside the prescribed limit {y) ; and where there is authority but no compulsory power to purchase, land so purchased carries with it all the common law right of support both subjacent and adjacent (2), even though there may be an obligation on the mine-owner to comply with some of the Statutory provisions (0) . Mines under j± ra ilway company purchasing under the Railways Clauses Consolidation Act, 1845, land for the purposes of a railway does not become entitled to the mines under such land. The owner may work them after notice given under the terms of the statute up to and under the railway according to the usual manner of working such mines in the district, unless the company give compensation for the minerals. A purchaser from a railway com- pany has no greater rights to the support of the surface land than the railway company from whom he has derived his title,, and the- owner, lessee, or occupier of the mines and minerals has a right to work the same according to the manner usual in the district,, although such working may let down the surface (a) . An owner who has granted to a railway company the right to make and maintain a tunnel through his land, has the same rights as to working the mines as if the company had actually purchased («) Lord Provost, 4-0. of Glasgow v. Farie (1888), 13 App. Cas. 657, at p. 675, per Lord Watson, quoting Lord Westbury in Great Western Sail. Co., v. Bennett (1867), L. E. 2 H. L. 27, at p. 42; cf. Great Western Hail. Co.f. Fletcher (1860), 29 L. J. Ex. 253. (3) Cf. Bolliday v. Mayor, §0. of Wakefield, [1891] A. C. 81; 60 L. J. ft. B. 361; post, p. 134; Earl of Carlisle v. Northumberland C. 0. (1911), 105 L. T. 797. (y) Howley Park Coal and Cannel Co. v. London and North Western Sail. Co., [1913] A. O. 11. (s) New Moss Colliery, Ltd. v. Manchester Corporation, [1908] A. C. 117. The decision in this ease had reference to the Waterworks Clauses Act, 1847. (a) Poimtney v. Clayton (1883), 11 Q. B. D. 820; 52 L. J. Q. B. 566. COMPENSATION FOR LANDS PURCHASED. 133 the land(£>). Where an owner gives notice under section 78 of Notice by the Railways Clauses Act, 1845, of his intention to work minerals intention to within the prescribed distance, and the company is willing to work make compensation, the provisions of the Lands Clauses Acts are applicable in assessing the amount: on the other hand, if the claim is made exclusively under section 81, the amount would be settled not under the Lands Clauses Acts but by arbitration (e) . A notice under section 78 is not valid unless there is at the time Must be an honest actual existence of the desire to work either by the on ^ "' owner or the lessee (d) . Where a company give a counter notice requiring the mine- Counter owner not to work, and stating their willingness to make compen- sation, there is not a purchase of the mines or minerals, or a transfer of the property in the mines or minerals (e) ., The compensation should be assessed not on the value of the minerals at the date of the counter notice, but on the amount which the mineral owner would have made out of the minerals during the time it would have taken him to get them if he had not been prohibited from working by the service of the counter notice (/) . In the ordinary way this will be the price the minerals would fetch as and when won and raised, less the cost of working the mine, winning and raising them (g) . But where the minerals have no market value in the strict sense their value may be what the owner might fairly be expected to have made out of them by working them in the ordinary and reasonable manner in his own business ; the value is not affected by the fact that the claimant owns large quantities of other similar minerals which he might have worked instead (h) . The arbitrator (b) London and North Western Rail. Co. v. Achroyd (1862), 31 L. J. Ch. 588. (o) R. v. London and North Western Rail. Co., [1894] 2 Q. B. 512; 63 L. J. •Q. B. 695. (d) Midland Rail. Co. v. Robinson (1890), 15 App. Cas. 19, at p. 32; 59 L. J. Ch. 442; cf. Dixon v. Caledonian Rail. Co. (1880), 5 App. Cas. 820; North British Rail. Co. v. BudhUl Coal and Sandstone Co., [1910] A. C. 116. («) Great Northern Rail. Co. v. Inland Revenue Commissioners, [1901] 1 K. B. 416- 70 L. J. K. B. 336. The promoters cannot call for a conveyance: Hamilton's {Duke) Trustees v. Caledonian Rail. Co. (1905), 7 E. 847. (/) In re Bwllfa and Merthyr Dare Collieries Co. and Pontypridd Water- works Co., [1903] A. O. 426; 72 L. J. K. B. 805. Fletcher v. Lancashire and Yorkshire Rail. Co., [1902] 1 Ch. 901, was decided on the special terms of a private Act. For the method of distribution of the compensation between a tenant for life and a remainderman, vide post, p. 258. (owers, and which they require for the purposes of their undertaking (z) . They can purchase mines when purchasing the surface, or, if they have purchased the surface first, there is nothing to prevent them giving a subsequent notice to treat for mines or minerals. The com- pany, so long as they act bond fide, are judges as to whether the mines they propose to purchase are required for their under- taking (a). The expression " mines of coal, ironstone, slate or other minerals," in section 77 of the Railways Clauses Act, 1845, and section 18 of the Waterworks Clauses Act, 1847, and the words "mines or minerals " in section 78 of the Railways Clauses Act, 1845, and section 22 of the Waterworks Clauses Act, 1847, include not only beds and seams of minerals got by underground working, but also such as can only be worked, and according to the custom of the district would be properly worked, by open or surface operations (b). The words "mines of" have relation not only to the word "coal," bu,t to the words "ironstone, slate or other minerals" also (c). The meaning of the words "other minerals" was for many years the subject of a number of contradictory decisions (d), (y) Duke of Hamilton's Trustees v. Caledonian Sail. Co. (1905), 7 F. 847. (s) Birmingham Canal Co. v. Cartivright (1879), 11 Ch. D. 421; 48. L. J. Oh. 552. (a) Errington v. Metropolitan District Bail. Co. (1882), 19 Ch. D. 559; 51 L. J. Ch. 305; Stockton and Darling ton Rail. Co. v. Broun (1860), 9 H. L. 0. 246. (6) Midland Mail. Co. v. Robinson (1889), 15 App. Cas. 19; 59 L. J. Ch. 442; Ruabon Brick and Terra Cotta Co. v. Great Western Rail. Co., [1893] 1 Ch. 427; 62 L. J. Ch. 483. (c) Lord Provost, §o. of Glasgow v. Farie (1888), 13 App. Cas. 657, at pp. 676, 683, 686; 58 L. J. P. C. 33; Midland Rail. Co. v. Robinson (1890), 15 App. Cas. 1», at pp. 27, 33; 59 L. J. Ch. 442. (d) North British Rail. Co. v. Budhill Coal and Sandstone Co., [1910] A. C. 116 (sandstone), per Loreburn, L. C, at p. 125; the several interpretations which have been suggested are set out and discussed in Lord Gorell's judgment at COMPENSATION FOR LANDS PURCHASED. 137 and the proper test to be applied was not finally laid down till the decisions of the House of Lords in North British Rail. Co. v. Budhill Coal and Sandstone Co. (d), Great Western Rail. Co. v. Carpalla United China Clay Co., Ltd. (e), Caledonian Rail. Co. v. Glenboig Union Fireclay Co. (/). In the latter case the prin- ciple of the decision in the Budhill and Carpalla cases is set out by Lorebum, L. C, as follows : — " The Court has to find what the parties must be taken to have bought and sold respectively,, re- membering that no definition of "minerals" is attainable, the variety of meanings which the use of the word " minerals " admits of being itself the source of all the difficulty. It must be taken that what the railway company intended to get and the landowner intended to give was the land under the line, for the object was to give, not a wayleave, but a support. I say this speaking^ generally. Upon the other hand, if anything exceptional in use, character, or value was thereunder, that was reserved, jDrovided it could be included under the word " minerals " as understood in the vernacular of the mining world, and the commercial world, and the landowner." Whether any particular substance is included in the term " minerals " is a question of fact in each case (g). p. 130. The earlier cases are as follows: — Midland Rail. Co. v. Checldey (1867), L. R. 4 Eq. 19 (stone); Jamieson v. North British Rail. Co. (1868), 6 S. L, R. 188 (sandstone); Dixon v. Caledonian Rail. Co. (1880), 5 App. Cas. 820 (lime- stone) ; Errington v. Metropolitan District Rail. Co. (1882), 19 Ch. D. 559 . 128, in the Bitdhill case, supra. (k) Per Loreburn, L. C, at p. 299, in the Glenboig case, supra. (0 R. v. Leake (1833), 5 B. & Ad. 469; Swindon Waterworks Co. v. Wilts and Berks Canal, $c. Co. (1875), L. B. 7 H. L. 697; 45 L. J. Ch. 638 ; Bonner v. Great Western Sail. Co. (1883), 24 Ch. D. 1; Bayley v. Great Western Mail. Co. (1884), 26 Ch. D|. 434, 456; Grand Junction Canal Co. v. Petty (1888), 21 Q. B. D. 273; 57 L. J. Q. B. 572; Foster v. London, Chatham and Dover Mail. Co., [1895] 1 Q. B. 711; 64 L. J. ,Q. B. 65; In re Gonty and Manchester, Sheffield and, Lincolnshire Rail. Co., [1896] 2 Q. B. 439; 65 L. J. Q. B. 625; Att.-Gen. v. Teddington Urban District Council, [1898] 1 Ch. 66; 67 L. J. Oh. 23; Att.-Gen. v. Hanwell Urban District Council, [1900] 2 Ch. 337; 69 L. J. Ch. 626; cf. post, pp. 304, 339; Att.-Gen. v. Pontypridd U. D. C, [1906] 2 Ch. 257. (m) Midland Rail. Co. v. Great Western Rail. Co., [1909] A. C. 445; adopting the dictum of Lord Blackburn in Tiverton, #c. Rail. Co. v. Loosemore (1884), 9 App. Cos. 480, at p. 499. («) Bobbett v. South Eastern Rail. Co. (1882), 9 Q. B. D. 424; 51 L. J. Q. B. 161; Norton v. London) and North Western Rail. Co. (1879), 13 Ch. D. 268; cf. London and South Western Rail. Co. v. Gomm (1882), 20 Ch. D. 562, 585; 51 L. J. Oh. 530. (o) Midland Rail. Co. v. Wright, [1901] 1 Ch. 738; 70 L. J. Ch. 411. COMPENSATION FOR LANDS PURCHASED. 139- The ordinary rules as to payment of interest on purchase-money Interest apply when lands are acquired under statutory powers. If a date purchase"" is fixed for the completion of the purchase, interest at four per money, cent, will become payable from such date ; but if no date is fixed, and the vendor has shown his title, the promoters pay interest from the time at which they might prudently have taken posses- sion, supposing it to have been offered them ; that is, the time when a good title was shown (p) . When the land is subject to mortgage, interest is payable to the mortgagee in lieu, of notice (g) . In the case of In re Eccleshill Local Board (r), it was held that interest on purchase-money was payable from the date on which the verdict of a jury assessing its amount had been given. The principle of this decision is inconsistent with that of Jessel, M. B,., in In re Pigott and Great Western Rail. Co. (s), and this latter case is the one which would probably be followed (t). Interest on purchase-money ceases from the date of payment of the amount into Court, where the payment is made in accordance with the obligations of the Lands Clauses Acts (w) . If the promoters have entered into the possession of lands under Where pro- section 85 of the Lands Clauses. Act, 1845, interest at the rate of motels } n ' ' possession. five per cent, is payable from the date of entry, until the purchase- money or compensation has been paid. In all other cases in which the promoters enter on lands before the payment of the purchase-money, they are liable to pay interest at the rate of four per cent, from the time of entry, in accordance with the ordinary practice which regulates the liability of a purchaser to a vendor (x), taking into account, in the case of enfranchisement, any amounts (p) In re Pigott and Great Western Rail. Co. (1881), 18 Ch. D. 146; 50 L. J. Ch. 679; Sinks v. Lord Rokeby (1818), 2 Swanst. 222; cf. Catling v. Great Northern Sail. Co. (1869), 21 L. T. 769. () R. y. Vestry of St. Luke's, Chelsea (1871), L. R. 6 Q. B. 572, 576; 7 Q. B. 148, 152; 41 L. J. Q. B. 81; Ferrar v. Commissioners of Sewers (1869), L. R. 4 Ex. 1, 227; 38 L. J. Ex. 102; cf. Caledonia.n Sail. Co. v. Walker's Trustees (1882), 7 App. Oas. 259; Harpur v. Swansea Corporation, [1913] A. C. 597, «07. 10(2) 148 COMPENSATION FOR LANDS INJURIOUSLY AFFECTED. pensation for injury done, and that no further substantive provision would be required (t) . The words "injuriously affected" only include losses of a certain kind. General principle. 1. Where no Lands are taken. Compensation, where no lands of the same owner are purchased or taken, is not given by the Lands Clauses Consolidation Act, 1845, or other similar Acts, for all the loss or damage which pro- moters inflict upon an owner. When no land has been taken, the words "injuriously affected," or words of similar import, are limited to loss or damage under the following heads : — 1 . The damage or loss must result from an act made lawful by the statutory powers of the promoters. 2. The damage or loss must be such as would have been action- able but for statutory powers. 3. The damage or loss must be an injury to lands, and not a personal injury, or an injury to trade. 4. The damage or loss must be occasioned by the construction of the authorized works, and not by their user. These principles apply equally to cases under the Lands Clauses Act, 1845, s. 68, the Railways Clauses Act, 1845, as. 6, 16 (u), the Public Health Act, 1875, s. 308 (x), and the Waterworks Clauses Act, 1847, ss. 6, 12, save that in the case of this latter Act injurious affection covers damage or loss occasioned by the maintenance as well as by the construction of the authorized works (y) . For the sake of clearness each of these four heads is dealt with separately ; but when it is desired to ascertain whether and how far lands have been injuriously affected, it is sufficient as a general principle to determine, when the decisions have been analysed, (t) Ferrar v. Commissioners of Sewers (1869), L. R. 4 Ex. 1, 227; 38 L. J. Ex. 102; R. v. Vestry of Si. LuJee's, Chelsea (1871), L. R. 6 Q. B. 572; 7Q.B. 148; 41 L. J,. Q. B. 81; dictum of Willes, J., in McCarthy v. Metropolitan Board of Works (1872), L. R. 7 O. P. 508, at p. 516; 42 L. J. C. P. 81; Broadbeni v. Imperial Gaslight Co. (1857), 26 L. J. Ch. 276 (C. A.); (1859), 7 H. L. O. 600; 29 L. J. Oh. 377 (H. L.); Kirby v. Harrogate Sohool Board, [1896] 1 Oh. 437; 65 L. J. Ch. 376. («) Richet v. Metropolitan Rail. Co. (1867), L. R. 2 H. L. 175; 36 L. J- Q. B. 205; Hammersmith Rail. Co. v. Brand (1869), L. R. 4 H. L. 171; 38 L. J. Q. B. 265; cf. Holditch v. Canadian Northern Ontario Rail. Co., [1916] 1 A. O. 536. (a;) Hall v. Bristol {Mayor, $o. of) (1867), L. R. 2 C. P. 322; Brierley Bill Local Board v. Pearsall (1884), 9 App. Oaa. 595; 54 L. J. Q. B. 25. (y) Fletcher v. Birhenheid Corporation, [1907] 1 K. B. 205; post, p. 160. COMPENSATION FOR LANDS INJURIOUSLY AFFECTED. 149 whether and how far any right recognized by law as incident to the ownership of land has been infringed by the construction of works made lawful by statute. It is obvious that an infringement of such a right would have been actionable but for the statutory powers. Where lands have been taken and compensation is sought for injury done to lands held therewith, the above limitations on the right to claim compensation have not the same application (2) . 1. Statutory compensation is given only for acts authorized to (i) Loss must be done in the exercise of statutory powers (a) . If an act which quenoe f an the promoters are authorized by law to do is done in a proper act made , , , , , . , . . lawful; manner, though the act so done works a special injury to a particular individual, the individual injured cannot maintain an action, and his only remedy is by compensation (6). If damage is caused by an act which, notwithstanding the statute containing or incorporating the compensation clause, is not made lawful, the remedy by action is not taken away, and is open to the person injured (c). Statutory powers must be exercised reasonably ; and when damage has been occasioned by an act done in excess of statutory powers or in a wanton or careless or unreasonable use of them, there is an injury for which the person injured can put in force the ordinary legal remedies (d) . Where compensation has to be assessed for all damage resulting from the construction or main- (z) Vide infra, p. 161. O) Caledonian Rail. Co. v. Colt (1860), 3 Macq. H. L. (So.) 833; Turner v. Sheffield and Rotherham Rail. Co. (1842), 10 M. & W. 425; Broadbent v. Imperial Gaslight Co. (1857), 26 L. J. Ch. 276; President, §0. of Colac v. ■Summerfield, [1893] A. C. 187; 62 L. J. P. C. 64. (S) East Fremantle Corporation v. Anmois, [1902] A. O. 213; 71 L. J. P. C. 39; Ash v. Great Northern, Piccadilly and Srompton Rail. Co. (1903), 19 Times L. R. 639. (c) Brine v. Great Western Rail. Co. (1862), 31 L. J. Q. B. 101; Clowes v. Staffordshire Potteries Waterworks Co. (1872), L. R. 8 Oh. 125; 42 L. J. Oh. 107. (d) London, Brighton and Smith Coast Rail. Co. v. Truman (1885), 11 App. Cas. 45, 61; 55 L. J. Oh. 354; Lawrence v. Great Northern Rail. Co. (1851), 20 L. J. Q. R. 293; Clothier v. Webster (1862), 31 L. J. C. P. 316; Brine v. Great Western Rail. Co. (1862), 31 L. J. Q. B. 101; Biscoe v. Great Eastern Rail. Co. (1873), L. R. 16 Eq. 636; Southwarh and Vauxhall Water Co. v. Wandsworth District Board of Works, [1898] 2 Ch. 603; 67 L. J. Ch. 657; Roberts v. Charing Cross, Euston and Hampstead Rail. Co. (1903), 87 L. T. 732; but see Martin v. London County Council (1898-9), 79 L. T. 170; 80 L. T. 866. 150 COMPENSATION FOR LANDS INJURIOUSLY AFFECTED. tenance of works, negligence is not material so long as the act done is not in excess of statutory powers (e). If compensation has been given for an act in excess of statutory powers, this may be pleaded in an action to enforce payment of the amount, but it does not follow that defective or careless work comes within this principle so as to disentitle a claimant to compensation (/) . If this defence is pleaded, it must be affirmatively proved (g) . Where the exercise of statutory powers necessarily causes damage, no action will lie (h). A railway company having purchased land adjoining one of their stations, and used it as a yard or dock for cattle traffic, it was held that the purpose for which the land was acquired and had been used was expressly authorized by statute, and that, the company having taken proper care in the management of their traffic, the adjoining owners were not entitled to an injunction to restrain the company from continuing the nuisance occasioned by the use of the cattle yard (i). A company acting under statutory powers is in the same position as a private individual acting within his own rights, and if the act is negligent there is liability by action (fc). (2) Loss must 2. An owner is not injuriously affected or entitled to compensa- but S f or statute ^on unle 86 the damage is such that, but for the statutory autho- would haye rity, it would have been actionable (I) . Since no action can be been action- able. (e) President, #o. of Colao v. Summerfield, [1893] A. C. 187; 62 L. J. P. C. 64. GO Uttley v. Todmorden Local Board (1874), 44 L. J. O. P. 19; Hornby v. Liverpool United Gas Co. (1883), 47 J. P. 231. (g) St. James' and Pall Mall E. L. Co. v. R. (1904), 73 L. J. K. B. 518. (h) R. v. Pease (1832), 4 B. & Ad. 30; Vaughan v. Taff Vale SoS. Co. (1860), 29 L. J. Ex. 247; Hammersmith, $o. Sail. Co. v. Brand (1869), L. E. 4 H. L. 171; 38 L. J. Q. B,. 265; Covjper Essex v. Local Board of Acton (1889), 14 App. Oas. 153; 58 L. J. Q. B. 594. (i) London, Brighton and South Coast Rail. Co. v. Truman (1885), 11 App. Cas. 45; 55 L. J. Ch. 354; Att.-Qen. v. Metropolitan Rail. Co., [1894] 1 Q. B. 384. (k~) Roberts v. Charing Cross, Emston and Hampstead Rail. Co. (1903), 87 L. T. 732. (0 Glover v. North Staffordshire Rail. Co. (1851), 20 L. J. Q. B. 376; Caledonian Rail. Co. v. Ogilvy (1856)i, 2 Macq. H. L. (Sc.) 229; Re Penny and South Eastern Rail. Co. (1857), 26 L. J. Q. B. 225; Ricket v. Metropolitan Rail. Co. (1867), L. R. 2 H. L.. 175; 36 L. J. Q. B. 205; Metropolitan Board of Works v. McCarthy (1874), L. R. 7 H. L. 243; 43 L. J. C. P. 385; Cale- donian Rail. Co. v. Walker's Trustees (1882), 7 App. Cas. 259; Fleming v. Newport Rail. Co. (1883), 8 App. Cas. 265; Mayor, $c. of Birkenhead v. London awl North Western Rail. Co. (1885), 15 Q. B. D. 572; 55 L. J. Q. B.48. actionable COMPENSATION FOR LANDS INJURIOUSLY AFFECTED. 151 brought where damage has resulted from the authorized use with- out negligence of statutory powers, the right to compensation is the substituted remedy which the legislature has provided (in) . Where a local authority had a general implied right of access to sewers, and such access had not been prevented, but only rendered less easy and convenient, it was held that there would have been no right of action by the local authority, supposing the company had not been protected by the powers of their Act, and that, con- sequently, no claim to compensation could be sustained (ri) . The limitations comprised under heads (3) and (4) show that not Bu .t compen- every kind of damage which, but for statutory powers, would have gi ve n for all been actionable, gives a claim to compensation (o) . If the damage complained of is a personal injury (p), or an injury to trade (q), or caused by the user and not by the construction of the authorized works (r), the mere fact, that but for the statute it would have been actionable, is not in itself sufficient to found a claim for compensa- tion. The user being made lawful by statute, no cause of action arises with respect to it, although, but for the statute, it might be actionable or an indictable nuisance (s). This principle does not apply where it is specially provided that the statutory powers shall not exonerate promoters from any indictment, action or proceeding (m) R. v. Pease (1832), 4 B. & Ad. 30; Vauglum v. Taf Vale Rail. Co. (1860), 29 L. J. Ex. 247; London, Brighton and South Coast Sail. Co. v. Truman (1885), 11 App. Gas. 45; 55 L. J. Ch. 354. (») Mayor, §c. of Birkenhead v. London and North Western Rail. Co. (1885), 15 Q. B. D. 572, at p. 578; 55 L. J. Q. B. 48; cf. Thurrock Grays and Tilbury Joint Sewerage Board v. Goldsmith (1914), 79 J. P. 17. (o) Caledonian Rail. Co. v. Ogih-y (1856), 2 Macq. H. L. (Sc.) 229, 235; M. v. Metropolitan Board of Works (1869), L. R. 4 Q. B. 358; 38 L. J. Q. B. 201. 00 Caledonian Rail. Co. v. Ogilvy (1856), 2 Macq. H. L. (Sc.) 229; Metro- politan Board of Works v. McCarthy (1874), L. R. 7 H. L. 243; 43 L. J. C. P. 385. (?) Ricket v. Metropolitan Rail. Co. (1867), L. R. 2 H. L. 175; 36 L. J. Q. B. 205. (r) Hammersmith Rail. Co. v. Brand (1869), L. R. 4 H. L. 171; 38 L. J. Q. B. 265. (s) R. v. Pease (1832), 4 B. & Ad. 30; Faughan v. Taff Vale Rail. Co. (1860), 29 L. J. Ex. 247; approved in Hammersmith Rail. Co. v. Brand (1869), L. R. 4 H. L. 171; 38 L. J. Q. B. 265; cf. London, Brighton and South Coast Rail. Co. v. Truman (1885), 11 App. Cas. 45; 53 L. J. Oh. 354; Cowper Essex v. Acton L. B. (1889), 14 App. Cas. 153; 58 L, J. Q. B. 594; Harrison v. Southwark and Vauxhall Water Co., [1891] 2 Ch. 409; 60 L. J. Ch. 630. 152 COMPENSATION FOR LANDS INJURIOUSLY AFFECTED. Application of this principle. (a) Structural sre. (b) Interfer- ence with easement or similar right. for nuisajioe in the event of any nuisance being occasioned by them (t). The application of this principle, or, in other words, the question whether the damage complained of in any particular case would have been actionable but for the statute, has given rise to a large number of decisions, which have established the following tests : — (a) When the subjacent or adjacent support, to which the owner of buildings is by law entitled, is interfered with, and structural damage is occasioned, such owner is subjected to a loss which, but for statutory powers, would have given him a right of action, and has a right to claim compensation (u) . (b) When an easement or similar right has been interfered with, the loss so occasioned would have been actionable but for statutory powers, and the owner has a claim to compensation. Interference with access to an ancient ferry attached to the claimant's land (a;), obstruction of a private road (,«/), or of access through a hall which the claimants were entitled to make use of in connection with their property (2), or of ancient lights (a), or diminution of the flow of water, to which a riparian owner has a prescriptive right (&), are matters for which compensation can be claimed. (7) Jordeson v. Sutton, $0. Gas Co., [1899] 2 Ch. 217; 68 L. J. Ch. 457; Colwell v. St. Pancras Borough Council, [1904] 1 Ch. 707; 73 L. J. Ch. 275. («) Metropolitan Board of Works v. MoCarthy (1874), L. R. 7 H. L. 243; 43 L. J. O. P. 385. All the cases admit this principle: cf. Gillard v. Cheshire Lines Committee (1883), 32 W. R. 943; Jordeson v. Sutton, $o. Gas Co., [1899] 2 Ch. 217; 68 L. J. Ch. 457; Fletcher v. Birkenhead Corporation, [1907] 1 K. B. 205. (x) B. v. Great Northern Bail. Co., In re Cooling (1849), 19 L. J. Q. B. 25. (y) Glover v. North Staffordshire Bail. Co. (1851), 20 L. J. Q. B. 376; Barnard v. Great Western Rail. Co. (1902), 86 L. T. 798. (a) Ford ». Metropolitan, $a. Rail. Co. (1886), 17 Q. B. D. 12; 55 L. J'. Q. B. 296. (a) Eagle v. Charing Cross Rail. Co. (1867), L. R. 2 C. P. 638; 36 L. J. C. P. 297; Clark v. School Board for London (1874), L. R. 9 Ch. 120; Mice of Bedford v. Uaivson (1875), L. R. 20 Eq. 353; 44 L. J. Oh. 549: French v. London, Tilbury and Southend Bail. Co. (1886), 2 Times L. R. 395; Wigram v. Fryer (1887), 36 Oh. D. 87; 56 L. J. Ch. 1098; In re London, Tilbury, fc. Rail. Co. and Gower's Walk Schools (1889), 24 Q. B. D. 326; 59 L. J. Q. B. 162; Emsley v. North Eastern Bail. Co., [1896] 1 Ch. 418; 65 L. J. Ch. 385; Courage cj- Co. v. South Eastern Bail. Co. (1902), 19 Times L. E. 61. (6) Mortimer v. South Wales Rail. Co. (1859), 28 L. J. Q. B. 129; Bush v. Trowbridge Waterworks Co. (1875), L. R. 10 Ch. 459; 44 L. J. Ch. 235, 645; Stone v. Mayor, $a, of Yeovil (1876), 2 C. P. D. 99; 46 L. J. C. P. 137; Page v. Kettering Waterworks Co. (1892), 8 Times L. E. 228. COMPENSATION FOR LANDS INJURIOUSLY AFFECTED. 153 In all the above cases, where a legal right has been interfered "with by exercise of the powers conferred upon the promoters, all the damage done to the owner as the consequence of that inter- ference is the subject of compensation. Where the promoters obstructed certain ancient lights, and also Ancient windows and portions of windows which did not coincide with any u S ht8 - of the ancient lights, it was held that the claimants were entitled to compensation in respect of the whole of the windows so obstructed including the windows and portions of windows which •did not coincide with any of the ancient lights (c) . In estimating the amount of compensation for injuriously affecting ancient .lights, the fact that by reason of outside and Accidental circumstances the saleable value of the premises is not ■diminished is not a fact which can be taken into account (d) . It has been held (e), under a private Act (/), that a tenant to the local authority could not be restrained from obstructing ancient lights by building artizan's dwellings on one of the plots of land •devoted to that purpose, but that the adjoining owner has his right to claim compensation from the local authority under section 68 of the Lands Clauses Act, 1845. Where a sewer is vested in a local authority, it would probably Sewers, be held that the sewer gives the authority an interest sufficient to found a claim for compensation (g) . If promoters construct works, and their character is such that Sporting they could have been constructed by the grantor of a right of ng 8 ' •sporting consistently with the terms of his grant, the grantee is not subjected to a loss which, but for statutory powers, would have ■been actionable, and cannot maintain a claim to compensation (h) . Interference with a flow of water, to which there is no pre- Water ■ecriptive right, is not a loss which, but for statutory powers, would "gbts. (e) In re London, Tilbury, #c. Mail. Co. and Gower's Walk Schools (1889), 24 Q. B. D. 326; 59 L, J. Q,. B. 162. (. B. 3 C. P. 82; 37 L. J. C. P. 11; Buceleuch v. Metro- politan Board of Works (1872), L. B. 5 H. I>. 418; 41 L. J. Ex. 137; Metro- politan Board of Works v. McCarthy (1874), L. B. 7 H. L. 243; 43 L. J. 0. P., 385; Lyon v. Fishmongers' Co. (1876), 1 App. Oas. 662; 46 L. J. Ch. 68; North Shore Sail. Co. v. Pion (1889), 14 App. Oas. 612, 620; Be Arbitra- tion between Great Eastern Rail. Co. and L. C. C. (1908), 98 L. T. 116; Lingke v. Christchurch Corporation, [1912] 3 K. B. 595. («) R. v. Rynd (1863), 16 Ir. C. K B. |29; Att.-Gen. of Straits Settlements v. Wemyu (1888), 13 App. Oas. 192; 57 L. J. P. C. 62. (:t) Cfutmberlain v. West End of London, §o. Rail. Co. (1863), 32 L,. J. Q. B. 173; Cameron v. Charing Cross Mail. Co. (1865), 19 C. B. (N. S.) 764; Beckett v. Midland Rail. Co. (1867), I>. R. 3 C. B. 82; per Willes, J., at p. 98; 37 L. J. 0. P. 11; Metropolitan Board of Works v. McCarthy (1874), L. B. 7 156 COMPENSATION FOR LANDS INJURIOUSLY AFFECTED. Obstruction to If the obstruction of a public highway or navigable river does not entitle n °t interfere with a legal right attached to the lands or premises, owner to fo^ merely causes an inconvenience diverting the public and compensation. ... „ . . , occasioning a loss of custom in trade, the damage thereby occasioned to the owner is not an injury to lands or premises, and does not entitle him to claim compensation (jy) . Even if works carried out under statutory powers are unnecessarily or unreasonably delayed, the person injured by the diversion of traffic or custom has no right of action unless he can prove that the obstruction complained of affects him in a direct and substantial manner so as to cause a special injury different from that which is common to the rest of the public (z) . In considering the cases under this head, it is essential to note clearly the form in which the claim is made, since it does not follow that, because the claim as made is not maintainable, no valid claim framed on a proper basis could have been sustained. Thus compensation can be claimed when a diversion of traffic depreciates the market value of premises for all purposes, although evidence of actual loss of trade or of the decreased number of years' pur- chase should not be admitted (a) . (d) Restrictive ( injury to interference with an interest in lands, and not for damage to his trade or business, or for damage resulting in personal loss or incon- venience (I). Hence in considering the effect of the decided cases it is necessary to distinguish those in which the claim is founded on injury to an interest in land from those in which the claim is merely for damage to trade or business. In the latter case no com- pensation can be claimed. In the former it should be assessed by considering how far a property, in reference to its then state and condition, but independently of the profits of any particular trade carried on, would be worth less to sell or let as a property, in con- sequence of the damage for which compensation is claimed (m). The goodwill of a business may give, in reference to its par- ticular use, a special value to property injuriously affected : but goodwill is not a right recognized by law as incident to the owner- ship of land, and loss of goodwill is a trade loss and not the subject of compensation ; the amountt of such loss must therefore not be included in the assessment whew no land of the claimant has been taken (n). (i) Ci'. judgment of Willes, J., in Beckett v. Midland Rail. Co. (1867), L. R. 3 C. P. 82; 37 L. J. O. P. 11; Lingke v. ChrMehurch Corporation, [1912] 3 K. B. 595, in which Herring's case (supra) is discussed. (k) (1865), 19 0. B. N. S. 510; 34 L. J. M. C. 224. Sec the judgments in Lingke' s ease (supra). (I) Mickel v. Metropolitan Rail. Co. (1867), L. R. 2 H. L. 175; 36 L. J. Q. B. 205; Caledonian Rail. Co. ». Ogilvy (1856), 2 Macq. It. L. (So.) 229; He Penny and South Eastern Rail. Co. (1857), 26 L. J. Q. B. 225; R. v. Vaughan (1869), L. R. 4 Q,. B. 190; Bigg V. London Corporation (1873), L. R. 15 Eq. 376; Caledonian Rail. Co. v. Walker's Trustees (1882), 7 App. Caa. 259; Metropolitan Board of Works v. Howard (1889), 5 Times L. R. 732; cf. Lord Mayor 0/ Lublin v. Lowling (1880), 6 L. R. Ir. 502; Lingke v. Christ- church Corporation, [1912] 3 K. B. 595. (m) Cf. Wadhum v. North Eastern Rail. Co. (1884), 14 Q. B. D. 747; 16 Q. B. D. 227; 54 L. J. Q. B. 344; 55 L. J. Q. B. 272; Metropolitan Board of Works v. Howard (1889), 5 Times L. R. '732. (») R. v. London, Doelcs Co. (1836), 5 A. & E. 163; Cameron v. Charing COMPENSATION FOR LANDS INJURIOUSLY AFFECTED. 159 The principle is fully explained by Willes, J., in his judgment in Beckett v. Midland Rail. Co. (o). " The damage complained of must be one which is sustained in respect of the ownership of the property, — in respect of the pro- perty itself, and not in respect of any particular use to which it may from time to time be put ; in other words, it must, as I read that judgment, be a damage which would be sustained by any person who was the owner, to whatever use he might think proper to put the property. Now that of course is to be taken with the limitation that a person who owns a house is not to be expected to pull it down in order to use the land for agricultural purposes, That would be pushing the judgment in Ricket v. Metropolitan Rail. Co. to an absurd extent. The property is to be taken in statu quo, and to be considered with reference to the use to which any owner might put it, in its then condition, that is, as a house " (p). 4. Subject to what has been above stated (q) an owner is not (4) Loss must entitled to compensation for loss arising from the user of authorized obstruction works, but only for loss caused by, their construction. The prin- and not from .... , , . ueer of -works. ciple is, that promoters are not bound to pay compensation tor damage necessarily resulting from the use of their works for the purposes authorized by the legislature (r) . The damage com- plained of in Brand's case (r), viz., actual structural damage to a house from vibration caused by running trains, would have entitled the owner to compensation, if the trains causing such vibration had been run for the purpose of the construction of the railway works, and not for the carriage of traffic after the line had been opened.. Cross Rail. Co. (1865), 19 O. B. N. S. 764; Riaket v. Metropolitan Sail. Co. (1867), L. R. 2 II. L. 175; 36 L. J. Q. B. 205; Beckett v. Midland Rail. Co. (1867), L. R. 3 C. E. 82; 37 L. J. C. E. 11; R. v. Metropolitan Board of Works (1869), L. R. 4 Q. B. 358; 38 L. J. Q. B. 201; Metropolitan Board of Works v. McCarthy (1874), L. R. 7 H. L. 243; 43 L. J. O. F. 385. (o) (1867), L. R. 3 C. E. 82; 37 L. J. iC. F. 11. ip) Of. Wadham v. North Eastern Rail. Co. (1884), 14 Q. B. D. 747; 16 Q. B. D. 227; 54 L. J. 0. B. 344; 55 L. J. Q. B. 272; Metropolitan Board of Works v. Howard (1889), 5 Times L. R. 732. (q) Ante, p. 148. (r) R. v. Pease (1830), 4 B. & Ad. 30; Vaughan v. Taff Vale Rail. Co. (1860), 29 L. J. Ex. 247; Eammersmith Rail. Co. v. Brand (1869), L. R. 4 H. L. 171; 38 L. J. Q. B. 265; City of Glasgow Union Rail. Co. v. Hunter (1870), L. R. 2 H. L. (Sc.) 78 (diss. Lord Westbury); London, Brighton and South Coast Rail. Co. v. Truman (1885), 11 App. Cas. 45; 55 L. J. Ch. 354; Att.-Gen. v. Metropolitan Rail. Co., [1894] 1 Q. B. 884; Canadian Pacific Rail. Co. v. Roy, [1902] A. O. 220; 71 L. J. E. O. 51; Holditch v. Canadian Northern Ontario Railway, [1916] 1 A. O. 536. 160 COMPENSATION FOE LANDS INJURIOUSLY AFFECTED. Loss to ferry is caused by user and not by construc- tion. Waterworks Clauses Act, 1847. Although section 68 of the Lands Clauses Act gives compensa- tion for loss arising from the construction of works, this does not prevent an action being brought in a case where the work has been carried on at night in an unreasonable manner so as to render the plaintiff's house uninhabitable (s) . In two cases the question has been raised, whether the diversion of traffic from a ferry by a railway bridge and footbridge for passengers is a loss caused to the owner by the construction, or by the user of works. In R. v. Cambrian Rail. Co. (t), the Court of Queen's Bench decided that the loss in question was proximately caused by the construction, and not by the user of railway works. This decision was overruled in Hopkins v. Great Northern Rail. Co. (w), and Mellish, L. J., says in his judgment, " It seems to us that the construction of the railway, as distinguished from the user of the railway after it was constructed, was not the proximate cause of the damage suffered by the owner of the ferry, for this simple reason, that if the railway and footbridge had only been constructed and never opened to the public or used, it is plain the owner of the ferry would have suffered no damage whatever." In this latter case judgment was given against the claimant for compensation on the further ground, that an action could not have been maintained for disturbance of the ferry in respect of the traffic either by the railway or the footbridge, even if they had been erected without statutory authority. Under the Waterworks Clauses Act, 1847, in the case of Fletcher v. Birkenhead Corporation (aj), the Corporation had sunk a well on land acquired, but not from the applicant, and had pumped water from the well with a result that a large quantity of wet running silt had been abstracted from under the applicant's house, thereby causing damage due to subsidence. It was held that the applicant was entitled to compensation under sections 6 and 12 of the Waterworks Clauses Act, 1847 (y), for the damage which had been caused by the pumping after the completion of the structural works. (s) Coats v. Clarence Bail. Co. (1830), 1 Russ. & M. 181; 8 L. J. (0. S.) Oh. 72; Roberts v. Charing Cross, Huston and Humpstead Rail. Co. (1903), 87 L. T. 732. (0 (1871), L. Ei. 6 Q. B. 422; 40 L. J. Q. B. 169. («) (1877), 2 Q. B. D. 224; 46 L. J. Q. B. 265. (k) [1907] 1 K. B. 205. (y) Ante, p. 145. COMPENSATION FOR LANDS INJURIOUSLY AFFECTED. 161 In Harpur v. Swansea Corporation (z), the undertakers had broken up a public road to lay a pipe therein, and then restored the road to its former condition. Eight months later a portion of the road slipped and was repaired by the County Council (the road authority), who made a claim against the undertakers. The House of Lords held that the claim fell within section 6 and not section 28 of the Waterworks Clauses Act, 1847, Lords Loreburn and Parker because that section applied whether the claim fell within section 28 or not, Lord Shaw because the findings of fact did not bring the claim within section 28. In 1902 a clause was inserted in the Underground Railway Provisions in Acts in London giving compensation under certain conditions for s P e01alActs - injury caused by reason of the working of the railways although no property of the claimant had been taken; the general prin- ciple would not in any case apply where a special compensation provision is inserted in the private Act. 2. Where Lands injured are held with Lands taken. When lands have been, or are required to be, purchased or Compensation taken, and compensation is claimed for injury to lands held i aI1 d 8 held therewith, the owner (a) is entitled to compensation for damage to ) vltl1 lands be sustained by him by reason of the severing of the lands taken from his other lands, or otherwise injuriously affecting such lands by the exercise of the powers of the Lands Clauses Act, 1845, or the special Act or any Act incorporated therewith (b). When lands injured are held by the same owner, and for the What are same common object as lands taken, they are held therewith in with landg accordance with the terms of the Lands Clauses Act, 1845, s. 49, tak. 171; 38 L. J. Q. B. 265. (e) (1870), L. R. 2 H. L. (So.) 78. (/) (1868), L. R. 3 Ex. 306; 37 L. J. Ex. 177. Iff) (1870), L. R. 5 Ex. 221; 39 L. J. Ex. 130. (A) (1869), L. R. 4 Ii. L. 171; 38 L. J. Q. B. 265. (»') At pp. 458, 460. (A) (1870), L. R. 2 H. L. (So.) 78. COMPENSATION FOR LANDS INJURIOUSLY AFFECTED. 167 . R. 1 Eq. 84; Malmesbury Rail. Co. v. Budd (1876), 2 Ch. D. 113; 45 L. J. Oh. 271; Beddow v. Beddow (1878), 9 Ch. D. 89; 47 L. J. Oh. 570; Kitts v. Moore, [1895] 1 Q. B. 253; 64 L. J. Oh. 152. (b) North London Rail. Co. v. Great Northern Rail. Co,. (1883), 11 Q. B. D. 30; 52 L. J. Q. B. 380. Of. Sutton Harbour Improvement Commissioners v. mtchens (1851), 21 L. J. Oh. 73; Farrarv. Cooper (1890), 44 Oh. D. 323; 59 L. J. Oh. 506; Wood v. Lillies (1892), 61 L. J. Ch. 158. (o) London and Blachwall Rail. Co. v. Cross (1886), 31 Ch. D. 354: 55 L. J. Ch. 313. SURVEYORS— JUSTICES. 173 over for subsequent decision (d) ; the 25th section of the Judicature Act has not altered the previous practice (e). (1.) Surveyors. In all cases of valuations made by a surveyor or surveyors, the What valua- valuation should include not only the value of the lands taken, but surveyor also compensation for damage to bo sustained by reason of the mcludes - severing of lands taken from other lands of the same owner, or otherwise injuriously affecting such other lands (/). The amount of purchase-money or compensation payable to In what cases, owners whose lands are required, or whose lands have been taken or injuriously affected, is settled by the valuation of a surveyor or of surveyors in the following cases : — (1.) Where lands belonging to parties under disability or (l) Where incapacity, or not having power to sell and convey, except under the ^ agreement special statutory powers, are purchased or taken, or injuriously from parties affected (g), and the amount of compensation has not been ability, determined by the verdict of a jury, or by arbitration, or by the valuation of an able practical surveyor appointed by two justices under section 58 of the Lands Clauses Act, 1845, such amount is not to be less than is determined by the valuation of two able practical surveyors, one of whom shall be nominated by the pro- moters, and the other by the other party. If such surveyors do not agree, then the valuation is to be made by such third surveyor as any two justices shall, upon the application of either party, after notice to the other party, nominate for that purpose. The two surveyors, if they agree, and, if not, the third surveyor, are re- quired to annex to the valuation a declaration of its correctness, and the amount of the valuation is to be deposited in the bank for the benefit of parties interested (h) . In order that this section may be strictly complied with, the two surveyors should meet together and consider whether the price is a fair one ; and one surveyor should (d) Bast and West India Dock Co. v. Gattke (1851), 20 L. J. Ch. 217. (e) London and Blachwall Rail. Co. v. Cross (1886), 31 Oh. D. 354; 55 L. J. Oh. 313; cf. Kitts v. Moore, [1895] 1 Q. B„ 253; 64 L. J. Ch. 152. (/) S. 63, L. 01. Act, 1845; Field v. Carnarvon and Llanberis Bail. Co. (1867), L. R. 5 Eq. 190; 37 L. J. Ch. 176. (?) Stone v. Corporation of Yeovil (1876), 2 C. P. D. 99; 46 L. J. C. P. 137. (A) L. CI. Act, 1845, s. 9; cf. Book II., p. 332. 174 SUEVEYORS— JUSTICES . Mandamus ordering pro- moters to appoint a surveyor or to pay money into Court. S. 9 must be strictly complied with. (2) In case of absence of, or inability to not, without consultation, merely signify his assent to what the other may consider a fair price («) . If the promoters, after having come to an agreement with an owner under disability, neglect or refuse to appoint a surveyor, it is submitted that the remedy is by application for a mandamus to compel them to appoint, and that the principle on which Fotherby v. Metropolitan Rail. Co. (/) was decided would apply. The pro- moters may be compelled by a mandamus to deposit in the bank the amount of the valuation assessed by two surveyors (k) under section 9 of the Lands Clauses Act, 1845. It is essential that the requirements of section 9 should be strictl} - complied with, and the absence of a declaration in writing annexed to the valuation, and subscribed by the surveyors, is fatal to a claim by the company for specific performance (I). In the case of Baker v. Metropolitan Bail. Co. (m), specific performance of a contract to purchase land was decreed, although the provisions of section 9 had not been complied with ; but this case has not been followed, and is inconsistent with the principle laid down in Wycombe Rail. Co. v. Donnington Hospital (n). Trustees for femes covert professing to convey lands under the provisions of the Lands Clauses Act, 1845, are not competent to contract under section 7, and the sale is invalid unless the provisions of section 9 have been strictly followed. This section is not followed if the trustees appoint one of themselves as surveyor. It seems to be immaterial whether the trustees have the price fixed by two surveyors and agree to sell at that price, or whether they first agree to sell for a certain price and then test such price by the valuation of two surveyors (o) . (2.) The second case in which a valuation is made by a surveyor is where an owner is absent from the kingdom, or cannot after («) Wycombe Sail. Co. v. Donnington Hospital (1866), L. R. 1 Ch. 268, 274, per Turner, L. J. ; cf . Cotter v. Metropolitan Rail. Co. (1864), 10 L. T. 777. (;) (1867), L. R, 2 O. P. 188; 36 L. J. C. P. 88. (k) Stone v. Mayor, %o. of Yeovil (1876), 1 C. P. D. 691; 2 C. P. D. 99; 45 L. J. C. P. 657; 46 L. J. C. P. 137. (0 Bridgend Gas Co. v. Marl of Dunraven (1886), 31 Ch. D. 219; 55 L. J. Ch. 91; Wycombe Rail. Co. v. Donnington Hospital (1866), L. R. 1 Ch. 268. (m) (1862), 32 L. J. Oh. 7. (») (1866), L. R. 1 Oh. 268. (o) Peters v. Lewes and East Grinsteod Rail. Co. (1881), 18 Ch. D. 429; 50 L. J. Oh. 839; cf. In re Cotton's Trustees aitd London School Board (1882), 19 Oh. D. 624; 51 L. J. Ch. 514. SURVEYORS— JUSTICES. 175 ■diligent inquiry be found, or does not appear at the time appointed &"! owner, or for an inquiry before a jury. In that case the purchase-money or appear, compensation due to him is assessed by a surveyor nominated by two justices (p). When there is a doubt as to the ownership, there being two claimants to the same land, the valuation cannot be made by a surveyor under this section, but should be determined by a jury under section 23 (q) . Upon the application of the pro- moters, the appointment of a surveyor is made in writing under the hand of two justices (r) . It is not necessary to insert in the appointment a precise description of the lands to be valued, provided that they are known to the surveyor (s) . Before entering upon the duty of making a valuation, a sur- Declaration veyor appointed under section 58 is required to make and subscribe a declaration of impartiality in the form prescribed in section 60 ; and it is a misdemeanour for a surveyor to make such declaration corruptly, or wilfully to act contrary thereto (t). The nomination and declaration must be attached to the valuation, and the pro- moters are to bear all expenses (w) . When a surveyor has valued the interest in lands of an owner Sufficiency of who cannot be found, or is absent from the kingdom, such owner, ^ e gubmhted 5 ' if he has not applied to the Court for the payment or investment to arbitration, of the amount deposited, is entitled to submit to arbitration the question of the sufficiency of the surveyor's valuation (x). If the arbitrators find the valuation to have been sufficient, costs, to be determined by them, are in their discretion {if) ; but if they find that it has not been sufficient, all costs are to be borne by the promoters («/), and the further sum awarded is to be paid or deposited within fourteen days, or, in default, the same can be enforced by attachment, or recovered, with costs, by action in the High Court (z) . When the amount of compensation due to an owner who is After deposit absent from the kingdom, or who cannot after diligent inquiry be an a execution (p) L. 01. Act, 1845, s. 58. (?) Ex parte London and South Western Rail. Co. (1869), 38 L. J. Ch. 527. (r) S. 59. (s) Poynder v. Great Northern Mail. Co. (1847), 16 Sim. 3. (0 S. 60. («<) Ss. 61, 62. (x) Ss. 64, 65. (y) S. 67. By s. 1 of the Lands Clauses (Taxation of Costs) Act, 1895 (vide post, pp. 202, 440), either party can require the amount of such costs to be taxed by » taxing master. («) S. 66. 176 SURVEYORS— JUSTICES . of deed poll, lands Test iu promoters. (3) In case of entry before assessment. (4) Common- able rights. Impartial person should be appointed surveyor. found, or who fails to appear on the inquiry before a jury, has been assessed by the valuation of a surveyor, the lands vest in the pro- moters, upon the deposit of the money in the bank and the execution by the promoters of a deed poll under sections 76, 77, of the Lands Clauses Act, 1845 (a). (3.) The third case in which a valuation is made by a surveyor is where the promoters are desirous of entering upon and using lands,, before the amount of compensation has been agreed upon or assessed. The promoters must deposit either the amount claimed, or such a sum as shall be fixed by a surveyor appointed by two- justices, or, in the case of railways, by the Board of Trade (6). The amount to be deposited is entirely a question for the surveyor, and the Court will not interfere if it is fixed on a valuation made after full and proper consideration (c) . It is otherwise if the Surveyor has not inspected or considered the subject-matter of the valuation (d) . (4.) The fourth case in which a valuation is required to be made by a surveyor is where, after parties entitled to commonable rights have been duly summoned, no effectual meeting takes place, or where such meeting fails to appoint a committee (e). In these cases the amount of compensation is determined by a surveyor nominated by two justices (/), upon the application of the pro- moters, in the same manner as in the case of absent owners (g) . Upon deposit of this amount in the bank, and execution by the promoters of a deed poll, the promoters become entitled to im- mediate possession of the commonable lands, freed and discharged from all commonable rights (h) . In all cases in which the valuation of a surveyor is required under the Lands Clauses Act, 1845, it is improper that the surveyor appointed should have been in the employment of the promoters, although this may not be a sufficient ground for issuing an injunc- tion (i), and a trustee who is also a contracting party cannot be (a) Vide post, p. 269. (6) Vide ante, p. 96; L. CI. Act, 1845, s. 85; Railway Companies Act, 1867, , 37. (e) River Roden Co. v. Barking V . D. C. (1902), 18 Times L. R. 542, 608. (d) Cotter v. Metropolitan Rail. Co. (1864), 10 L. T. 777. (e) Vide post, p. 292. (/) L. CI. Act, 1845, S3. 102, 106. (g) Vide ante, p. 174. ('/() S. 107. (») Langham v. Great Northern Rail. Co. (1847), 16 L. J. Ch. 437. SUE VEYOES— JUSTICES. 177 appointed as surveyor under the Act, nor can a tenant for life nominate himself (j) . All the expenses of and incident to a valuation by a surveyor, Costs of a where the owner is absent from the kingdom or cannot be found, ^surveyor ^ or does not appear at the time of the inquiry before a jury, are to be borne by the promoters (fc) . In other cases the expenses of valuation by surveyors are only thrown upon the promoters, when the money has been deposited in the bank, and costs become payable under section 80 of the Lands Clauses Act, 1845 (I). In any agreement to sell where the price is fixed by surveyors, the costs of fixing the price should be specially provided for. (2.) Justices. There are two cases in which the amount of purchase-money or Assessment ° f . x compensation compensation is settled by two justices. by justices. Section 22 of the Lands Clauses Act, 1845, enacts that where the Where compensation claimed for the value of lands, or for injury done to claimed does lands, does not exceed 50Z., the same shall be settled by two justices. "°* exceed The test of jurisdiction is the amount claimed by the owner (m) ; and, subject to the inability to recover costs, where the award or verdict is less than the sum offered, a claim could in every case be framed so as to make section 22 inapplicable. Section 121 enacts that where a person, having no greater interest Where . . . . , . possession of than as a tenant tor a year or irom year to year, is required to give ia n a. i 8 r e- up possession of any lands before the expiration of his tenancy, the , J. C. P. 193; Bead v. Victoria Station, fc. Rail. Co. (1863), 9 Jur. N. S. 1061. (») Cf. 7^. «. Great Northern Rail. Co. (1876), 2 Q. B. D. 151, 156; 46 L. J. Q. B. 4. c. 12 178 SURVEYORS— JUSTICES. Possession must be actually required. "What tenancies are included. give up possession under section 121 (o). The justices have no jurisdiction to inquire into the claimant's title ; but it is necessary for them to inquire whether the claimant has been required to give up possession of the land before the expiration of his term or interest, since the quantum of compensation will depend upon the period of time between the notice to give up possession and the length of his term or interest (p) . Possession must be actually required ; and this is not done by the mere service of a notice to treat (q) . If a tenant for a year or from year to year claims compensation exceeding 50Z. for injury to his lands, and no portion of his lands has been taken, he is entitled to have the amount settled by a jury or by arbitration, and is not. within the terms of section 121 (r). A joint occupation by two partners for business purposes, of distinct but adjoining premises separately leased to each partner, is not necessarily an interest less than that of a tenant from year to year, even when there is no formal stipulation as to the duration of the occupation (s). At the time of requiring possession, the unexpired residue of a term under a lease was less than a year ; it was held, that the interest of the tenant was no greater than that of a tenant for a year or from year to year (£) . The interest of a schoolmaster who was allowed a house, and was removable by the governors of the school at a three months' notice, was held to be included within the terms of section 121 (u). But agreements, which m equity are- equivalent to a lease, entitle the tenant to claim as lessee in respect of the whole interest which he holds thereunder (v) . Where no proceedings had been taken under a notice to treat, but subse- quently thereto the lessor in accordance with the terms of his (o) Syers v. Metropolitan Board of Works (1877), 36 U. T. 277, per Jessel, M. R., at p. 278. This dictum has since heen followed. O) Great Northern and City Rail. Co. v. Tillett, [1902] 1 K. B. 874; 71 L. J. K. B. 525. (§) R. v. Stone (1866), K R. 1 Q. B. 529. (r) R. v. Middlesex Sheriffs In re Somcrs and Metropolitan Sail. Co. (1862), 31 L. J. Q. B. 261. (s) R. v. Mast London Rail. Co., Ex parte Barnes (1867), 17 L. T. 291. (t) R. v. Great Northern Rail. Co. (1876), 2 Q. B. D. 151; 46 L. J. Q. B.4. («) R. v. Manchester, Sheffield and Lincolnshire Rail. Co. (1854), 4 E. & B. 88. («) In re King's Leasehold Estates (1873), L. R. 16 Eq. 521; Sweetman v. Metropolitan Rail. Co. (1863), 1 H. & M. 543. Of. Cheshire Lines Committee v. Lewis (1880), 50 U. J. Q. B. 121. SURVEYORS— JUSTICES. 179 lease had given the lessee notice to terminate his tenancy at the expiration of three months, it was held that the giving of the notice to treat was immaterial, and that the amount of compensa- tion oould be determined under section 121 (to). No claim can be made under section 121 if the occupier has re- ceived legal notice to quit, and his land is not required until after such notice has expired (x) . For the purpose of determining whether the compensation to a Nature of tenant should be assessed under section 121, the tenant's estate or fi^eTasat interest must be regarded at the time when the promoters give time ° f notice notice of their intention to take the lands in question, and in a large number of cases this notice of intention to take is given in the notice to treat (y) . In Tyson v. Mayor of London (z), the corporation gave, under the provisions of special Acts, six months' notice to the tenant of certain lands, of their intention to take the same. At the time of giving such notice, more than a year, but at the expiration of such notice, less than a year, of the tenancy remained. It was held that, for the purpose of determining whether the compensa- tion to the tenant should be assessed by justices under section 121 of the Lands Clauses Act, 1845, the tenant's interest at the time of giving the notice, and not at its expiration, was to be considered, since the giving of such notice was an indication from the promoters of their intention to take the lands in question. In Cranwell v. Mayor of London (a), a notice was given to a yearly tenant stating the intention of the promoters to take his premises and requiring possession in six months. This notice expired in May, 1866 ; but in fact nothing was done until January, 1867, when the promoters, having become assignees of the interest (to) R. v. Kennedy, [1893] 1 Q. B. 533; 62 L. J. M. C. 168; Sexletj Erath Sail. Co. v. North, [1894] 2 Q. B. 579; 64 L. J. M. C. 17. (x) Ex parte Merrett (1859), 2 L. T. 471; R. v. Vaughan (1869), L.. R. 4 Q. B. 190; 38 L. J. M. C. 49. Cf. Ex parte Nadin (1848), 17 L. J. Ch.421; Syers v. Metropolitan Board of Works (1877), 36 L. T. 277; R. v. Poidter (1887), 20 Q. B. D. 132; 57 L. J. Q. B. 138. (y) Vide ante, p. 81. («) (1871), L. R. 7 O. P. 18; 41 L. J. C. P. 6; cf. Morgan v. Metropolitan Sail. Co. (1868), L. R. 3 C. P. 553; 4 C. P. 97; 37 L. J. 0. P. 265; 38 L. J. C. P. 87. («) (1870), L. R. 5 Ex. 284; 39 L. J. Ex. 193; cf. R. v. London and Southampton Rail. Co. (1839), 10 A. & E. 33, which is distinguished, on the ground that the tenant had accepted an equivalent for disturbance of possession or had acted so as to disentitle him to claim compensation. 12(2) 180 SURVEYORS— JUSTICES . Or at time of actual entry. Severance. Effect of non- production of lease on demand. Qualification of two justices. of the landlord, took possession of the premises. No notice to quit had been given to the tenant, and there had been no assess- ment of compensation. It was held that the promoters were liable as trespassers, and that the tenant was entitled to compensation for the change in the character of his occupation, which the notice of intention to take had occasioned . In R. v. Great Northern Hail. Go. (&), possession was taken by the promoters without any previous notice having been received by the tenant. The taking of possession had been acquiesced in by the tenant, 'who raised the question of the tribunal before which he was entitled to claim compensation. It was held that, since the tenant did not elect to treat the promoters as trespassers, the taking of possession was the act by which notice of an intention to take was first received by the tenant, and that the interest of the tenant must be estimated as at that time . Where the amount of compensation is assessed by two justices or a magistrate under section 121 and a claim is made for severance, the assessing tribunal has only jurisdiction to assess compensation for the value of the interest in the land taken and for damage sustained by severing or otherwise injuriously affecting lands held therewith during the period of time for which the lands taken are held(c). Section 122 enacts that, if a party claim compensation in respect of an unexpired term or interest under a lease or grant of lands, the promoters may require such party to produce such lease or grant, or the best evidence thereof in his power ; and that, if this is not done within twenty-one days after a demand in writing, the party claiming compensation shall be considered as a tenant holding only from year to year, and be entitled to compensation accordingly . This applies to a written agreement void at law but equivalent in equity to a lease (d) . Section 3 of the Lands Clauses Act, 1845, defines the qualifica- tion of two justices before whom questions of compensation are determined. They must be justices of the county, city, cinque port, or place where the lands or a portion of the lands are situated, who have no interest in the matter, and who are assembled and acting together. (6) (1876), 2 Q. B. D. 151; 46 L. J. Q. B. 4. O) Bexley Heath Rail. Co. v. North, [1894] 2 Q. B. 579; 64 L. J. M. C. 17. (d) Sweetman v. Metropolitan Rail. Co. (1863), 1 H. & M. 543. SURVEYORS— JUSTICES. 181 A single police magistrate, in the Metropolitan Police Dis- trict (e), and any stipendiary magistrate for any count}', borough or place (/), has the same power as two justices. Any petty sessional Court (g) can act under the Lands Clauses Acts. It is no objection to an award by justices that more than two justices heard and determined the amount of compensation {h). The provision, that justices shall not be interested in the matter Interest, brought before them, is no more than a declaration of existing law, and can be waived by consent of the parties (i) . Any direct pecuniary interest disqualifies a justice from acting as a judge (/c). If a justice has any substantial interest, other than in a pecuniary sense, the High Court will consider whether the nature of such interest is likely to cause real bias. If there is a likelihood of real bias, a justice does wrong in acting, and the Court will prohibit him from adjudicating at all, or set aside any decision in which he has taken part ; but the Court will not inter- fere where there is a mere possibility of bias, and no ground for doubting perfect good faith (I). Section 24 of the Lands Clauses Act, 1845, defines the method of Method of procedure by which a question of compensation is brought before before " re two justices. Either the promoters or the owner can apply to a justices, justice for a summons calling upon the other party to appear at a time and place named before two justices. Upon the appearance of both parties, or, in the absence of either of them, upon proof of due service of the summons, the two justices hear and determine the question of compensation. Costs are in the discretion of the justices, and they settle the amount. The proceedings of the justices, except the grant of the summons, (e) Metropolitan Police Courts Act, 1839 (2 & 3 Vict. c. 71), s. 14. (/) Stipendiary Magistrates Act, 1858 (21 & 22 Vict. c. 73), s. 1; Summary Jurisdiction Act, 1879 (42 & 43 Vict. u. 49), s. 20 (10). (g) See Interpretation Act, 1889, b. 13, sub-s. 11. (h) R. v. Rochdale Improvement Commissioners (1856), 2 Jur. N. S. 861, per Lord Campbell. (i) Wakefield L. B. v. West Riding, #c. Rail. Co. (1865), L. R. 1 Q. B. 84; 35 L. J. M. C. 69. (h) Commissioners of Sewers for Fobbing v. R. (1886), 11 App. Cas. 449, 457; «f. It v. Gaisford, [1892] 1 Q. B. 381; 61 L. J. M. O. 50. (I) See such cases as R. t. Warrant (1887), 20 Q. B. D. 58; 57 L. J. M. O. 17; R. v. Sunderland JJ., [1901] 2 K. B. 357; 70 L. J. K. B. 946; Leeds Corporation v. Ryder, [1907] A. O. 420. 182 SURVEYORS— JUSTICES. must, it would appear, take place in open Court (to), and the pro- cedure of the Summary Jurisdiction Acts, so far as they relate to civil matters, should, it is submitted, be followed, except that the jus'tices cannot enforce their award. In the case of Great Northern and City Rail. Co. v. Tillett (n) the procedure under the Summary Jurisdiction Acts was followed without question. There is no provision in the Lands Clauses Acts as to summoning witnesses, but in case of need the provisions of the Summary Jurisdiction Acts would be aj)plicable . In oases of It was for many years considered (on the authority of Be, cation to* 5 " Edmundson (o)) that where lands had been injuriously affected justices need and no portion thereof had been taken, an application to two six months, justices to assess the amount of damage must be made within six months after the time at which the cause of injury arose, and that such application was a " complaint made before a justice on which he has authority to make an order for the payment of money," and within the terms of section 11 of the Summary Jurisdiction Act, 1848 (11 & 12 Vict. c. 43). This decision was doubted in R. v. Hannay (p) and the question was settled by the Court of Appeal in R. v. Edwards (q). Al- though the decision in Re Edmundson (r) had been law for thirty years, the Court of Appeal were of opinion that the justices had no implied authority to settle questions of title (s), and that in the absence of that authority the mere assessment of compensation oould not be regarded as a determination or order to which the Summary Jurisdiction Acts could apply. From this decision the following consequences result : (1) The application to justices need not be made within six months after the time at which the lands have been injuriously affected. (2) The justices cannot make any order to pay the amount assessed. (3) Payment is not enforceable by distress, but only by action. Assessment In assessing the amount of compensation, justices are required includelu^ury to ta ' ie i nto consideration not only the value of the unexpired (m) See Summary Jurisdiction Act, 1879, s. 20, sub-s. 1; Interpretation Act, 1889, s. 13, sub-s. 11. (») [1902] 1 K. B. 874; 71 L. J. K. B. 525. (o) (1851), 21 L. J. M. C. 193. (p) (1874), 44 L. J. M. C. 27. (?) (1884), 13 Q. B. D. 586; 53 L. J. M. C. 149. (r) Supra. (s) CI'. Great Northern and City Soil. Co. v. Tillett, [1902] 1 K. B. 874; 71 L. J. K. B. 525. SURVEYORS— JUSTICES. 188 term in the lands taken, but also the injury done to other lands of to other lands the same owner (t). In an assessment under section 121, where a owner. 6 claim is made for severance, the assessing tribunal has only juris- diction to assess compensation under this head for the damage sustained by the other lands during the period for which the lands taken are held («). The decision of two justices need not be in writing, but may be Decision may i ii / n. be rerbal. given verbally {x) . If, on application made, justices refuse to exercise their juris- Mandamus, diction in matters of compensation within their jurisdiction, either party is entitled to apply for a mandamus (y). If compensation is .settled by two justices, the costs of the inquiry Costs, are in their discretion, and they are required to settle the same accordingly (z), but they have no jurisdiction to order or enforce payment of the costs. Section 140 (a) of the Railways Clauses Consolidation Act, 1845, provides that in all cases where any damages, costs or expenses are by that Act or the special Act, or any Act incorporated therewith directed to be paid, and the method of ascertaining the amount or enforcing the payment thereof is not provided for, such amount, in case of dispute, shall be ascertained and determined by two justices. Section 85 of the Waterworks Clauses Act, 1847, enacts that if the waterworks be in England or Ireland the above-mentioned section of the Railways Clauses Consolidation Act shall apply. It is doubtful whether the expression " damages not specially provided for " would extend to compensation which is provided for under section 28 of the Waterworks Clauses Act, being " compensation for any damage which may be done in the execution of" the powers under that section, and therefore it is questionable whether such compensation, where it exceeds 50/., could be assessed (0 L. CI. Act, 1845, =. 63; of. s. 121. («) Bexley Heath Bail. Co. v. North, [1894] 2 Q. B. 579; 64 L. J. M. C. 17. (*) R. ». JBoyoe Combe (1863), 32 L. J. M. C. 67. (?) R. v. Stone (1866), L, R. 1 Q. B. 529; 35 I.. J. M. C. 208; R. v. Vcmghan (1869), L. R. 4 Q. B. 190; R. v. Kennedy, [1893] 1 Q. B. 533; 62 L. J. M. O. 168; cf. Baxter v. London County Council (1890), 63 L. T. 767, at p. 771. CO L. 01. Act, 1845, s. 24; cf. Mayor, $e. of Iluddersfiekl v. Shaw (1890), 54 J. P. 724. (a) As far as the Railways Olauses Consolidation Act, 1845, is concerned, this section is no longer in foroe, having been repealed by S. I/. R. Act, 1892. 184 SURVEYORS— JUSTICES. by justices (&). Section 85 applies to such sections as 67 and 74 of the Waterworks Clauses Act, which relate to matters more or less incidental to the administration of the Act, which the statute itself when dealing with them denominates as not specially provided for (&). (J) Harpur v. Swansea Corporation, [1913] A. C. 597, per Lord Shaw, at p. 605. 185 CHAPTER XI. ARBITRATION (a) . The assessment of compensation under the Lands Clauses Acts In what cases may be settled by arbitration in the following cases, unless the h ave ^is- speeial Act provides otherwise: — diction. (1) Where it is intended to purchase or take lands, and the (i) Claim or compensation claimed or offered exceeds 50L, and the interest C eeding60Z. therein is not less than that of a yearly tenant or of a tenant from year to year (&), and the party claiming compensation desires to have the same settled by arbitration, and signifies such desire by notice in writing to the promoters before they have issued their warrant to the sheriff to summon a jury, and states in such notice the nature of the interest in respect of which compensation is claimed, and the amount of compensation so claimed, the amount of compensation is settled by arbitration (c) . It should be noted that the claimant has the option of having the amount of compensation assessed either by a. jury or by arbitration (d), but that where he desires to have the amount of compensation settled by arbitration, it is incumbent upon him to state the nature of the interest in respect of which he claims compensation, and the amount of compensation he claims. Unless this is done, the promoters may treat the notice claiming com- pensation as imperfect, and issue their warrant for the summoning of a jury. The words " nature of the interest " are construed as synonymous Nature of with the words "particulars of the estate and interest" used in section 18 of the Lands Clauses Act, 1845 (e), and with the words (a) For a fuller treatment of the general law as to arbitration, the reader is referred to such text-hooks as Kussell on Arbitration. (6) L. CI. Act, 1845, s. 121, ante, p. 177. 0) S. 23. Cf. Book II., p. 326. (d) Lord Filzhardinge v. Gloucester, §c. Canal Co. (1872), L. R. 7 Q. B. 776; 41 L. J. Q. B. 316. (e) Vide ante, p. 74. 186 ARBITRATION. "particulars of his claim" in section 21, and the owner should give such particulars as would enable the promoters to ascertain the true value of his interest, for the purpose of offering him adequate compensation. Qualifications and limitations in the notice to treat do not restrict or limit the scope of the reference to arbitration (/) . They simply reserve the right of the promoters to raise, in defence to an action on the award, any answer in law to the landowner's claim . Description Jf lands are taken, and their value is in question, it is not suffi- of interest. . , , , cient tor the owner to state that he holds under a lease, without defining the quantity as well as the quality of his interest (g). If lands have been injuriously affected, but no part has been taken, it may, under the special circumstances, be sufficient to state merely the quality of an interest; but it is prudent for the owner to give the fullest information at his command (h). A misdescription in "the nature of the interest" may be waived if the promoters consent to proceedings by arbitration («) . The statement by an owner of the amount of compensation claimed does not prevent him from asking a larger amount before the assessing tribunal, and there is no provision in the Lands Clauses Acts under which the claim of the owner, or the offer by the promoters, limits in any way the discretion of the justices, arbitrators, or jury (7c). (2) Sufficiency (2) The sufficiency of the valuation of a surveyor (I) can, on of valuation of .. .. J v ' a surveyor. notice in writing to the promoters, be submitted to arbitration by an owner who was absent from the kingdom, or who could not be found, at any time before he has applied to the Court for payment or investment of the amount deposited (m) . The question to be submitted to the arbitrator is whether the sum deposited by the promoters is a sufficient sum, or whether any and what further (/) Re Chilworth Gunpowder Co. and. Manchester Ship Canal (1891), 8 Times L. R. 79. (g) llealey v. Thames Valley Rail. Co. (1864), 34 I». J. Q. B. 52; In re North Staffordshire Rail. Go. and Landor (1848), 2 Ex. 235. (h) Cameron v. Charing Cross Rail. Co. (1864), 33 L. J. C. P. 313. (i) hovering v. City of London, §o. Subway Co. (1891), 7 Times L. R. 301. 600. (1c) d. Robertson v. City and South London Rail. Co. (1904), 20 Times L. R. 395; Crawford v. McSwiney, [1904] 2 Ir. R. 15. (I) Under L. CI. Act, 1845, ss. 58—63, vide supra, p. 175. (m) S. 64. . i ARBITRATION. 1 87 sum ought to be paid or deposited by them (ra) . If the arbitrators award that a further sum ought to be paid or deposited by the promoters, the latter must pay or deposit the further sum within fourteen days after the making of the award. In default, the award may be enforced by attachment, or the amount recovered with costs by action (o). If the arbitrators find the valuation to have been sufficient, costs, to be determined by them, are in their discretion (p) ; but if they find it has not been sufficient, all costs are to bo borne by the promoters (q). (3) Where land has been taken for or injuriously affected by (3) Claims in the execution of the works, and the compensation claimed exceeds or injuriously 501., the owner, if he desires to have the amount of compensation affecting- settled by arbitration, may give notice in writing to the promoters, stating the nature of the interest in such lands in respect of which he claims compensation, and the amount of compensation claimed (r) . A limitation must be noted where an interest in lands is taken less than that of a yearly tenant or of a tenant from year to year (s), since in this case the amount of compensation is settled by justices. This limitation does not apply to cases of injuriously affecting; and wherever the owner claims a sum exceeding 501. for injuriously affecting, he is entitled to have the amount settled by arbitration, although his interest is less than that of a yearly tenant or tenant from year to year. It would appear that where a claim for injuriously affecting is made before two justices it must be limited to the period of time for which the land proposed to be taken is held (t). Arbitrations for the assessment of compensation under the Lands Arbitration Clauses Acts were held to be within the provisions of the Common ' ' Law Procedure Act, 1854, relating to arbitration by consent (w). O) S. 65. (o) S. 66. (p) S. 67. By s. 1 of the Lands Clauses (Taxation of Costs) Act, 1895 (vide post, pp. 202, 440), either party can require the amount of such costs to be taxed by a taxing- master. (?) S. 67. (r) S. 68. (s) S. 121, ante, p. 177. it) Bexley Heath Mail. Co. v. North, [1894] 2 Q. B. 579; 64 L. J. M. C. 17. (u) Ss. 3 — 17. Shades v. Airedale Drainage Commissioners (1876), 1 C. P. D. 402; Re Dare Valley Rail. Co. and Rhys (1869), L. R. 4 Ch. 554; Ex parte Harper (1874), L. R. 18 Eq. 539; Re Bidder and North Staffordshire Rail. Co. (1879), 4 Q. B. D. 412; 48 L. J. Q. B. 248. In re Harper and Great Eastern Rail. Co. (1875), L. R. 20 Eq. 39; 44 L. J. Ch. 507; and Re Newbold and Metropolitan Rail. Co. (1863), 14 C. B. N. S. 405, are overruled on this point. 188 ARBITEATION. These sections were repealed by the Arbitration Act, 1889 (x), but were re-enacted in substance, and the provisions of the Arbitration Act, 1889, with reference to arbitration, except so far as they are inconsistent with the Lands Clauses Acts, apply to all arbitrations under these Acts (y) . (4) Value of (4) if a person entitled to pre-emption in respect of superfluous of pre-emp- lands is desirous of purchasing such lands, and there is no agree- tlon- ment as to price, the amount is ascertained by arbitration, and the costs aro in the discretion of the arbitrators (2). (5) Arbitration (5) Jt is competent for the promoters and the owner to agree to by consent. s f . , reler any question of compensation to an arbitrator, even though the amount claimed should be less than 501., or the interest of the owner not greater than that of a yearly tenant (a), and in such a case it is not necessary to comply with all the statutory forms (6). Arbitrator. Any impartial person may be appointed an arbitrator or umpire. Interest known to the owner is a disqualification (c) ; but a dis- qualification of this nature may be waived (d) . The fact that an arbitrator during the pendency of an arbitration and before making his award had given evidence on behalf of one of the parties in another inquiry has been held not to constitute a necessary dis- qualification (e). A named arbitrator is not disqualified merely because circumstances may arise or exist such as to cause a suspicion of bias (/) . If an improper person is appointed arbitrator, it has been held in some cases that an application may be made to restrain further proceedings by injunction (g): but the High Court has no general O) S. 26. (y) Arbitration Act, 1889, a. 24, Appendix, p. 472; cf. Tabernacle Permanent Building Society v. Knight, [1892] A. C. 298; 62 L. J. Q. B. 50. (z) S. 130, L. CI. Act, 1845; Re Eyre's Trusts, (1869) W. N. 76; rule infra, p. 313. (a) Collins v. South Staffordshire Bail. Co. (1852), 21 I>. J. Ex. 247; Leviok v. Epsom, 4~o. Rail. Co. (1859), 1 L. T. 60; Caledonian Rail. Co. v. Lochhart (1860), 3 Maeq. H. L. (Sc.) 808. (b) Collins v. South Staffordshire Rail. Co. (1852), 21 L. J. Ex. 247. (t) In re Elliot, Ex parte South Devon Rail. Co. (1848), 2 De G. & Sin. 17. (■ by arbitrators. arbitrator or umpire is required to make a declaration of impar- tiality before a justice. Such declaration is to be annexed to the award, and it is a misdemeanour wilfully to act contrary thereto (I). The declaration required from an arbitrator or umpire can be made before any justice, without reference to the locality in which the lands are situated (ra), and at any time before entering upon the question in dispute (•«) . Where a party has consented to waive any objection on the ground that a declaration has not been made, the Court will not, on his application, set an award aside (o). Where, however, there was a failure to annex the declaration to the award by the umpire and the claimant had no knowledge of such failure the Court subsequently set aside the award (p). The method of appointment of an arbitrator or arbitrators Appointment and umpire is given in sections 25 — 30 of the Lands Clauses Act, and umpire. 1845, which are not altered by the Arbitration Act, 1889(g). Unless both parties concur in the appointment of a single arbitrator, Sail. Co. v. Buud (1876), 2 Oh. D. 113; 45 L. J. Oh. 271; Beddow v. Bcddow (1878), 9 Ch. D. 89; 47 L. J. Oh. 570. (ft) London and Blaclcwall Rail. Co. v. Cross (1886), 31 Oh. D. 354; 55 L. J. Ch. 313; ef. In re East London Rail. Co., Oliver's Claim (1890), 24 Q. B. D. 507. (i) Arbitration Act, 1889, s. 11, sub-ss. 1 and 2, vide post, p. 241. See Kussell on Arbitration. (A) hi re Elliot, Ex parte South Devon Rail. Co. (1848), 2 Do G. & Sm. 17. (0 L. CI. Act, 1845, s. 33; but cf. -post, Book II., p. 325. (m) .Dairies v. South Staffordshire Rail. Co. (1851), 21 L. J. M. C. 52. («) Re Bradshaw's Arbitration (1848), 12 Q. B. 562; 17 L. J. Q. B. 362. (o) Palmer v. Metropolitan Rail. Co. (1862), 31 L. J. Q. B. 259; cf. Levich v. Epsom, $c. Rail. Co. (1859), 1 Z>. T. 60. (p) Mayor, §c. of Ludlow v. P rosier (1906), 22 Times L. R. 597. (?) But cf. Book II., pp. 319, 320. 190 ARBITRATION. each party, on the request of the other, is to nominate and appoint an arbitrator. It has been said to be the duty of the landowner before nominating an arbitrator to make an attempt to obtain the concurrence of the promoters to the appointment of a single arbitrator (r) ; but there is no obligation upon a landowner to take this course (s) . An agreement that two persons named shall nominate the arbitrator is not a concurrence in the appointment of a single arbitrator (t). On the part of the promoters, such ap- pointment is to be under their hands, or any two of them, or their secretary or clerk; and on the part of the owner, under his hand, or in the case of a corporation aggregate, under the corporate seal (m). Where parties who had agreed to refer, according to the provisions of the Lands Clauses Act, 1845, had not complied with all the formalities prescribed by that Act, but the agreement had been acted upon, it was held to be sufficient that the appointment of an arbitrator on behalf of a company should be signed by the secretary (v). The nomination of an arbitrator by the promoters under protest does not in any way admit that the landowner has any claim to compensation (x), or affect the question of liability. Submission to The appointment is to be delivered to the arbitrator, and is a not'revocable submission to arbitration, not revocable, except by consent (m). except by The Court has revoked a submission to arbitration under the Lands leave of Clauses Acts on the ground of the improper reception of evidence, Court. an( j this was held a convenient way of testing the validity of certain heads of claim («/). Section 1 of the Arbitration Act, 1889, makes a submission irrevocable except by leave of the Court or a judge, and it is only in exceptional cases that the Court or a judge would interfere in matters within the jurisdiction of the arbitrator (z). Sl °? le If, for fourteen days after a dispute has arisen, and a request in writing to appoint an arbitrator has been made, no appointment (r) Yates v. Mayor, $u. 0/ Blackburn (1860), 29 L. J. Ex. 447. (s) Eagle v. Charing- Cross Rail. Co. (1867), 36 L. J. C. P. 297, 303. (t) Martin v. Leicester Waterworks Co. (1858), 27 L. J. Ex. 432. (») L. 01. Act, 1845, s. 25. (v) Collins v. South Staffordshire Mail. Co. (1852), 21 L. J. Ex. 247; Faviell v. Eastern Counties Sail. Co. (1848), 17 E. J. Ex. 223. (.•5) Saltan Harbour Improvement Commissioners v. llitchens (1851), 21 ~L. J. Oh. 73. (»/) In re Lord Gerard and London and North Western Hail. Co., [1894] 2 Q. B. 915: [1895] 1 Q. B. 459; 63 L. J. Q. B. 764; 64 L. J. Q. B. 260; but see In re Palmer § Co. and Hosken $ Co., [1898] 1 Q. B. 131. (1) Last and West India Book Co. v. Kirk (1887), 12 App. Oas. 738; 57 L. J. Q. B. 295; James v. James (1889), 23 Q. B. D. 12; 58 L. J. Q. B.424. ARBITRATION. 191 is made, the party making such request, and having himself ap- pointed an arbitrator, may appoint such arbitrator to act on behalf of iboth parties, and the award or determination of such single arbitrator is final (a) . If an arbitrator is so to act for both parties, on the appointment of one party, he must receive from such party a separate and distinct appointment to act in that capacity, and this appointment can only be made after the lapse of fourteen days after notice of the actual appointment of an arbitrator to the other party (b). The appointment of an arbitrator is not revocable except by Appointment consent, and is a submission to arbitration which may be made a vocable* 3 " rule of Court on the application of either of the parties (c) . The Courts have a discretion to .revoke the submission to arbitration, and the same principle applies as in submissions by consent (<2) . On an application to revoke a submission, an appeal lies from the judge in Chambers to the Court of Appeal (e) . Since the Arbitration Act, 1889, submissions have the same Making effect in all respects as if they had been made an order (or a rule) a ru i e f of Court and it seems to be unnecessary to apply to have them Court - made rules of Court (/). If an arbitrator dies or becomes incapable to act, and the party, Death or who had appointed such arbitrator, does not, within seven days an arbitrator, after notice in writing, appoint some other person, the other arbitrator may proceed ex parte (g) ; and so, also, in the case where one of the arbitrators refuses or neglects to act for seven days (h) ; (a) L. 01. Act, 1845, a. 25. (b) Bradley v. London and North Western Rail. Co. (1850), 20 L. J. Ex. 3; cf. In re Douglas and Belfast Corporation, [1909] 2 Ir. R. 30. (c) S. 36, L. 01. Act, 1845; Re Chilivorth Gunpowder Co. and Manchester Ship Canal Co. (1891), 8 Times L. R. 79; cf. Arb. Act, 1889, s. 1. (d) In re Lord Gerard and London and North Western Rail. Co., [1894] 2 Q. B. 915; [1895] 1 Q. B. 459; 63 L. J. Q. B. 764; 64 L. J. Q. B. 260; Faviell v. Eastern Cmnties Rail. Co. (1848), 17 E. J. Ex. 223; East and West India Bocks Co. v. Kirk (1887), 12 App. Oas. 738; 57 L. J. Q. B. 295. (e) In re Portland V. C. and Tilley # Co., [1896] 2 Q. B. 98; 65 L. J. Q. B. 527. (/) Arb. Act, 1889, ss. 1, 25. As to the older practice, see Re Taylor (1821), 5 B. & Aid. 217; In re, Midland Rail. Co. and Eeming (1847), 11 Jur. 904; In re Ilawley arid North Staffordshire Rail. Co. (1848), 2 De G. & S. 33; Gelhing v. I< ' otheringham (1865), 13 W. R. 96; Re Bradshaw's Arbitration (1848), 12 Q. B. 562; 17 L. J. Q. B. 362. (g) Arb. Act, 1889, s. 6 (b). {h) Ss. 26, 29, 30, E. CI. Act, 1845; In re Ilawley and North Staffordshire Rail. Co. (1848), 2 De G. & S. 33. 192 ARBITRATION. Appointment of umpire. Time for. and such arbitrator may proceed to make an award ex parte, although no previous appointment of an umpire has been made, such an appointment not being a condition precedent to the ex parte proceedings (i) ; but if a single arbitrator dies or becomes incapable before making his award, the matter has to commence denovo (j). Before entering upon the matters referred to them, arbitrators are required to appoint, by writing under their hands, an umpire to give a final decision on matters on which they differ, and if thej fail to do so for seven days after request of either party to the arbitration, then the Board of Trade, upon the application of either party, appoint an umpire (,fc) . If an umpire appointed by the arbitrators dies or becomes incapable to act, the arbitrators are required, after such death or incapacity, forthwith to appoint another umpire in his place, and if they do not so appoint, their power is transferred to the Board of Trade (7c) . Where an umpire appointed by arbitrators refuses to act, or where an umpire appointed by the Board of Trade either refuses to act or is incapable of acting, or dies, there is no provision for a further appointment under the Lands Clauses Acts. In such a case the amount of compensation must be settled by the verdict of a jury (I), unless a new appointment can be made under section 5 of the Arbitration Act, 1889. It is, not necessary that an umpire should be appointed within twenty-one days of the appointment of the arbitrator last nomi- nated, even though the time for making an award has not been extended, since the incapacity to award does not affect the powers given for the appointment of an umpire (m) . But the appoint- ment must be within the period of three months referred to in , section 23 (n). The appointment of an umpire, if made by lot and not by choice, is invalid (o); but where two suitable persons for the (») Shepherd v. Corporation of Norwich (1885), 30 Ch. D. 553; 54 L. J. Ch. 1050. (/) Ss. 26, 29, 30, L. 01. Act, 1845; In re Haicley and North Staffordshire Sail. Co. (1848), 2 De G. & S. 33. (ft) Ss. 27, 28, L. Ol. Act, 1845; amended by L. CI. (Umpire) Act, 1883, s. 1. (I) S. 23, L. Ol. Act, 1845. (m) lie Bradshaw's Arbitration (1848), 17 L. J. Q. B. 362; Holdsvorth v. Wilson. (1863), 32 L. J. Q. B. 289; cf. East and West India. Dock Co. and Birmingham, §e. Hail. Co. v. Bradshaw (1849), 5 Rail. Cas. 527. («) Re Bradshaw's Arbitration (1848), 17 L. J. Q. B. 362; Holdsworth v. Wilson (1863), 32 L,. J. Q. B. 289. (o) In re Caxsell (1829), 9 B. & C. 624. ARBITRATION. 193 office of umpire have been chosen, an appointment is not bad because the selection of one of such persons has depended on chance (p). The arbitrators or umpire have power to regulate the course of Control of procedure in matters before them ; but, like other judges, they are ^^^ bound to observe the ordinary rules which are laid down for the conduct of administration of justice, and if they fail to observe these rules, to pr °' the prejudice of either party, the High Court will set aside the award (q). Section 32 of the Lands Clauses Act, 1845, empowers arbitrators or an umpire to call for documents, and to examine witnesses on oath. It is not absolutely necessary to take evidence on oath, though it is the ordinary practice (>•). The Arbitration Act, 1889, s. 8, entitles either party to an arbitration to sue out a writ of subpoena ad testificandum, or a writ of subpoena duces tecum, and the attendance of witnesses can, if required, be com- pelled under section 18 of that Act. But the application of the writ of subpoena duces tecum is confined to documents which the person, to whom it is given, could be compelled to produce on the trial of an action, and the Court has not power to issue a commission for the examination of witnesses (s). Any person who wilfully and corruptly gives false evidence in an arbitration, is guilty of perjury, and may be prosecuted accordingly (<). And if any person refuses to obey arbitrators or an umpire, a summons should be taken out at chambers, which is absolute in the first instance, and can be enforced by attachment (w). If either party refuses to attend, the arbitrators or umpire can proceed ex parte (x). V^hen the arbitrators and their umpire are experts, and it is the Expert intention of the parties that they should settle the value and not ar 1 ra rs " act as formal arbitrators, it is not necessary for them to give formal notice to the parties or to hear witnesses (y). (p) Neale v. Ledger (1812), 16 East, 51; In re Hopper (1867), L. R. 2 Q. B. 367. (?) Eaigh v. Haigh (1862), 31 L. J. Gh. 420; Wlmtley v. Norland (1833), 2 Dowl. P. C. 249. (»•) Wakefield v. Llanelly, $c. Rail. Co. (1865), 3 De G. J. & S. 11. (s) In re Shaw and Ronaldson, [1892] 1 Q. B. 91; 61 L. J. Q. B. 141; He Dreyfus and Paul (1893), 9 Times L. R. 358; cf. Book II., p. 322. (t) Perjury Ac*, 1911 (1 & 2 Geo. 5, c. 6), s. 1. (m) In re Guarantee Society and Levy (1844), 1 D. & L. 907. {x) Re Hewitt and Portsmouth Waterworks Co. (1882), 10 W. R. 780. (y) Bottomley v. Ambler (1878), 38 L. T. 545; 26 W. R. 566, (C. A.) (reversing Jessel, M. R.); Wright v. Ilowson (1888), 4 Times L. R. 386. C. 13 194 ARBITRATION. Award to be in writing. And for money only. Award not to be at variance with sub- mission. Costs. Special case. Section 35 of the Lands Clauses Act, 1845, requires that the award shall be in writing and shall be delivered to the promoters. It must be drawn so as to give an assessment of the money value, of the interest in lands, or of the injury to the interest in lands, claimed in the submission . The power of the arbitrators or umpire is limited to the award of money compensation, and, except by con- sent of the parties, no directions or conditions can be inserted (z). The arbitrators or umpire have no jurisdiction to award interest as between the date when the right of the claimant first accrued and the date of the award (a). It is important that there should be no variance between the language used in the submission, and that used in the award, to describe the interest in lands for which compensation is claimed (b) ; or a question may arise, whether the arbitrators have not awarded in respect of matters not submitted to their decision(c). On the question whether an award should include costs, vide infra, pp. 198,202. It is competent for the arbitrators or umpire to state their award, or part thereof, in the form of a special case for the opinion of the High Court (d) . If the award is stated by the arbitrators or an umpire in the form of a special case, an appeal can be brought against the decision of the High Court thereon (e), and the costs of the appeal are in the discretion of the Court (/). By section 19 of the Arbitration Act, 1889, the arbitrators or umpire may at any stage of the proceedings, and shall, if so directed by the Court or a judge, state in the form of a special case (z) Vid.e post, p. 224. . (a) In re Richard and Great Western Rail. Co., [1905] 1 K. B. 68; 74 L. J. K. B. 9. (b) Barker v. North Staffordshire Rail. Co. (1848), 12 Jur. 324; Re Brad- shaw's Arbitration (1848), 17 L. J. Q. B. 362; Re North Staffordshire Raff. Co. and Landor (1848), 17 L. J. Ex. 350; Wakefield v. Llanelli/ Rail., $c. Co. (1865), 3 De G. J. & S. 11. (c) North Staffordshire Rail. Co. v. Wood (1848), 17 L. J. Ex. 354. (d) Arb. Act, 1889, s. 7; of. In re Dare Valley Rail. Co. (1869), L. R. 4 Oh. 554; Rhodes v. Airedale Drainage Commissioners (1876), 1 C. P. D. 402; Ex parte Harper (1874), I». R. 18 Eq. 539; In re Harper and Great Eastern Rail. Co. (1875), L. R. 20 Eq. 39; 44 L. J. Oh. 507. (e) Re Bidder and North Staffordshire Rail. Co. (1879), 4 Q. B. D. 412; 48 L. J. Q. B. 248; In re Kirkleatham Local Board and Stockton and Middles- brough Water Board, [1893] 1 Q. B. 375; A. C. 444; 62 L. J. Q. B. 180. (/) In re Gonty and Manchester, Sheffield and Lincolnshire Rail. Co., [1896] 2 Q. B. 439, 451; 65 L. J. Q. B. 625. As to the costs of the special case, see post, p. 200. ARBITRATION. 195 for the opinion of the Court any question of law arising in the course of arbitration. This section has an important effect on procedure in arbitrations. It may be presumed that the arbitrators or umpire would state, in the form of a special case for the opinion of the Court, any question of law of a substantial kind bond fide raised in the course of the arbitration ; but should this not be done, the Court or a judge has power to order that a special case shall be stated raising any such question of law (g), or to set aside the award on the ground of misconduct (h). It is not necessary to wait until the arbitrator has expressed an opinion adverse to the party asking for a special case (i). Any question of law can be raised in a convenient form by applying the provisions of the above section, but it has been held that there is no appeal from the decision of the High Court on a special case stated under this section, and that the costs incurred in connection with the special case arc costs in the arbitration and cannot be dealt with by the High Court (k). If the High Court is asked to compel an arbitrator to state a special case pending the arbitration, terms as to costs may be imposed (k). The only method in which to obtain the ppinion of the High Court during the progress of an arbitration in such a form that an appeal will lie appears to bo to apply by motion to revoke the submission to arbitration (I). An arbitrator cannot be directed to state a special case for the opinion of the Court under section 19 when the application is not made until after the arbitration has been concluded (m). (g) Re Nuttall and Lyntan and Barnstaple Bail, Co. (1900), 82 L. T. 17; followed Re Pearson and Great Western Rail. Co. (1904), C. A., Feb. 15th, not reported; cf. In re Gough and Mayor of Liverpool (1890), 6 Times L. R. 453. Appeal lies from judge in chambers to Divisional Court: In re Frere and Staveley Taylor # Co. and North Shore Mill Co., [1905] 1 K. B. 366; 74 L, J. K. B. 208. (A) In re Palmer §■ Co. and Hosfcen § Co., [1898] 1 Q. B. 131; 67 L. J. Q. B. 1. (*) In re Spillers and Balcer and Leetham # Sons, [1897] 1 Q. B. 312; 66 L. J. Q. B. 326. (Je) In re Knight and Tabernacle Building Society, [1892] 2 Q. B. G13; 62 L. J. Q. B. 33. (Z) In re Lord Gerard and London and North Western Rail. Co., [1894] 2 Q. B. 915; [1895] 1 Q. B. 459; 63 L. J. Q. B. 764; 64 L. J. Q. B. 260; but see In re Palmer f Co. and Hoshen $ Co., supra. (m) In re Montgomery, Jones § Co\. and Liebenthal § Co. (1898), 78 L. T. 406. 13(2) 196 ARBITRATION. Arbitrator should not employ solici- tor of one of the parties. Time within which award should be made. Power of Court to enlarge time. It is improper that the arbitrator should employ the solicitor and advocate of one of the parties to the reference to draw up his award, although the Court refused to interfere, when a strong affidavit was made by the arbitrator that such solicitor, being also his private solicitor, had only been consulted as to the form in which the award should be made (n). So long as an arbitrator exercises his own judgment, he may consult an impartial third person without the assent of the parties (o). If arbitrators do not make their award within twenty-one days after the day on which the last of such arbitrators is appointed, or within such extended time as shall have been appointed under their hands, the matters referred to them are determined by the umpire (p). The arbitrators or the umpire cannot, unless both parties consent, or the time is enlarged by the Court or a judge, award after an interval of more than three months from the date on which their authority was complete (q) . The same rule applies where a single arbitrator is appointed by the owner of lands in- juriously affected on the failure of the promoters to appoint, or concur in appointing, an arbitrator (r). If no award has been made within three months, and there has been no extension of time, the question of compensation must be settled by a jury («). The umpire has a fresh period of three months from the date at which the arbitration devolves on him (t). The statutory limit of time for the making of an award is for the protection of the parties, and can be waived by their consent, such consent operating as a new submission (u) . Section 9 of the Arbitration Act, 1889, not being inconsistent with any provision in the Lands Clauses Acts, applies, by virtue of section 24 of the Arbitration Act, 1889, to arbitrations under the Lands Clauses Acts, and the time for making an award may from (n) Underwood v. Bedford and Cambridge Rail. Co. (1861), 31 L. J. C. P. 10. (o) Anderson v. Wallace (1835), 3 CI. & F. 26; Caledonian Rail. Co. v. Lockhart (1860), 3 Macq. H. L. (Sc.) 808; cf. Whitmore v. Smith (1860), 29 L. J. Ex. 402. G>) L. 01. Act, 1845, ». 31. (?) L. 01. Act, 1845, a. 23; Arb. Act, 1889, s. 9. (»•) Evans v. Lancashire and Yorkshire Sail. Co. (1853), 22 L. J. Q. B. 254. (s) S. 23, L. CI. Act, 1845. (t) Skerratl v. North Staffordshire Rail. Co. (1848), 17 L. J. Ch. 161; In re Pullen and Corporation of Liverpool (1882), 51 L. J. Q. B. 285. («) Palmer v. Metropolitan Rail. Co. (1862), 31 L. J. Q. B.. 259; cf. Cale- donian Rail. Co. v. Lockhart (1860), 3 Macq. H. L. (Sc.) 808. ARBITBATION. 197 time to time be enlarged by order of the Court or a judge, whether the time for making the award has expired or not (x). Section 10 of the Arbitration Act, 1889, is applicable to arbitra- Power to tions under the Lands Clauses Acts, and its effect is that all such lenu awar submissions to arbitration will be deemed to contain a clause giving the Court power to refer back the award to the arbitrator or umpire («/), even though he be functus officio (z). The grounds on which matters can be remitted to an arbitrator for reconsidera- tion are fully dealt with in the case of In re Montgomery Jones & Co. and Liebenthal & Co. (a). Section 35 of the Lands Clauses Act, 1845, enacts that the arbi- Promoters trators shall deliver their award in writing to the promoters, and peU e d%o°take that the promoters shall retain the same, and shall at their own U P award, expense, on demand, furnish a copy to the other party, and shall at all times, on demand, produce the same for inspection. An application for an order to compel the promoters to take up an .award and to furnish a copy to the other party can be made in the High Court (6), and it is no answer to such an application that the promoters appointed their arbitrator under protest (c). Section 35 applies to an arbitration under section 78 of the Railways Clauses Act, 1845, and in a proper case the Court will not refuse to grant a prerogative writ of mandamus (d) . By section 12 of the Arbitration Act, 1889, an award on a sub- Enforcement mission may, by leave of the High Court or a judge, be enforced in the same manner as a judgment or order to the same effect, but inasmuch as an award under the Lands Clauses Acts only U) In re Bare Valley Rail. Co. (1869), I>. B. 4 Ch. 554; 38 L. J. Ch. 417; Denton v. Strong (1874), L. R. 9 Q. B. 117; 43 L. J. Q,. B. 41. These deci- sions are upon sections of the Common Law Procedure Act, 1854, repealed, but in effect re-enacted by the Arbitration Act, 1889. (y) In re Keighley # Co. and Durant # Co., [1893] 1 Q. B. 405, 409; 62 L. J. Q. B. 105. (2) In re Stringer and Riley Bros., [1901] 1 K. B. 105; 70 L. J. K. B. 19. (a) (1898), 78 L. T. 406, 408, per Chitty, L. J. (J) R. v. South Devon Rail. Co. (1850), 20 K J. Q. B. 145; In re Harper and Great Eastern Rail. Co. (1875), L. B. 20 Eq. 39; 44 L. J. Ch. 507; R. v. Barton and Immingham Light Rail. Co., [1912] 3 K. B. 72. These cases are inconsistent with Sutton Harbour Improvement Commissioners v. Eitchens {1853), 16 Beav. 381; but by the Judicature Acts the Court of Chancery is simply a division of the High Court. (0) London and North Western Rail. Co. v. Walker, [1900] A. C. 109; 69 L. J. Q. B, 367. (d) R. v. London and North Western Rail. Co., [1894] 2 Q. B. 512; 63 L. J. •Q. B. 695. 198 ARBITRATION. Payment of arbitrators. Arbitrators' costs. settles the amount of, and not the right to, compensation, the Court or a judge would probably not apply the above provision in any case in which there is a bond fide question raised, either as to the right to claim compensation, or as to the title of the claimant (e). Prior to the Arbitration Act, 1889, the Courts would not interfere by motion to enforce awards under the Lands Clauses Acts (/) . The promoters are bound to pay the arbitrators a reasonable sum for their award, and the statute does not take away the arbi- trators' lien (g) ; but if half the costs are to be borne by the owner, it would be the right course for the owner to offer to pay his share of the arbitrators' charges, before applying for a mandamus against the promoters. If a landowner, instead of proceeding under section 35, pays the umpire's fees and himself takes up the award, he cannot recover the sums so paid by him to the umpire in an action against the promoters (h) . When fees have once been paid,, whether by the promoters or by the landowner, they can only be recovered on the ground that they have been obtained by duress or are extortionate (i) . In his award the umpire should, if required, separate the sum which he awards to himself for his charges from the sum awarded to the arbitrators for their charges (k) . The amount of the costs incurred in the reference and award should be ascertained and stated in the award itself ; otherwise they are liable to taxation in the ordinary course (I) . Where the amount awarded includes a bill of costs to solicitors employed by the umpire to draw up the award, such bill becomes taxable under section 38 of the Solicitors Act, 1843 (m). 0) Of. In re WUlesden L. S. and Wright, [1896] 2 Q. B. 412; 65 L. J. Q. B. 567. (/) In re Walker and Beckenham Local Board, (1884), 50 L. T. 207; Re Newbold and Metropolitan Rail. Co. (1863), 14 C. B. N. S. 405. (g) R. v. South Devon Rail. Co. (1850), 20 L. J. Q. B. 145; of. R. v. Cambrian Rail. Co. (1869), L. R. 4 Q. B. 320; Crampton v. Ridley (1887), 20 Q. B. D. 48; R. v. London and 'North Western Rail. Co., [1899] 1 Q. B. 921, at p. 926; 68 L. J. Q. B. 685. (A) Earl of Shrewsbury v. Wirrall Railways Committee, [1895] 2 Ch. 812; 64 L. J. Gh. 850; and of. Llandrindod Wells Water Co. v. Hawksley (1903),. 20 Times L. R. 241. (») Llandrindod Wells Water Co. v. Hawksley (1903), 20 Times L. B. 241. (A) In re Gilbert and Wright (1903), 20 Times L. R. 164. (1) In re Prebble and Robinson. [1892] 2 Q. B. 602. (m) In re Collyer-Bristow if Co., [1901] 2 K. B. 839; 70 L. J. K. B. 941. ARBITRATION. 199 It is a good return to a mandamus ordering the promoters to That lauds take up an award and to furnish a copy to the other party that the injured^ a 6n lands of the owner have not been injuriously affected (n), or that g»od answer ii- iii -n i • p o ■ to a manda- the claimant has been paid an agreed sum m lull satisfaction of his mus to take claim (o). But, in showing cause against a rule for a mandamus up award - to take up an award, the promoters will not be allowed to raise the objection, that the notice under 'section 23 of the Lands Clauses Act, 1845 (p), was not properly given (q). The evidence of an arbitrator, in an action for the enforcement Capacity of of his award, is admissible for certain purposes, and within certain as a witness* limits. An arbitrator is a competent witness to state matters of fact, which have taken place before him up to the time when he proceeded to make his award, so far as they are relevant in a plea to his jurisdiction, which alleges that he has mistaken the subject-matter referred to him, and has taken into account ques- tions not submitted to his decision (r) . But the award is a written document which speaks for itself (s), and the evidence of the arbi- trator or umpire is not admissible to explain its terms, or the con- siderations which influenced him in fixing the amount (r) . An arbitrator is not liable in an action for negligence (t). Arbitrator An award under the Lands Clauses Acts is not invalidated by negligence, any irregularity or error in matter of form (w), nor by any infor- Formal malities in it (x), and the arbitrator may correct in an award any clerical errors, clerical mistake or error arising from any accidental slip or omission (y) . («) R. v. Cambrian Rati,. Co. (18S9), L. R. 4 Q. B. 320; 38 L. J. Q. B. 198. (o) R. v. West Midland Rail. Co. (1862), 11 W. R, 857. (p) Ante, p. 185. (?) R. v. Sutton Harbour Commissioners (1853), 2 W. R. 10. if) Buecleuch v. Metropolitan Board of Works (1867), L. R. 3 Ex. 306; 5 Ex. 221; 5 H. L. 418; 41 L. J. Ex. 137; cf. In Re Dare Valley Rail. Co. (1868), L. R. 6 Eq. 429; 37 I>. J. Ch. 719. (s) Of . O'Rourke v. Commissioner for Railways (1890), 15 App. Cas. 371 ; 59 L. J. P. C. 72. (0 Chambers v. Goldthorpe, [1901] 1 K. B. 624; 70 L. J. K. B. 482: though he might be liable, where his award is set aside on the ground of mis- conduct, in an action for the return of fees paid for a consideration which had wholly failed: cf. Re Hall and Hinds (1841), 2 Man. & G. 847. (w) Lands Clauses Act, 1845, s. 37. (0 In re Harper and Great Eastern Rail. Co. (1875), L. R. 20 Eq. 39; 41 L. J. Ch. 507; cf. Lindsay v. Direct London and Portsmouth Rail. Co. (1850), 19 L. J. Q. B. 417. GO Arb. Act, 1889, s. 7 (c). 200 ABBITKATION. If arbitration fail, compen- sation to be settled by a jury. Costs. Offer not admissible in evidence. When final offer may be made. If, through any cause, arbitration proceedings fail, and no final award is made, the question of compensation must be settled by a jury, and, apart from agreement (z), there is no provision in the Lands Clauses Act, 1845, for commencing fresh steps with a view to a second arbitration (a) . The costs of arbitration proceedings (6) are borne by the pro- moters, unless the arbitrators (c) award the same (d) or a less sum than the promoters have offered, in which case each party bears his own costs, and the costs of the arbitrators are paid in equal proportion. Such costs include the costs of a special case stated by an arbitrator by virtue of his powers under section 19 of the Arbitration Act, 1889, which fall to be dealt with under the provisions of the Lands Clauses Act, 1845, and not under those of the schedule to the Arbitration Act, 1889 (e). The above provisions apply to all arbitrations, whether under section 23 of the Lands Clauses Act, 1845, or under section 68, when lands have been taken or injuriously affected (/). The right to costs, in an arbitration under the Public Health Act, 1875, in respect of lands taken compulsorily under the powers of that Act, is governed by the provisions of the Lands Clauses Acts (g), and not by the provisions of sections 179, 180 of the Public Health Act, 1875 (h). The offer on which the right to costs depends is not relevant or admissible in evidence in the arbitration (i) . The final offer, which binds the company, and determines the claimant's right to costs, must be made before the arbitration (s) S. v. Manley Smith (1893), 63 L. J. Q. B. 171. (a) S. 23, L. 01. Act, 1845; Lind v. Isle of Wight Ferry Co. (1862), 7 L.T. 416; In re South Yorkshire, $a. Sail. Co., Ex parte Senior (1849), 18 L. J. Q. B. 333. (6) Cf. Book II., p. 326. (o) The words "the arbitrators" include "the umpire": Gould v. Stafford- shire Potteries Waterworks Co. (1850), 19 L. J. Ex. 281; and cf. S. v. Manley Smith (1893), 63 K J. Q. B. 171. (d) Miles v. Great Western Sail. Co., [1896] 2 Q. B. 432; 65 L. J. Q. B. 649; Siddell v. Lanarkshire, $o. Sail. Co. (1904), 6 F. (Ct. of Sess.) 432. (e) Sidney v. North Eastern Sail. Co., [1916] 2 K. B. 760. (/) South Eastern Sail. Co. v. Siclmrdson (1852), 21 L. J. C. P. 122; cf, S. v. Manley Smith (1893), 63 L. J. Q. B. 171. (g) Ex parte Sayner (1878), 3 Q. B. D. 446; 47 L. J. Q. B. 660. (h) Cf. Book II., p. 339, and see p. 386 as to the Light Bailways Act, 1906. (») Gould v. Staffordshire Potteries Waterworl-s Co. (1850), 19 L. J. Ex. 281, per Parke, B. ARBITRATION. 201 commences; that is, before the time when the last of the two arbitrators is appointed so as to enable the claimant to make up his mind before he has incurred any substantial expense whether or not he will accept it(fc). The promoters have power to make Amended amended offers of compensation, so long as the final offer is made £Jde. niay ' before the commencement of the arbitration (I) ; but the offer must be for the amount of compensation only, and not for a sum including compensation and costs (to). In the case of Fisher v. Great M r estern Rail. Co. («), Lord Alverstone, C. J., presiding, and Lord Justice Buckley in the Court of Appeal both expressed the opinion that the offer must be of a sum of money only, and Contents must not include the execution of works. The offer in that case of offer - was in the following form, " on the understanding that such road will be made, we make you an offer of 50Z.," and it was held that it was not a good offer under section 34 of the Lands Clauses Act, 1845, as it did not enable the claimant to judge what his position would be when he went to arbitration. If no offer is made (o), or if an offer made is withdrawn (p), the claimant is entitled to his costs. If the award made is not in respect of the same 6ubject-matter as that in respect of which the offer was made, or the same state of things as that which existed at the date of the offer (q), the owner is entitled to his costs of the arbitration, although the sum awarded is less than the amount of the company's offer (r) . Where an offer has been made by the promoters under section 38, and subsequently thereto notice is given of a desire to have . the compensation settled by arbitration, such notice does not abrogate the offer, and if the sum offered is mot less than that awarded the claimant must bear his own costs of the arbitration (s) . (k) Fitzhardinge v. Gloucester, $o. Canal Co. (1872), L. R. 7 Q. B. 776; •41 L. J. Q. B. 316; Gray v. North Eastern Rail. Co. (1876), 1 Q. B. D. 696; 45 L. J. Q. B. 818; Yates v. Mayor of Blackburn (I860), 29 L. J. Ex. 447. (0 Rayward v. Metropolitan Rail. Co. (1863), 33 L. J. Q. B. 73; Fitz- hardinge v. Gloucester, §o. Canal Co. (1872), L. R. 7 Q. B. 776; 41 L. J. Q_. B. 316; Fisher v. Great Western Rail. Co., [1911] 1 K. B. 551. (to) Sails v. Metropolitan Board of Works (1866), L. R. 1 Q. B. 337; 35 L. J. Q. B. 101. (») [1911] 1 K. B. 551. (o) Martin v. Leicester Waterworks Co. (1858), 27 L. J. Ex. 432. GO Foster v. Sheffield Corporation (1895), 72 L. T. 549. (?) Fisher v. Great Western Rail. Co., [1911] 1 K. B. 551. (r) Miles v. Great Western Rail. Co., [1896] 2 Q. B. 432; 65 L. J. Q. B. 649. . J. Ch. 397; West India Hock Co. v. Gattlce (1851), 20 L. J. Ch. 217. Vide post, p. 225. (x) Schwinge v. London and Blackwall Rail. Co. (1855), 24 L. J. Ch. 405; Wood v. North Staffordshire Rail. Co. (1849), 3 De G. & Sm. 368; Spencer v. Metropolitan Board of Works (1882), 22 Ch. D. 142; 52 L. J. Ch. 249. (y) Stone v. Commercial Rail. Co. (1839), 4 Myl. & Cr. 122. (z) R. v. Lancaster and Preston Junction Rail. Co. (1845), 14 L. J. Q. B. 84. (a) In re Crawshaw Bailey (1852), Bail Ct. Cas. 66. (b) Morrison v. Great Eastern Rail. Co. (1885), 53 L». T. 384. JUEY. 209 Under section 21 of the Lands Clauses Act, 1845, the owner is Owner is given twenty-one days after the service of a notice to treat, for one^ayl after the purpose of negotiation and of entering into an agreement, if ser yi<=e of possible, with the promoters. When a counter-notice is given by treat, the owner under section 92 of the Lands Clauses Act, 1845, a second formal notice by the promoters under section 18 is not requisite, and the twenty-one days mentioned in section 21 are not applicable ; but an owner is entitled to a reasonable opportunity of agreeing with the promoters before they proceed to summon a jury (c). Before issuing their warrant for summoning a jury to assess the Notice to value of lands required by them for the purposes of their under- ? WB . er bef ore taking, the promoters are required to give the owner not less than warrant, ten days' notice, and to state in such notice the amount of compen- sation they are willing to offer (d) . This provision does not apply where lands have been already taken or injuriously affected, and the owner gives notice under section 68 of the Lands Clauses Act, 1845, of his desire to have the amount of compensation settled by a jury (e). Lands are not taken within the meaning of section 68 unless they are jihysically taken (/) . The promoters are not precluded from making a second and amended offer of a larger amount of compensation to an owner, where the amount is deter- mined by a jury (g) ; but how far this may affect the question of costs will be subsequently considered (A) . The promoters issue their warrant under their common seal, or, How warrant if they are not a corporation, under the hands and seals of the and^to whom' promoters, or of any two of them, to the sheriff, or, if the sheriff issued, is interested, to a coroner of the county where the lands in question are situate, or, if all the coroners are interested, to an ex-sheriff or ex-coroner, requiring him to summon a jury (i). By the intcr- (e) Schillings v. London and Blachundl Sail. Co. (1855), 24 L. J. Ch. 404, 415. (d) S, 38, L. Ol. Act, 1845. (e) Sailstone v. York, $c. Sail. Co. (1850), 19 L. J. Q. B. 464; Metropolitan Sail. Co. v. Turnham (1863), 32 K J. M. C. 249; Hayward v. Metropolitan Had. Co. (1863), 33 L. J. Q. B. 73. Sichardson v. South Eastern Sail. Co. (1852), 21 L. J. C. P. 122, contra, has not been followed on this point. (/) Burjcimhaw v. Birmingham, $e. Sail. Co. (1850), 20 L. J. Ex. 246; S. v. Manley Smith, In re Church and London School Board (1892), 67 L. T. 197. (g) Hayward v. Metropolitan Sail. Ce. (1863), 33 L. J. Q. B. 73. (A) Post, p. 216. (i) S. 39, L. CI. Act, 1845. c. U 210 JURY. pretation clause of the Lands Clauses Act, 1845 (s. 3), the word Sheriff. " sheriff " j s defined to include under-sheriff or other legally com- petent deputy, and to mean the sheriff of the county, city, borough, liberty, cinque port, or place where the lands in question are situate ; and if such lands, being the property of one and the same party, be situate not wholly in one county, city, borough, liberty, cinque port, or place, the word " sheriff " is to be construed to mean the sheriff of any county, &c, where any part of such lands are situate (7c) . In the city of Westminster the high bailiff is sub- stituted for the sheriff (I). The inquiry is properly held before the sheriff of the place where the lands are, even when the works by which the lands are injuriously affected are not within the jurisdiction of the same sheriff (m). The interpretation clause is governed by the words " unless there be something either in the subject or context repugnant to such construction," and if the sheriff is interested the promoters should not issue their warrant Coroner. to an under-sheriff, but to the coroner (n) . The coroner has in all respects the same powers as a sheriff, if the warrant for summoning a jury is issued to him (o). Sheriff not to ip ne provision that the sheriff, or other officer to whom the be interested. x warrant for summoning a jury is issued, shall not be interested in the matter in dispute, is a declaration of the common law prin- ciple, that no one shall be a judge in his own case (p), and can be waived by consent (q) . Holding shares in the promoting com- pany (r) or being a ratepayer in the district in which the compen- sation will be levied (s) constitutes the sheriff an interested party. If a party appears and conducts his case without knowing that the sheriff is interested, he does not waive his right to make a sub- sequent objection, and is entitled to a certiorari to quash the (k) Cf. In re Cooling and. Great Northern Sail. Co. (1849), 14 Q. B. 25. (0 L. CI. Act, 1869, ». 3. (m) S. v. Great Northern Sail. Co. (1849), 19 L. J. Q. B. 25. (n) Worsley v. South Devon Sail. Co. (1851), 20 L. J. Q. B. 254. Cf. S. v. London and North Western Sail. Co. (1863), 9 L. T. 423. (») S. 40, L. a. Act, 1845. (p) S. v. Sheriff of Warwickshire (1854), 3W.E, 164; Ex parte Baddeley (1848), 5 D. & L. 575. (g) Cf. Corrigal v. London and Blackmail Sail. Co. (1843), 12 L. J. C. P. 209; Ex parte Baddeley (1848), 5 D. & L. 575. {r) S. v. London and North Western Sail. Co. (1863), 9 L. T. 423; cf. Ex parte Baddeley (1848), 5 D. 4 L. 575. (s) S. v. Sheriff of Warwickshire (1854), 3 W. E. 164. JURY. 211 inquisition (t). Where the sheriff is a shareholder in the pro- moters' undertaking, it would seem doubtful whether, if they issue their warrant to him, they can subsequently impugn the validity of the inquisition on the ground of such interest (u). In B. v. Manchester, Sheffield and Lincolnshire Rail. Co. (x), the railway company issued their warrant to a sheriff who was a shareholder in another railway company, with which they had parliamentary powers to agree for an amalgamation ; but no such agreement had been carried out. The jury were summoned by the under-sheriff, and the inquiry was held before a legal assessor. It was decided that the interest of the sheriff was contingent and remote, and that he was not interested in the matter in dispute so as to be disqualified under section 39 of the Lands Clauses Act, 1845. The promoters may properly issue their warrant to the sheriff of a county where the under-sheriff is interested, and it rests with the sheriff to appoint some qualified deputy, or to hold the in- quisition himself (y). In the event of all persons to whom a warrant could be issued being interested no form of procedure is provided ; but such a contingency is not likely to occur. If a sheriff, to whom a warrant is properly issued, neglects or Mandamus P . • , , , .,,. -iito sheriff to refuses to summon a jury to meet at a convenient time and place, 8Umm on jury, distant not more than eight miles from the lands in question, and not more than twenty-one nor less than fourteen days after the receipt of the warrant (z), a mandamus compelling him to do so will be granted (a). There is no power to postpone without con- sent (&). When the verdict of a jury has been set aside by the order of a superior Court, the sheriff has authority, and can be compelled, to proceed under the original warrant, which, after the setting aside of the verdict, is unexecuted (c) . The number of jurymen to be summoned is twenty-four, and Summoning ■out of these twelve persons are to be drawn by the sheriff, and all ° :,ury " (t) R. v. Sheriff of Warwickshire (1854), 3W.E. 164. O) Cf. Corrigal v. London and Blackwall Bail. Co. (1843), 12 L. J. C. P. ■209. CO (1867), L. E. 2 Q. B. 336; 36 L. J. Q. B. 171. (SO Worsley v. South Devon Hail. Co. (1851), 20 L.. J. Q. B. 254. 00 L. CI. Act, 1845, s. 41. (a) R. v. Sheriff of Middlesex, Me Walker and London mid Blackwall Rail. ■Co. (1842), 3 Q. B. 744. (5) Galloway v. Mayor, fa. of London (1866), 12 Jur. N. S. 182. (0 Sorrocks v. Metropolitan RaU. Co. (1865), 19 C. B. N. S. 139; Tanner v. Swindon, fa. RaU. Co. (1881), 45 L. T. 209. 14(2) 212 JURY. Remedy if juryman is not qualified. Jury may view lands. Penalties for default of jurymen. Special jury. Nomination of special jury. parties concerned are to have their lawful challenges against any of the jurymen; but no such party can challenge the array (cc)„ If there is not a full j ury, the parties may agree to try the question of compensation before the jurymen who are in fact present (d). If jurymen are not qualified to act, the remedy of the parties is by challenge, and an inquisition will not subsequently be set aside on this ground (e). But the verdict of a jury will be set aside on the ground of treating, as where the claimant gave the jury a champagne luncheon (/). At the request of either party, the sheriff must order the jury,. or any six or more of them, to view the place or matter in con- troversy (g). The jury are sworn (h), and if a juryman does not appear, or on appearance refuses to be sworn, or in any other manner unlawfully neglects his duty, he shall forfeit a sum not exceeding 101., unless he show reasonable excuse to the satisfaction of the sheriff ; and the jurymen arc also in addition subject to the same regulations, pains, and penalties, as if the jury had been returned for the trial of an issue in the High Court (t). If either party desire a special jury, the question of compensa- tion is to be tried before a special jury ; but the claimant for compensation must give notice of such desire before the issuing of their warrant to the sheriff by the promoters . The giving of such, notice does not act as a waiver or withdrawal of a prior notice under section 68 nor extend the time of the promoters for issuing their warrant for summoning a jury (fc). The sheriff summons both parties before him for the purpose of nominating a special jury, and not later than eight days after such nomination, the sheriff appoints a day, and gives to the parties four days' notice, for the purpose of reducing to twenty the number of the said special jury. The number of special jurymen to try (cc) S. 42. (d) Ex parte Great Western Rail. Co., In re Sheriff of Gloucester (1851), 18 L. T..O. S. 92. (e) In re Chelsea Waterworks Co., Ex parte Phillips (1855), 24 L. J. Ex. 79. Of. Cooling v. Great Northern Bail. Co. (1850), 19 L. J. Q. B. 529. (/) Tanner v. Swindon, #o. Mail. Co. (1881), 45 L. T, 209. Cf. He Maunder (1883), 49 L. T. 535. (g) L. CI. Act, 1845, a. 43. (/») S. 48. (0 S. 44. (/c) Glyn v. Aberdare Bail. Co. (1859), 28 L. J. C. P. 271. JURY. 213 any question of compensation is twelve ; and if there is not a full jury, the sheriff, at the request of either party, adds to the list of the jury the names of other disinterested persons qualified to act as common or special jurymen, and against such persons all parties have their lawful challenges (l). If the parties agree, any inquiry other than that for the trial Other in- of which the special jury has been struck, may be tried by such ^Sal jury* 6 jury (to). No juryman, without his consent, can be summoned to attend an inquiry for the purpose of assessing compensation more than once in any year (»). The promoters must give to the owner not less than ten days' Notice of time notice in writing of the time and place of the inquiry. If the owner ^ qu i.y Ce ° does not appear at the time appointed, such inquiry is not further Failure of to be proceeded in, but the compensation is assessed by a surveyor P artles t0 x ± j j appear. appointed by two justices under ss. 59 — 63 (o). If the company against whom the claim is made do not appear, the jury should be sworn and assess the amount in the same way as when a defendant in an action fails to appear (p). The sheriff presides at the inquiry, and the claimant in matters Procedure, of procedure has the same rights and privileges as the plaintiff in an ordinary action (p) . These words refer to the conduct of p>ro- ceedings and the right to begin, and have no reference to costs (q) . 'The sheriff must at the request of either party summon any Witnesses, witness (p) . If a witness, duly summoned, and to whom a tender of reasonable compensation has been made, fails to appear, or refuses to be examined on oath, he forfeits to the party aggrieved a sum not exceeding 10Z. (r). If the sheriff make default in any of the matters required to Default of be done by him, in relation to any such trial or inquiry, he forfeits 50/., recoverable by the promoters by action in the High Court (s) . Any penalty payable by the sheriff or a juryman is ■applied in satisfaction of the costs of the inquiry, so far as the same will extend (s) . (0 L. 01. Act, 1845, ss. 54, 55. (m) S. 56. (») S. 57. (o) Ss. 46, 47. (p) S. 43. (?) R. v. Gardner (1837), 6 A. & E. 112; of. B. v. Sheriff of Wanvulcshire (1841), 2 Bail. Cas. 661. (r) S. 45. 00 S. 44. 214 jury. Form of If a ll preliminary steps necessary to give jurisdiction have in fact been taken, and the jurisdiction substantially appears on, or may be inferred from, the inquisition read in conjunction with the warrant issued to the sheriff, an objection to the form of the inquisition will not be entertained (t) . An inquisition is sufficient, although it does not on the face of the document contain a direct allegation that the parties have disagreed as to the amount of com- pensation, or that the notice of proceedings before the jury has been given in conformity with the statutory requirements (m). It is not necessary that the warrant and inquisition should refer to the notice to treat, or give particulars of the lands required {x) t provided there is no question as to the identity of the lands in respect of which compensation has been assessed. The inquisition need not state that the capital has been subscribed, so as to authorize the exercise of compulsory powers (y). Judgment to The sheriff, before whom the inquiry is held, gives judgment sheriff and to f° r the purchase-money or compensation assessed by a jury, and te ""ff and th- e verdict and judgment are signed by the sheriff, and kept by the clerk of the peace among the records of the general or quarter sessions. Such verdicts and judgments are deemed records, and copies thereof, signed and certified by the clerk of the peace, are made good evidence (2). Although the inquisition is held before the under-sheriff, it should be signed in the name of the sheriff (a) ; and if the inquisition has not been duly recorded, parol evidence may be given of the finding of the jury (&). Validity of If an objection is raised to the validity of an inquisition on the ground of want or excess of jurisdiction, the proper course is to apply for a certiorari (c), and not for a prohibition against the sheriff, to prevent him from recording the judgment and ver- («) Taylor v. Clemson (1842), 2 Q. B. 978; Ostler v. Cooke (1849), 18 L. J. Q. B. 185. (u) Taylor v. Clemson (1842), 2 Q. B. 978. («) Ostler v. Cooke (1849), 18 L. J. Q. B. 185. (y) Doe d. Payne v. Bristol and Exeter Bail. Co. (1840), 6 M. & W. 320. (z) Chabot v. Lord Morpeth (1850), 19 L. J. Q. B. 377. (a) R. v. Perkin (1845), 7 Q. B. 165; Stroud v. Watts (1846), 3 D. & L. 799. (S) Manning v. Eastern Counties Sail. Co. (1844), 13 L. J. Ex. 265. (o) Of. South Wales Mail. Co. v. Richards {R. v. South Wales Rail. Co.) (1849), 18 L. J. Q. B. 310; R. v. London and North Western Rail. Co. (1854), 23 L. J. Q. B. 185; In re Penny and South Eastern Rail. Co. (1857), 26 L.J. Q. B. 225; Streatham, $c. Estates Co. v. Public Works Commissioners (1888), 52 J. P. 615. inquisition. JURY. 215 diet (d) ; but certiorari is not granted for an irregularity which does not amount to a want of jurisdiction (e). The High Court will not quash an inquisition of a jury on the ground that the interest of the person claiming compensation turns out, upon the inquiry before the jury, to be a monthly tenancy instead of a lease. The validity of the inquisition may be questioned in an action brought for the amount awarded ; and it would seem that notice should in such a case be given to the taxing officer not to tax the costs of the inquiry (/) . If the verdict of the jury is given for a greater sum than has Costs of an previously been offered by the promoters, all the costs of the ™]™y ybefore inquiry are borne by the promoters (g) . If the verdict is given for the same or a less sum, or no verdict is given because the owner fails to appear, each party pays his own costs ; and half the formal costs (h) of summoning, impannelling and returning the jury, and, if necessary, of taking the inquiry and recording the verdict and judgment thereof, are paid by each party (i) . This provision applies to all inquiries held before a jury, whether lands are required to be taken, or have already been taken or injuriously affected (k), but it does not apply if under section 94 (I) the jury find the land of less value than the cost of the communications (m) . If the inquiry before a jury is for the purpose of assessing the Time for value of lands required to be taken, then, under section 38 of the Hlandsare er Lands Clauses Act, 1845, a ten days' notice of their intention to required, cause a jury to' be summoned is to be given to the owner by the promoters, and such notice is to state the sum of money the pro- moters are willing to give for the interest in such lands sought to be purchased by them from such owner. The words " the sum previously offered," in section 51 of the Lands Clauses Act, 1845, refer to the sum which, under section 38, the promoters state they (d) Chabot v. Lord Morpeth (1850), 19 L. J. Q. B. 377. (e) Ex parte Great Western Mail. Co., In re Sheriff of Gloucester (1851), 18 L. T. 0. S. 92. (/) Ex parte School Board jor London (1892), The Times, 1 March, 1892. {g) As to " offer," see ante, p. 200. (A) Bray v. South Eastern Sail. Co. (1850), 19 L. J. Q. B. 11. (i) S. 51, L. CI. Act, 1845. (i) Hayward v. Metropolitan Mail. Co. (1863), 4 B. & S. 787; South Eastern Mail. Co. v. Miclmrdson (1852), 21 L. J. C. P. 122. (?) Vide ante, p. 34. , (»») Cobb v. Mid Wales Mail. Co. (1866), L. B. 1 Q. B. 342; 35 L. J. Q.B. 117. 216 JUKI". If lands taken or injured. Offer may be amended. Must be un- conditional. Amount of offer not admissible in evidence. Aggregate sum found by jury is the test. arc willing to give, and the question of costs is determined in reference to the sum stated in such notice (n). If the inquiry before a jury is for the purpose of assessing the value of lands already taken, or the injury done to lands through the construction of the authorized works under section 68 of the Lands Clauses Act, 1845, the provisions of section 38 do not apply (o). In this case the sum previously offered means a sum offered a " reasonable time previously ; " and it is a " reasonable time previously," if the offer is made when promoters give the ton days' notice of inquiry to the owner required by section 46 of the Lands Clauses Act, 1845, pirovided that the owner has up to such time incurred no expenses in reference to the inquiry (p). The sum stated in the notice given under section 38 of the Lands Clauses Act, 1845, cannot be amended so as to influence the question of costs ; but up to such time the promoters have full power to amend their offer ; and it is no objection that, in the first instance, they offered a smaller sum (q) . The offer must be unconditional, and it is void if made to in- clude the amount of compensation and costs which may so far have been incurred (r) . The amount of an offer is not relevant or admissible evidence in an inquiry before a jury, the same principle applying as in the case of arbitrations (s). If the jury assess the amount payable to an owner, whose lands have been injuriously affected, under separate heads, for the con- venience of the parties, their verdict is still for the aggregate sum, and if this is not greater than the aggregate sum previously offered, (n) Pearson v. Great Northern Sail. Co. (1869), L. E,. 7 Q. B. 785 (n.); 18 W. R. 259; S. v. Henley Smith, In re ll'estfield and Metropolitan Sail. Cos. (1883), 12 Q. B. D. 481; 53 L, J. Q. B. 115; S. v. Manley Smith, In re Church and London School Board (1892), 67 L. T. 197. (o) Hailstone v. York, #o. Sail. Co. (1850), 19 L. J. Q. B. 464; contra, Richardson v. South Eastern Sail. Co. (1851), 20 L, J. C. P. 236; but see S. C. in Exch. Oh., 21 L,. J. O. P. 122. (p) Turnham v. Metropolitan Sail. Co. (1863), 32 L. J. H. C. 249; Hat/ward v. Metropolitan Sail'. Co. (1863), 33 L. J. Q. B. 73; Balls v. Metropolitan Board of Works (1866), L. R. 1 Q. B. 337; 35 L, J. Q. B. 101. (?) llayward v. Metropolitan Sail. Co. (1863), 33 L. J. Q. B. 73; S. v. Manley Smith, In re ll'estfield and Metropolitan Sail. Cos. (1883), 12 Q. B. D. 481; 53 L. J. Q. B. 115. (r) Balls v. Metropolitan Board of Works (1866), L. B. 1 Q. B. 337; 35 E. J. Q. B. 101. Cf. ante, p. 201. (s) Gould v. Staffordshire Potteries Waterworks Co. (1850), 19 L. J. Ex. 281. JUKY. 217 the owner is not entitled to his costs (t). This principle would not apply to an assessment made in part for the value of lands, and in part for injury done to lands, when the two amounts are sepa- rately found (m) . Where the promoters have given notice under section 38 of Offer may be their intention to summon a jury, and have therein stated their anytime at offer for purchase-monev and compensation, the claimant is entitled before v verdict. at any time before the verdict is given to accept such offer, and the jury should be directed to return a verdict for that amount (x) . A verdict is not impeachable on the ground that the jury in the Verdict not aggregate or as regards individual items have given their verdict a™^* for an amount greater than the amount claimed (y). claimed. If the verdict of a jury under section 68 of the Lands Clauses Costs not Act, 1845, is given for a greater amount than the sum previously yereUetret offered, but is subsequently set aside on the ground that the claim- aside, ant has no right to compensation, the owner is not entitled to the costs of the inquisition (z). But where a jury is summoned, at the instance of the promoters, for ascertaining the value of lands required to be taken, the right to costs depends upon section 51 of the Lands Clauses Act, 1845, which is very similar in terms to section 34. It has been held that the owner has, under section 34, a right to his costs, so long as he acts bond fide, whether or not he can support the title to the interest in lands in respect of which he has claimed compensation (a) . Where an inquisition had been quashed, and a second held under the same warrant, and the amount awarded exceeded the amount previously offered, the owner was held entitled to the costs of both inquisitions (6). The costs of an inquiry before a jury are to be settled by one of Co6ts to fae i • » i n n, ., t . ■ » settled by a the taxing masters oi the Supreme Lourt on the application of master, cither party, and include all reasonable costs, charges and expenses incurred in summoning, inrpannelling and returning the jury, (0 Ilayward v. Metropolitan Bail. Co. (1863), 33 L. J. Q. B. 73. («) JR. v. Biram (1852), 17 Q. B. 969. (x) R. v. Westminster High Bailiff, Lx parte London County Council, [1903] 2 K. B. 189; 72 L. J. K. B. 600. (y) Robertson v. City and South London Rail. Co. (1904), 68 J. P. 280. (s) Todd v. Metropolitan District Rail. Co. (1871), 24 L. T. 435. Cf . Sharpe y. Metropolitan District Rail. Co. (1879), 4 Q. B. D. 645, 652, 656. (a) Capell v. Great Western Rail. Co. (1883), 11 Q. B. D. 345; 52 L. J. Q. B. 348. (b) R. v. North London Rail. Co. (1882), 51 L. J. Q. B. 241; S. C, sub mom. R. v. Manley Smith, 30 W. K. 272 (not following R. v. Middlesex Sheriff, Re Walker and London and Blackmail Rail. Co. (1842), 7 Jur. 1154). ^18 JURY. taking the inquiry, the attendance of witnesses, the employment of counsel and attorneys, recording the verdict and judgment thereon and otherwise incident to such inquiry (c). By virtue of the General Rules of 1902 made pursuant to the Supreme Court of Judicature (Officers) Act, 1879, the Chancery taxing masters have now power to tax the costs of such inquiry (d) . Master's The decision of a master in the taxation of costs is final, and the decision not «, . ...... . , open to Oourt nas no jurisdiction over the master s taxation on a motion to review. review (e). A mandamus ordering a master to tax might in proper cases be granted by the Court (/) ; but the more convenient remedy for an owner is to bring an action for the amount of costs to be Right to costs taxed, and for an order that the taxation shall be made. This can be ques- . . . . tionedin action is maintainable before a taxation has been made ; and the action for promoters can raise by way of defence any objection to the validity of the owner's claim to costs (g) . If costs have been improperly taxed by a master, the promoters have a sufficient remedy, and can raise the question of their liability when an action is brought for payment of the amount (g). Costs recover- By section 53 of the Lands Clauses Act, 1845, it is enacted that tress warrant, costs payable to the owner, if not paid within seven days after demand, are recoverable from the promoters (and failing them from the treasurer of the promoters (h)), by a distress warrant, issued by a justice. It is submitted that, if there is a band fide dispute as to the liability to pay costs, a distress warrant should not be issued until the question has been decided by the High Court, and the procedure adopted in an early case («') is not oon- (e) S. 52, L. 01. Act, 1845, as amended by Lands Clauses (Taxation of Costs) Act, J 895. (d) Covington v. Metropolitan District Sail. Co., [1903] 1 K. B. 231; 72 L. J. K. B. 93. {e) Owen v. London and. North Western Rail. Co. (1868), L. R. 3 Q. B. 54; 37 L. J. Q. B,. 35; Ross v. York, §o. Sail. Co. (1849), 18 L. J. Q. B. 199; Tennant v. Borough of Belfast (1847), 11 lr. L. R. 290; Sandbach Charity Trustees v. North Staffordshire Sail. Co. (1878), 3 Q. B. D. 1; 47 L. J. Q. B. 10; S. (War Secretary) v. Oof, [1905] 2 lr. R. 121. (/) Cf . R. <:. Manley Smith, In re IVestfleld and Metropolitan Sail. Cos. (1883), 12 Q. B. D. 481; 53 L. J. Q. B. 115; S. v. Mnnley Smith, In re Church and School Board for London (1892), 67 L. T. 197. (<7) Metropolitan District Rail. Co. v. Sluirpe (1880), 5 App. Cas. 425; South Eastern Rail. Co. v. Riclutrdson (1852), 21 I>. J. C. P. 122. Cf. Ex -parte London School Board (1892), The Times, March 1, 1892; R. (War Secretary) v. Oo-ff, [1905] 2 lr. R. 121. (h) S. 140, L. CI. Act, 1845. (») Metropolitan Rail. Co. v. Turnham (1863), 32 L. J. M. C. 249. JURY. 219 venient. Under the same section the promoters may deduct any costs payable by the owner from the amount awarded by the jury. In the case of railway companies, the Regulation of Railways Railway com- Act, 1868 (k), contains provisions under which the question of apply-To 7 compensation can be tried in the same manner as an ordinary judge to hear action, but the procedure has not been extensively adopted in pensation. practice . Section 41 provides that, whenever in the case of any lands purchased or taken otherwise than by agreement, for the purposes of any public railway, any question of compensation in respect thereof, or any question of compensation in respect of lands injuriously affected by the execution of the works of any public railway, is, under the provisions of the Lands Clauses Act, 1845, to be settled by the verdict of a jury impannelled and summoned as in that Act mentioned, the company or party entitled to the compensation may, at any time before the issuing by the company [of their warrant (l)~\ to the sheriff as by that Act directed, apply to a judge of the High Court of Justice, who shall, if he think fit, make an order for trial of the question in one of the superior Courts, upon such terms and in such manner as to him shall seem fit (m) ; and the question between the parties is stated in an issue to be settled, in case of difference by the judge, or as he shall direct, and such issue may be entered for trial and tried accordingly, in the same manner as any issue joined in an ordinary action, at such place as the judge shall direct. " The question between the parties " means the question of com- pensation only, and does not include the question of liability (n) . ' The proceedings in respect of such issue are under, and subject to the control and jurisdiction of, the Court as in ordinary actions therein, but so nevertheless that the jury shall, where the issue relates to the value of lands to be purchased, and also to com- pensation claimed for injury done or to be done to lands held therewith, deliver their verdict separately in manner provided by section 49 of the Lands Clauses Act, 1845. An application under this section must be made before the issuing by the com- pany of their warrant to a sheriff, or before the amount of com- 0) 31 & 32 Viot. o. 119, ss. 41—43. (I) Semble, -the words "of their warrant" are omitted through mistake: Tanner v. Swindon, $o. Hail. Co. (1881), 45 L. T. 209. (m) This jurisdiction may be exercised by a master under R. S. C, 0. LIV. i. 12; In re Donisthorpe ami Manchester, Sheffield and Lincolnshire Rail. Co., [1897] 1 Q. B. 671; 66 L. J. Q. R. 399. (n) In re East London Sail. Co., Oliver's Claim (1890), 24 Q. B. D. 507. 220 JURY. Judge's order is equivalent to issue of warrant. Effect of verdict of jury and of judgment of Court. pensation has been fixed under section 68, through the neglect of the company to issue their warrant within the prescribed time. The date of the application is not when a summons is taken out, but when it is made returnable (o). In an appeal from an order of the master to the judge or Court, the time when the master's order was made must be taken as determining the question of jurisdiction (p). The High Court has no power under this enact- ment to direct the- trial to be before a judge alone (q). An appeal on an order under this section is not a matter of practice or pro- cedure within the meaning of section 1, sub-section 4, of the Supreme Court of Judicature (Procedure) Act, 1894, and an appeal from such order lies to the Divisional Court (r). By section 42, whenever a company is called upon, or liable under the provisions of the Lands Clauses Act, 1845, to issue their warrant to the sheriff in the case of any disputed compensation, and the company obtain a judge's order as in the last preceding section mentioned, the obtaining of such an order and notice thereof to the ojmosite party is a satisfaction of the company's duty in respect of the issue of the warrant. By section 43, the verdict of the jury and judgment of the Court upon any issue authorized by the Act, as regards costs, and every other matter incident to or consequent thereon, has the same operation and is entitled to the same effect as if that verdict and judgment had been the verdict of a jury and judg- ment of a sheriff, upon an inquiry conducted upon a warrant to the sheriff, issued by the company under the Lands Clauses Act, 1845. The verdict of the jury is final, and the Court cannot order a new trial (s). Where a judge on the trial of the issue held that the plaintiffs were not entitled to compensation, and gave judgment for the defendants, the Court of Appeal entertained an appeal by the plaintiffs and confirmed the decision of the judge (t). (o) Tanner ,. Swindon, £o. Sail. Co. (1881), 45 L. T. 209; Bell v. North Staffordshire Sail. Co. (1879), 4 Q. B. D. 205; 48 L. J. Q. B. 518. (p) In re Donisthorpe and Manchester, Sheffield and Lincolnshire Sail. Co., [1897] 1 Q. B. 671; 66 L. J. Q. B. 399. (?) In re East London Rail. Co., Oliver's Claim (1890), 24 Q. B. D. 507. (»•) Long v. Great Northern and City Rail. Co., [1902] 1 K. B. 813; 71 L.J. K. B. 598. (s) Birmingham and District Land Co. v. London and North Western Rail. Co. (1889), 22 Q. B. D. 435. (i) New River Co. v. Midland Rail. Co. (1877), 36 L. T. 539. 221 CHAPTER XIII. JURISDICTION OF ASSESSING TRIBUNALS. The question to be submitted, under the Lands Clauses Acts, to Question for the assessing tribunal, -whether surveyors, justices, arbitrators, or a ^unaf jury, and which it has jurisdiction to determine, is the purchase- money for lands required or taken by the promoters, or the amount in money which will compensate an owner for injuries done to his interest in lands («). The principles in reference to which the amount of purchase-money or compensation should be asses-sed have already been dealt with (b). Some special Acts contain provisions extending the jurisdiction Provisions of of the assessing tribunal to other questions. Where the under- !£! cla takers are authorized by the special Act to take part only of a promoters house, the assessing tribunal is in some cases authorized to inquire f^ take'nart whether the part can be severed without material detriment to only of a the whole, and, if so, the amount of compensation to be paid, including damages for severance (c) . In considering whether part of a property can be taken without material detriment to the remainder, the tribunal should take into consideration all the circumstances of the case, including the sufficiency of a proposed new access by granting a right of way over the lands of the promoters, where such grant is not in- consistent with the purposes for which the lands have been taken, and the promoters have power to make it (d) . In Scottish arbitra- te R. v. London and North Western Rail. Co. (1854), 23 L. J. Q. B. 185; Re Newbold and Metropolitan Rail. Co. (1863), 14 C. B. N. S. 405; Brandon v. Brandon (1864), 34 L. J. Ch. 333; Brierley Hill Local Board v. PearsaU (1884), 9 App. Cas. 595; 54 L. J. Q. B. 25; Gough v. Liverpool Corporation (1892), 8 Times L,. 11. 247, 323. Cf. Bogg v. Midland Rail. Co. (1867), L. B. i Eq. 310; 36 K J. Ch. 440. (by Ante, pp. 107 et seqq. (c) Morrison v. Great Eastern Rail. Co. (1885), 53 L. T. 384. Cf. Housing of the Working Classes Act, 1890, Sched. II. (12), post, pp. 358, 541. (d) In re Gonty and Manchester, Sheffield and Lincolnshire Rail. Co., [1896] 2 Q. B. 439; 65 L. J. Q. B. 625. 222 JURISDICTION OF ASSESSING TRIBUNALS. tions the arbitrator is not liable to have his decision reviewed, unless he is guilty of misconduct in his office or exceeds the bounds of his jurisdiction, and whether he be right or wrong in declining to take an offer by the company into consideration in determining whether a portion of the property can be severed without material detriment to the remainder, his award is binding and conclusive (e). Title not Questions of title are not within the jurisdiction of the assessing withm their . , , ■, , n . n - » . , . . , . .. . ° jurisdiction, tribunal, and the validity of a title claimed cannot be disputed m proceedings taken for the assessment of compensation (/). Nor legality rp^g legality of an interest in lands for which compensation is oi an interest o v ± in lands. claimed cannot be tried before the assessing tribunal, but there is no obligation to assess compensation in respect of an interest in lands, which is not capable of a legal origin (g) . These g j| ar ag £ Qe validity of a title or the legality of an interest in assumed J D J correctly lands is concerned, the assessing tribunal must assume that the claim brought forward is correctly stated (h). In application I n the case of proceedings before justices under section 22 or section 121, it must be assumed that the title or interest of the owner is correctly stated in the original application which either party is empowered to make under section 24 of the Lands Clauses Act, 1845(i). In submission In an arbitration, the arbitrators or umpire must assume that to arbitration. .... „ . . , . the title or interest of the owner is correctly stated in the docu- ments containing their appointment which constitute the sub- (e) Caledonian Sail. Co. v. Turoan, [1898] A. C. 256; 67 L. J. P. C. 69. Cf. Edinburgh and District Water Trustees v. Clippens Oil Co. (1902), 87 L. T. 275. (/) Chabot v. Lord Morpeth (1850), 19 L. J. Q. B. 377; R. v. London a»d North Western Rail. Co. (1854), 23 L. J. Q. B. 185; Chapman v. Monmouth- shire Rail, and Canal Co. (1858), 27 L. J. Ex. 97; Horrooks (or R.) v. Metro- politan Rail. Co. (1863), 32 L. J. Q. B. 367; Brandon v. Brandon (1864), 34 L. J. Oh. 333; In re Bare Valley Rail. Co. (1868), L E. 6 Eq. 429; 37 L.J. Ch. 719; Campbell v. Mayor, #o. of Liverpool (1870), L. R. 9 Eq. 579; Rhodes v. Airedale Drainage Commissioners (1876), 1 C. P. D. 402; 45 L. J. O. P. 861; R. v. Edwards (1884), 13 Q. B. D. 586; 53 L. J. M. O. 149. (g) Horrocks (or R.) v. Metropolitan Rail. Co. (1863), 32 L. J. Q. B. 367; Re Penny and South Eastern Rail. Co. (1857), 26 L. J. Q. B. 225. (h~) Brierley Hill Local Board v. Pearsall (1884), 9 App. Oas. 595, at p. 598; 54 L. J. Q. B. 25. (i) Cranwell v. Mayor, %c. of London (1870), L. R. 5 Ex. 284; 39 L. J. Ex. 193. Of. R. v. Ed-wards (1884), 13 Q. B. D. 586; 53 L. J. M. O. 149; Great Northern and City Rail. Co. v. Tillett, [1902] 1 K. B. 874; 71 L. J. K. B. 525. JURISDICTION OP ASSESSING TRIBUNALS. 223 mission to arbitration by the parties (/) . Before the commence- ment of an arbitration for the assessment of compensation, an owner is required, under section 23 and section 68 of the Lands Clauses Act, 1845, to give notice in writing of the nature of his interest in the lands in question. It is of great importance that this should be done correctly, and in the appointment of an arbitrator to act on his behalf, it is the better plan for the owner to define the nature of his interest by reference to the notice in writing which he has already given (k). The promoters should merely appoint an arbitrator to' consider the claim which the owner has made, since the arbitration may be a nullity if the submission of the owner and of the promoters are not in respect of the same subject-matter. The description of lands contained in the warrant issued to the In warrant sheriff defines the subject-matter to which an inquiry before a sheriff, jury is limited, and the inquisition should find the value of such lands to the owner, and the amount of compensation for injury to lands held therewith, neither more nor less (I). If lands have been already taken or injuriously affected, an owner, in demanding a, jury, is required under section 68 to give notice of the nature of the interest in such lands for which he claims compensation, and the description of lands in the warrant issued to the sheriff should be the same as that given in such notice. Where lands are required to be taken and their value is to be assessed by a jury, the owner is not bound to give any previous notice of the nature of his interest in such lands (m), and the assessment should be made in respect of the interest claimed by him at the time of trial. Where the promoters under the powers of their special Act propose to take only part of a house, the warrant to the sheriff should raise the issues (1) whether the part can be severed without material detriment to the whole ; (2) if so, what is the amount of compensation to be paid to the owner by the promoters, including damages for severance (n) . If compensation is claimed for injury done to lands through the In claims for ■construction of the authorized works, an assessing tribunal has lands. (?) In re Dare Valley Rail. Co. (1868), L. R. 6 Eq. 429; 37 L. J. Oh. 719. (fc) Of. ante, p. 185. (I) Stone v. Commercial nail. Co. (1839), i Myl. & Or. 122. (m) Of. Lord Fitzhardinge v. Gloucester, $o. Canal Co. (1872), h. R. 7 Q. B. '776, at p. 781; 41 L. J. Q. B. 316. (») Morrison v. Great Eastern Rail. Co. (1885), 53 X>. T. 384. 224 JURISDICTION OF ASSESSING TRIBUNALS. no power to decide whether the right to the compensation claimed can be maintained (o). Collateral An assessing tribunal, in fixing the amount of compensation, be considered. nas no authority to consider collateral questions which do not form part of the subject-matter which has been submitted to its juris- diction. It is not competent for such a tribunal to award the owner a larger sum in respect of possible claims against him by tenants, at the same time ordering him to give the tenants an indemnity (p) ; nor has it power to set out approaches to several lands or to apportion the rents of premises of which a portion only is required (q) ; nor to direct the promoters to do work on the owner's lands as part of the compensation (r) ; nor to consider whether an agreement between the promoters and the claimant, whereby the promoters undertook to build a good and substantial wall, has been broken (s) ; nor to award interest (t). The principle is fully illustrated in the case of In re Dare Valley Rail. Co. (u). The owners in that case were lessees of the minerals and of the surface of certain lauds under separate demises, and claimed compensation as having an absolute right in the term. In the demise of the surface lands there was a proviso, that if any portion of the surface lands should be required to be taken for the railwav in question, the demise should be deemed at an end as to the land so taken, subject to a reduction of rent as therein mentioned. The umpire in making his award took into consideration the effect of this proviso, although the claim of the owner was for an absolute right to the premises comprised in the lease during the continuance of the term. Giffard, V.-C, said on this point, " What was referred to the umpire was to ascertain what damage had been sustained by these parties claiming to have an absolute right in the term, and he had no business to assess 0) Bast and West India Bock Co. v. Gatthe (1851), 20 L. J. Ch. 217; Mead v. Victoria. Station, $c. Sail. Co. (1863), 32 L. J. Ex. 167; Beckett v. Midland Sail. Co. (1866), L. R. 1 C. P. 241; 35 L. J. O. P. 163; S. v. Vaughan (1869), L. R. 4 Q. B. 190; 38 L. J. M. C. 49. (j») Caledonian Sail. Co. v. Lockhart (1860), 3 Maoq. H. L. (Sc.) 808. (?) In re Ware and Regent's Canal Co. (1854), 23 !L. J. Ex. 145; South Wales Sail. Co. v. Richards {R. v. South Wales Sail. Co.) (1849), 18 L. J. Q. B. 310. Cf. L. CI. Act, 1845, s. 119, and Book II., p. 319. (r) S. v. South Holland Drainage Committee (1838), 8 A. & E. 429. . (s) In re Byles and Ipswich Book Commissioners (1855), 25 ~L. J. Ex. 53. (0 In re Sichard and Great Western Rail. Co., [1905] 1 K. B. 68; 74 L. J- K. B. 9. (a) (1868), L. R. 6 Eq. 429; 37 L. J. Oh. 719. JURISDICTION OF ASSESSING TRIBUNALS. 225 anything except the damage which they might sustain as having an absolute right in this term. Now the subject-matter upon which he awarded was not an absolute right in this term, but it was a right subject to a lessor's right to take away a portion of that land. In my judgment that was not referred to him at all, and, that being so, there was a mistake in point of the subject-matter of the reference." In the same case (as) the umpire in making his award took into consideration a further collateral matter, viz., that the claimants had opposed some other railway, and wished this railway to come upon their land. Giffard, V -C, says on this point, "I do not think that was referred to the umpire, or that it was a matter for his consideration. . . . The question before him was this, and nothing else : What mischief has happened to you, the lessees, from having a railway come through that property of which you are lessees, say for fifty years, cutting one part of that property from the other? It was the right of the parties who made that claim to have the award on that, in order that they might bring their action upon that award, and have it determined in that action whether the lessor's right did or did not interfere with their right to receive the damages so awarded to them." Provided that a right principle has been adopted as the basis of Assessment of assessment (y), the decision of an assessing tribunal fixes the final as to amount of compensation, and in this respect is not open to a ™°™^ |^ e review (z) . In accordance with this principle, it is competent for or right to an assessing tribunal to find that no damage in fact has been °°™^"" sustained (a), provided such verdict is not based on a question of title (b). Questions of title, or of the right of an owner to com- pensation, are left open for subsequent consideration, unprejudiced O) In re Dare Valley Rail. Co. (1868), L. R.. 6 Eq. 429; 37 L. J. Ch. 719. (y) Stebbing v. Metropolitan Board of Works (1870), L. R. 6 Q. B. 37; 40 L. J. Q. B. 1; In re Dare Valley Bail. Co. (1868), L. E. 6 Eq. 429; 37 L.J. Ch. 719; Gough v. Liverpool Corporation (1892), 8 Times L. R. 247, 323. (a) Mortimer v. South Wales Bail. Co. (1859), 28 L. J. Q. B. 129; Barber (or Baker) v. Nottingham and Grantham Rail. Co. (1864), 33 L. J. C. P. 193; B. v. Lancaster and Preston Bail. Co. (1845), 14 L. J. Q. B. 84; Gough i. Liverpool Corporation (1892), 8 Times L. E.. 247, 323. («) B. ,. Lancaster and Preston Bail. Co. (1845), 6 Q. B. 759; Brierley Hill Local Board v. Pearsall (1884), 9 App. Cas. 595; 54 L. J. Q. B. 25. (b) Horrocks (or B.) v. Metropolitan Bail. Co. (1863), 32 L. J. Q. B. 367; -8. v. London and North Western Bail. Co. (1854), 23 L. J. Q. B. 185. n. 15 226 JURISDICTION OF ASSESSING TRIBUNALS. Interest. Review of inquisition . Inquisition can be set aside by certi orari only. by the fact that an assessment of amount has been made under the Lands Clauses Act, 1845 (c). There is no jurisdiction in the assessing tribunal to award interest as between the date when the claimant's right first accrued and the date of the award (d) . Inquisitions under the Lands Clauses Acts do not stand on the same footing as inquiries before a sheriff to assess damages in an action in the High Court, where the Court of Appeal has juris- diction to order a new trial (e). In an early case (/) it was attempted to review the decision of a jury on the question of the amount of compensation for which a verdict had been given . An application was made for a mandamus compelling a railway company to issue a second precept to a sheriff, on the ground that relevant evidence had been rejected, and that the verdict was against the evidence. Coleridge, J., in his judgment, says, " It was admitted that a direct motion for a new trial could not be made, and no doubt that was a proper admission. . . . But it was said the Court might direct a second precept to issue. It appears to me, however, that if I acceded to such a proposition, I should only be doing a thing indirectly which cannot be done directly." The only mode of setting aside the inquisition is by writ of certiorari, which is available only where the sheriff has exceeded his jurisdiction (g). But defects invalidating an inquisition may be pleaded in answer to an action by the landowner for the com- pensation assessed (h). The Court has no power to grant a new trial of an issue directed under section 41 of the Regulation of Railways Act, 1868, to be tried before a judge and jury in the High Court (i). (c) Campbell v. Mayor, $c. of Liverpool (1869), L. R. 9 Eq. 579. Cf. Brierley Hill Looal Board v. Pearsall (1884), 9 App. Cas. 595; 54 L. J. Q. B. 25. (d) In re Michard and Great Western Sail. Co., [1905] 1 K. B. 68; 74 L. J. K. B. 9. (e) W. Radams' Microbe Killer Co. v. Leather, [1892] 1 Q. B. 85; 61 L. J. Q. B. 38. (/) R. v. Eastern Counties Rail. Co. (1843), 12 I>. J. Q. B. 271. (<7) See Streatham Estates Co-, v. Commissioners of Public Works (1888), 52 J. P. 615 (Q. B. D.); affirmed on appeal, but not reported. (/j) See Corrigal v. London and Blackwall Rail. Co. (1843), 12 L. «T. 0. P. 209; Brierley Hill Local Board v. Pearsall (1884), 9 App. Cas. 595; 54 L. J. Q. B. 25. (») Birmingham and District Land Co. v. London and North Western Rail. Co. (1889), 22 Q. B. D. 435. JURISDICTION OF ASSESSING TRIBUNALS. 227 Section 49 of the Lands Clauses Act, 1845, enacts that, where Separate the inquiry before a jury relates to the value of lands taken, and va i ue f i an( j 8 also to compensation claimed for injury done or to be done to the f n & of injury lands held therewith, a separate assessment is to be made of the purchase-money and compensation. This section is directory and not conditional ; it enables either party to require that the assess- ment for purchase-money and compensation shall be separately made, but the fact that this has not been done does not entitle the promoters to treat the verdict as a nullity, and is no defence to an action upon the verdict Qe) . If the assessment made says nothing as to damage for severance, it may be assumed that it is included in the amount (I), or that the assessing tribunal has by silence decided that there was no damage in fact (to). (*) Re Bradshaw's Arbitration (1848), 17 L. J. Q. B. 362. (Z) Re Hayne (1865), 12 L. T. 200. (m) Duke of Beaufort v. Swansea Harbour Trustees (1860), 29 L. J. C. P. 241. 15 (2) 228 CHAPTEK XIV. ENFORCING AN ASSESSMENT OF COMPENSATION. After value of lands required has been assessed, specific per- formance. Promoters may claim specific per- formance. When the value of lands has been fixed by an assessing tribunal in conformity with all the requirements of the Lands Clauses Act, 1845, or has been agreed, there is a final and complete contract, and either party can bring an action for specific performance (a). The form of the assessing tribunal makes no difference, and pay- ment of the amount fixed by two justices is not an order enforceable by distress warrant (b). In order that specific performance may be enforced, the price must be certainty fixed and the contract between the parties must not include matters which would require a continuing supervision by the Court (c) . Such matters cannot be brought before an assessing tribunal, if the practice of the Lands Clauses Act, 1845, is strictly followed (d). If an owner refuses to convey, the promoters are empowered by sections 76, 77 of the Lands Clauses Act, 1845, to take possession of the lands after paying into Court the amount assessed as their value ; but if this form of procedure does not give to the promoters sufficient protection, they can bring an action for specific perform- ance (e) . The promoters cannot refuse to take a conveyance of (a) Baker v. Metropolitan Bail. Co. (1862), 32 L. J. Ch. 7; Harding v. Metropolitan Rail. Co. (1872), L. K. 7 Ch. 154; 41 L. J. Cli. 371; Mason r. Stokes Bay Pier. 4-0. Co. (1863), 32 L,. J. Ch. 110; Regent's Cenrtl Co. x. Wore (1857), 26 L. J. Ch. 566; In re Pigotf find Great Western Rail. Co. (1881), 18 Ch. D. 146; 50 L. J. Ch. 679; In re Cary-Elwe.-' Contract, [1906] 2 Ch. 143. Of. Callow v. Flynn (1890), 26 L. B. Ir. 179. (b) R. v. Edwards (1884), 13 Q. B. D. 586; 53 L. J. M. C. 149. Tide ante, p. 182. (c) Wakefield v. Llanelli/ Sail, and Bock Co. (1865), 3 De G. J. & S. 11; Blackett v. Bates (1865), L. U. 1 Ch. 117; 35 L. J. Ch. 324. (d) Tide ante. p. 224. (e) Regent's Canal Co. v. Ware (1857), 26 L. J. Ch. 566. Cf. Bygrave v. Metropolitan Board of Works (1886), 32 Oh. D. 147; 55 L. J. Ch. 602. As to the case of the promoters requiring owners of mines and minerals not to work, different considerations apply, and the promoters are not entitled to a con- veyance: Hamilton's (Duke) Trustees v. Caledonian Rail. Co. (1905), 7 "F. 847.- ENFORCING AN ASSESSMENT OP COMPENSATION. 229 the lands on the ground of expense, merely paying the purchase- money into Court and entering into possession, they are bound to take a conveyance which must be settled by the Court in case the parties differ (/). The contract, as in cases of private purchasers, can be enforced within a reasonable time (g) . The contract cannot be enforced, if the owner has claimed com- pensation in respect of a title which he could not make good, since specific performance cannot be decreed for the purchase of an interest of lands, to which the party desirous of selling (on inquiry ordered) fails to make a good title (h). It is a good answer to an action for specific performance that no To justify price has been fixed, in that the statutory provisions, under which performance, an assessment should be made, have not been followed (i). If a statutory . . » formalities party has consented to waive an alleged irregularity in respect of must be com- non-compliance with statutory requirements, such waiver would p prevent a subsequent objection on the same ground (g). Where the price had been fixed for the purchase of lands from a party under disability, but the fairness of such price had not been certified by a .surveyor, it was held by Romilly, M. R., in Baker v. Metropolitan Rail. Co. (fc), that a company in possession could not raise this objection to the enforcement of the contract, the terms of which were approved by the Court. But this view appears to have been rejected by Lord Westbury on ajopeal (I), and so far, at least, as concerns owners under disability, it is now clear that com- pliance with the statutory formalities is essential to entitle the promoters to specific performance (m). Where the special pro- cedure of the Lands Clauses Acts for obtaining immediate posses- sion of property has not been followed, the promoters are not entitled to possession pending an action for specific perform- ance (») . (/) In re Cary-Elwes' Contract, [1906] 2 On. 143. (g) Baker v. Metropolitan Rail. Co. (1862), 32 L. J. Ch. 7. (h) See Fry on Specific Performance. (i) Wycombe Bail. Co. v. Donnington Hospital (1866), L. E.. 1 Ch. 268. Of. Bridgend Gas Co. r. Ihmraven (1886), 31 Ch. JD. 219; 55 L. J. Ch. 91. (k) (1862), 32 L. J. Oh. 7. (1) S. C, 31 Beav. at p. 511. (*») Bridgend Gas Co. v. Dunraven (1886), 31 Oh. D. 219; 55 L. J. Ch. 91. • (n) By grave v. Metropolitan Board of Works (1886), 32 Ch. D. 147; 55 L. J. Ch. 602. 230 ENFORCING AN ASSESSMENT OF COMPENSATION. No action f or payment of price until after con- veyance. Winding-up petition. If promoters in possession of lands, owner has rights of un- paid vendor. An action for the payment of the price fixed, as distinguished from an action for specific performance, can be brought any time within six years of the date of the award (o), but it is not main- tainable until after the execution or tender of a conveyance of the lands (p). This principle is illustrated by the case of Howell v. Metropolitan District Rail. Co. (q), in which it was held that the provisions of sections 49, 50 of the Lands Clauses Act, 1845, do not create an absolute debt from the promoters to the landowner, and that, until after conveyance of the land, the amount assessed for purchase-money and compensation is not attachable under a garnishee order as a debt " due or accruing." A landowner cannot file a petition to wind up the company for non-payment of compensation awarded, until his title has been investigated and accepted by the company. The award does not constitute an unpaid debt within the meaning of section 137 of the Companies (Consolidation) Act, 1908 (r). If not only the value of lands has been assessed, but the pro- moters have also entered into possession, the owner has all the rights of an ordinary unpaid vendor (s) and can bring an action for specific performance, for a declaration of his lien over the lands, and for the enforcement of his lien by the appointment of a receiver and the sale of the lands in question (t) ; or if the land turns out to be unsaleable, by injunction restraining the under- takers from using it, even where a railway has been opened and is being used for public purposes (u). In bringing an action for specific performance and the declaration of a lien, the owner must be prepared to substantiate the title he has claimed, and to show that the price has been fixed in conformity with the statutory requirements . (o) Turner v. Midland Rail. Co., [1911] 1 K. B. 832. (p) Last London Union v. Metropolitan Rail. Co. (1869), L. E. 4 Ex. 309; 38 L. J. Ex. 225; following Laird v. Pirn (1841), 10 L. J. Ex. 259. (a) (1881), 19 Ch. D. 508; 51 L. J. Ch. 158. (r) In re Milford Socks Co., Lister's Petition (1883), 23 Ch. D. 292; 52 L. J. Ch. 774. Cf. Callow v. Flynn (1890), 26 L. R. Ir. 179. (s) Cf. ante, pp. 61, 102. (/) Walker v. Ware, §o. Rail. Co. (1866), L. R. 1 Eq. 195; 35 L. J. Ch. 94; Wing v. Tottenham and TIampstead Junotion Rail. Co. (1868), L. R. 3 Ch. 740; 37 L. J. Ch. 654; Munns v. Isle of Wight Rail. Co. (1870), L. R. 5 Oh. 414; 39 L. J. Ch. 522. (u) Williams v. Aylesbury, #c. Rail. Co. (1873), 28 L. T. 547; Allgood v. Merrybent, #c. Rail. Co. (1886), 33 Ch. D. 571; 55 L. J. Ch. 743. ENFORCING AN ASSESSMENT OF COMPENSATION. 231 In addition to the remedies open to an owner as an unpaid In case of vendor, the Court, under section 87 of the Lands Clauses Act, 1845, has power, in the event of the non-performance of the condition in the bond, to order payment to the owner of the sum deposited under section 85, on a petition presented for that purpose by him adversely to the comp>any (x). Under the Rules of the Supreme Court, this application, where the amount does not exceed 1,000L, should be made by summons («/). If lands have been entered upon, but their value has not been If promoters agreed upon or assessed, sections 68 and 121 of the Lands Clauses JJf fand. 6881011 Act, 1845, fully protect the owner. Any such owner has it in his ° wa er can power to bring the question oi assessment beiore two justices or an assessed. arbitrator (z) . After the assessment, the owner would have all the rights of an unpaid vendor, and the method of enforcing these rights has already been considered. If an owner desires to have the amount of compensation assessed Owner can by a jury, he has no power of issuing a warrant for the summoning amount of a jury, but if he has an interest greater than that of a yearly j la f lm ?f ° f n tenant, or ,of a tenant from year to year, and claims more than promoters to 501., and gives notice of his desire to have the value of his lands summon J ur y- assessed by a jury, and states the nature of his interest in such lands, and the amount claimed for compensation, the promoters must, within twenty-one days from receiving such notice, issue their warrant to the sheriff to summon a jury, and, in default thereof, they become liable to. pay the amount so claimed, which may be recovered with costs by action in the High Court (a) . In an action brought by an owner to recover the amount of Defences open compensation claimed as the value of lands, on default of the pro- ea f orce c i a im. moters issuing their warrant to summon a jury, the promoters can put in issue any of the material facts on which the owner relies to substantiate his claim. It is a good defence, that the owner has not stated the nature Want of com. of his interest in accordance with the provisions of section 68 of the statutory Lands Clauses Act, 1845, or that he has stated it incorrectly, or co ^f^ ns on that the promoters have not received a notice from the owner, plaintiff, stating the nature of his interest, and that he is desirous of having O) In re Mutlow's Estate (1879), 10 Cli. D. 131; 48 L. J. Cli. 198. (y) 0. L.V. r. 2, sub-s. 2. Vide past, p. 250. (z) Ante, pp. 176, 187. (a) S. 68, L. CI. Act, 1845. 232 ENFORCING AN ASSESSMENT OF COMPENSATION. That defen- dants have complied with statutory conditions. That plaintiff has waived his rights. That the claim cannot be supported, under the incorporating Acts. Amount cannot be disputed. the question of compensation settled by a jury (&). But the pro- moters waive this defence of insufficiency of particulars if they consent to arbitrate on an insufficient claim (c) . If a notice has in fact been received and brought before the defendants, it is no defence that it was wrongly directed (d). It is a good defence that the promoters have not taken the lands in question (e), or that they have issued their warrant to summon a jury within the required time (/). It would be a good defence, that the owner had waived his rights under section 68, or that he had acted in such a way as to mate it impossible for the defendants to comply with its provisions by summoning a jury. A requisition for a special jury made by the owner, and leaving a reasonable time before the expiration of twenty-one days from the date of his original notice stating a desire to have the question of compensation settled by a jury, is not a waiver of his rights by the owner, and he is entitled to the whole amount claimed, on default of the promoters to summon a jury within twenty-one days of his original notice (g). The promoters can plead in defence, that their special Acts do not incorporate section 68 of the Lands Clauses Act, 1845 (h), or that the interest, in respect of which the owner is claiming, being not greater than that of a yearly tenant or of a tenant from year to year, is not within the terms of the section (i). Provided that the claim is in other respects valid, the promoters cannot put in issue the amount claimed (7 warrant of diction Act, 1848, and cannot be enforced by warrant of distress, distress. the justices having only authority to settle the amount in dispute, and not to decide upon the title of the claimant (m) • It follows that a claim for compensation before justices is not barred by not being brought within six months. It seems clear that an award of arbitrators or an umpire under Enforcement the Lands Clauses Acts could not be enforced by motion under the Common Law Procedure Act, 1854, inasmuch as it only determines the amount of compensation, and not the right of the claimant to receive it in). Section 12 of the Arbitration Act, 1889, provides that an award on a submission may, by leave of the High Court or a judge, be enforced in the same manner as a judgment or order to the same effect. This procedure is applicable to awards under the Lands Clauses Acts, but where any serious question of right or title is involved, it is not probable that the Court or a judge would give leave to enforce the award in a summary manner (o) . When lands have not been taken, but have only been injuriously Enforcing affected, and the owner is desirous of enforcing payment of the compen- amount claimed by him in default of the promoters summoning a ? a t lon ioT .„ ■ liii injuriously jury, there is no difference in the procedure to be adopted. affecting If the amount payable as compensation for injury has not been _ ' . assessed, the owner is protected, as in the case of lands taken, by owner to sections 68 and 121 of the Lands Clauses Act, 1845. It is in his nfTnin™™ 1 power to commence proceedings before two justices or an arbitrator. The owner cannot enforce the summoning of a jury, but the of injury (I) Hooper v. Bristol Port Sail, and Pier Co. (1866), 35 L. J. C. P. 299. (m) R. v. Edwards (1884), 13 Q. B. D. 586; 53 E. J. M. O. 149. Cf. Great Northern and City Bail. Co. v. Tillett, [1902] 1 K. B. 874; 71 L. J. K. B. 525. And see p. («) East and West India Dock Co. v. Gattke (1851), 20 E. J. Ch. 217; In re Neivbold mid Metropolitan Rail. Co. (1863), 14 C. B. N. S. 405; Re Walker and- Beckenham Local Board (1884), 50 L,. T. '207. Cf. London and Black-wall Rail. Co, v. Cross (1886), 31 Ch. D. 354, 367; 55 L. J. Ch. 313; Brierley HUl Local Board v. Pearsall (1884), 9 App. Cas. 595, 601, per Lord Selborne; 54 L. J. Q. B. 25. (o) Cf. In re Willesden L. B. and Wright, [1896] 2 Q. B. 412; 65 L. J. Q. B. 567. Vide ante, p. 197. 234 ENFORCING AN ASSESSMENT OF COMPENSATION. Amount cannot be disputed. The title of an owner or his right to com- pensation can be disputed. It is a defence that incor- porating Acts give no claim to compensa- tion ; or that plaintiff has not complied ■with statu- tory condi- tions ; promoters, if they do not issue their warrant to summon a jury within the time fixed, become liable to pay the amount of compen- sation claimed, and payment of the amount and interest can be enforced by action in the High Court (p) . In an action brought to enforce payment of the amount of com- pensation for injury done to lands through the construction of authorized works, the promoters cannot in defence dispute the amount (q) ; but they can put in issue any of the material allega- tions on which the owner relies to substantiate his claim. The question of the title of the owner, or of the legality of the interest in lands, for injury to which compensation is claimed, can be raised in an action brought for payment of the amount (r) ; and so car. the question of the right of the owner to compensation in respect of the damage for which compensation has been claimed. The form in which this defence should be pleaded is by a denial in the defence of the facts on which the plaintiff relies to show that his interests have been injuriously affected (s). The promoters can plead as a defence that the Acts of Parlia- ment under which they are incorporated or acting do not contain any provision entitling an owner to compensation where his lands have been injuriously affected (t). In order to entitle an owner to have the amount of compen- sation assessed by an arbitrator or by a jury, the amount claimed must exceed 50Z. If the amount claimed does exceed 50Z., it is not a good defence to allege that the plaintiff is entitled to less than 50Z. (w). It would be a good defence that the owner has not- stated the nature of his interest in lands in the manner required by section 68 of the Lands Clauses Act, or that the promoters have not received a notice from the owner stating such interest, and his desire to O) Vide ante, p. 208. (?) Mortimer v. South Wales Rail. Co. (1859), 28 E. J. Q. B. 129. (r) R. v. London and North Western Sail. Co. (1854), 23 L. J. Q. B. 185; R. (or Eorrochs) v. Metropolitan Rail. Co. (1863), 32 L. J. Q. B. 367. (s) Read v. Victoria Station, $o. Rail. Co. (1863), 32 L. J. Ex. 167; Beckett v. Midland Rail. Co. (1866), E. R. 1 C. P. 241; 35 L. J. 0. P. 163. (f) Broadbent v. Imperial Gaslight Co. (1859), 26 L. J. Ch. 276; Ferrar v. Commissioners of Sewers of City of London (1869), L. B. 4 Ex. 227; 38 L. J. Ex. 102; Wale v. Westminster Palace Hotel Co. (1860), 8 O. B. N. S. 276. (w) Read v. Victoria Station, $e. Rail. Co. (1863), 32 E. J. Ex. 167. ENFORCING AN ASSESSMENT OF COMPENSATION. 235 have the question of compensation settled by an arbitrator or by a jury (a;), unless the irregularity has been waived (y). If the promoters have issued their warrant to the sheriff for or that defen- • ,,•,,.. , , , dants have so summoning a jury withm the twenty-one days required by complied, section 68 of the Lands Clauses Act, 1845, this would be an answer to an action for payment of an amount claimed in default of such warrant having been issued (z) . In an action on an award, such award being- good on the face Mistake of an of it, the mistake or wilful misconduct of an arbitrator cannot it cannot be would seem be pleaded as a defence ; if a party seeks to avoid an pleaded, award on such grounds, he should take steps to have the award set aside (a). The question of the title of an owner to compensation can be Special case stated in a special case under the provisions of B, . S . C . , . XXXIV by parties 1 6 r. 1, for the opinion of the High Court (b). The arbitrator or umpire may at any stage in the proceedings Statement of state, in the form of a special case for the opinion of the High Court, any question of law arising in the course of the arbitra- tion (c), and may also state his award in the form of a special case (d) ■ The High Court has power to require an arbitrator to state a special case on a point of law, should he refuse to do so (e) . The provisions of the Common Law Procedure Act, 1854, with Remitting regard to remitting matters for the reconsideration of the arbi- an arbitrator, trator, and enlarging the time for making the award (sections 8, 15), were held applicable to arbitrations under the Lands Clauses Acts and similar Acts (/) . The sections were repealed, but re- 0) Cameron v. Charing Cross Bail. Co. (1864), 33 L. J. O. P. 313; Healey v. Thames Valley Rail. Co. (1864), 34 L. J. Q. B. 52; Eastham (or Eastbourne) v. Blackburn Rail. Co. (1854), 23 L. J. Ex. 199. (y) Lorering v. City of London, fyc. Subway Co. (1891), 7 Times L. R. 301, 600. CO Railstone v. York, $o. Rail. Co. (1850), 19 E. J. Q. B. 464. (a) Whit-more v. Smith (1861), 31 E. J. Ex. 107; Johnson v. Durant (1831), 2 B. & Ad. 925; Thwburn v. Barnes (1867), L. R. 2 C. P. 384; 36 L. J. O. P. 184; Bache v. Billingham, [1894] 1 Q. B. 107; 63 E. J. M. C. 1. (J) CI'. Ferrar v. Commissioners of Sewers (1869), E. R. 4 Ex. 227; 38 L. J. Ex. 102. (c) Arb. Act, 1889, s. 19. (d) Arb. Act, 1889, s. 7, sub-s. (b). (e) Arb. Act, 1889, s. 19. Vide ante, p. 195. (/) Re Dare Valley Rail. Co. and Rhys (1869), L. R. 4 Ch. 554; Rhodes v. Airedale Drainage Commissioners (1876), 1 C. P. D. 402; 45 L. J. C. P. 861; Re Ward (1862), 11 W. R. 88. 236 ENFOEOTNG AN ASSESSMENT OF COMPENSATION. Separate assessments. The award or verdict is no evidence on matters in Capacity of arbitrator as a witness. enacted without material alteration in the Arbitration Act, 1889 (sections 9, 10) (g). If in the assessment of compensation for injury done to lands, there are included doubtful items, expense may be saved to both parties by a separate assessment of such items, in order that the validity of the claim in respect thereof may be separately decided, and that the rest of the award or of the verdict may in any event be sustained and acted upon (h). In an action brought for payment of the amount of compensa- tion assessed in respect of injury done to lands by the construction of the authorized works, the plaintiff cannot rely entirely on the award of the arbitrator or the verdict of the jury ; but must give affirmative evidence of the material allegations which are put in issue by the statement of defence, and prove, if necessary, that the assessment only includes matters for which his right to compensa- tion can be maintained (i) . The evidence of the arbitrator is admissible for certain purposes and within certain limits. An arbitrator is a competent witness to state matters of fact which have taken place before him up to the time when he proceeded to make his award, so far as they are relevant in a plea to his jurisdiction, which alleges that he has mistaken the subject-matter referred to him, and has taken into account questions not submitted to his decision (k). But the award is a written document which speaks for itself (I), and the evidence of the arbitrator is not admissible to explain its terms, or the considerations which influenced him in fixing the amount (m). O) Vide ante, pp. 196, 197. (A). Beckett v. Midland Rail. Co. (1866), L. E. 1 O. P. 241, 246; 35 L. J. C. P. 163. (i) Chapman v. Monmouthshire Mail, and Caned Co. (1858), 27 L. J. Ex. 97; Rhodes v. Airedale Drainage Commissioners (1876), 1 C. P. D. 402; 45 L. J. O. P. 861. (*) In re Bare Valley Rail. Co. (1868), L. E. 6 Eq. 429; 37 L. J. Ch. 719; Buccleueh v. Metropolitan Board of Works (1868), L. E. 3 Ex. 306; 5 Ex. 221; 5 H. L. 418; 41 L. J. Ex. 137. (I) Cf. O'Rourke v. Commissioner for Railways (1890), 15 App. Cas. 371; 59 L. J. P. C. 72. (m) Buccleueh v. Metropolitan Board of Works (1868), supra. 237 CHAPTER XV SETTING ASIDE AN ASSESSMENT OF COMPENSATION. The decision of an assessing tribunal as to the amount of com- Assessment is final as amount. pensation is final and not subject to appeal (a), except in the ,( "'" ' " cases dealt with by sections 64, 65, of the Lands Clauses Act, 1845, which provide that if the valuation of a surveyor is made in respect Except of the interest in lands of an owner who could not be found, or was m , oa8 f of ' absent owner. absent from the kingdom, such owner is entitled to submit to arbitration the sufficiency of the surveyor's valuation (6). In this case an appeal is given from a surveyor to arbitration, although there is no power in the arbitrators to decide that the valuation of the surveyor is too high. In certain special cases, however, the Court will set aside the assessment of the justices, jury, or arbitrator. If it is desired to question the decision of two justices, or the Certiorari verdict of a jury, the proper procedure is by writ of certiorari, but wioeVand the granting of the writ is subject to the provisions of section 145 J U T- of the Lands Clauses Act, 1845 : — " No proceeding in pursuance of this or the special Act, or any Act incorporated herewith, shall be quashed or vacated for want of form, nor shall the same be moved by certiorari, or otherwise, into any of the superior courts " (c). Notwithstanding, there are two well-recognized cases in which a Granted in certiorari will be granted to quash proceedings for the assessment ofTurisdlction of compensation before two justices or before a jury — (1) where or improper there has been a want or excess of jurisdiction, (2) where the f tribunal, tribunal itself has been improperly constituted. (1) If compensation is assessed, but the circumstances are such (i) Want or that the owner can have no claim thereto, there is manifestly an Jurisdiction, excess of jurisdiction, and a certiorari will be granted (d). if owner can have no claim. (a) See Barber (or Baker) v. Nottingham, S;o. Mail. Co. (1864), 33 L. J. C. P. 193. (b) Ss. 64, 65, L. CI. Act, 1845. (c) Of. L. 01. Act, 1845, s. 37. (d) Re Penny and South Eastern Rail. Co. (1857), 26 L. J. Q. B. 225. 238 SETTING ASIDE AN ASSESSMENT OP COMPENSATION. When there is mistake in subject- matter for decision. "Want of jurisdiction. The assessment of compensation in respect of a subject-matter other than that which is submitted to the decision of the justices or of the jury, is an excess of jurisdiction, and a certiorari will be granted. An inquisition will be quashed for error apparent on the face of it, or clear excess of jurisdiction (e) . If the jury have pur- ported to decide a question of title, or of the legality of an interest in lands for which compensation is claimed (/), or have taken into consideration collateral matters over which they have no jurisdic- tion (g), or have given compensation in respect of damage by which the claimant has not been injuriously affected Qi), the inquisition will be quashed. In this last case it would be com- petent for the promoters to raise the question of right to compensa- tion as a defence to an action brought to enforce payment of the amount (i). If the justices or jury do not exercise their jurisdiction, and do not assess compensation in respect of an item of damage which gives the owner a right to claim compensation, there is a want of jurisdiction, and the remedy of an owner would be to have the assessment brought up and quashed by a writ of certiorari (7c) . In the case of an assessment by justices who refuse to entertain an item of compensation claimed, it is competent to apply for a mandamus on the ground that there has been a refusal to exercise jurisdiction (I). In an early case (m) the Court of Queen's Bench refused to grant a certiorari where there had been an excess of jurisdiction, on the ground that the owner would have a remedy in an action of trespass if the promoters entered upon the lands in question. In the subsequent case of R. v. Sheffield and Manchester Rail. Co. (n), the earlier case (m) was referred to, and the Court, O) R. v. Halifax L. B. (1865), 14 L. T. 447. (/) It. v. London and North Western Rail. Co. (1854), 23 L. J. Q. B. 185; R. (or Horrocks) v. Metropolitan Rail. Co. (1863), 32 L. J. Q. B. 367. (g) South Wales Rail. Co. v. Richards (R. v. South Wales Rail. Co.) (1849), 18 L. J. Q. B. 310. (A) Re Penny and South Eastern Rail. Co. (1857), 26 E. J. Q. B. .225; Cowper Essex v. Acton L. B. (1889), 14 App. Caa. 153; 58 L. J. Q. B. 594. (i) Read v. Victoria Station, §o. Rail. Co. (1863), 32 L. J. Ex. 167; Chapman v. Monmouthshire Rail., $o. Co. (1858), 27 L. J. Ex. 97. (7c) Cf. In re Dare Valley Rail. Co. (1868), L. R. 6 Eq. 429; 37 L. J. Ch. 719. (0 R. v. Vnnghnn (1869), L. R. 4 Q. B. 190. (m) R. v. Bristol and Exeter Rail. Co. (1838), 2 Rail. Cas. 99. (») (1839), 11 A. & E. 194. SETTING ASIDE AN ASSESSMENT OP COMPENSATION. 239 although not expressly overruling it, affirmed the general pro- position, that in cases where there has been an excess of jurisdiction, a certiorari will be granted (o) . If lands have been entered upon before an assessment of their value has been duly made, an action of trespass will lie against the promoters (p) ; but there would be no similar remedy where lands had not been entered upon, but only injuriously affected. If an assessment has been made on the basis of a principle Where as- which is bad in law, there is a mistake in the subject-matter sub- onTbaaisbad mitted to the decision of the assessing tribunal ; and in such a ilL law - case a certiorari would be granted to quash the decision of the justices or the verdict of the jury (g). Such certiorari would not be necessary in the interests of the promoters, since they could raise this objection in a defence to an action brought for payment of the amount (r) ; but it might be the only method in which an owner could get rid of an assessment in which his claim to com- pensation had not been fully considered through the adoption of a wrong principle. (2) The justices or jury are not a properly constituted tribunal (2) Where if the justices or the sheriff have any interest in the matters in ques- improperly tion, and in such a case a certiorari quashing the proceedings will constituted, be granted (s). The definition clause in the Act (t) expressly excludes interested justices or sheriffs from the assessment tribunals. But the Court will not grant a certiorari on the appli- Th i s ma y be cation of a party who, knowing of a defect in the constitution of an assessing tribunal, appears and consents to submit to its juris- diction (w) . An inquisition will not be set aside on the ground of want of qualification in a juryman; this objection should be taken (o) Cf . Cowper Essex v. Aoton L. B. (1889), 14 App. Oae. 153, per Halsbury, L. 0., at p. 160; 58 L. J. Q. B. 594. (p) Cranwell v. Mayor, §o. of London (1870), L. R. 5 Ex. 284; 39 L. J. Ex. 193. Cf . R. v. Bristol and Exeter Rail. Co. (1838), 2 Kail. Gas. 99. (?) Cf. In re Bare Valley Rail. Go. (1868), L. R. 6 Eq. 429; 37 L. J. Oh. 719. (>•) Stebbing v. Metropolitan Board of Works (1870), L. R. 6 Q. B. 37; In re Penny and South Eastern Rail. Co. (1857), 26 L. J. Q. B. 225; R. v. Scard (1894), 27 W. R. 540. (s) R. v. Rand (1866), L. R. 1 Q. B. 230; 35 L. J. M. O. 157; R. v. Justices of Hertfordshire (1845), 6 Q. B. 753; R. v. Sheriff of Warwickshire (1854), 3 W. R. 164. (t) S. 3. (u) Emanuel Hospital v. Metropolitan Bistrict Rail. Co. (1869), 19 L. T. 692. Cf. R. v. South Holland Drainage Committee (1838), 8 A. & E. 429. 240 SETTING ASIDE AN ASSESSMENT OP COMPENSATION. If part of assessment is bad the whole is bad unless separable. Affidavit to state grounds of asking for certiorari. Time within which appli- cation should be made. Not for irregularities in form. by challenge (v). The verdict of a jury may be set aside on the ground of treating, as where the claimant gives the jury a cham- pagne luncheon (x) . If part of an assessment is bad, a certiorari lies as to the whole, unless it has been settled in such a form that the part which is bad is separate from and can be dealt with apart from that which is good(y). The procedure on application for a writ of certiorari is now regulated by the Crown Office Rules, 1906, and in particular rr. 20 —24 and 27. The grounds on which a certiorari is asked for must be shown by affidavit before motion, in which the defects in the inquisition upon which reliance is placed by the applicant should be verified (z) ; and care should be taken to draw up the affidavit in a clear and precise form, setting out exactly the point or points on which the applicant relies (a). It is necessary to set out or exhibit a copy of the inquisition, or to account for its absence to the satis- faction of the High Court (6). It is discretionary in the Court to grant a certiorari to bring up an inquisition taken under the Lands Clauses Act, 1845, for the purpose of quashing it ; and a certiorari will not be granted if a long time is allowed to elapse between the verdict of the jury and the application made to the Court. As a general rule a writ of certiorari will not be granted after the expiration of the time which would have been allowed for setting aside an award made under the provisions of the Lands Clauses Act, 1845 (c). The writ, being expressly taken away by statute, can only issue where the jurisdiction given by the Lands Clauses Acts has been (v) In re Chelsea Waterworks Co., Ex parte Phillips (1855), 24 L. J. Ex. 79; Cooling v. Great Northern Bail. Co. (1850), 19 L. J. Q. B. 529. (x) Tanner v. Swindon, $o. Rail. Co. (1881), 45 L. T. 209. Cf. Re Maunder (1883), 49 L. T. 535. (y) Re Penny and South Eastern Rail. Co. (1857), 26 L. J. Q. B. 225; R. v. London and North Western Rail. Co. (1854), 23 L. J. Q. B. 185. Cf. Cale- donian Rail. Co. v. Ogilvy (1856), 2 Macq. H. L. (Sc.) 229; R. v. Scard (1894), 27 W. E.. 540. (z) R. v. Manchester and Leeds Rail. Co. (1838), 8 A. & E. 413, 417, per Lord Denman; 8 L>. J. Q. B. 66; Re Penny and South Eastern Rail. Co. (1857), 26 L. J. Q. B. 225. (a) Re Penny and South Eastern Rail. Co. (1857), 26 L. J. Q. B. 225; R. r. Manchester and Leeds Rail. Co. (1838), 8 A. & E. 413; 8 L. J. Q. B. 66. (J) Or. Off. Rules, 1906, r. 22. (c) R. v. Sheward (or Steward) (1880), 5 Q. B. D. 179; 9 Q. B. D. 741; 49 L. J. Q. B. 329, 716. SETTING ASIDE AN ASSESSMENT OF COMPENSATION . 241 exceeded (d), and will not be granted if the proceedings before two justices or a jury are merely irregular in form and the question of jurisdiction does not arise (e). The party who has acquiesced in, or by his conduct has conduced to, irregularities in form cannot afterwards be heard to raise such irregularities as an objection to the validity of proceedings in which he has concurred (/). A deviation from the requirements of the principal Act or the special Act which merely amounts to an irregularity in the exercise of jurisdiction is not a ground for granting a writ of certiorari (g). The award of an arbitrator (h) under the Lands Clauses Acts Motion to set cannot be set aside for irregularity or error in matter of form (i) . *f ' a ^ ^£ An award which, in addition to the assessment of the amount of trator. compensation, contains an order to pay, is erroneous, if at all, ^^dnot merely in form, and will not be set aside (J) . irregularity An award which assesses one sum for damage and the price of rm ' land taken, instead of a separate sum on each account, is not invalid and will not be set aside (it). An arbitrator has not jurisdiction to determine collateral matters (I). The Court will set aside the award of an arbitrator where there Award set has been a want of jurisdiction or misconduct on the part of the wa nt of juris- arbitrator, or the award has been improperly procured (to) . Where dl ? tI0n or (d) Coioper Essex v. Acton L. B. (1889), 14 App. Cas. 153, at p. 160, per Halsbury, E. O.; 58 L. J. Q. B. 594. (e) R. v. Lancaster and Preston Junction Rail. Co. (1845), 14 L,. J. Q. B. 84; R. v. Sheffield, $c. Rail. Co. (1839), 11 A. & E. 194, 200. (/) R. v. South Holland Drainage Committee (1838), 8 A. & E. 429; Tower v. Eastern Counties Rail. Co. (1843), 3 Rail. Cas. 374; Corrigal v. London and Blackwall Rail. Co. (1843), 12 E. J. C. P. 209. (a) R. v. Sheffield, $o. Rail. Co.. (1839), 11 A. & E. 194, 200, Patteson, J. (h) On this subject, see further Eussell on Arbitration. (0 S. 37, L. 01. Act, 1845. . (/) In re Harper and Great Eastern Rail. Co. (1875), L. E. 20 Eq. 39; 44 L. J. Oh. 507. Of. Lindsay v. Direct London and Portsmouth Rail. Co. (1850), 19 L. J. Q. B. 417. (k) Re Bradshaw's Arbitration (1848), 17 E. J. Q. B. 362. (I) Re Byles and Ipswich Dock Commissioners (1855), 25 E. J. Ex. 53; and ■oide'ante, p. 224. (m) Arbitration Act, 1889, a. 11 (2); Buccleuch {Duke of) v. Metropolitan Board of Works (1872). L. R. 5 Ex. 221, 232; 5 H. L. 418; In re Dare Valley Rail. Co. (1868), L. R. 6 Eq. 429; 37 L. J. Oh. 719; Underwood v. Bedford and Cambridge Rail. Co. (1861), 31 E. J. C. P. 10; Whit more v. Smith (1860), 29 L. J. Ex. 402; (1861), 31 L. J. Ex. 107. Of. ante, p. 189. c. 16 242 SETTING ASIDE AN ASSESSMENT OP COMPENSATION. the mistake is as to the extent and nature of the arbitrator's autho- rity, such mistake has the same consequence as wilful disregard of the limits of the authority, and in such a case the award is im- peachable (n). If a lump sum is awarded, and it appears on the face of the award and is proved by extrinsic evidence, that in arriving at such sum matters were taken into account which the arbitrator had no jurisdiction to consider, the award is bad (o). But where there is jurisdiction to make an award, and the question is of a possible excess of jurisdiction, the award cannot be im- peached by showing that the arbitrator did in fact exceed his jurisdiction (p). If a party to an arbitration, acting bond fide, requests the arbi- trator on reasonable grounds, either to state a special case for the ■opinion of the Court upon some question material for considera- tion which arises, or to delay the award until the party can him- self apply to the Court for an order directing a special case, and the arbitrator refuses to comply with the request, or by sum- marily making his award attempts to preclude the party from applying, the arbitrator is prima facie guilty of a breach of duty towards that party (g), and such breach of duty may amount to misconduct. The fact that an award will not be set aside does not prevent any objection to its validity being raised in defence to an action brought to enforce it (r) . Time within An application to set aside an award under the Lands Clauses must be made. A°t> 1845, may be made by motion at any time within six weeks after such award has been made and published to the parties (s). (») Buccleuch (JDuke of) v. Metropolitan Board of Works (1872), L. R. 5 Ex. 221, per Blackburn, J., at p. 232. Of. In re Sure Valley Rail. Co. (1868), L. R. 6 Eq. 429; 37 E. J. Oh. 719. (o) Beckett v. Midland Bail. Co. (1866), L. R. 1 C. P. 241; 3 O. P. 82; 35 I/. J. 0. P. 163; Falkingham v. Victorian Railway Commissioners, [1900] A. C. 452; 69 L,. J. P. C. 89. Of. Fisher v. Pimbley (1809), 11 East, 188; Buccleuch (Duke of) v. Metropolitan Board of Works (1872), L.. R. 5 Ex. 221; 5 H. L. 418; 41 L. J. Ex. 137. (p) Falkingham v. Victorian Railway Commissioners, [1900] A. C. 452; 69 L. J. P. C. 89. (q) In re Palmer # Co. and Ilosken $ Co., [1898] 1 Q. B. 131. (r) North Staffordshire Rail. Co. v. Wood (1848), 17 L. J. Ex. 354; Re North Staffordshire Rail. Co. and Landor (1848), 17 L. J. Ex. 350; Palmer v. Metropolitan Rail. Co. (1862), 31 L. 0. Q. B. 259; Faviell v. Eastern Comities Hail. Co. (1848), 17 L. J. Ex. 223. (s) E. S. C, O. LXIV. r. 14. Of. In re Harper and Great Eastern Rail. Co. (1875), L. R. 20 Eq. 39; 44 L. J. Ch. 507. SETTING ASIDE AN ASSESSMENT OF COMPENSATION. 243 Notice of motion must be given, which must state the general grounds on which the application is made. The service of the notice of motion must be at least two clear days before the day named in the notice for hearing the motion (t). The Court or a judge has power to extend the time for moving to set aside an award before or after the time has elapsed (w). Under the old practice it was held that " a complaint " (not an application) had been commenced by the service of a notice of motion and the filing of an affidavit within the time limited ; but it would be imprudent to rely on this decision (x). Section 10 of the Arbitration Act, 1889, provides that in all cases Referring of reference to arbitration the Court or a judge may from time to time remit the matters referred, or any of them, to the re-considera- tion of the arbitrators or umpire. This section is applicable to arbitrations under the Lands Clauses Acts, and the effect is that all such submissions to arbitration will be held to contain a clause giving the Court power to refer back the award to the arbitrator or umpire {if), even though he be functus officio (z) . In In re Montgomery, Jones & Co. and Liebenthal & Co. (a) the grounds on which matters could be remitted to an arbitrator for reconsidera- tion were fully dealt with. Apparently the power to remit in- cludes a power to send back the award in order that it may be stated in the form of a special case (b). Arbitrators under the Lands Clauses Acts have power to state Power of their award in the form of a special case, or to state in the form of to state a a special case for the opinion of the Court any question of law special case, arising in the course of the reference (c). (0 K, S. C, 0. LII. rr. 1—5. O) K.. S. C, 0. LXIV. r. 14; Re Oliver . J. Q. B. 105. (Z>) In re KirUeatham L. B. and Stockton and Middlesbrough Water Board, [1893] 1 Q. B. 375; A. O. 444; 62 L. J. Q. B. 180; In re Palmer $ Co. and. Ilosken # Co., [1898] 1 Q,. B. 131. (o) Ss. 7 and 19, Arbitration Act, 1889; vide ante, p. 194. 16(2) 244 CHAPTER XVI. CONVEYANCE OF LANDS. Conveyance by owner absolutely entitled. Trustees and tenants for life. If the owner is absolutely entitled to the interest in lands, in respect of which compensation has been assessed, and is willing and able to make a good title thereto, and to accept the purchase- money when tendered to him, the conveyance of such interest and the payment of the purchase-money are carried out in the ordinary way and present no difficulties. The conveyance may be according to the forms contained in, schedules A. and B. of the Lands Clauses Act, 1845 (a), or as near thereto as the circumstances of the case may admit, or by deed in any form which the promoters of the undertaking may think fit (b). Trustees, with an absolute power of sale, are in the position of owners absolutely entitled, and can convey in exercise of the power of sale. But when the promoters elect to treat with the tenant for life under the Lands Clauses Act, 1845, instead of with the trustees, the purchase is carried out under the powers of the Lands Clauses Act, 1845, and the trustees cannot be called upon to convey under the power (c). The same principle applies where the sale has taken place by virtue of powers conferred by the Lands Clauses Act, 1845, and not by virtue of any power under the Settled Land Acts (d). Unless the special Act specifically vests the property, the promoters can be compelled to take a conveyance even though they are content to rest their title on the special Act, notice to treat and award (e). (a) See Appendix, pp. 434, 435. (6) S. 81, L. CI. Act, 1845. . O) Peters v. Lewes and East Grimtead Rail. Co. (1881), 18 Ch. D. 429; 50 L.. J. Ch. 839; In re Pigott and Great Western Rail. Co. (1881), 18 Ch. D. 146; 50 L,. J. Ch. 679. Cf. ante, p. 50. (d) Re Bentinch and London and North Western Sail. Co. (1895), 12 Times L. E. 100. (e) In re Cary-Elwes' Contract, [1906] 2 Ch. 143, in which case the pro- moters had stamped a copy of the special Act with the duty payable on the purchase-money and produced it to the Inland Revenue Commissioners under o. 12 of the Finance Act, 1895, as if the special Act had itself vested the property. CONVEYANCE. OF LANDS. 245 The costs of any such conveyance are borne by the promoters, Costs. and " include all charges and expenses incurred, on the part as well of the seller as of the purchaser, of all conveyances and assurances of any such lands and of any outstanding terms or interests therein, and of deducing, evidencing, and verifying the title to such lands, terms, or interests, and of making out and furnishing such abstracts and attested copies as the promoters of the undertaking may require, and all other reasonable expenses incident to the investiga- tion, deduction, and verification of such title" (/). The principle is, that the owner is entitled to costs incurred Include costs which have reference to conveyance or title, but not to such costs and in refer- as are incurred in connection with the ascertainment of price (g), euce to title. or any other collateral matter (h). The costs, subject to taxation, of a conveyancing counsel (i), and Of conveyanc- the costs of completing a title to lands conveyed by a charity by ° the enrolment of the conveyance of substituted lands under the title to lands Mortmain Acts (fc), are payable by the promoters. of a chanty. The case of In re Liverpool Improvement Act (I), overruling In Of adminis- re South Wales Rail. Co. (to), decided that costs of an administra- tion de bonis non, required by the promoters to be taken out in order that a good title might be acquired, should be paid by the promoters. In Ex parte Phillips (n), it was held that where a small portion of the lands to be taken was mortgaged and vested in the trustees of a person whose estate was in course of administration by the Court, the costs of an application to the Court to enable the trustees to realize the mortgaged portion were not payable by the company : but the decision of the Lords Justices on appeal turned on the special circumstances of the case, and on the fact that the contract between the vendors and the promoters precluded the promoters from dealing with the mortgagee, and was silent as to costs. CO S. 82. (ff) Re Hampstead Junction Rail. Co., Ex -parte. Buck (1863), 33 L. J-. Ch. 79. (h) Ex parte Cave (1856), 26 L. T. 0. S. 176; Re Lletch and Kewneij (1867), 16 L. T. 729; In re Nash's Estate (1855), 4 W. R. Ill; Ex parte Keatley (1890), 25 L. R. Ir. 265. (i) In re Spooner's Estate (1854), 1 K. & J. 220. (k) Ex parte Governors of Christ's Hospital (1864), 10 L. T. 262. (0 (1868), L. R. 5 Eq. 282; 37 L. J. Oh. 376; followed in Ex parte Keatley (1890), 25 L. R. Ir. 265. (m) (1851), 14 Beav. 418. (») (1862), 32 L. J. Oh. 102. 246 CONVEYANCE OF LANDS. In ease of copyholds. In case of probate. Costs of ap- portioning rents not included. Costs of registering title. Taxation of costs. In the case of In re Thames Tunnel (Rotherhithe and Ratcliff) Act, 1900 (o), the Court of Appeal considered the earlier cases and also the cases of In re London United Tramways Act, 1900 (p)> and In re Bear Island Defence Works and Doyle (q) (which they commented adversely upon), and stated that the words of section 82 referred to what are known as conveyancing costs only and not to sums which have to be paid to acquire rights. In that case (o) the lands were copyhold, and in order to complete a valid conveyance the vendors obtained, at the request of the ac- quiring authority, the admission of the customary co-heirs of the last surviving tenant on the Court rolls, a former trustee ; it was held that the steward's fees and the costs of admittance of the co-heirs must be borne by the acquiring authority under section 82, but not the lord's fine on admission. Where an owner of leasehold property has entered into a contract to sell his interest to a promoter and djies after the title is accepted but before completion, the promoters are not chargeable under section 82 with the cost of taking out probate of the vendor's will (r) . Costs incurred in the employment of a surveyor for the purpose of apportioning rent are expenses of ascertaining the price to be paid, and not expenses in connection with the conveyance of land, and are not payable by the promoters under section 82 of the Lands Clauses Act, 1845 (s). A special arrangement should be made. In an Irish case it was held that where the vendor had not registered his title to the lands and the promoters required that to be done, the costs of such registration must be borne by them (t). If the promoters and the party entitled to costs do not agree as to the amount thereof, such costs are taxed by one of the taxing masters in the Chancery Division in England upon an order of the Court, to be obtained upon a petition in a summary way by either of the parties. The promoters pay what the master certifies to be due in respect of such costs to the party entitled thereto, or the amount may be recovered in the same way as any other costs pay- able under an order of the Court, or by distress in the manner 0) [1908] 1 Oh. 493. O) [1906] 1 Ch. 534. (?) [1903] 1 Ir. B. 164. (r) In re Elementary Education Acts, J870 and 1873, [1909] 1 Oh. 55. (s) Re Sampstead Junction Rail. Co., Ex parte Buck (1863), 33 L. J. Ch. 79 (t) In re Belfast, fa. Rail. Co., Ex parte Gilmore, [1895] 1 Ir. E. 297. CONVEYANCE OF LANDS. 247 provided in the Lands Clauses Act, 1845, in other cases of costs (w). The expense of taxing the costs is to be paid by the promoters, unless, upon such taxation, one-sixth of the amount of such costs is disallowed (a;). A company cannot, after paying the costs of conveyance, have the costs of such conveyance taxed under section 83 (y). The taxation under sections 82 and 83 ought to be between the vendor and the promoters, not between the vendor's solicitor and the promoters (z) . The ordinary scale charge under the Solicitors' Remuneration Solicitors' Act, 1881, is not applicable to sales of land under the Lands eoaeo arges - Clauses Act, even where the purchase is by agreement (a), but this exception extends only to vendor's costs and not to the costs of the purchaser (&). The scale applicable to conveyances of property does not apply to the case of a grant of an easement (6). The investment of money produced by a sale under the Lands Clauses Act is not a sale, and the exception in Sehed. I., Part I., r. 11, under the Solicitors' Remuneration Act, does not apply (c). If, where the promoters are authorized to enter and take posses- Refusal of sion of lands, the owner or occupier refuse to give up the possession U p po'ssesfion. thereof, the promoters may issue their warrant to the sheriff to deliver possession of the same ; upon receipt of such warrant the sheriff delivers possession of such lands accordingly, and the costs as settled by the sheriff are paid by the person refusing to give possession. The amount of such costs may be deducted from the amount of compensation payable to such party or levied by distress warrant (d). This section is permissive and not obligatory, and an entry on lands by the promoters is not forcible merely because the owner refuses to allow them to enter. It is only necessary to set the sheriff in 'motion where it would be unlawful to enter without his intervention, i.e., where the entry could not be effected without force (e). («) L. 01. Act, 1845, S3. 53, 83. (») S. 83. ■(y) In re South Eastern Bail. Co., Ex parte Somerville (1883), 23 Ch. T). 167; 52 L. J. Oh. 438. (z) In re Cvwnty of Middlesex Light Railways Order, 1903, [1908] W. N. 167. (a) In re Burdehin, [1895] 2 Ch. 136; 64 L. J. Ch. 561. (S) In re Stewart (1889), 41 Oh. D. 494. (c) In re Merchant Taylors' Co. (1885), 30 Ch. D. 28; 54 L. J. Ch. 867. (d) S. 91. (e) Loosemore v. Tiverton, $o. Bail. Co. (1882), 22 Ch. D. 25; 52 L. J. Ch. 260, per Fry, J. "248 CHAPTER XVII. PAYMENT OF COMPENSATION INTO COURT. Sums over 2001. Deposit of Where land is taken from persons having limited interests, and purchase- . . . . , money or who are only entitled to sell or convey the same under the pro- compensation, visions of the Lands Clauses Act, 1845, or the special Act, or where injury is done to land so held, the amount of purchase-money or compensation when it exceeds a certain sum is deposited under the control of the Chancery Division (a). Section 69 of the Lands Clauses Act, 1845, directs payment into the Bank of England, in the name and with the privity of the Paymaster-General (6), of all sums amounting to or exceeding 200L, which are payable as purchase-money or compensation to owners having limited interests, and who are only entitled to sell or convey under the provisions of that or the special Act. The parties dealt with by section 69 (c) are to a large extent the same as those enumerated in section 7 (d). The money is lodged in Court in the Chancery Division, and is placed in the books of the pay office to the credit of " Ex parte the promoters of the undertaking, in the matter of the special Act (citing it)," and words are to be added briefly expressing the nature of the disability to sell and convey by reason of which the money is paid in. These particulars must also be stated in the request for the direction for the lodgment (e). Section 71 of the Lands Clauses Act, 1845, directs that if such purchase-money or compensation is between 20L and 2001., it may either be paid into the bank, or to two trustees nominated by the parties entitled to the rents and profits of the land in respect whereof the same is payable, such nomination to be signified by writing under the hands of the party so entitled, and in case of Sums between 20Z. and 200?. (a) Ss. 69—71, L. CI. Act, 1845, Appendix, p. 406. (ft) See Court of Chancery (Funds) Act, 1872, s. 6. (c) See Kelland v. Fidford (1877), G Ch. D. 491, 494; 47 L. J. Ch. 94. (d) Vide ante, p. 48. (e) S. C. Funds Rules, 1915, r. 39. PAYMENT OF COMPENSATION INTO COURT. 249 the coverture, infancy, lunacy, or other incapacity of the parties entitled, under the hands of their respective husbands, guardians, committees, or trustees. The liability to deposit the amount of purchase-money or com- Promoters pensation under sections 69 and 71 of the Lands Clauses Act, ^g^;* ur 1845, is thrown upon the promoters, and an action is maintainable chase-money for a writ of mandamus directing them to pay the amount into tion. mpeD8a " the bank pursuant to the provisions of the Act (/) ; and where purchase-money, which should have been deposited, has been paid under protest to a corporation, the corporation has been ordered .at the suit of the promoters to deposit the amount for purposes of interim protection (g). Sections 69 and 71 are a direction for the safe custody of Title not con- purchase-money, and do not make the title conditional on a com- deposit of pliance with their provisions. Payment into Court may be dis- purchase- pensed with, where the fund has immediately to be transferred to ■another account, as where lands of a lunatic are purchased or taken (h). From the date of deposit interest ceases to run in favour of the Interest "vendors (i) unless there is a special contract to pay interest (fc) . a f ter . R. 3 Eq. 173; 36 L. J. Ch. 52; Ex parte Reetor of St. Martin's, Birmingham (1870), L. R. 11 Eq. 23; 40 L. J. Ch. 69; Ex parte Rector of Liverpool (1871), L. R. 11 Eq. 15; 41 L. J. Ch. 55; Ex parte Vioar of St. Botolph, Aldgate, [1894] 3 Ch. 544; Re London Count)/ Council, Ex parte Pennington (1901), 84 L. T. 808. (&) In re Youl (1873), L. R. 16 Eq. 107; 42 L. J. Oh. 900; In re Atkins' Estate (1875), 1 Ch. D. 82; 45 L,. J. Ch. 117. (0 Cf. Rules under Settled Land Act, 1882, r. 7. brances. PAYMENT OF COMPENSATION INTO COURT. 253 affidavit will be required in almost all cases (to), but has been dispensed with on an application by the authorities of an Oxford college (w). If there are several petitioners, it is sufficient if the affidavit is One of made by one of them (o), and one petition is sufficient where it is petitioners proposed to deal at the same time with two funds in different ma y m . a ke branches of the Court (p). Under section 69 of the Lands Clauses Act, 1845, money de- Application posited could only be applied in one of the following methods : — deposited. (1) The purchase or redemption of the land tax, or the discharge (i) In re- of any debt or incumbrance affecting the land in respect of which tax^rdis^" 1 such money shall have been paid (q), or affecting other land settled charging in - therewith to the same or the like uses, trusts, and purposes. A tenant for life, who had redeemed the land tax, was allowed Redemption to reimburse himself out of money deposited (r) . The redemption equivalent to of land tax has been treated as a re-investment in other lands, and re-investment in land. the promoters are liable to pay costs (s). An existing lease, under which a low rental is reserved, is an Incum- incumbrance on land whose value has increased, and purchase- money dejDOsited may be applied in obtaining a surrender (if) . Where the interest on certain bonds was payable out of a borough fund which consisted in great part of rents and profits of real estate, and where certain tolls belonging to the corporation had been mortgaged, money deposited in respect of lands taken from (m) Ex parte Jlollich (1846), 16 L. J. Ch. 71; Ex parte Warden of Win- chester College (1865), 14 L. T. 543; In re Byron's Charity (1883), 23 Ch. D. 171; 53 L. J. Ch. 152. (») Re Magdalen College, Oxford (1880), 42 L. T. 822. (o) Se Vale of Neath Bail. Co., (1866) W. N. 78; Re Smith's Leaseholds (1866), 14 W. R. 949. (p) In re Lord Arden's Estates (1875), L. R. 10 Ch. 445; Re Browse's Trusts (1866), 14 L. T. 37; In re Gore Langton's Estates (1875), L. R. 10 Ch. 328; 44 L. J. Ch. 405. (g) Ex parte Rector of Kirhsmeaton, In re Hull Railway and Doe/c Act (1882), 20 Ch. D. 203; 51 L. J. Ch. 581; Ex parte London County Council; Ex parte Vicar of Christchurch, East Greenwich, [1896] 1 Ch. 520; 65 L. J. Ch. 331. (r) Ex parte Norlhwiok (1834), 1 Y. & C. Ex. 166. (0 Ex parte Northwick (1834), 1 Y. & C. Ex. 166; Ex parte Traford (1837), 2 Y. & C. Ex. 522; Ex parte Beddoes (1855), 24 L. J. Ch. 175; In re Bethlem Hospital (1875), 1>. R. 19 Eq. 457; 44 L. J. Ch. 406. (0 Ex parte Corporation of Sheffield (1856), 25 L.. J. Ch. 587. Cf. Re London Street, Greenwich (1888), 57 L. T. 673; Ex parte Corporation of London (1868), L. R. 5 Eq. 418; 37 L. J. Ch. 375. 254 PAYMENT OF COMPENSATION INTO COURT. such corporation was allowed to be applied in paying off such bonds and mortgages, as being incumbrances on the corporation estate (u). All lands of a corporation are settled upon the same or the like uses, trusts, or purposes (v), and the word " settled " has the same meaning as " standing limited " (a;). (2) In pur- (2) In the purchase of other lands to be conveyed, limited, and lands. settled upon the like uses, trusts, and purposes, and in the same manner as the lands in respect of which such money shall have been paid stood settled. Whenre-in- When lands taken are freehold, and stand limited in strict leaseholds settlement, a re-investment in leasehold security («/), or in an permitted. equity of redemption, will not be sanctioned {z) . A re-investment in leaseholds may be sanctioned where the petitioners are persons absolutely entitled (a). If the property taken is leasehold, de- posited money can be re-invested in the purchase of the re- version of other leasehold property belonging to the same parties (b). Copyholds. Under special circumstances, money deposited in respect of free- holds was ordered to be re-invested in copyholds of inheritance (c) ; Lands in Isle and a re-investment may be ordered in lands in the Isle of ofMan " Man(d). Investment An investment in guaranteed railway stock has been treated as a Tailway^toek re-investment in land, in order that the income of a lunatic might not be diminished (e). }* e ™. The erection of new buildings is equivalent to a re-investment buildings. . . . m lands, if the special circumstances show that their erection will be for the benefit of all parties interested in the estate, and if the remaindermen do not appear and object (/) . The fees payable to (w) In re Derby Municipal Estates (1876), 3 Ch. D. 289. (v) Ex parte Corporation of Cambridge (1848), 6 Hare, 30; Ex parte Bishop of London (1860), 29 JC. 3. Ch. 575; Ex parte Corporation of London (1868), L. R. 5 Eq. 418; 37 L.. J. Oh. 375. (x) Kelland v. Fulford (1877), 6 Ch. D. 491; 47 L. J. Ch. 94. (y) Ex parte Maoaulay (1854), 23 L. J. Ch. 815. But see Ex parte Trinity College, Cambridge (1868), 18 K T. 849. (z) Ex parte Craven (1848), 17 L. J. Ch. 215. (a) In re Behoboth Chapel (1875), L. R. 19 Eq. 180; 44 L. J. Ch. 375. (b) Be Brasher's Trusts (1858), 6 W. R. 406. (c) Be C aim's Estate (1850), 19 K J. Ch. 376. (d) In re Taylor's Estate (1871), 40 L. J. Ch. 454. (e) In re Buckingham (1876), 2 Oh. D. 690. (/) Be Partington's Trusts (1863), 11 W. R. 160; Be Incumbent of Whitfield (1860), 1 J. & Ii. 610; Ex parte Sector of Shipton-under-Wychwood (1871), PAYMENT OF COMPENSATION INTO COURT. 255 architects and surveyors for planning the buildings and super- intending their erection are part of the expenses of building, and are not costs, charges, and expenses incidental to the investment (g), and therefore are not payable by the promoters. Applications by universities or colleges for investment in build- Universities ings under the Universities and College Estates Acts, 1858 to aDdc ° ne s es - 1898, require the consent of the Ministry of Agriculture, evidenced by an order under seal (h) . Additions to and improvements of buildings may confer the Additions to same benefit to the estate as new buildings (i). mentaoi"^' Money spent in repairs is not ordinarily equivalent to a re- bulldm & s - investment in lands (k), but the application of deposit moneys for epairs " this purpose has been allowed in several cases (I). Money deposited has been applied to permanent improvements Permanent of an estate (to) ; but in Drake v. Trefusis (n), James, L. J., improvement, says : " We never intended, however, to go further than this, that the expending money in building a house on a vacant piece of ground forming part of the settled property, is in substance the 19 W. R. 549; Drake v. Trefusis (1875), L. P. 10 Oh. 364; Ex parte Corpora- tion of Liverpool (1866), L. R. 1 Oh. 596; 35 L. J. Ch. 655; In re Johnson's Settlements (1869), L. R. 8 Eq. 348; In re Leigh's Estate (1871), L. R. 6 Ch. 887; 40 L. J. Oh. 687; Ex parte Rector of Gamston (1876), 1 Ch. D. 477; In re Earl de Grey's Settled Estate (1887), 32 S. J. 108; Ex parte Jesus College (1884), 50 L. T. 583'; Ex parte Vicar of St. Botolph, Aldgate, [1894] 3 Ch. 544. (g) lie Butchers' Co. (1885), 53 L. T. 491. (h) Ex parte King's College, Cambridge, [1891] 1 Oh. 333, 677; 60 L. J. Ch. 508, in which case, counsel appearing for the Board, an order under seal was dispensed with. Cf. also the Universities and Colleges (Emergency Powers) Act, 1915. (i) In re Speer's Trusts (1876), 3 Oh. D. 262; Ex parte Rector of Clay ■pole (1873), L. R. 16 Eq. 574; 42 L. J. Ch. 776; In re Leigh's Estate (1871), L. R. 6 Ch. 887; 40 L. J. Ch. 687; In re 'Earl de Grey's Entailed Estate (1887), 32 S. J. 108; Ex parte Vicar of St. Botolph, Aldgate, [1894] 3 Oh. 544. (Je) Drake v. Trefusis (1875), L. R. 10 Ch. 364; In re Leigh's Estate (1871), L. R. 6 Oh. 887; 40 L,. J. Ch. 687; Ex parte Rector of Neivton Heath (1896), 44 W. R. 645. Of. In re Nether Stowey Vicarage (1873), L. R. 17 Eq. 156; Brunshill v. Caird (1873), L. R. 16 Eq. 493. (I) Ex parte Rector of Grimoldby, In re Louth, §c. Rail. Co. (1876), 2 Ch. B. 225; In re Aldred's Estate (1882), 21 Ch. D. 228; 51 L. J. Ch. 942; Ex qrarte Vicar of St. Botolph, Aldgate, [1894] 3 Ch. 544; In re London County Council, Ex parte Pennington (1901), 84 L,. T. 808. (m) In re Clitheroe (1869), 20 L. T. 6; Re Vicar of Queen's Camel (1863), 8 L. T. 233. (») (1875), L, R. 10 Oh. 364. Cf. Settled Land Act, 1882, ss. 22, 32. 256 PAYMENT OF COMPENSATION INTO COURT. same thing as buying a house, and that money to be invested in the purchase of real estate may therefore be properly applied in the erection of new buildings. Repairs and permanent improvements do not come within this principle." Payment to A tenant for life will only be recouped for expenditure which is tenant for life , , , ,, . , ., / n for money properly charged on the inheritance (o). spen ' (3) If such money shall be paid in respect of any buildings or replacing ° taken under the authority of the Lands Clauses Act, 1845, or the buildings special Act, or injured by the proximity of the works, in removing interfered . J . . . ... ° with. or replacing such buildings or substituting others in their stead in such manner as the Chancery Division shall direct (p). Costs payable The costs of such re-investment are payable by the promoters under the Lands Clauses Acts (q) . Where the special Act is silent as to costs (r) the Court has now, under section 5 of the Supreme Court of Judicature Act, 1890, full discretion as to costs, and has jurisdiction to order the promoters to pay such costs (s). Where the re-investment is in land, costs may be computed according to the scale fixed by the Solicitors' Remuneration Act, 1881 (t). (4) Payment (4) In payment to any party becoming absolutely entitled to to party , absolutely such money. ealte ' The words "absolutely entitled" mean entitled to his or her own use, as for instance where an infant attains twenty-one, or a married woman becomes discovert (w) . Trustees with Trustees with an absolute power of sale are absolutely entitled absolute x J power of sale. 0) Williams v. Aylesbury, §o. Sail. Co. (1874), L. R. 9 Cb. 684; 43 L. J. Ch. 825; Ex parte Davis (1858), 27 L. J. Ch. 712; Me Wight's Devised Estates (1857), 6 W. R. 718; In re Leigh's Estate (1871), L. R. 6 Ch. 887; 40 L. J. Ch. 687. (p) Me Oxford, §-a. Mail. Co., Ex parte Melward (1860), 29 L. J. Ch. 245; Ex parte Ministers and Churchwarden.'! of St. John's Charch, Fulham (1857), 28 L. T. 0. S. 173; In re St. Thomas's Hospital (1863), 11 W. R. 1018; In re Johnson's Settlements (1869), L. R. 8 Eq. 348; Matthews v. Wilson, (1883) W. N. 111. (q) Me Kent Coast Mail. Co. (1862), 7 L. T. 240. Of. Drake v. Greaves (1886), 33 Ch. D. 609; 56 L. J. Ch. 133. Contra, Me Buckinghamshire Mail. Co. (1850), 14 Jur. 1065, and Me Oxford, S;o. Mail. Co., Ex parte Melward (1860), 29 L. J. Oh. 245. (/) E.g., Michael Angelo Taylor's Act (57 Geo. 3, c. xxix.), post, p. 350. («) In re Fisher, [1894] 1 Ch. 450; 63 L. J. Ch. 235. Vide post, p. 274. (/.) In re Merchant Taylors' Co. (1885), 29 Ch. D. 209; 30 Ch. D. 28; 54 L. J. Oh. 867. (,«) Kel/and v. Fulford (1877), 6 Ch. D. 491, 495, -per Jessel, M. R.; 47 L. J. Ch. 94. authorities. PAYMENT OF COMPENSATION INTO COURT. 257 as of right within the meaning of this section to the payment out of Court (x) . If a trust for sale is not capable of being exercised until after the lifetime of a party, before whose death the petition is brought, an order for payment out cannot be made {y). Trustees of a charity who have full power to sell the charity Trustees lands, are persons absolutely entitlfed (z), but unless the trustees charlt y- have an absolute power of sale, the certificate of the Charity Com- missioners is necessary to entitle them to have money in Court paid out to them (a). The money may be transferred to the account of the Official Trustees of Charitable Funds, and this will be equivalent to a payment out of Court (6). Where a Borough Council had powers under the London Govern- Local ment Act, 1899, to alienate land and apply the proceeds with the sanction of the Local Government Board, and certain of their lands were compulsorily acquired and the purchase price paid into Court, the Local Government Board refusing to give any consent or take any steps with regard to the matter, it was held that the Borough Council could not be considered as persons absolutely entitled and consequently no order for payment out should be made (c) . Where a highway authority had powers of sale with the consent of the O) In re Hobson's Trusts (1878), 7 Ch. D. 708; 47 L, J. Ch. 310, is not overruled by In re Smith (1888), 40 Ch. D. 386; 58 L. J. Ch. 108 (see as to this In re Morgan, Smith v. May, [1900] 2 Ch. 474; 69 L. J. Ch. 735), and has been followed in In re Sheffield Corporation and -St. William's, §c. Schools, [1903] 1 Oh. 208; 72 L. J. Ch. 71. (y) In re Horwood's Estate (1861), 3 Giff. 218; In ire Session's Estate (1872), L. R. 13 Eq. 564'; In re Sowry (1873), L. R. 8 Oh. 736. («) In re Clergy Orphan Corporation, [1894] 3 Ch. 145; 64 T. J. Ch. 66; In re Sheffield Corporation and St. William's, $e. Schools, [1903] 1 Ch. 208; 72 L. J. Oh. 71. Ci. In re Spurstowe's Charity (1874), L, R. 18 Eq. 279; 43 L. J. Ch. 512; In re Cheshunt College (1856), 8 W. R. 638; Ex parte Trustees of Tid St. Giles' Charity (1868), 17 W. R. 758. (a) In re Faversham Charities (1861), 5 L. T. 787; Ex parte Governors, §e. of Norfolk Clergy, (1882) W. N. 53; In re Parson of St. Alplwge (1886), 55 L. T. 314; Ex parte Haberdashers' Co. (1886), 55 L. T. 758; In re Mason's Orphanage and London § North Western Rail. Co., [1896] 1 Ch. 596; 65 L. J. Oh. 439. (b) In re Bristol Free Grammar School Estates (1878), 47 L. J. Ch. 317; In re Sector of St. Alban's, Wood Street (1891), 66 L. T. 51. (c) Ex parte Great Western Rail. Co. (1909), 74 J. P. 21; overruling E.v parte Woolwich Borough Council (1908), 24 Times L. R. 370, where, in con- nection with the same Act (London Government Act, 1899), an order for payment out had been made. And see In re Islington Borough Council (1907), 97 L. T. 78. C. < 17 258 PAYMENT OP COMPENSATION INTO COUET. Public companies. Dowress. Married woman. Tenant for life. Local Government Board under the Sale of Exhausted Parish Lands Act, 1876, the punchase-money was ordered to be paid out of Court on the footing that the highway authority having obtained that approval, would be absolutely entitled to the money (d). A water company has been held absolutely entitled to the pur- chase-money of land held by it for the purposes of its undertaking, but taken by another public body under compulsory powers (e). A dowress is a person absolutely entitled to her share of the capital money in Court (/) . Before payment out to a married woman a joint affidavit of " no settlement " by the husband and wife is required (. J. Ch. 568; In re Webster's Settled Estates (1854), 2 Sm. & Giff. App. vi. 264 PAYMENT OF COMPENSATION INTO COUET. On incum- brancers under s. 69. Under s. 70. On trustees. On parties to a suit. Not on Ecclesiastical Commis- In case of charities. An incumbrancer should be served with a summons for re- investment in lands (z), or for payment out of Court (a) under section 69 of the Lands Clauses Act, 1845. A lessor who has a right of re-entry in respect of rent due is an incumbrancer within the meaning of the section (6). On a summons for interim investment under section 70 of the Lands Clauses Act, 1845, it is unnecessary to serve an incumbrancer (c). Trustees, in whom land purchased or taken was vested, should be served in cases where the purchase-money or compensation has been deposited in Court (d). A tenant for life is entitled to be served with a petition by trustees under the Settled Land Acts for payment out of purchase- money of settled estates and to be separately represented (e). When lands purchased or taken are the subject-matter of a suit, parties to the suit should be served with notice of proceedings for the application of the purchase-money or compensation deposited in the Court (/). When the consent of the Ecclesiastical Commissioners is neces- sary for the application of a fund deposited in Court, their consent should be obtained out of Court ; service of the petition on them is unnecessary, and the promoters are not liable to pay the costs of their appearance (g). Where by a scheme of the Charity Commissioners lands settled to charitable uses were vested in the official trustee of charity lands, and stock settled to like uses was vested in the official trustees of charitable funds, the costs of serving the official trustees were held to be payable by the promoters (h) . But where the Charity Com- missioners had made a scheme for the administration of several (z) In re Gore Lcmgton's Estates (1875), L. R. 10 Ch. 328; 44 L. J". Ch. 405; Wood v. Boucher (1871), L. P. 6 Oh. 77; 40 L. J. Ch. 112. (re) In re Halstead United Charities (1875), L. P. 20 Eq. 48; Ex parte Jones, In re Artizans', $o. Dwellings Act (1880), 14 Oh. D. 624. (V) Re London Street, Greenwich (1888), 57 L. T. 673. (c) In re Webster's Settled Estates (1854), 2 Sm. & Oiff. Appendix, vi.; In re Morris's Settled Estates (1875), L. P. 20 Eq. 470; 45 L. J. Ch. 63. (d) Ex parte Metropolitan Rail. Co. (1868), 16 W. P.. 996; Hennilcer v. Chafy (1864), 35 Beav. 124; Wilson v. Foster (1859), 28 L-. J. Ch. 410; In re English's Settlement (1888), 39 Ch. D. 556; 57 Li. J. Ch. 1048. (e) In re Piggin, [1913] 2 Oh. 326. (/) Bradshaw v. Fane (1862), 1 N. P. 159; Haynes v. Barton (1866), L. B. 1 Eq. 422; 35 L. J. Ch. 233; Ilore v. Smith (1849), 14 Jur. 55; Wilson ». Foster (1859), 28 L, J. Ch. 410. (<7) Ex parte Bishop of London (1860), 29 L. J. Ch. 575. {h) In re Stafford's Charity (1887), 57 L. T. 846. PAYMENT OF COMPENSATION INTO COURT. 1260 funds in Court, and such scheme was binding on all the thirty-two public bodies or corporations in whose names the funds were re- spectively standing, it was held that the service of the petition on them was unnecessary, and the costs must be disallowed (i) . Money paid into Court is not within the London Government "Under Act, 1899, s. 6 (5), and the Ministry of Health is not a proper or Government necessary party in an application by a local authority for payment Aot . 18 99- out (k) . "Unless their interests are in some way specially affected, it is Appearance unnecessary for parties served on applications under sections 69 served* 166 and 70 of the Lands Clauses Act, 1845, to appear, and the question of the costs of such parties is regulated by R. S. C, 0. LXV. r. 27 (19) : "Where any petition in a cause or matter assigned to the Chancery Division is served, and notice is given to the jmrty served that in case of his appearance in court his costs will be objected to, and accompanied by a tender of costs for perusing the same, the amount to be tendered shall be 11. 10s. The party making such payment should be allowed the same in his costs,, provided such service was proper, but not otherwise ; but this order is without prejudice to the rights of either party to costs, or to object to costs where no such tender is made, or where the Court or judge shall consider the party entitled, notwithstanding such notice or tender, to appear in court. In any other case in which a solicitor of a party served necessarily or properly peruses any such petition, without appearing thereon, he is to be allowed a fee not exceeding the amount aforesaid." This rule is in accordance with the principle of previous decisions (I), with a reduction of the amount to be tendered. The practice as determined by those decisions applies to money paid into Court under the Housing and Town Planning Acts (m). (i) Re Rector of St. Alban's, Wood Street (1891), 66 L. T. 51; following Re Prebend of St. Margaret, Leicester (1864), 10 L. T. 221. (k) In re Islington Borough Council (1907), 97 L. T. 78. (0 In re Gore Langton's Estates (1875), L. R. 10 Oh. 328; 44 E. J. Ch. 405; In re Halstead United Charities (1875), L. R. 20 Eq. 48; In re Pattison's Estates (1876), 4 Oh. D. 207; In re Dowling's Trusts (1876), 45 L. J. Ch. 568; Ex parte Jones, In re Artizans', §0. Dwellings Act, 1875 (1880), 14 Ch. D. 624; Re Ruck's Trusts (1895), 13 R. 637; hut see In re Piggin, [1913] 2 Ch. 326. (m) Post, Book II., p. 354. The principle of the decision in Ex parte Jones, In re Artizans', §e. Dwellings Act, 1875 (1880), 14 Ch. D. 624, appears to apply generally. 266 PAYMENT OF COMPENSATION INTO COURT. Practice on The cases having reference to the service of petitions are not applications ..... . . ... , . at ohambers. omitted, since in some cases petitions must still be presented, and the same parties will prdbably be required to be before the Court although proceedings are taken at chambers («). ?^ e ? xce a ed " If a sum of money exceeding 201. is payable by the promoters, able under in respect of the taking, using, or interfering with any lands under persons not a contract or agreement with any person who shall not be entitled absolutely t dispose of such lands, or of the interest therein contracted to be entitled to be . deposited. sold by him absolutely for his own beneht, the same is to be paid into the bank or to trustees ; and it is not lawful for any contract- ing party not absolutely entitled to retain to his own use any portion of the sums so agreed or contracted to be paid for, or in respect of the taking, using, or interfering with any such lands, or in lieu of bridges, tunnels, or other accommodation works, or for assenting to or not opposing the passing of the bill authorizing the taking of such lands ; but all such moneys are to be deemed to have been contracted to be paid for and on account of the several parties interested in such lands, as well in possession as in re- mainder, reversion or expectancy : provided that the Chancery Division or the trustees, as the case may be, may allot to any tenant for life, or for any other partial or qualified estate, for his own use, a portion of the sum so paid into the bank, or to such trustees as aforesaid, as compensation for any injury, inconvenience or annoyance which he may be considered to sustain, independently of the actual value of the lands to be taken, and of the damage occasioned to the lands held therewith, by reason of the taking of such lands and the making of the works (o). affect^ontract ^is provision does not affect the validity of contracts between between an owner and the promoters. The person who has not an absolute promoters. estate in the lands, in respect of which the contract, in question is made, becomes a trustee of the money paid ; and section 73 de- termines the relationship between him and the reversioner or remainderman, who is his cestui que trust (p). "Contracting The words " contracting party " are of general application, and are not limited to a person whose lands are taken (q) . (n) Cl. Settled Land Act Rules, 1882, rr. 2, 7. (o) S. 73, L. 01. Aot, 1845. (p) Taylor v. Chichester, ijo. Rail. Co. (1870), L. E. 4 H. L. 62S; 39 L. J. Ex. 217. (74), L. R. 18 Eq. 338. (s) Ex -parte Rector of Little Steeping, Re East Lincolnshire Rail. Co. (1847), 5 Rail. Cas. 207; Re Coins' Estate (1866), 14 L. T. 352; In re Saunderton Glebe Lands, [1903] 1 Oh. 480; 72 U. J. Ch. 276. (0 In re Earl of Berkeley's Will (1874), L. R. 10 Ch. 56; 44 L, J. Ch. 3. («) In re Ormrod's Settled Estate, [1892] 2 Ch. 318; 61 L. J. Ch. 651. {x) In re London Comity Council, Ex -parte Pennington (1901), 84 L. T. 808. (l0 Re Sir Thomas Wilson's Estate (1863), 32 L. J. Ch. 191. (s) S. 74, L. 01. Act, 1845. Decisions on a. 34 of the Settled Land Act, 1882, are authorities on this section, the enactments being similar: Cotlrell v. Cottrell (1885), 28 Ch. D. 628; 54 L. J. Ch. 417. 2(5-8 PAYMENT OP COMPENSATION INTO COUET. Service of notice on remainder- men. Lands of a life owner subject to lease. A life interest in leaseholds. Adjustment as between tenant for life and re- mainderman. On application under this section by the owner of a limited estate, parties interested in reversion or remainder should be served with notice, although the interest of the proposed investment of the money will be less than the rent reserved by the lease (a). Different principles of adjustment must be applied in the case of lands let on lease by a life owner, and in the case of a life interest in leasehold property. When lands are taken subject to existing leases, a tenant for life, or other owner having a limited interest, is entitled to receive from the funds deposited in Court, during the continuance of such leases, so much of the dividends and interest as would correspond to the amount of the rent reserved. Any surplus should be accumulated, and invested as forming part of the value of the reversion (b). The case of Ex parte Dean and Chapter of Westminster (c) is no exception to the above rule, since, under the peculiar circumstances of that case, the petitioners were held to be in the position of owners in possession, and not of reversioners. When leaseholds are settled upon a tenant for life, with limita- tions over on his death, then, whether the amount to be derived from the investment of the fund deposited would be more or less than the income being derived from the land taken, the owner entitled to such income has a claim to be paid such an annual sum as would exhaust the whole sum deposited at the same date that the lease would expire. The Court has adjusted the rights between the tenant for life and reversioners or remaindermen in one of the following ways : — By purchase of a government annuity, and investment of the residue to be accumulated (d). By dividing the income and capital each year by the number of years that the lease has to run, and paying the quotient to the («) In re Crane's Estate (1869), L. R. 7 Eq. 322. (6) Ex parte Bean of Gloucester (1850), 19 L>. J. Ch. 400; Ex parte Bean of Christ Church (1854), 23 L. J. Ch. 149; In re Wootton's Estate (1866), L. B. 1 Eq. 589; 35 L. J. Ch. 305; In re Kette's Estate (1869), L. E. 7 Eq. 72; 38 L. J. Ch. 445; In re Wilkes' Estate (1881), 16 Ch. D. 597; 50 L. J. Ch. 199, which contains a form of order; Cottrell v. Cottrell (1885), 28 Ch. D. 628; 54 L. J. Ch. 417. As to the distribution of compensation money for minerals, see ante, p. 258. i (c) (1859), 28 L. J. Ch. 144. Cf. Ex parte Trustees of St. Thomas's Church Lands, Bristol (1870), 23 L. T. 135. (<2) In re Pfleger (1868), L. E. 6 Eq. 426. This case has not been followed. PAYMENT OF COMPENSATION INTO COURT. 269 tenant for life (e) ; by purchasing an annuity for the same number of years as the lease had to run ; or by referring it to an actuary to say what in each year should be paid to a tenant for life out of income and capital (/). In In re Wood's Estate (g), the tenant for life of renewable leaseholds was not allowed more than the income of the purchase- money deposited ; but this case is no exception to the above rule, as the decision was based on the ground that there had not been a pur- chase by the promoters of a terminable estate, but a substitution of one property in perpetuitj r for another property in perpetuitj', and that part of the corpus belonging to the remainderman could not be taker, away to make good the diminished income of the tenant for life. When a lease had not been renewed through the neglect of trustees, and the rights of the remainderman had been defeated, it was held that the tenant for life had the whole interest in lands in respect of which compensation had been assessed, and was entitled to be paid the whole amount deposited (Ji). An annuitant whose annuity is secured on leasehold property Annuity is entitled to be paid the annuity in full (i) . This is in accordance leaTOhold" with the general principle, that the compulsory taking of lands property. shall not alter the respective claims of persons interested. If, upon deposit in the bank under sections 69, 71 and 73 of the After deposit, Lands Clauses Act, 1845, of the purchase-money or compensation ; n promoters agreed or awarded to be paid in respect of any lands purchased or ' f owner fail D x . to convey or taken by the promoters, the owner of such lands shall fail duly to show pood convey such lands to the promoters, or as they shall direct, or fail to e " adduce a good title to such lands to the satisfaction of the pro- moters, the promoters may, if they think fit, execute a deed poll under their common seal if they be a corporation, or, if they be not a corporation, under the hands and seals of the promoters, or any two of them, containing a description of the lands in respect of which such default has been made, and reciting the purchase or taking thereof by the promoters, and the names of the parties from whom the same have been purchased or taken, and the deposit made in respect thereof, and declaring the fact of such default having (e) ZUtlewood v. Pattison (1864), 10 Jul". N. S. 875. (/) Askew v. Woodhead (1880); 14 Oh. D. 27; 49 L. J. Oh. 320; approving In re Phillips' Trusts (1868), L». B. 6 Eq. 250; followed in In re Hunt's Estate, (1884) W. N. 181. Cf. He Chamberlain's Trusts (1866), 10 S. J. 910. (<7) (1871), L. R. 10 Eq. 572; 40 L. J. Ch. 59. Qi) Me Beaujoy (1853), 22 L. J. Ch. 430. (0 Ex ptirte Wilkinson (1843), 19 L. J. Ch. 257. 270 PAYMENT OF COMPENSATION INTO COURT. Promoters can question title on action of specific per- formance or for payment of compensa- tion. Ss. 76 to 79, L. 01. Act, 1845. been made, and thereupon all the estate and interest in such lands of or capable of being sold and conveyed by the party in question shall vest absolutely in the promoters ; and as against such parties, and all parties on behalf of whom they are enabled to sell and convey, the promoters shall be entitled to immediate possession of such lands (k). In proceedings to enforce the performance of a contract for the purchase of lands, or to enforce payment of the amount due to the owner when lands have been taken or injuriously affected, it is open to the promoters to question the title which the owner has claimed, and on the basis of which the assessment of the purchase- money or compensation has been settled (I). Sections 76 to 79 of the Lands Clauses Act, 1845, provide for the protection of the promoters when the amount of purchase-money or compensation has been agreed or awarded, but the owner on tender thereof refuses to accept the same, or neglects or fails to make out a title to such lands, or to the interest therein claimed by him, to the satisfaction of the promoters, or if he refuse to convey or release such lands as directed by the promoters, or if any such owner be absent from the kingdom, or cannot after diligent inquiry be found, or fail to appear in the inquiry before the jury. In such cases the promoters may deposit the purchase-money or compensa- tion in the bank in the name and with the privity of the Pay- master-General, to be placed, except in cases otherwise provided for, to his account there, to the credit of the parties interested in such lands, describing them as far as the promoters of the undertaking can do. Upon such deposit of money and a proper receipt given by the cashier of the bank, the promoters may, if they think fit, execute a deed-poll under their common seal, if they be a corpora- tion, or, if they be not a corporation, under the hands and seals of the promoters, or any two of them, containing a description of the lands in respect of which such deposit has been made, and declar- ing the circumstances under which, and the names of the parties to whose credit, such deposit has been made ; and such deed-poll is to be stamped with the stamp duty which would have been payable on the conveyance to the promoters of the lands described therein, and thereupon all the estate and interest in such lands of the parties for whose use, and in respect whereof such purchase-money or compensation has been deposited, vests absolutely in the pro- (Jc) L. Ol. Act, 1845, s. 75. (I) Vide ante, p. 234. PAYMENT OP COMPENSATION INTO COURT. 271 inoters, and as against such parties they are entitled to immediate possession of such lands (to). This provision vests in the promoters the actual interest in lands Interest in of the party with whom a contract has been entered into, or in wner°with respect of whose claim an assessment of purchase-money or com- "whom they ... 11 ... have treated pensation has been made, but any other party having an interest vested in in such lands would be at liberty to take proceedings, by action of P romoters - ejectment or in any other way, against promoters who have taken his property without compliance with the necessary statutory forms (n) . The section does not vest any interest in the promoters But not other where the claimant, in respect of whose interest an assessment ln eres e * of compensation has been assumed to be made, has a positively bad title, or confesses to no title at all (o), nor is it, or section 58, applicable where there is a dispute as to the ownership of the land between two rival claimants ; in such a case, unless the parties otherwise agree, the value should be assessed by a jury in the usual way (p). The promoters cannot proceed under section 76 without first calling on the owner to -make out a title (q). An action for a mandamus against the promoters to pay money Mandamus to into Court under section 76 of the Lands Clauses Act, 1845, was {^Court 7 held to be maintainable under the Common Law Procedure Act, 1854 (r). Money deposited under sections 76 and 77 of the Lands Clauses Petition for J 1 application ot Act, 1845, is, under section 78, directed to be dealt with by the money. Chancery Division of the High Court upon the petition of any party making claim to the money so deposited, or any part thereof, or to the lands in respect whereof the same shall have been so deposited, or any part of such lands, or any interest in the same : and the Court may order such money to be laid out or invested in the public funds, or may order distribution thereof, or payment (m) Ss. 76 and 77, L. 01. Act, 1845. (»). Ex parte Winder (1877), 6 Oh. D. 696; 46 L. J. Ch. 572. Ci. Douglas v. London and North Western Bail. Co. (1856), 3 K. & J. 173; Gedye v. Commissioners of Works, [1891] 2 Oh. 630; 60 L. J. Oh. 587. (o) Douglass v. London and N. H. 4 Ex. 309; 38 L. J. Ex. 225. 272 PAYMENT OF COMPENSATION INTO COURT. Procedure by summons. An incum- brancer can apply. Court to de- cide question of title. of the dividends thereof, according to the respective estates, titles or interests of the parties making claim to such money or lands, or any part thereof, and may make such other order in the premises as to the Court shall seem fit (s). The procedure is now by summons at chambers, and not by petition, except in the case of sums of over 1,000?. ; and applies to money paid into Court under any Act whenever passed (t). An incumbrancer can apply under this provision (u) ; but a lessor cannot claim arrears of rent out of money so deposited as compensation for the interest of the lessee (x). On an application in respect of purchase-money or compensation under section 78 of the Lands Clauses Act, 1845, the Court is called upon to decide the respective estates, title or interests of the parties making claim to the money deposited, or the lands or any part thereof. If the interest in respect of which compensation has been claimed and assessed is greater than the interest to which the petitioners are entitled, the Court will use its own machinery to ascertain the value of the interest to which the petitioners are actually entitled, and will order payment of the residue of the fund in Court to the party who paid it in («/). Where, subsequently to a decree of specific performance, a company paid money into Court in respect of the purchase-money on a plea of defective title, the owner was held entitled to apply for payment under section 78, as a means of enforcing the decree already made (z), and where the promoters under section 76 paid into Court in respect of mort- gaged premises inter alia an agreed sum of 250Z. as compensation for goodwill depending on the personal skill of the mortgagor, it (s) S. 78, L,. CI. Act, 1845. (t) R. S. 0., 0. L.V. r. 2, sub-ss. 1, 2, 7; Ex parte Mayor of London (1883), 25 Ch. D. 384; 53 L.. J. Ch. 6. (ti) Re Marriage (1861), 9 W. R. 843; In re Stead's Mortgaged Estates (1876), 2 Ch. D. 713; 45 L. J. Ch. 634; Pile v. Pile, Ex parte Lambton (1876), 3 Ch. D. 36; 45 L. J. Ch. 841. (x) In re Dublin Corporation and Baker, [1912] 1 Ir. R. 498, following Ex parte Carey, In re Great Southern and Western Hail. Co. (1847), 10 L. T. (O. S.) 37. {y) Brandon v. Brandon (1864), 34 L,. J. Oh. 333; Ex parte Cooper, He North London Sail. Co. (.1865), 34 L. J. Ch. 373; He Perkes' Estate (1853), 1 Sm. & Giff. 545; Ee Eayne (1865), 12 L. T. 200; Re Alston's Estate (1856), 28 L. T. 0. S. 337; In re Stead's Mortgaged Estates (1876), 2 Ch. D. 713; 45 L. J. Ch. 634; Pile v. Pile, Ex parte Lambton (1876), 3 Ch. D. 36; 45 L. J. Ch. 841. (2) Galliers v. Metropolitan Rail. Co. (1871), L. R. 11 Eq. 410; 40 L. J. Ch. 544. PAYMENT OF COMPENSATION INTO COURT. 273 was held that this sum with interest could be recovered in an action bj the mortgagor for specific performance {a) . After purchase-money had been assessed it was paid into Court, Advene owing to an adverse claim made on behalf of the Crown. The Crown* 7 * 116 Crown filed an information against the owner, and it was held, on a petition by the owner for payment of the purchase-money, that the petition must stand over until the information had been heard as the Crown could not be brought before the Court under the Lands Clauses Act, 1845, to dispute the petitioner's claim (6). If, after the deposit of purchase-money or compensation, any Parties in question arise respecting the title to the lands in respect of which ^deemed^ such purchase-money or compensation has been deposited, the owners until parties respectively in possession of such lands, as being the owners shown, thereof, or in receipt of the rents of such lands, as being entitled thereto at the time of such lands being purchased or taken, are to be deemed to have been lawfully entitled to such lands until the contrary be shown to the satisfaction of the Court ; and unless the contrary is shown as aforesaid, the parties in possession, and all parties claiming under them, or consistently with their posses- sion, are to be deemed entitled to the money so deposited, and to the dividends or interests of the annuities or securities purchased therewith, and the same shall be paid and applied accordingly (c) . A person in possession as occupier claiming the fee simple, in Who are whose favour the Statute of Limitations has run, is within this ^ t ln g section (d). But a tenant in possession of rents and profits as termor is not within the section, even though he has not paid rent for some years, and the reversioner is unknown ; nor will the lapse of time without claim by the reversioner perfect the tenant's title to the fund in Court (e). (a) Cooper v. Metropolitan Board of Works (1883), 25 Ch. D. 472; 53 L. J. Ch. 109. (6) In re Manor of Lowestoft and Great Eastern Rail. Co., Ex parte Reeve (1883), 24 Ch. D. 253 ; 52 L,. J. Ch. 912 ; Re Alston's Estate (1856), 5 W. R. 189. Cf. In re St. Pancras Burial Ground (1866), L. R. 3 Eq. 173; 36 L. J. Ch. 52. (c) S. 79, L. 01. Act, 1845. Cf. Perry v. Clissold, [1907] A. C. 73; 76 L. J. P. C. 19. (d) Ex parte Winder (1877), 6 Ch. D. 696; 46 L. J. Ch. 572; Re Evans (1873), 42 L. J. Ch. 357. ((?) Gedye v. Commissioners of Works, [1891] 2 Ch. 630; 60 L. J. Ch. 587, doubting Ex parte Chamberlain (1880), 14 Ch. D. 323; 49 L. J. Ch. 354. Of. Ex parte Hollinsivorth (1871), 24 L. T. 317; In re Harris, Ex parte London County Council, [1901] 1 Ch. 931; 70 L.. J. Ch. 432. C. 18 274 PAYMENT OF COMPENSATION INTO COURT. This applies only to an application to deal with money in Court. Not to a dis- pute as to title. Costs. Discretion as to costs. Section 79 is a direction as to the procedure to be adopted on an application for payment of the purchase-money or compensation deposited in Court. In In re St. Pancras Burial Ground (/), Wood, V.-C, says : — " The legislature has anxiously provided that the Court shall not, on these occasions of application for the pay- ment of purchase-money, deal with the property in any way what- ever which can affect the title, unless it can be shown so clearly as to be beyond question that there must be litigation on the question of title" (g). Where a title is proved to be doubtful, section 79 does not apply, and the question of title or trust has to be settled, so far as it affects the applicants, by the Court (h). Section 80 of the Lands Clauses Act, 1845, deals with the ques- tion of costs in all cases of moneys deposited in the bank under the provisions of that Act, or the special Act, or any Act incorporated therewith (i). Although costs are due to the owner, the Court cannot order them to be paid out of a particular fund appropriated specifically to different purposes (Jc). This section applies where lands have been entered upon under section 85 and subsequently an agreement has been made fixing the amount of compensation (I). Before the Judicature Acts, the Court of Chancery had no power to give costs in proceedings under statute, except such as the statute authorized (m). Therefore, after transfer of a fund, deposited under a statute, to a suit, the power of the Court to give (/) (1866), L. R. 3 Eq. 173; 36 L. J. Ch. 52. (a) Re Alston's Estate (1856), 5 W. R. 189; Be Sterry's (or Perry's) Estate (1855), 3 W. R. 561. (h) Ex -parte Issauchaud (1839), 3 Y. & C. Ex. 721; Ex parte Freemen, §c. of Sunderland (1852), 1 Drew. 184. Of. Brandon v. Brandon (1864), 34 L. J. Ch. 333. (i) Ex parte Flower (1866), L. R. 1 Ch. 599; Ex parte Morris (1871), L. R. 12 Eq. 418; 40 L. J. Ch. 543. (k) In re Neath and Brecon Rail. Co. (1874), D. R. 9 Ch. 263. (I) Charlton v. Rolleston (1884), 28 Ch. D. 237; 54 L.. J. Ch. 233. (m) In re Cherry's Settled Estates (1862), 31 L. J. Ch. 351 (approved In re Mills' Estate (1886), 34 Ch. D. 24; 56 L. J. Ch. 80); In re Charity Schools of St. Dunstan-in-the-W est (1871), D. R. 12 Eq. 537; In re Williams' Estate (1871), L. R. 12 Eq. 488; In re Land's Trusts and Bristol and Exeter Railway Act (1857), 4 K. & J. 81; In re Harrison's Estate (1870), L. R. 10 Eq. 532; In re Merceron (1877), 7 Oh. D. 184; 47 L. J. Ch. 114. The case of In re Spitalfi-elds' School (1871), L. R. 10 Eq. 671, has not been followed. PAYMENT OF COMPENSATION INTO COURT. 275 •costs in subsequent proceedings was held to be taken away («). The Judicature Act, 1875, and the Eules of the Supreme Court, 1883, placed all costs (subject to certain specified exceptions) of .and incident to proceedingsin the Supreme Court in the discretion of a Court or judge, but it was held 'that they did not overrule the provisions of special statutes giving special costs in particular cases (o), nor give the Court any power to award costs in cases where the special statute was silent on the point (p) . The powers ■of the Court have, however, been extended by section 5 of the Judicature Act, 1890, which enacts : " Subject to the Supreme Judicature Court of Judicature Acts and the Eules of the Court made there- B . c 5 .' under, and to the express provisions of any statute, whether passed before or after the commencement of this Act, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge and the Court or judge shall have full power to determine by whom and to what extent such costs are to be paid." Under this section the Court has power to give costs of and inci- dental to a petition for payment out under an Act which contains no provisions as to such costs (q), and to give costs in the cases under section 80 in which such power is expressly excepted (r). Costs under section 80 include all reasonable charges and ex- Promoters not penses, ,and the Court will protect the promoters against costs unn ecess&r/ caused or increased by unnecessary or vexatious proceedings of C08ts - the petitioner. Costs of parties who have been unnecessarily served, or who Of parties unnecessarily appear, are not payable by the promoters (s) . Where peeing U n?~ owing to the complicated nature of the matter a petition is neces- necessarily, sary in place of a summons or a second petition or summons is presented by reason of a defect in the first the Court will order the (») Fisher v. Fisher (1874), L. K. 17 Eq. 340; 43 L. J. Ch. 262. Cf. Drake v. Greaves (1886), 33 Ch. D. 609; 56 X.. J. Ch. 133. (o) Reeve v. Gibson, [1891] 1 Q. B. 652; 60 L. J. Q. B. 451; following' Hasher v. Wood (1885), 54 L. J. Q. B. 419. (p) In re Mills' Estate (1886), 34 Ch. D. 24; 56 L. J. Ch. 60; approving In re Cherry's Settled Estates, 31 L>. J. Ch. 351; doubting Ex parte Mercers' Company (1878), 10 Ch. D. 481; 48 L. J. Ch. 384; which was followed in Ex parte St. Katharine's Hospital (1881), 17 Ch. D. 378; and In re Zee and Hemingway (1883), 24 Oh. D. 669. (?) In re Fisher, [1894] 1 Oh. 450; 63 L. J. Ch. 235. (r) In re Sehmarr, [1902] 1 Oh. 326; 71 L. J. Ch. 219. (s) Vide supra, p. 265. 18 (2) 276 PAYMENT OP COMPENSATION INTO COURT. Owner de- prived of costs for vexatious conduct. Incumbrances created subse- quently to payment in. In what cases promoters liable to pay oosts. (1) Costs of the purchase or taking of lands. promoters to pay the costs unless they were vexatiously increased by the petitioner's acts (t). Where an owner had vexatiously increased the expenses of the promoters by the creation of interests in lands after receiving a notice to treat, he was deprived of his costs by the Court on an application for payment out of a fund deposited (u) . There is a difference of opinion as to whether costs incurred in relation to incumbrances created subsequently to the deposit of the fund in Court are payable by the company (aj) . The more recent decisions are in favour of the liability of the company to pay the costs, but the costs of the mortgagee, when payable, are limited to 42s., the company also paying the costs of serving the petition on the mortgagee (?/]). Where a railway company takes land subject to settlement and pays the purchase-money into Court, and a testamentary appoint- ment is subsequently made under the powers contained in the settlement, the costs of all parties, not being costs of adverse litigation, are payable by the company (z). Section 80 of the Lands Clauses Act, 1845, provides for payment of costs by the promoters, including therein all reasonable charges and expenses incident thereto (a) in the following cases: — (1) The costs of the purchase or taking (6) of lands, or which shall have been incurred in consequence thereof, other than such costs as are in the Lands Clauses Act, 1845, otherwise provided for, and of obtaining the proper orders, and of all proceedings relating thereto, except such as are occasioned by litigation between adverse claimants. (t) Ex parte Osbaldiston (1849), 8 Hare, 31; In re Leigh's Estate (1871), L. B. 6 Oh. 887; In re Sanders (1894), 70 L. T. 755; In re Jackson (1894), W. N. 50. (a) Ex parte Topple (1871), 25 L. T. 407. (x) In re Gough's Trusts, Ex parte Great Western Sail. Go. (1883), 24 Ch. D. 569; In re Jones' Trust Estate (1870), 39 L. J. Oh. 190; contra, In re Olive's Estate (1890), 44 Ch. D. 316; 59 L. J. Ch. 360. Of. Re Bareham (1881), 17 Ch. D. 329; Eden v. Thompson (1863), 2 H. & M. 6. (y) In re Olive's Estate (1890), 44 Ch. D. 316, 322; 59 L. J. Ch. 360. (z) In re Brooshooft's Settlement (1889), 42 Ch. D. 250; 58 L.. J. Ch. 654. Cf. In re Lye's Estates (1866), 13 L. T. 664. (a) On an originating summons the costs payable by the promoters must be •confined to the costs of obtaining the particular order made, and do not include those in connection with the part3 of the summons which fail: In re Jacobs, [1908] 2 Ch. 691. (b) Charlton v. Iiolleston (1884), 28 Ch. D. 237 ; 54 L. J. Ch. 233. PAYMENT OF COMPENSATION INTO COURT. 277 Costs incurred in apportioning rents for the purpose of ascer- Apportioning taining the value of lands to be taken, and costs occasioned by taking lands subject to a suit, are costs incident to the purchase of lands, and must be paid by the promoters (c). If the lands taken are lands of a lunatic, the costs of an appli- where lands cation and subsequent reference to a master are payable by the a je property r J J oi a lunatic. promoters, and in all subsequent dealings with the lunatic's pro- perty, the next of kin should be served, and, if necessary, appear (d). (2) Costs of investment in government or real securities, and of (-') Costs of obtaining the proper orders, and of the orders for the payment of ™ ™ern^ent n the dividends and interest of the securities upon which such orrealsecu- money shall be invested, and of all proceedings relating thereto, except such as are occasioned by litigation between adverse claimants. Where money paid into Court can be invested as capital money under sections 22 and 32 of the Settled Land Act, but such invest- ments are more costly than investments authorized under the Lands Clauses Act, 1845, or the special Act, the costs of such investments are payable by the promoters (e). The costs of several interim investments are payable by the Costs of promoters, and on an investment in mortgage security after a ter?m\ivest- prior investment in government securities, the Court refused to ments are deal with the question of subsequent costs, or to make a declaration promoters, that the investment in mortgage security should be treated as a permanent investment (/). The same rule applies in the case of moneys paid into Court under Michael Angelo Taylor's Act (57 Geo 3, c. xxix.) (g). The provisions of the Judicature Act, 1890, s. 5y would also apply (h). Where the change of investment is capricious, the promoters (e) Ex parte Flvwer (1866), L. R. 1 Ch. 599; 36 L. J. Ch. 193; Haynes v. Barton (1861.), 30 L. J. Ch. 804. (d) Re Taylor (1849), 1 Macn. & G. 210; Be Briscoe (1864), 2 De G. J. & S. 249. (a) In re Hanbury's Trusts (1883), 52 L. J. Ch. 687. (/) In re Nepton's Charity (1906), 22 Times L. E. 442; In re Blyth's Trusts (1873), L. R. 16 Eq. 468; not following In re Flemon's Trusts (1870), L. R. 10 Eq. 612; 40 L. J. Ch. 86. Cf . In re Wm. Smith's Estate (1870), L, R. 9 Eq. 178; In re Sewart's Estate (1874), L. R. 18 Eq. 278; In re Olive's Estate \ (1890), 44 Ch. D. 316; 59 L. J. Ch. 360. (a) In re Meroeron (1877), 7 Ch. D. 184; 47 L. J. Ch. 114. (A) Vide ante, p. 275. 278 PAYMENT OF COMPENSATION INTO COURT. would not be held liable for the costs ; but a re-investment, conse- quent on the conversion of the National Debt in 1888, was held not to be capricious, but to have been rendered necessary by the legislature (h). All incidental Costs of broker's commission on investment (i) and on sale for payment out (It), of necessary applications for payment of dividends to successive owners (I), of granting powers of attorney (m), of making necessary affidavits (n), or of dealing with funds where yearly sales are necessary for the payment of an owner who has limited interests in leaseholds (o), are payable by the promoters. Not costs if an assignment is made during the life of a tenant for life, the occasioned by . . assignment costs of an application for payment of dividends to the assignee bytenantfor mugt be paid by ^ app li cant ( p ). (3) Costs of (3) Costs of re-investment in the purchase of other lands, and inlands. of obtaining the proper orders, and of all proceedings relating thereto, except such as are occasioned by litigation between adverse claimants (q) . There is a proviso that the costs of one application only for xe-investment in land shall be allowed, unless it shall appear to the Chancery Division of the High Court that it is for the benefit of the parties interested in the said moneys that the same should be invested in the purchase of lands in different sums, and at different times, in which case it is lawful for the Court, if it think fit, to order the costs of any such investment to be paid by the promoters of the undertaking. The costs, charges, and ex- penses of an investment of a fund, paid into Court by a public authority, in the erection of new buildings, have been ordered to be paid by the public authority (r) . Additional costs incurred in the settlement of a new charity scheme may be payable by pro- (/*) In re Merceron (1877), 7 Ch. D. 184; 47 L. J. Ch. 114. (j) Ex parte Corporation of Trinity House (1849), 3 Hare, 95; In re Gaselee, [1901] 1 Ch. 923; 70 L. J. Ch. 441. (*) In re Jolliffe's Estate (1869), L. H. 9 Eq. 668; In re Magdalen College, Oxford, [1901] 2 Ch. 786; 70 L. J. Ch. 821. (0 In re Jolliffe's Estate (1869), L. R. 9 Eq. 668. («?.) Ex parte Incumbent of Guilden Sutton (1856), 8 De G. M. & G. 380. (;z) Ex parte Ecclesiastical Commissioners (1870), 39 L. J. Ch. 623. (o) In re Long's Estate (1852), 1 W. R. 226. (p) Be Byrom (1859), 7 W. R. 367. (?) Ex parte Vicar of Sheffield (1904), 68 J. P. 313. (r) In re Arden (1894), 70 L. T. 506. PAYMENT OF COMPENSATION INTO COURT. 279 motors (s) . Any increased costs arising by reason of the purchase- money exceeding the fund in Court are not so payable (t). The costs of re-investment are such as would be paid on an open Costa are suoh contract between vendor and purchaser, and the promoters are not & aid on'an 6 liable to costs of an unusual character or outside the actual re- open contract, investment, for which the purchaser may have elected to have become liable (m). The costs of a surveyor's fee, where a sur- veyor is necessary, are included (x) . If a proposed re-investment in lands is abandoned without Where pro- sufficient grounds («/;), or because the Court does not approve of vestment is" the property proposed to be purchased (2), the costs of abortive abandoned; proceedings are not payable by the promoters. If a proposed re- investment in lands, approved of by the Court, is abandoned owing to a difficulty in title (a), or on sufficient grounds (b), the promoters must pay the costs of the useless proceedings. The promoters are liable to pay costs of re-investment in land, or money although money paid into Court in respect of leasehold interests i e e a ^°hold is° r is proposed to be invested in freehold (c), or money paid in in re-invested in respect of freehold interests is proposed to be invested in lease- holds (d), or lands are resettled to the uses of a will made before the purchase or taking of the lands by the promoters (e). The proviso that the costs of one application only for re-invest- One appliea- ment in land should be allowed, subject to the discretion of the reinvestment Court, is a direction that money paid in by the promoters taking in lands, lands compulsorily should prima facie be laid out in one sum. If the re-investment of a portion of the balance is shown not to be (s) In re Wood Green Gospel Hall Chnrity, [1909] 1 Ch. 263; secus, In re St. Paul's Schools, Finsbury (1883), 52 L. J. Ch. 454. It depends on the facts and the necessity for the new scheme in each case. (t) In re Clark, [1906] 1 Ch. 615: the owners found the balance themselves. (w) Ex parte Christ's Hospital (1875), L. R. 20 Eq. 605; Ex parte Trustees of Thavie's Charity, [1905] 1 Ch. 403. (x) Ex parte Corporation of London (1868), L. R. 5 Eq. 418; 37 L. J. Ch. 375. (y) Ex parte Co-pley (1858), 4 Jur. N. S. 297. (s) In re Hardy's Estate (1854}, 18 Jur. 370. In this case costs of the pro- moters were ordered to be paid out of the fund. (a) Re Carney (1872), 26 L. T. 308; Ex parte Hector of Holywell (1865), 2 Dr. & 8m. 463. (6) Re Vaudrey's Trusts (1861), 30 L. J. Ch. 885. (e) In re Parker's Estate (1872), L. R. 13 Eq. 495; 41 L. J. Ch. 473. (d) Ex parte Dean of Manchester (1873), 28 L. T. 184. (e) Re De Beauvoir (1860), 29 L. J. Oh. 567. 280 PAYMENT OF COMPENSATION INTO COURT. L. CI. Act, 1845, B . 69. Settled Land Act. 1882, s. 32. (4) Costs of payment out of Court. capricious, but necessary for the benefit of the estate, the promoters are liable to pay the costs (/). Section 69 of the Lands Clauses Act, 1845, authorizes the re-in- vestment of money deposited in Court in the purchase or redemp- tion of the land tax, in the discharge of incumbrances, and, where the deposit has been made in respect of buildings, in removing or replacing such buildings or substituting others in their place, as well as in the purchase of other lands. Section 32 of the Settled Land Act, 1882, enacts that where under an Act incorporating or applying wholly or in part the Lands Clauses Consolidation Acts, 1845, 1860 and 1869, or under any other Act, public, local, personal or private, money was in Court on 31st December, 1882, or has since then been paid into Court, and is liable to be laid out in the purchase of land to be made subject to a settlement, then, in addition to any mode of dealing therewith authorized by the Act under which the money is in Court, that money may be invested or applied as capital money arising under the Settled Land Act, on the like terms, if any, respecting costs and other things as nearly as circumstances admit, and (not- withstanding anything in the Act) according to the same procedure as if the modes of investment or application authorized by that Act were authorized by the Act under which the money is in Court. Therefore under section 69 of the Lands Clauses Act, 1845, and section 32 of the Settled Land Act, 1882, certain re-investments of money deposited in Court are allowed, the costs of which are not specifically dealt with under section 80 of the former Act. These costs will be governed by the same principles as those set out ante, p . 274 . If an application for re-investment in one of the ways authorized under the Settled Land Act, 1882, but not under the Lands Clauses Act, 1845, is properly made, the Court will order the promoters to pay all costs properly incurred (g). (4) Costs of the payment out of Court of the principal moneys deposited, or of the securities in which the same are invested, and of the proceedings relating thereto, except such as are occasioned by litigation between adverse claimants ; or in so far as these have (/) Brandon v. Brandon (1862), 32 L. J. Ch. 20; Re St. Bartholomew's Hospital (1859), 4 Drew. 425; Re St. Katharine's Dock Co. (1844), 3 Rail. Cas. 514; Ex parte Provost of Eton College (1842), 6 Jur. 908. (ff) In re Banbury's Trusts (1883), 52 L. J. Ch. 687. PAYMENT OF COMPENSATION INTO COURT. 281 been increased by the fact that the petition also relates to another fund (ft). The costs include the allowance of two fees for attendance before the Accountant-General (i), the brokerage payable on the sale of the securities (It) and the costs of taking out the necessary letters of administration (I), and of a necessary disentailing deed (m). Transfer of the fund in Court to an account not referring to the Transfer to Lands Clauses Act or the special Act has been in some cases held acooun t. equivalent to payment out of Court, so as to exempt the promoters from paying any costs of subsequent dealings with the fund (n). But where the promoters' names are included in the title of the account, it has been held that the change of title does not affect their liability to pay costs (o). Transfer of the fund in Court to the account of the official trustees of charitable funds has been held to be equivalent to payment out of Court (p). Re-investment in land may be asked for by a person absolutely entitled, instead of payment out, and the costs of re-investment must be paid by the promoters (q). Section 80 of the Lands Clauses Act, 1845, contains three excep- Exceptions to „ liability of tions to the general liability of the promoters for payment of costs promoters incurred by the owners, where money has been deposited in the a°^!tto bank ; but the Court has now by virtue of section 5 of the Judica- overriding ture Act, 1890, a discretionary power to order payment of costs ojE court, even in these cases (r) . The exceptions in section 80 are as follows : — (1) Where money has been deposited by reason of the wilful W l ^° ne7 refusal of any party entitled thereto to receive the same, or to deposited convey or release the lands in respect whereof the same shall be ^afufrefusal payable. of owner to 1 " receive (A) In re Lynn and Fakenham Railway Extension Act (1909), 100 L. T. 432. purchase- (0 In re Butler's Will (1912), 106 L, T. 673. mone y' &c ' (A) In re Magdalen College, Oxford, [1901] 2 Oh. 786; 70 L. J. Oh. 821. (Z) In re Lloyd, and North London Rail. Co., [1896] 2 Ch. 397; 65 L. J. Ch. 626; approved In re Griggs, [1914] 2 Oh. 547; and see Ex -parte Lurgan U. L. C, In re Kearns, [1902] 1 Ir. B. 157. (m) In re Navan and Kingscourt Rail. Co. and Fingall, [1906] 1 Ir. E. 557. (») Melting v. Bird (1853), 22 L. J. Ch. 599; Brown v. Femoick (1866), 35 L. J. Ch. 241; Prescott v. Wood (1868), 37 L. J. Ch. 691; Nock v. Nook, (1879) W. N. 125. (o) Drake v. Greaves (1886), 33 Ch. D. 609; 56 L. J. Ch. 133. (p) In re Bristol Free Grammar School Estates (1878), 47 L. J. Oh. 317; Re Rector of St. Albun's, Wood Street (1891), 66 L. T. 51. (?) Re Jones' Trust Estate (1870), 39 I>. J. Ch. 190. (r) In re Schmarr, [1902] 1 Ch. 326; 71 L. J. Ch. 219. 282 PAYMENT OF COMPENSATION INTO COURT. Meaning of the "word "wilful." (2) Through wilful neglect to make a good title.' (3) Promoters not liable for costs caused by adverse litigation. Litigation to be hostile. Not for purpose of getting opinion of the Court. The word "wilful" means "capricious" (s), and if there is a fair ground of objection (s), or a bond fide legal doubt (t), or an inability to clear off incumbrances exceeding the value of the lands proposed to be taken (m), the conduct of the owner does not bring him within this exception as to costs. Where an owner had refused to accept the tender of purchaso-money, because it did not include costs incurred by him, costs of a petition for payment out were refused as against the promoters, and the petitioner was ordered to pay the costs of the promoters for calling in the sheriff to get possession (x). ( l 2) Where money has been deposited by reason of the wilful neglect (y) of any party to make out a good title to land required. When the Court is called upon to construe the trusts of a will under which the owner's title is doubtful, there is no wilful neglect to make out a good title to the land required (z) . (3) Costs occasioned by litigation between adverse claimants are excepted from the provisions of section 80. Adverse litigation arises where different parties set up adverse titles to the ©state. If there is an actual litis contestatio, as where an action for ejectment is brought by one claimant against another (a), or where a petition is presented to the Court for the purpose of deciding adverse claims (6), or where, owing to adverse claims, the purchase-money has been paid into Court (e), costs so occasioned are not payable by the promoters. Costs of proceedings taken for the purpose of getting the opinion of the Court on the construction of doubtful claims are not within (s) Re Windsor, §c. Rail. Co. (1849), 12 Beav. 522. Cf. In re Birkbec/c, $c. Society (1883), 24 Oh. L). 119; 52 L. J. Ch. 777; In re Leeds Grammar School, [1901] 1 Ch. 228; 70 L. J. Ch. 89; Re Jones and Cardiganshire C. C. (1913), 57 S. J. 374. 't) Ex parte Bradshaw, In re En'-st and West India Bock Co. (1848), 17 L. J. Oh. 454; Ex parte Dashwood (1857), 26 I*. J. Ch. 299. («) Re Divers (1855), 1 Jur. N. S. 995. (x) Re Turner's Estate (1862), 5 L. T. 524. Cf. In re Schmarr, [1902] 1 Ch. 326, 331; 71 L. J. Oh. 219. ( 1894 - the Copyhold Act, 1894 (t), the procedure will be governed bi- sections 5 — 10 of that Act, and in some cases this procedure may be found more convenient than that of the Lands Clauses Acts. 2. Common or Waste Lands. Sections 99—107 (u). The purchase-money or compensation payable to the lord of the Common or manor or any persons, other than the commoners, entitled to wastelands - rights in the soil, subject to commonable or other rights, is agreed tkrafor upon or determined, and is paid or deposited as in other cases "ghtsin where lands .are purchased or taken by the promoters (x) . Upon payment or tender to the lord of the manor, or such other Conveyance partj' as aforesaid, of the compensation, which has been agreed ° execution 8 upon or determined, in respect of the right in the soil of any such by them of a lands, or on deposit thereof in the bank, such lord of the manor or such other party as aforesaid is to convey such lands to tho promoters. Such conveyance has the effect of vesting such lands in the promoters, in like manner as if such lord of the manor or such other parties as aforesaid had been seised in fee simple of such lands at the time of executing such conveyance. In default of such conveyance the promoters may, if they think fit, execute a deed poll duly stamjjed, and thereupon the lands, in respect of which the amount of compensation has been duly deposited, vest absolutely in the promoters, and they are entitled to immediate possession thereof, subject to the commonable and other rights theretofore affecting the same, until such rights have been ex- tinguished by payment or deposit of compensation (y). The compensation to be paid for common lands, or lands of like Compensa- nature, the right to the soil of which belongs to the commoners, as commonable well as the compensation to be paid for the commonable and other or similar . i ■ i -i i j> i rights. rights in or over common lands, the right in the soil whereof does not belong to the commoners, other than the compensation to the lord of the manor or other party entitled to the soil thereof, may be determined by agreement between the promoters of the under- taking and a committee of the parties entitled to commonable or other rights in such lands (z) . (0 57 & 58 Vict. c. 46. O) See also post, pp. 366, 377. O) Ss. 99, 100, L. 01. Act, 1845. (y) S. 100, L. CI. Act, 1845. (2) S. 101. C. 19 290 COMMON OR WASTE LANDS. Appoint- ment of a committee. Powers of committee. Enforcing committee's agreement. The committee, not exceeding five in number, is appointed by a majority of the persons present at a meeting of the parties entitled to commonable or other rights over or in such lands con- vened by the promoters, and held at some convenient place in the neighbourhood . Every such meeting is called by public advertise- ment, and notice of such meeting must, not less than seven days previous to the holding thereof, be affixed upon the door of the parish church where any such meeting is intended to be held, or if there be no such church, upon some other place in the neigh- bourhood to which notices are usually affixed, and if such lands be parcel or holden of a manor, a like notice must be given to the lord of such manor. The decision of the majority binds the minority and all absent parties (a) . There is no machinery in the Act for determining what persons are entitled to be present at a meeting under this section (6). The committee so chosen has power to enter into an agreement with the promoters for the compensation to be paid for the extinction of such commonable or other rights and all matters relating thereto, for and on behalf of themselves and all other parties interested therein. It is lawful for such committee to. receive the compensation to be paid for the extinction of such commonable or other rights, and all matters relating thereto, for and on behalf of themselves and all other parties interested therein ; and the receipt of such committee, or any three of them, for such compensation is an effectual discharge for the same. Such compensation, when received, is apportioned by the committee among the several persons interested therein according to their respective interests ; but the promoters are not bound to see to the apportionment or to the application of such compensation, nor are they liable for the misapplication or non-application thereof (c). If such committee, being appointed, fails to agree with the pro- moters, the amount of compensation to be paid is determined as in other cases of disputed compensation (d). An agreement entered into under section 104 is enforceable by an action for specific performance, and in such an action an order may be made directing the trial before a jury in the King's Bench (a) Ss. 102, 103. (6) Richards v. Be Wmton; Richards v. Evans, [1901] 2 Oh. 566; 70 L. J. Ch. 719. O) S. 104, L. 01. Act, 1845. (d) S. 105. COMMON OR "WASTE LANDS. 291 Division of the issues of fact as to the existence of common rights (a). On issues of this nature evidence of reputation is admissible (e). The committee, or, failing them, the Ministry of Agriculture (/) Application are the proper tribunal to determine who are the persons interested tLimenTof in the compensation money and what are their interests ; and in compensation, the absence of misconduct the Court has no original power to interfere with the jurisdiction of either body (g). An action against the committee by a person who claimed to be entitled as sole commoner to the whole of the compensation money in Court was dismissed for want of jurisdiction (g). If the application or apportionment of the compensation money among the several parties interested involves questions of difficulty, the committee may commence an action for the purpose of obtain- ing directions (h). Any person interested is entitled to be represented in any proceedings dealing with the compensation money (i), and can proceed against the committee for the purpose of compelling them to distribute the compensation money in such a way that he may receive all the benefit to which he is properly entitled (k) . When the commoners consist of the resident freemen of a borough, the existing commoners are not entitled to a division of the corpus of the fund among them, but the money must be invested in trust for the freemen from time to time resident, and the income only distributed (I). Commoners are not entitled to share in compensation, unless they can show that the title, in respect of which they claim, is capable of a legal origin (m) . If the majority of the committee are of opinion that the appor- Committee tionment of the compensation money among the several persons ^Z^ t ion to interested cannot be satisfactorily carried into effect, they may Ministry of Agriculture. (e) Evans v. Merthyr Tydvil U. D. C, [1899] 1 Ch. 241; 68 L. J. Ch. 175. (/) See next page. iff) Richards v. Be Winton; Richards v. Evans, [1901] 2 Ch. 566; 70 L. J. Ch. 719; affirmed on other grounds, [1903] 1 Ch. 507; 72 L,. J. Ch. 269. (A) Nash v. Coombs (1867), L. K. 6 Eq. 51; 37 L. J. Ch. 600. (i) Ex parte Mayor of Lincoln (1852), 21 L. J. Ch. 621. (*) Fox v. Amhurst (1875), "L. E. 20 Eq. 403; 44 L. J. Ch. 666. For the principles on which such distribution should be made, cf. In re Chrutchurch Inclosure Act (1888), 38 Ch. D. 520; 57 L. J. Ch. 564; Att.-Gen. v. Meyrich, [1893] A. C. 1; 62 L.. J. Oh. 313; Simooe v. PethicJc, [1898] 2 Q. B. 555; 67 L. J. Q. B. 919. (0 Nash v. Coombs (1867), L. II. 6 Eq. 51; 37 L. J. Oh. 600. («i) Austin v. Amhurst (1878), 7 Ch. D. 689; 47 L. J. Ch. 467. 19(2) 292 COMMON OR WASTE LANDS. Commonable Rights Com- pensation Act, 1882. If no com- mittee appointed, compensation fixed by a surveyor. Upon pay- ment or deposit of compensation to commoners, and execution of a deed poll, lands vest in promoters. make application in writing to the Ministry of Agriculture to call a meeting of the parties interested (n) . If the majority in number and interest of the parties interested resolve that the compensation money shall be apportioned under the provisions of the Inclosure Act, 1854, it is paid into the Bank of England, and the committee is absolutely discharged from all further liability in respect thereof (o). The duty of ascertaining the interests of the respec- tive jjarties and the amount of their respective shares then devolves upon the Ministry of Agriculture or a commissioner appointed by the Ministry, whose award is binding upon all parties (p). , A further method of dealing with the compensation moneys is provided bj' the Commonable Rights Compensation Act, 1882 (q). If no effectual meeting of the parties entitled to such common- able or other rights takes place, or if such meeting fails to appoint a committee, the amount of compensation to be paid for the ex- tinction of commonable or other rights is determined by a surveyor, appointed by two justices (r). Upon payment or tender to the committee, or any three of them, or, if there be no such committee, upon deposit in the bank of the compensation agreed upon or determined in respect of such commonable or other rights, it is lawful for the promoters, if they think fit, to execute a deed poll duly stamped ; and thereupon the lands in respect of which such compensation has been so paid or deposited vest in the promoters freed and discharged from all such commonable or other rights, and they are entitled to immediate possession thereof. The Chancery Division of the High Court may upon application order payment of the money so deposited to a committee duly appointed, or make such other order in respect thereto, for the benefit of the parties interested, as it shall think fit (s) . This means according to their several rights and respective interests in having an investment of it, and dealing with it in that way (0- O) Inclosure Act, 1852 (15 & 16 Vict. c. 79), ». 22; Inclosure Act, 1854 (17 & 18 Vict. c. 97), s. 15, post, p. 467; Board of Agriculture Act, 1889 (52 & 53 Vict. c. 30), a. 11 (I). (o) Inclosure Act, 1854, s. 16. (p) Inclosure Act, 1854, s. 17. (?) 45 Vict. c. 15, post, p. 469. (r) S. 106, L, CI. Act, 1845. (s) S. 107, L. CI. Act, 1845. (t) Nash v. Coombs (1867), L. R. 6 Eq. 51, 58; 37 L. J. Ch. 600. LANDS IN MORTGAGE. 293 The mode of ascertaining the amount of compensation payable Mode of to commoners prescribed in the Lands Clauses Act, 1845, is compensation directory and not imperative, and specific performance of an agree- for commoners ment will be enforced although this mode has not been followed (u). If the promoters take possession of and construct works over If compensa- common lands without having first ascertained and paid compensa- actionfor" ' tion to the commoners, any commoner can maintain an action for disturbance disturbance of his commonable rights. A similar action could be able rights is maintained against the lord of the manor, and the promoters have mamtamat)le - no greater rights (x). Commoners who have established their claim to a share in the Costs. funds deposited in respect of their commonable rights were formerly allowed the sum of 31. 3s. or 21. 2s. for costs, even when the compensation to be distributed was very small (y) . Applica- tion for the payment of a less amount than 1,000£. should now be made &\, chambers (z). 3. Lands in Mortgage. Sections 108—114. The promoters may purchase or redeem the interest of the mort- Lands in gagee of any lands required for the purposes of the special Act, m01 ?* ge ' whether they have previously purchased the equity of redemption promoters of •of such lands or not, and may pay or tender to such mortgagee ™*^ g ° e f e _ the principal and interest due on such mortgage, together with his costs and charges, if any, and also six months' additional interest. Thereupon such mortgagee conveys his interest in the lands com- prised in such mortgage to the promoters, or as they shall direct. The promoters may give notice in writing to a mortgagee that they will pay off the principal and interest due on such mortgage, at the end of six months, computed from the day of giving such notice ; and if they have given any such notice, or if the party en- titled to the equity of redemption of any such lands has given six months' notice of his intention to redeem the same, then at the expiration of either of such notices, or at any intermediate period, upon payment or tender by the promoters to the mortgagee of the principal money due on such mortgage, and the interest which («) Bee v. Stafford and Uttozeter Rail. Co. (1875), 23 W. E. 868. (a) Stoneham v. London, Brighton and South Coast Mail. Co. (1871), L. E. '7 Q. B. 1; 41 L. J. Q. B. 1. (y) Waterlow (or Waterton) v. Burt (1870), 39 L. J. Oh. 425; Fox v. Amhurst (1875), L. E. 20 Eq. 403; 44 L. J. Oh. 666. (z) Vide ante, Chap. XVII., p. 250. E. S. C, O. IN. r. 2, sub-s. 2. 294 LANDS IN MORTGAGE. When mort- gaged lands are of less value than money secured thereon. When part only of mort- gaged lands required. would become due at the end of six months from the time of giving such notice, together with his costs and expenses, if any, such mortgagee is to convey or release his interest in the lands comprised in such mortgage to the promoters of the undertaking, or as they shall direct (a). If promoters purchase lands from a mortgagor, section 108 does not exonerate the vendor from the duty of giving notice to redeem such mortgage, and interest in lieu of notice is payable by the vendor, and not by the promoters (b). If mortgaged lands are of less value than the principal, interest, and costs secured thereon, the value of such lands, or the com- pensation to be made by the promoters in respect thereof, is settled by agreement between the mortgagee of such lands and the party entitled to the equity of redemption thereof on the one part, and the promoters on the other part ; or failing agreement (c), is determined as in other cases of disputed compensation, and, being so agreed upon or determined, is paid by the promoters to the mortgagee in satisfaction of his mortgage debt, so far as the same will extend : and upon payment or tender thereof, the mortgagee conveys or releases all his interest in such mortgaged lands to the promoters, ,or as they shall direct id) . If a part only of mortgaged lands be required for the purposes of the special Act, and if the part so required be of less value than the principal money, interest, and costs secured on such lands, and the mortgagee do not consider the remaining part of such lands a sufficient security for the money charged thereon, or be not willing to release the part so required, then the value of such part (e), and also the compensation, if any, to be paid in respect of the severance thereof, or otherwise, is settled by agreement between the mort- gagee and the party entitled to the equity of redemption of such land on the one part, and the promoters on the other ; or failing agreement, is determined as in other cases of disputed compen- sation (e), and being so agreed upon or determined is paid by the promoters of the undertaking to the mortgagee in satisfaction of his mortgage debt, so far as the same will extend (e), and thereupon such mortgagee conveys or releases to them, or as they shall direct,. O) S. 108, L. CI. Act, 1845. (b) Re 8penoer-Bell and London and South Western Sail. Co. (1883), W. R. 771. (e) Cf. R. v. Metropolitan Rail. Co. (1865), 13 L. T. 444. (d) S. 110, L. 01. Act, 1845. (e) See Ex parte Strabane R. 1>. C, [1910] 1 Ir. R. 135. LANDS IN MOBTGAGE. 295 all his interest in such mortgaged lands, the value whereof has been paid. A memorandum of what has been so paid is endorsed on the- deed creating such mortgage, and is signed by the mort- gagee. A copy of such memorandum is at the same time, if required, to be furnished by the promoters at their expense to the party entitled to the equity of redemption of the lands comprised in such mortgage deed (/) . If in any of the cases aforesaid, upon payment or tender of the Deposit of compensation due to him, a mortgagee fail to convey or release his arSvestSi^of interest in such mortgaged lands as directed by the promoters, or interest of if he fail to adduce a good title thereto to their satisfaction, it is promoters on lawful for the promoters to deposit in the bank the principal and execution of interest, together with costs, if any, due on such mortgage, and also, if such payment be made before the expiration of six months' notice as aforesaid, such further interest as would at that time be- come due ; and if they think fit, it is lawful for them to execute a deed poll, duly stamped ; and thereupon all the estate and interest of such mortgagee and of all persons in trust for him, or for whom he may be a trustee, in such lands, vests in the promoters, and they are entitled to immediate possession thereof, in case such mortgagee were himself entitled to such possession (g). All rights and remedies possessed by the mortgagee against the All rights mortgagor by virtue of any bond or covenant or other obligation, mortgagor other than the right to lands required for the purposes of the reserved, special Act, remain in force in respect of so much of the mortgage debt as shall not have been satisfied by payment or deposit (h). If in the mortgage deed a time is limited for payment of the Compensa- principal money thereby secured, and the mortgagee is required to mortgagee accept payment of his mortgage money or part thereof at a time lf a m0 ^ age earlier than the time so limited, the promoters must pay to such before time mortgagee, in addition to the sum so paid off, all such costs and mortgage expenses as are incurred by such mortgagee in respect of, or which deed, are incidental to, the re-investment of the sum so paid off : such costs, in case of difference, are taxed and payment thereof enforced in the manner provided by section 83 of the Lands Clauses Act, 1845, with reference to the costs of conveyances (i). If the rate of interest secured by such mortgage be higher than at the time of the same being so paid off can reasonably be expected to be ob- tained on re-investing the same, regard being had to the then (/) S. 112, L,. CI. Act, 1845. (§0 Ss. 109, 111, 113. (h) Ss. Ill, 113. (0 Vide ante, Oh. XVI., p. 245. 296 LANDS IN MORTGAGE. If interest of mortgagee is not acquired, he is not deprived of his remedies as a mort- gagee. Mortgage including value of goodwill. current rate of interest, such mortgagee is entitled to receive from the promoters, in addition to the principal and interest secured by the mortgage deed, compensation in respect of the loss to be sustained by him, by reason of his mortgage money being so prematurely paid off ; the amount of such compensation to be ascertained in case of difference as in other cases of disputed com- pensation. Until payment or tender of such compensation the promoters are not entitled, as against such mortgagee, to possession of the mortgaged lands required by them for the purposes of the special Act (7c) . If the promoters enter upon lands by agreement with the mortgagor and proceed to pull down a building without having paid compensation to a mortgagee, or deposited the amount, they will be restrained by injunction (I); but where promoters have taken possession of the property under section 85 of the Act and the compensation due to the mortgagor has been fixed at a sum less than that required to pay off the mortgage, the promoters will not be restrained from subsequently proceeding to assess the com- pensation between themselves and the mortgagee (to) A mort- gagee, with whom the promoters have not come to an agreement nor dealt under their statutory powers, is not deprived of his ordinary remedies. He has no lien over a fund paid into Court before entry under section 85 for the security of the mortgagor ; but in default of payment of the amount of his security, he is entitled to an assignment by the promoters and the owner of the land comprised in his security (re). Where the owner of business premises mortgaged them with the machinery and fixtures, it was held that the mortgagee was entitled to a sum which had been awarded in respect of the loss of profits in carrying on the business : and that such sum was in the nature of compensation for the value of the goodwill of the business which passed with the premises (o). But where the goodwill depends on the personal skill of the mortgagor in possession, it does not pass (&) S. 114. (1) Ranlcen v. East and West India Docks, §c. Rail. Co. (1850), 12 Beav. 298; 19 L. J. Oh. 153. O) Cooke v. London C. C '., [1911] 1 Ch. 604. (») Martin v. London, CJuit/iam and Dover Rail. Co. (1866), L. E. 1 Ch. 501; 35 L. J. Ch. 795. (o) Pile v. Pile, Ex parte Lambton (1876), 3 Oh. D. 36; 45 L. J. Ch. 841; following Chissam v. Deives (1828), 5 Russ. 29. RENT-CHARGES,, CHIEF-RENTS, AND OTHER INCUMBRANCES. 297 to a mortgagee of the trade premises (p), and the question in each case mainly depends on the terms of the mortgage (q) . The rights of mortgagees are not cut down by the special pro- visions of the above-mentioned sections, so that mortgagees of land with a power of sale are entitled to the rights of owners including the right, where part only of their land is taken, to claim compensation for damage by reason of lands held with the lands taken being injuriously affected (V). 4. Rent-charges, Chief-rents, and other incumbrances. Sections 115—118. If any difference arise between the promoters and the party en- Rent- titled to any charge upon any lands required to be taken for the ohar s es - purposes of the special Act, respecting the consideration to be paid lands from for the release of such lands therefrom, or from the portion thereof onar g e8 - affecting the lands required for the purposes of the special Act, the same is determined as in other cases of disputed compensation (s) . If part only of lands subject to any charge or incumbrance be Apportion- required to be taken for the purposes of the special Act, the appor- m ^ nt '] f 1 pa j t tionment of such charge may be settled by agreement between the subject to a party entitled to the charge and the owner of the lands on the one required, part and the promoters on the other part, or in default of agree- ment by two justices. If the 'remaining part of the lands so jointly subject be a sufficient security for such charge, then, with the con- sent of the owner of the lands so jointly subject, it is lawful for the party entitled to such charge to release therefrom the lands required, on condition or in consideration of such other lands re- maining exclusively subject to the whole thereof (t). Upon payment or tender of the compensation so agreed upon or Release by determined to the party entitled to any charge, such party executes to a'charge or to the promoters a release of such charge ; and if he fail so to do, execution of a or if he fail to adduce good title to such charge to the satisfaction promoters, of the promoters, it is lawful for them to deposit the amount of such compensation in the bank, and to execute a deed poll, duly (p) Cooper v. Metropolitan Board of Works (1883), 25 Oh. D. 472; 53 L. J. Ch. 109. (q) Ci. In re South City Market Co., Ex parte Bergin (1884), 13 L. R. Ir. 245. (r) R. v. Clerk of the Peace for Middlesex, [1914] 3 K. B. 259. (s) S. 115, L. CI. Act, 1845. (0 S. 116; cf. Book II., p. 319. 298 RENT-CHARGES, CHIEF-RENTS, AND OTHER INCUMBRANCES. Charge to continue on lands not taken. stamped ; and thereupon the charge or incumbrance, or the portion thereof in respect of which such compensation has been paid, ceases and is extinguished (w) . If any lands be released from any such charge or incumbrance or portion thereof, to which they were subject jointly with other, lands, such last-mentioned lands are alone charged with the whole of such charge, or with the remainder thereof, as the case may be. If, upon any such charge being released, the deed or instrument creating or transferring such charge be tendered to the promoters, they or two of them are required to subscribe, .or, if they be a corporation, to affix their common seal to a memorandum of such release indorsed on such deed or instrument, declaring what part of the lands originally subject to such charge has been purchased, and if the lands be released from part of such charge, what pro- portion of such charge has been released and how much thereof continues payable, or if the lands so required have been released from the whole of such charge, then that the remaining lands are thenceforward to remain exclusively charged therewith. Such memorandum is made and executed at the expense of the pro- moters, and is evidence in all Courts and elsewhere of the facts there stated, but not so as to exclude any other evidence of the same facts (x) . The Court will authorise the committee of a lunatic to release- lands from a rent-charge upon the promoters purchasing in the name of the lunatic a government annuity of the same amount for his life (y). Lands Bubject to leases. Apportion- ment of rent if part of lands under lease taken. 5. Lands subject to Leases. Sections 119 — 122. If a part only of lands comprised in a lease is required for the purposes of the special Act, the rent payable in respect of the lands comprised in such lease is apportioned between the lands so re- quired and the residue of such lands (z). The apportionment may be settled by agreement between the lessor and lessee of such lands on the one part, and the promoters on the other part, or on failure to agree by two justices (a) : the arbitrator who assesses the compensation payable to the tenant has no power to make the («) S. 117. O) S. 118. O) In re Brewer (1876), 1 Ch. D. 409. 0) Cf. Book II., p. 319. («) S. 119, L-. CI. Act, 1845. LANDS SUBJECT TO LEASES. 299 apportionment (&). The fact that both landlord and tenant have agreed the apportionment with the promoters does not preclude a counter-notice being given under section 92 (c) to take the whole of a house, &c. (d). The lessee is under no obligation to obtain the lessor's licence to Lessee cannot i • i ■ b e called assign or his consent to an apportionment, and the absence of such up0 n to get licence or consent is no defence to an action for specific perform- assent of r l lessor. ance (e); if the lessor refuses to consent, the promoters must pro- ceed against him to enforce his appearance before the justices (/). Unless money has been deposited in the bank, and section 80 Costs. of the Lands Clauses Act, 1845, is applicable, the costs of appor- tionment are not payable by the promoters (g). After apportionment, the lessee, as to all future accruing rent, Lessee liable is liable only to so much as is apportioned in respect of the lands of lands no^ not required for the purposes of the special Act; and as to the taken, and as lands not required and as against the lessee, the lessor has all the a ll covenants same rights and remedies for the recovery of such portion of rent * emam m as previously to such apportionment he had for the recovery of the whole rent reserved by such lease; and all the covenants and con- ditions of such lease, except as to the amount of rent to be paid, remain in force with regard to that part of the land which is not required for the purposes of the special Act, in the same manner as they would have done in case such part only of the land had been included in the lease (h) . The apportioned rent only is pay- able from the date of the agreement or apportionment, even though no entry has taken place (i) . 6. Compensation to Taxing Authorities. Section 133. Section 133 of the Lands Clauses Act, 1845, provides that if the Making good promoters become possessed, by virtue of that or the special Act, ^ r > s ^™ (*) Re Ware and Regent's Canal Co. (1854), 9 Ex. 395. (e) Ante, p. 40. (<2) Lavers v. London C. C. (1905), 21 Times L. R. 695. (e) Slipper v. Tottenham and Hampstead Junction Rail. Co. (1867), L. R. 4 Eq. 112; 36 L. J. Ch. 841. Of. Williams v. East London Rail. Co. (1869), 18 W. R. 159. (/) Slipper v. Tottenham and Hampstead Junction Rail. Co. (1867), L. R. 4 Eq. 112; 36 L. J. Oh. 841. (g) Ex parte Flower (1866), L. R. 1 Ch. 599; 36 L. J. Oh. 193; Re Eamp- stead, §c. Junction Rail. Co., Ece parte Such (1863), 33 L. J. Oh. 79. (A) S. 119, L. 01. Act, 1845. (i) In re Secretary of State fan War and Hurley's Contract, [1904] 1 Ir. R. 354. 300 COMPENSATION TO TAXING AUTHORITIES. Sect. 133 creates a parochial indemnity during construction. Extends to lands taken outside the limits of deviation. Effect of e. 133 on improvement schemes. of any lands charged with land tax or liable to be assessed to the poor's rate, the promoters shall, until the works shall be completed and assessed to such land tax or poor's rate, be liable to make good the deficiency in the assessments for land tax and poor's rate by reason of the taking or use of the lands for the purposes of the works. The deficiency is to be computed according to the rental at which the lands with any building thereon were valued or rated at the time of the passing of the special Act, and is to be paid on demand by the promoters to the collector of land tax or poor's rate. The promoters may redeem the land tax . The scheme of the section is to create a parochial indemnity during the construction of the works (j), and it applies only to works within the parish (fc). It does not render the promoters liable to parochial rates during the progress of the works, but provides the parish with an alternative compensation until other rateable property is substituted for the property destroyed by the operations of the promoters and no longer (I) . As soon as the works within the parish are completed and liable to be assessed the parish is compellable to rate them, and cannot proceed under the section (fc). Where promoters purchased houses outside the limits of deviation in order to obtain the withdrawal of opposition to the passing of the special Act, such houses were dealt with as having been taken for the purposes of the works within this section, and it was held that the promoters must make good any consequent deficiency in the assessment of the houses. It was further held that the pro- moters could not be heard as against the parish to say that they had no power to acquire the lands in question (m) . Where the provisions of the Lands Clauses Acts are incorporated in public improvement schemes the local authority, by which the improvements are carried out, becomes liable for the deficiency in poor rate or land tax occasioned (w). Section 133 must be read (/) Putney Overseers v. London and South Western Bail. Co., [1891] 1 Q. B. 440, at p. 443, per Bowen, L. J.; 60 L. J. Q. B. 438. (A) East London Rail. Co. v. Whiteolmrch (1874), L. R. 7 H. L. 81; 43' L. J. M. O. 159. (1) Mayor of London v. St. Andrew's, Solbom (1867), L. R. 2 O. P. 574; 36 L. J. M. C. 95. Of. East London Sail. Co. v. Whitechurch (1874), L. R. 7 II. L. 81; 43 L. J. M. O. 159. (m) Putney Overseers v. London and South Western Rail. Co., [1891] 1 Q. B. 182, 440; 60 L. J. Q. B. 438. ()») Mayor of London v. St. Andrew's, Ilolbom (1867), L. R. 2 O. P. 574; COMPENSATION TO TAXING AUTHORITIES. 301 in each case as and when it is introduced into the special Act (o) • Primarily the section applies only to undertakings which when finished become rateable. But in many cases the land taken passes into new streets and can never again become rateable, and in such cases section 133 must be read as if it said " until the works are completed and such part of them as become assessable property are assessed " (p). Sale of surplus land by a local authority on completion of an improvement scheme is part of the works within the meaning of section 133 (p), and the liability of the local authority continues until the structural parts of the improvement are finished and the surplus land is all sold and has all become assessable (p). But as each part of the land is disposed of and becomes assessable, this will from time to time lessen the deficiency . Consequently the deficiency is to be computed, from time to time, by comparing the assessed value at the passing of the special Act with the rateable value at the time of computation of such of the lands taken as have then become assessable (q). Since the assessment is to be made on the rental at which the Assessment . ... is on rental lands or houses taken were valued or rated, it is immaterial, m Ta lue. computing the deficiency, that eaij of the land or houses were unoccupied at the time of passing the special Act (r), nor can the promoters claim the benefit of a deduction of 25 per cent . made in the rates by way of commission in consideration of their payment by the owners instead of the occupiers of small properties in virtue 36 L. J. M. C. 95; Wheeler v. Metropolitan Board of Works (1869), L,. R. 4 Ex. 303; 38 L. J. Ex. 165; Stratton v. Metropolitan Board of Works (1874), L. R. 10 0. P. 76; 44 L. J. M. C. 33; Goremors of Poor of Bristol v. Mayor, #e. of Bristol (1887), 18 Q. B. I). 549; 56 L. J. Q. B. 320 (under the Public Health Act, 1875) ; St. Leonard's, Shoreditch, Vestry v., London County Council, [1895] 2 Q. B. 104; 64 L, J. Q. B. 615 (under the Housing of the Working Classes Act, 1890). (o) Governors of Poor of Bristol v. Mayor, $c. of Bristol (1887), 18 Q. B. D. 549, 561'; 56 L. J. Q. B. 320. (p) Governors of Poor of Bristol v. Mayor, §e. of Bristol (1887), 18 Q. B. D. 549, 561; 56 L. J. Q. B. 320. Of. Wheeler v. Metropolitan Board of Works (1869), L. R. 4 Ex. 303; 38 L. J. Ex. 165; Stratton v. Metropolitan Board of Works (1874), L. R. 10 O. P. 76. (r/) Ibid. Of. Putney Overseers v. London and South Western Rail. Co., [1891] 1 Q. B. 440; 60 L. J. Q. B. 438, explaining Stratton v. Metropolitan Board of Works (1874), L, R. 10 C. P. 76; 44 L. J. M. C. 33. (r) Putney Overseers v. London and South Western Rail. Co., [1891] 1 Q. B. 440; 60 L. J. Q. B. 438. Of. Burrupv. London and South Western Rail. Co. (1891), 64 L. T. 112. 302 COMPENSATION TO TAXING AUTHORITIES. of an agreement under the Poor Rate Assessment and Collection Act, 1869, s. 3 (s). Where the lands taken are not rateable at the time when the special Act is passed the promoters incur no liability. Thus, if lands in the occupation of his Majesty's Commissioners of Works for public purposes are taken, no deficiency need be made good in respect of such lands (t). So also where a street is taken. Several Where several improvement schemes were contained in one one Act. schedule to a Provisional Order Confirmation Act, but under head- ings separately numbered, it was held that each scheme constituted a separate undertaking, and the deficiency in the assessment ought to be calculated on each separate undertaking within the rating area affected by it (w). To what rates The expression " poor's rate " includes not only the rate actually levied for the relief of the poor, but also the county rate under 15 & 16 Vict. c. 81, s. 26, and the borough rate under the Municipal Corporations Act, 1882 (x), inasmuch as these rates are charged upon the poor rate (?/,), but it only includes so much of the general rate leviable under the London Government Act, 1899, s. 10, sub-s. 2, as rejD resents the poor rate or anything chargeable on that rate (z). Different expressions are used in some special Acts with refer- ence to deficiency (a) . In the London & South Western Railway Act, 1883 (45 & 46 Vict. c. clxxxix.), s. 14, the words "general purposes rate " are used, which have been held to mean any rate in which the great majority of parishioners have a general interest, and to include the metropolitan consolidated rate, the lighting rate, and tha public libraries rate (b). (s) St. Leonard's, Shoreditch, Vestry v. London County Council, [1895] 2 Q. B. 104; 64 L. J. Q. B. 615. (<) Stratum v. Metropolitan Board of Works (1874), L. R. 10 C. P. 76; 44 L. J. M. 0. 33. («) Governors of the Poor of Bristol v. Mayor, $o. of Bristol (1887), 18 Q. B. D. 549; 56 L. J. Q. B. 320. (a) 45 & 46 Vict. c. 50, s. 145. (y) Farmer v. London and North Western Mail. Co. (1888), 20 Q. B. D. 788. (s) Islington Borough Council v. London School Board, [1903] 2 K. B. 354; 72 L. J. K. B. 677. (a) Cf . St. Stephen's, City of London, Churchwardens v. Great Northern and City Rail. Co. (1902), 86 L. T. 390. (b) Burrup v. London and South Western Mail. Co. (1891), 64 L. T. 112. 303 CHAPTEE XIX. SUPERFLUOUS LANDS. When lands have become vested in promoters under statutory Nature of powers, the nature of the interest acquired is dependent upon the lnt « restm . . . . ir lands acquired terms of the special Act or Acts under which they have been by promoters, purchased or taken. In each case a question arises on the con- struction of the special Act or Acts; but, unless there is some exceptional enactment, promoters are only authorized to purchase or take lands for the purposes of the undertaking which they have powers to construct. When lands have been acquired for an authorized purpose, promoters have the usual proprietary rights (a), subject to any special statutory restrictions (&): but they have no power to deal with lands so as to incapacitate themselves from carrying out the authorized undertaking (c), and section 175 of the Public Health Act, 1875, does not empower the Local (a) R. v. Leake (1833), 5 B. & Ad. 469; Bostock v. North Staffordshire Sail. Co. (1855), 5 De G. & S. 584; Caledonian Rail. Co. v. Sprot (1856), 2 Macq. H. L. (Sc.) 449; Elliot v. North Eastern Rail. Co. (1863), 10 H. L. C. 333; 32 L. J. Gh. 402; Swindon Waterworks Co. v. Wilts and Berks Canal Navigation Co. (1875), L. E. 7 H. L. 697; 45 L. J. Oh. 638; cf. Norton v London and North Western Rail. Co. (1878), 9 Ch. D. 623; on appeal (1879), 13 Oh. D. 268 (which is not inconsistent); Bonner v. Great Western Rail. Co. (1883), 24 Ch. D. 1; Bayley v. Great Western Rail. Co. (1884), 26 Ch. D. 434; Grand Junction Canal Co. v. Petty (1888), 21 Q. B. D. 273; 57 L. J. Q. B. 572; Roberts v. Gwyrfai District Council, [1899] 2 Ch. 608; 68 L. J. Ch. 757. (b) Great Western Rail. Co. v. Bennett (1867), L. E. 2 H. L. 27; 36 L. J. ) Perciml v. Peterborough Corporation, [1921] 1 K. B. 414. It should be- noted that the offer must have been made before the passing of the Act of 1919- ACQUISITION OF LAND (COMPENSATION) ACT, 1919. 325 ■employees, though this would be a question of fact in any par- ticular case to be determined by the arbitrator. Rule 5 deals with the principle of reinstatement which had Rule 5 - been adopted under the Lands Clauses Acts (x), though its pro- ^ t * tate " visions differ somewhat from the existing law under those Acts. The arbitrator must in this case be satisfied of the bond fide in- tention to reinstate. Rule 6 is apparently intended to carry out the recommendation Rule 6 - contained in section 13 of the Ministry of Reconstruction ^^' tionof Report (y), which states that the test of market value (incorporated in Rule 2 above) would not cover compensation for trade loss or disturbance or injurious affection or severance, though in many cases the compensation for injurious affection or severance may be based wholly or largely on the value of land (z). It should be noticed that in cases falling under this rule the proviso to Rule 2 does not apply. " In anv proceedings before an official arbitrator, not more than i >ro ™ 10 5 as " A , . . .to procedure one expert witness on either side shall be heard unless the official before official arbitrator otherwise directs: arbitrators. " Provided that, where the claim includes a claim for compensa- tion in respect of minerals, or disturbance of business, as well as in respect of land, one additional expert witness on either side on the value of the minerals, or, as the case may be, on the damage suffered by reason of the disturbance may be allowed. " It shall not be necessary for an official arbitrator to make any declaration before entering into the consideration of any matter referred to him (a) . " The official arbitrator shall, on the application of either party, specify the amount awarded in respect of any particular matter the subject of the award. " The official arbitrator shall be entitled to enter on and inspect any land which is the subject of proceedings before him. " Proceedings under this Act shall be heard by an official arbi- trator sitting in public. " The fees to be charged in respect of proceedings before official arbitrators shall be such as the Treasury may prescribe. Or) See ante, p. 114. This rule would apparently apply to the Edinburgh case there mentioned. («/) Ante, p. 323, note (i). (z) Cf. ante, pp. 142 et seqq. («) Of. ante, p. 189. 326 ACQUISITION OF LAND (COMPENSATION) ACT, 1919. " Subject as aforesaid, the Reference Committee may make rules (b) regulating the procedure before official arbitrators" (c). Consolidation " Where notices to treat have been served (d) for the acqui- of proceedings . . . . . on claims for sitioi) of the several interests in the land to be acquired, the claims in^espect^f 11 °^ ^e P ersons entitled to such interests shall, so far as practicable, ■various and so far as not agreed and if the acquiring authority so desire, the same land. De heard and determined by the same official arbitrator, and the Reference Committee may make rules providing that such claims shall be heard together, but the value of the several interests in the lands having a market value shall be separately assessed " (e). Costs: " Where the acquiring authority has made an unconditional offer (/) in writing of any sum as compensation to any claimant and the sum awarded by an official arbitrator to that claimant does not exceed the sum offered, the official arbitrator shall, unless for special reasons he thinks proper not to do so, order the claimant to bear his own costs and to pay the costs of the acquiring authority so far as such costs were incurred after the offer was made (g) . " If the official arbitrator is satisfied that a claimant has failed to deliver to the acquiring authority a notice in writing of the amount claimed by him giving sufficient particulars and in sufficient time to enable the acquiring authority to make a proper offer, the foregoing provisions of this section shall apply as if an unconditional offer had been made bj' the acquiring authority at the time when in the opinion of the official arbitrator sufficient particulars should have been furnished and the claimant had been awarded a sum not exceeding the amount of such offer " (h). Notice of " The notice of claim shall state the exact nature of the interest in respect of which compensation is claimed, and give details of the compensation claimed, distinguishing the amounts under separate heads and showing how the amount claimed under each head is calculated, and when such a notice of claim has been delivered the acquiring authority niay, at any time within six (i) S. R. & 0. 1919, No. 1 !®!L. L. 30 (e) S. 3. Sub-ss. (5) ajid (6) (last four lines of previous page) do not apply in the case of an agreed arbitrator under s. 8, pnsl, p. 331. (d) For the procedure in connection with the notice to treat, see ante, p. 65. (e) S. 4, Rule 7. This section does not apply in the case of an agreed arbitrator under ». 8, post, p. 331. (/) Of. ante, p. 200, and Fisher v. Great Western Bail. Co., [19U] 1 K. B. 551. O) S. 5 (1). (A) S. 5 (2); of. ante, p. 200. claim. ACQUISITION OF LAND (COMPENSATION) ACT, 1919. 327 weeks after the delivery, thereof, withdraw any notice to treat which has been served on the claimant or on any other person interested in the land authorized to be acquired, but shall be liable to pay compensation to any such claimant or other person for any loss or expenses occasioned by the notice to treat having been given to him and withdrawn, and the amount of such compensation shall, in default of agreement, be determined by an official arbitrator (i) . " Where a claimant has made an unconditional offer in writing Unconditional to accept ,any sum as compensation and has complied with the ofiertoaooe P t - provisions of the last preceding sub-section, and the sum awarded is equal to or exceeds that sum, the official arbitrator shall, unless for special reasons he thinks proper not to do so, order the acquiring authority to bear their own costs and to pay the costs of the claimant so far as such costs were incurred after the offer was made (fc). " Subject as aforesaid, the costs of an arbitration under this Costs in dis- Act shall be in the discretion of the official arbitrator who may arD itrator. direct to and by whom and in what manner those costs or any part thereof shall be paid, and the official arbitrator may in any case disallow the cost of counsel (I). "An official larbitrator may himself tax the amount of costs Taxation of ordered to be paid, or may direct in what manner they are to be taxed (to). " Where an official arbitrator orders the claimant to pay the Payment of . COSts. costs, or any part of the costs, of the acquiring authority, the acquiring authority may deduct the amount so payable by the claimant from the amount of the compensation payable to him {%) . " Without prejudice to any other method of recovery, the amount Recovery of of costs ordered to be paid by a claimant, or such part thereof as is not covered by such deduction as aforesaid shall be recoverable from him by the acquiring authority summarily as a civil debt (o) . " For the purpose of this section, costs include any fees, charges, and expenses of the arbitration or award " (p). This section radically alters the law with regard to costs as Alteration in formerly laid down by the Land Clauses Acts, and the decisions o ^.* 8 to thereunder (q). The arbitrator must make some order as to costs, (i) S. 5 (2); at. ante, p. 80. (/<0 S. 5 (3). (0 S. 5 (4). O) S. 5 (5). O) S. 5 (6). (<0 S. 5 (7). GO S. 5 (8). (?) Especially a. 34 of the Act of 1845; and cf. ante, p, 200. 328 ACQUISITION OF LAND (COMPENSATION) ACT, 1919. Time for un- conditional offer. Notice of claim. Withdrawal of notice to treat. and before doing so he will have to see the " unconditional.offers,'' if any, by the acquiring authority or the claimant, though these offers are not admissible in evidence for the purpose of assessing compensation (r). The Act does not specify the time at which or before which the unconditional offer must be made. Under the Lands Clauses Act this wa« before the appointment of the second arbitrator (r). The effect of the provision in sub-section (2) whereby the claimant is penalised if he does not give the authority sufficient time to make a " proper " offer is not clear in this respect, but the onus is on the acquiring authority to satisfy the arbitrator that the time was insufficient. The second half of sub-section (2) introduces two important new provisions largely unconnected with costs. First, a "notice of claim " (s) giving elaborate details and particulars of the claim must be furnished to the acquiring authority in every case. Second, on receipt of this notice the acquiring authority may within six weeks withdraw any notice to treat in respect of the land authorized to be acquired (t), paying compensation (which may be determined by the official arbitrator) for loss or expenses occasioned by the giving and withdrawal of the notice. This new right to with- draw a notice to treat would probably be held to be limited to the several interests in the land, the subject-matter of the notice, and not to extend to all the other land authorized under the scheme to be acquired, though the wording of the section is by no means clear. It should be noticed that either party may apply for the appoint- ment of an arbitrator a fortnight after the service of the notice to treat, and the Reference Committee are then to select the arbi- trator as soon as may be (w). The arbitrator might thus be appointed and the arbitration take place before the expiration of the six weeks allowed for withdrawal of the notice. This with- drawal can only take place where the claimant has delivered a notice of claim. The provision of sub-section (3) as to an unconditional offer to accept is lentirely new. The costs of the party making the offer up to the time of the unconditional offer in this sub-section or in sub-section (1) are in the discretion of the arbitrator under sub- section (4). (»•) Ante, pp. 115, 200, 216. (0 Cf. ante, p. 80. (s) Cf. ante, p. 185. (») Rules 3 (1), 4 (1). ACQUISITION OF LAND (COMPENSATION) ACT, 1919. 329 Sub-section (6) may raise questions with regard to the imme- diate enforcement of an award before the costs have been taxed (x) . "The decision of an official arbitrator upon any question of Finality of fact, shall be final and binding on the parties, and the persons statement^ claiming under them respectively, but the official arbitrator may, special cases. .and shall, if the High Court so directs, state at any stage of the proceedings, in the form of a special case for the opinion of the High Court, any question of law arising in the course of the prooeeding-s, and may state his award as to the whole or part thereof in the form of a special case for the opinion of the High Court (y). " The decision of the High Court upon any case so stated shall be final and conclusive, and shall not be subject to appeal to any other court " (2). Section 2i of the xlrbitration Act, 1889 (a), enacts that that Act shall a23ply to every arbitration under any Act passed thereafter except in so far as the Arbitration Act may bo inconsistent with the Act regulating the arbitration or with any rules or procedure authorized or recognised by such Act. The above section 6, together with any rules made thereunder, must therefore be read together with the Arbitration Act, 1889, and where there are any inconsistencies the above section and the rules under this Act will prevail. The chief alterations in procedure consist in (a) the introduction in the first line of the words " upon any question of fact," which were not in the Arbitration Act, Sched. 1 (h). It is not clear whether this indirectly extends the ordinary grounds on which an award may be set aside, e.g., for an error of law apparent on the face of the award: (b) the provision in sub-section (2); under the Arbitration Act it has been held that no appeal lay on an interim case stated under section 19, but that an appeal did lie on an award stated in the form of a special case (section 7 (b)). "The provisions of the Act or order by which the land is Effect of Act authorized to be acquired, or of any Act incorporated therewith, °^^ t f_ shall, in relation to the matters dealt with in this Act, have effect subject to this Act, and so far as inconsistent with this Act those provisions shall cease to have or shall not have effect: " Provided that nothing in this Act relating to the rules for O) Cf. ante, pp. 228 et seqq. GO S. 6 (1). (z) S. 6 (2). O) 52 & 53 Vict. c. 49. 330 ACQUISITION OF LAND (COMPENSATION) ACT, 1919. assessing compensation shall affect any special provisions as to the assessment of the value of land acquired for the purposes of Part I. or Part II. of the Housing of the Working Classes Act, 1890 (6), or under the Defence of the Realm (Acquisition of Land) Act, 1916 (c), and contained in those Acts respectively, or any Act amending those Acts, if and so far as the provisions in those Acts are inconsistent with the rules under this Act and the provisions of the Second Schedule to the Housing of the Working Classes Act, 1890, as amended by any subsequent enactment (except paragraphs (4), (5), (29), and (31) thereof) shall apply to an official arbitrator as they apply to an arbitrator appointed under that schedule, and an official arbitrator may exercise all the powers conferred by those provisions on such arbitrator (d). " The provisions of this Act shall apply to the determination of the amount of rent or compensation payable in respect of land authorized to be hired compulsorily under the Small Holdings and Allotments Act, 1908 (e), or any Act amending that Act, and any matter required thereby to be determined by a valuer appointed by the Board of Agriculture and Fisheries shall be determined by an official arbitrator in accordance with this Act " (/). The intention of this section 'is to provide an exclusive and uniform procedure in all cases coming within section 1 (1) of the Act (g), except in those cases dealt with in the proviso. Its provisions can only apply to subsequent legislation so far as not modified or overruled thereby, though they would apply to orders made subsequently under earlier enactments. The applicability of the Act to earlier legislation is subject to the clear rule that a general statute will not, in the absence of clear words, be construed as derogating from special provisions in a previous statute. Generalia specialibus non derogant, and when the legislature has given its attention to a particular subject and made provision for it, the presumption is that a subsequent and general enactment is not intended to interfere with the special provision unless the intention so to do is clearly manifested (h). (b) 53 & 51 Vict. u. 70. (c) 6 & 7 Geo. 5, u. 63. Id) S. 7 (1). O) 8 Edw. 7, c. 36. (/) S. 7 (2). O) Blackpool Corporation v. Starr Estate Co., Ltd., [1922] 1 A. C. 27. (A) Blackpool Corporation v. Starr Estate Co., Ltd., [1922] 1 A. C. 27, per Lord Cave, at p. 38; see also the speeches of Lords Haldane and Finlay,, dissentiente Lord Shaw. ACQUISITION OF LAND (COMPENSATION) ACT, 1919. 331 The effect of the proviso and of sub-section (2) is dealt with under the headings of the various Acts there referred to (i) . " Nothing in this Act shall prevent, if the parties so agree, the Power to refer reference of any question as to disputed compensation or apportion- s° ne°ra of 8 " ment of rent to the Commissioners of Inland Revenue or to an Inla -n _ . trators. partment or public or local authority, and the sale of the land to the department or authority at the price so certified shall be deemed to be a sale at the best price that can reasonably be obtained " (p). O) S. 8 (3). (>s) I.e., with reference to the provisions of s. 7 (1). (o, S. 8 (4). O) S. 9; cf. ante, pp. 58, 173. ACQUISITION OF LAND (COMPENSATION) ACT, 1919. 333 This section provides means whwcby persons claiming who are not absolutely entitled to the purchase-money can obtain certifi- cates of value, and enables any person selling land to apply to an official arbitrator for a certificate of value whether the price has been fixed by agreement, arbitration, or any other method. "The provisions of this Act shall not apply to any purchase Saving for of the whole or any part of any statutory undertaking under any ^"sof *""" statutory provisions in that behalf prescribing the terms on which statutory the purchase is to be effected (g) . a mgs " " For the purposes of this section, the expression ' statutory undertaking ' means an undertaking established by Act of Parlia- ment or order having the force of an Act, and the expression ' statutory provisions ' includes the provisions of an order having the force of an Act" (r). It should be borne in mind with reference to this section that this Act is an Act dealing with the acquisition of land, and is not concerned with the acquisition of business organisations, even where the necessities of their business compel them to own land, e.g., tramways, waterworks, and electric lighting companies. There is little doubt that the section was inserted ex abundanti cautela to make clear that provisions such as those in the Tramways Act, 1870 (s), were not affected by this Act, and it is thought that the Courts would strive to read this interpretation into the words of the section, which are the more confused by the definition given of statutory undertaking (f). The section is a23parently limited to cases where there are particular statutory provisions authorizing the acquisition of the whole or part of the actual undertaking and prescribing the terms of purchase. By " the terms on which the purchase is to bo effected " was probably meant the method by which the price was to be arrived at (u), but it is difficult to say that these words do not cover all matters such as those dealt with under the purchase clauses of the Lands Clauses Act, 1845. The rules made under the Acquisition of Land Act, 1919, are set out post, p . 484 . (q) S, 10 (l). 0) S. 10 (2). (s) 33 & 34 Vict. c. 78; cf. Edinburgh Street Tramways Co. v. lord Pronost, #o. of Edinburgh, [1894] A. O. 456. (0 The usual definition of undertaking is on the lines given in the Railways Clauses Act, 1845 (8 & 9 Vict. u. 20), s. 2: "The railway and works of what- ever description by the special Act authorized to be executed," to which words the expression "established" hardly seems appropriate. («) Cf. Tramways Act, 1870, s. 43. 334 CHAPTEK, III. ACQUISITION OF LAND IN TIME OF EMERGENCY BY THE CROWN. Extent and limitations of Boyal Pre- rogative. Early statutes. The extent and limitation of the Eoyal Prerogative and of the power of the executive officers of the Crown to take possession of land compulsorily during an emergency arising out of a state of war were exhaustively discussed in the case of Attorney-General v. De Keysefs Royal Hotel (a), in which all the earlier decisions were considered and reviewed. " The most that can be taken is that the king as supremo, potestas endowed with the right and duty of protecting the realm is for the purpose of the defence of the realm in times of danger entitled to take any man's property, and that the texts give no certain sound as to whether this right to take is accompanied by an obligation to make compensation to him whose property is taken. In view of this silence, it is but natural to inquire what has been the practice in the past. . . . Speaking generally, what can be gathered from the records as a matter of practice seems to resolve itself into this. There is an universal practice of payment resting on bargain before 1708 and on statutory power and provision after 1708. On the other hand, there is no mention of a claim made in respect of land taken under the prerogative for the acquisition of which there was neither bargain nor statutory sanction. ... I think it is admissible to consider the statutes in the light of the admitted custom to pay, for, in the face of a custom for payment, it is not surprising that there should be consent on the part of the Crown that this branch of the prerogative should be regulated by statute" (6). In the statutes from the year 1708 until 1819, dealing with this subject-matter " there is not a trace of a suggestion that the Crown was left free to ignore these statutory provisions, and by 0) [19)9] 2 Ch. 197; [1920] A. C. 508; in effect overruling In re a Petition of Right (Shorchum Aerodrome case), [1915] 3 K. B. 649. (J) Att.-Geu. v. De Keyser'.i Royal Hotel, [1920] A. C. 508, per Loi'd Dimedin, at p. 521. ACQUISITION OF LAND IN TIME OF EMERGENCY BY THE CROWN. 335 its unfettered prerogative do the very things the statutes era- powered the Crown to do, but > free from the oonditions and restrictions imposed by the statutes. . . A statute expressing the will and intention of the king and the three estates of the realm abridges the Royal Prerogative while it is in force to this extent, that the Crown can only do the particular thing under and in accordance with the statutory provisions and that its prerogative power to do that thing is in abeyance " (c). The legislation dealing with the defence of the realm which had been contained prior to the year 1842 in statutes of a temporary character enacted during the time of hostilities culminated in that year in the Defence Act, 1842, which was Defence Act, framed upon the earlier statutes. This Act, unlike its pre- decessors, was passed in a time of peace, and contemplates the acquisition of land by the executive officers of the Crown either temporarily or permanently and in times of peace and war. The land may be acquired by voluntary purchase under its 16th section, or compulsorily under its 19th section (subject to the provision in section 23), the owner in each case being paid or compensated for what he parted with, the method of assessing the compensation being by. a jury as set out in the Act (d) . Section 7 of the Lands Clauses Acts Amendment Act, 1860 (e), made it lawful for the Secretary of State for War to use all or any of the powers and provisions by the Lands Clauses Consolidation Act, 1845, given to promoters, and all the powers and provisions of that Act were to be treated as if contained in the Defence Act, 1842, a proviso being added that nothing contained in the section should authorize any purchase otherwise than by agreement of any land except according to the provisions of section 23 of the Defence Act, 1842. The wording of section 19 of the Defence Act, 1842, is wide enough to cover a claim for injury to lands held with lands taken, in which case the principles of the Lands Clauses Acts (/) are applicable (g). (c) S. C, per Lord Atkinson, at p. 539. (d) There were various amending Acta (Defence Acta, 1842 to 1875) and various other statutes in pari materia, which it is not necessary to set out here in detail. («) 23 & 24 Vict. u. 106. (/) Ante, p. 161. (()) Blundell v. R. (1904), 74 L. J. K. B. 91, following- R. v. Abbott, [1897] 2 Ir. R. 362L, and hi re Ned's Point Battery, [1903] 2 Ir. R. 192. 336 ACQUISITION OF LAND IN TIME OF EMERGENCY BY THE CROWN. Where land is acquired compulsorily by any Government depart- ment under the Defence Act, 1842, the provisions of the Acquisi- tion of Land (Assessment of Compensation) Act, 1919 (h), will now apply with respect to any question of disputed compensation. Defence of the' The Defence of the Realm Consolidation Act, 1914 l i>, provided soKdationAot that during the continuance of the war regulations for securing 191 *- the public safety and the defence of the realm might be issued by His Majesty, and by section 1, sub-section (2), provided for the suspension of restrictions on the acquisition and user of land . . . or of any other power under the Defence Acts, 1842 to 1875, or the Military Lands Acts, 1891 to 1903. " By reason of the provisions of this sub-section it must be assumed that it was designed and intended by the legislature that the ample powers for the ac- quisition of land or the use of it either by agreement of purchase or compulsorily conferred upon the Crown by the Act of 1842 should be availed of'" (p,. The various Defence of the Realm Acts which were passed between the years 1914 and 1920 (7c), and which dealt with the ac- quisition of land, were all of a temporary nature, and it is not now necessary to consider their various provisions. The case of Attorney-General v. De Keyser'a Royal Hotel (I) decided that the Defence of the Realm Consolidation Act, 1914, and the regulations made thereunder conferred no new power upon the Crown of acquir- ing land, but authorized the taking possession of land under the Defence Act, 1842, while suspending some of the restrictions im- posed by that Act upon the acquisition and user of land. Emergency The Emergency Powers Act, 1920 (in), enacts that if at any 1920. ' time it appears to His Majesty that any action has been taken or is immediately threatened by any person or body of persons of such a nature and on so extensive a scale as to be calculated by interfering with the supply and distribution of food, water, fuel, or light, and with the means of locomotion to deprive the com- munity or any substantial portion of the community of the essentials of life, His Majesty may, by a " Proclamation of Emer- gency," declare that a state of emergency exists. After the issue (h) 9 cV 10 Geo. 5, <.-.. 57; ante, p. 319. (t) 5 Geo. 5, c. 8. (/) De Keiiser's case, per Lord Atkinson, at p. 541. (/c) Defence of the Realm Consolidation Act, 1914 (5 Geo. 5, c. 8); Defence of the Realm (Acquisition of Land) Acts, 1916 and 1920 (6 & 7 Geo. 5, v,. 63; 10 & 11 Geo. 5, v . 79). (I) [1920] A. C. 508; of. Matthcy v. Curling (1922), 38 Times L. R. 475. (m) 10 & 11 Geo. 5, o. 55. ACQUISITION OF LAND IN TIME OF EMERGENCY BY THE CROWN. 337 of such proclamation, emergency, regulations may be made by Order in Council conf ering upon the executive such powers as may be deemed necessary for the preservation of peace, for securing and regulating the supply and distribution of food, water, fuel, light, and other necessities, for maintaining the means of transit or locomotion, and for any other purposes essential to the public safety and the life of the community, and make such provisions incidental to the powers aforesaid as may be necessary. These powers are limited under the Act with regard to their duration and are subject to certain subsequent parliamentary sanction. It will be observed that this Act extends the power of the Crown to emergencies other than those arising from a state of war, and in such emergencies it may obviously be necessary to make pro- vision for the temporary acquisition of land, on which point the Act itself is silent. Unless express provision for compensation is made by the regulations, it would appear by analogy with the reasoning in De Eeyser's case and by the applicability of the Ac- quisition of Land (Assessment of Compensation) Act, 1919 (re), that compensation will be payable; but the principles on and methods by which such compensation is to be assessed will, it appears, so far as they are not covered by that Act, be at large, unless the Lands Clauses Acts are specifically incorporated. («) 9 & 10 Geo. 5, c. 57. 22 338 CHAPTER IV. (a). Acquisition of Land undeii the Public Health and Metropolis Management Acts. Public Health The sections of the Public Health Act, 1875, which deal directly with the subject of compensation, where lands are purchased or damage is done, are 175, 176, 308 (b). Their effect is not to alter the general principles of compensation contained in the Lands Clauses Acts and the Acquisition of Land (Assessment of Com- pensation) Act, 1919(c). "Lands" and "premises" under the Act are defined to include messuages, buildings, lands, easements, and hereditaments of any tenure (d) . S. 176. Section 175 empowers any local authority, for the purposes (e), and subject to the provisions, of the Act (/), to purchase {g) or take on lease (h), sell or exchange any lands, whether situated within or without their district; and also to buy up any water-mill, dam or weir which interferes with the proper drainage of or the supply of water to their district. Land acquired under this section may now bo used for a purpose different from that for which it was (a) A certain number of cases dealing with minor points under the Public Health Acts have been inserted as notes to the Acts, past, pp. 506 et seqq. (J) Vide post, pp. 506, 507, 511. (c) The provisions as to compensation in these Acts and all other Acts dealing with the acquisition of land by a local authority are subject to the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919, and so far as inconsistent with the latter Act they cease to have effect; 9 & 10 Geo. j, c. 57, s. 7. (d) S. 4. Cf. ante, pp. 8, 11, 319. (e) These purposes have been extended to include highway purposes; Public Health Acts Amendment Act, 1907 (7 Edw. 7, o. 53), s. 95. (/) And the amending Act, 7 Edw. 7, c. 53. (g) The contract must be in writing under seal where value exceeds 501. : s. 174; vide ante, p. 54. (/») An engine-house with pump and machinery for sewage is a work coming within s. 27 for which land must be purchased or leased, and is not a sewer within s. 16; King's College, Cambridge v. Uxbridge R. D. C, [1901] 2 Ch. 768. PUBLIC HEALTH ACTS. 339; acquired, as by the Public Health Acts Amendment Act, 1907 (»), it is enacted that notwithstanding anything in section 175 of the Public Health Act, 1875, or any general provision in any local Act, any lands acquired by a local authority and not required for the purposes for which those lands have been acquired may be appropriated for any purpose approved by the Ministry of Health, subject, nevertheless, to any special covenant or condition affecting the use of the lands attached thereto at the time of the purchase by the local authority or to any special provision affecting the use of lands contained in any local Act. There follows a proviso prohibiting the use of such lands for purposes of an obnoxious character unless authorised by the Ministry of Health after a local inquiry. A local authority is not compelled to pur- chase lands or an easement under section 175 of the Public Health Act, 1875, in a case where it can carry out the purposes of the Act without purchase, and the owner is protected and compensated under section 308 (k). When a local authority propose to com- mence or construct works for sewage purposes outside their district they must give the notices required under section 33. Section 176 incorporates, with respect to the purchase of lands S. 176. by a local authority for the purposes of the Act, the Lands Clauses Acts, .except the provisions relating to access to the special Act (which would be inapplicable), and section 127 of the Lands Clauses Act of 18'45, which has reference to the sale and disposal of superfluous lands. The same section prescribes certain condi- tions precedent, which must be complied with before any of the compulsory powers of the Lands Clauses Acts can be put in force. A notice of intention to take lands for public purposes and to apply for Parliamentary powers, under sub-section 2 of section 176, is not equivalent to a notice to treat (I). All questions of compensation for lands purchased or injured under the Public Health Act, 1875, are governed by the provi- sions of the Lands Clauses Acts and the Acquisition of Land (Assessment of Compensation) Act, 1919; and although sec- tions 179—181 of the Public Health Act, 1875, contain special (t) 7 Edw. 7, o. 53, a. 95, overruling to this extent the earlier decisions set out in the last edition of this book, and in Att.-Gen. v. Pontypridd V. D. C, [1906] 2 Ch. 257. (*) In re Corporation of Dudley (1881), 8 Q. B. D. 86; 51 L. J. Q. B. 121. (0 Surges v. Bristol Urban Sanitary Aut/writy (1886), 2 Times L. R. 719 ; cf. Iliggins v. Lord Mayor of Dublin (1891), 28 L. E. Ir. 484. 22(2) 340 PUBLIC HEALTH ACTS. regulations relating to arbitration, these sections do not apply to Ss. 179—181. questions of compensation where lands are purchased (m). These sections do not substantially differ from the provisions of the Lands Clauses Acts as to arbitration in the case of injuriously affecting under section 68, and are to be construed in the same way(w). The provisions of section 180 must be complied with (o), and if the appointment of the arbitrators is invalid, neither the original submission, the appointment of the umpire, nor the award, can be made a rule of Court (p) . The time for making the award cannot be extended by the arbitrators or umpire beyond that specified in section 180 (q) ; and when the arbitrators disagree, the time for making the umpire's award cannot be extended by him beyond two months from the disagreement (r), but the Court or a judge has power under section 9 of the Arbitration Act, 1889, to extend the time for making an award, although the time limited by section 180 has expired (s). s - 308 - Section 308 enacts that where any person sustains any damage by reason of the exercise of any of the powers of the Act, in relation to any matter as to which he is not himself in default, full compensation shall be made to such person by the local authority exercising such powers, and any dispute as to the fact of damage or amount of compensation is to be settled by arbitration in manner provided by the Act. Where a local authority under the powers of the Public Health Act, 1875, laid a sewer on the claimant's land, which connected with a pumping station, sewage, reservoir, and other works not erected on his land, it was held that the claimant was not entitled to any compensation for the depre- O) Ex parte Rayner (1878), 3 Q. B. D. 446; 47 L. J. Q. B. 660; Re Chesterfield Corporation and Brampton L. B. (1886), 50 J. P. 824. («) Brierley Hill L. B. v. Psarsall (1884), 9 App. Cas. 595; 54 L. J. Q. B. 25. (o) The umpire must sign the declaration set out in s. 180 (10) aa required by s. 180 (11); Mayor, $c. of Laidlow v. Prosser (1906), 22 Times L. B. 597. But see now the provisions of the Acquisition of Land (Assessment of Com- pensation) Act, 1919, which apply. (p) In re Gifmd and Bury Ton;, Council (1888), 20 Q. B. D. 368; 57 L. ,L Q. B. 181. (?) In re Mackenzie and Ascot Gas Co. (1886), 17 Q. B. D. 114; 55 L. J. Q. B. 309. (r) Cf. In re Yeadon L. B. and Yeadon Waterworks Co. (1889), 41 Hi. D. 52; 58 L. J. Ch. 563. (s) Knowlen $ Sons, Ltd. v. Bolton Corporation, [1900] 2 Q. B. 253; 69 L.J. Q. B. 481; affirming Warburton v. Haslingden L. B. (1879), 48 L. J. Q. B. 451; and overruling In re Mackenzie and Ascot Gas Co. (1886), 17 Q. B. D. 114; 55 L. J. Q. B. 309. PUBLIC HEALTH ACTS. 341 ■ciation in value of his land owing to the proximity of the sewage works. The erection and user of the sewage works constituted no actionable wrong, and the damage arising therefrom was not sustained by reason of the exercise of the powers of the Public Health Act within the meaning of section 308 (t). Section 308 To what .applies to a claim for injury caused by altering the kerb in a extends, street, under section 149 (it), or by raising the level of the street (x), and even where there is a mere temporary obstruction of access to premises, such obstruction may constitute "damage" within the meaning of the section (y) . If the compensation claimed does not exceed the sum of 20L, the same may, at the option of either party, be ascertained by and recovered before a Court of summary jurisdiction {z). In an arbitration under section 308 there is no power to award ■compensation for damage merely caused by the giving of a notice under section 16 (a) before the construction and execution of the sewer is commenced, nor to award costs if the notice is withdrawn before any works are commenced (6). As far as injury Same prin- to lands is concerned, the section gives the same right, and no asunder more, to claim compensation as the Lands Clauses Acts (c) . The fg.9 1 ' Aot ' Arbitrator is only entitled to inquire as to two matters, the fact of damage and the amount of compensation (d) . Compensation is only recoverable where the injury would have been actionable but for statutory powers, and the damage complained of must be the consequence of the exercise of the powers of the Act, and not simply of powers transferred from the surveyor to the local board (e) . Extra costs reasonably incurred over and above party (t) Horton v. Colwyn Bay and Colwyn U. D. C ., [1908] 1 K. B. 327; and see ante, p. 161. («•) Sellers v. Matlock Bath L. B. (1885), 14 Q. B. D. 928. (a) It. t. Wallasey L. B, (1869), L. R. 4 Q. B. 351; 38 L. J. Q. B. 217, on the corresponding section (s. 144) of the Public Health Act, 1848: Nutter v. Accrington L. B. (1879), 4 Q. B. D. 375; 48 L. J. Q. B. 487. (}0 Lingke v. Mayor, $c. of Christchurch, [1912] 3 K. B. 595; and see •ante, p. 158. 00 P. H. Act, 1875, s. 308. (a) Vide post, p. 342. (6) Davis v. Witney V. D. C. (1899), 63 J. P. 279; but cf. ante, p. 328. (c) Hall v. Mayor, #c. of Bristol (1867), L. R. 2 C. P. 322, on the corre- sponding section (s, 144) of the P. H. Act, 1848. Cf. East Fremantle Corpora- tion v. Annois, [1902] A. C. 213; 71 L. J. P. C. 39. (. 264; 50 L. J. Q. B. 219; Durrani v. Branhsome U. D. C, [1897] 2 Ch. 291; 66 L. J. Ch. 653; vide ante, p. 150. GO Burnett v. Eccles Corporation, [1900] 2 Q. B. 423; 69 L. J. Q. B. 834. (g) R. v. Burlington h. B. (1865), 35 L. J. Q. B. 45; Roberts v. Gwyrfai D. C, [1899] 2 Ch. 608; 68 L. J. Oh. 757. (h) Roberts v. Gwyrfai District Council, [1899] 2 Ch. 608. As to provision of water for housing schemes, see post, p. 366. (») An engine-house and machinery for pumping sewage is not a sewer, but must be dealt with under s. 27 of the Act: King's College, Cambridge v. Vxbridge R. D. C, [1901] 2 Oh. 768. (A) This includes a private road: Hill v. Wallasey L. B., [1894] 1 Oh. 133» 63 L. J. Ch. 1. (I) Lewis v. IVextou-Kuper-Mare L. B. (1888), 40 Ch. D. 55; 58 L. J. Ch. 39. PUBLIC HEALTH ACTS. 343 Under this section local authorities are not obliged to purchase land (to), but compensation must be assessed under section 308. In In re Corporation of Dudley (n) it was held that the local Right to authority, when the sewer was constructed, obtained a right to BU PP ort - vertical support, and that the amount of compensation to the owner should be assessed on the basis that this right was obtained. The effect of this decision was that an owner, through whose land a sewer was run, came under an obligation to preserve sub- jacent support, and gained a right to compensation for being deprived of the free power to work subjacent mines. The amount of this compensation would be assessed once for all, at the same time as the amount of damage done to the surface lands (re) . In consequence of this decision, the Public Health Act, 1875 Public Health (Support of Sewers), Amendment Act, 1883 (o), was passed, in- Aot 61 i883 n corporating the provisions of the Waterworks Clauses Act, 1847 (sections 18 — 27, both inclusive), with respect to mines. The law, therefore, now is, that a local authority are not obliged to pay compensation in the first instance for the value of mines or minerals necessary to give support to their sewers, and the owner of such mines or minerals is not entitled to compensation until after giving notice to the local authority of his intention to work any such mines or minerals. In this event the compensation will be assessed by the same procedure and on the same basis as under the Waterworks Clauses Act, 1847 (p). The effect of section 5 of the amending Act is to take out of the Act any sanitary works to which the second part of the section applies, so that neither the landowner nor the local authority can rely on the Act at all (g) . Section 54 gives an urban authority the same powers, subject to Water mains, the same restrictions, for carrying water mains within or without their district as they have and are subject to for carrying sewers. (m) North London Rail. Co. v. Metropolitan Board of Works (1859), 28 L. J. Ch. 909. Cf. Taylor v. Oldham Corporation (1876), 4 Ch. D. 395; 46 L. J. Ch. 105; Roderick v. Aston L. B. (1877), 5 Ch. D. 328; 46 L. J. Ch. 802; Metro- politan Water Board v. London, Brighton and South Coast Rail. Co., [1915] 2 K. B. 297. («) (1882), 8 Q. B. D. 86; 51 L. J. Q. B. 121, discussed in Jury v. Bamsloy Corporation, [1907] 2 Ch. 600. (o) Vide post, p. 512. (p) Vide ante, p. 134. (?) Jary v. Barnsley Corporation, [1907] 2 Ch. 600, q.v. for judgment of Parker, J., going fully into the effect of the amending Act of 1883. 344 PUBLIC HEALTH ACTS. Sewers above ground. Public Health Act, 1875, s. 334. Jurisdiction of arbitrator under Public Health Act, 1875. A sewer may be carried above ground, but the amount of compensation would be fixed in proportion to the greater damage done(r). Entrances or man-holes form part of the sewer, and may be constructed on private land without purchasing it (s) . Section 334 of the Public Health Act, 1875, does not deal with the power to work mines, except so far as the working is a ques- tion of nuisance (£). Thi: jurisdiction of the arbitrator under the Public Health Act, 1875, is not ousted by a bond fide dispute of liability by the local authority. The question of liability can be raised in an action on the award, and if the arbitrator has made an error in law as to whether the damage complained of has arisen by reason of the exercise of any power under the Public Health Act, 1875, the award will not be final or conclusive (u) . The award would pro- bably not be enforced by motion where there is a bond fide dispute on question of principle. In such a case an action should be brought (a:). The costs of the reference and of the application to the Court, where lands are injuriously affected, are in the discre- tion of the arbitrator, and if he fails to deal with them the Court may send the award back to him for the purpose (y) . If he awards costs without stating the amount thereof, the taxing master is bound to tax the costs on the application of the successful party (2) . But where lands have been taken, and the amount of their value is assessed by arbitration, the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919, as to costs of the arbitration apply (a) . The Public Health Acts Amendment Act, 1907 (&), besides O) Roderick v. Aston L. B. (1877),. 5 Ch. D. 328; 46 L. J. Ch. 802. (s) Swanston v. Twickenham L,. B. (1879), 11 Ch. D'. 838, 849; 48 L. J. Ch. 623. (t) In re Corporation of Dudley (1881), 8 Q. B. D. 86; 51 L. J. Q. B. 121. (u) Brierley Hill L. B. v. Pearsall (1884), 9 App. Oas. 595; 54 L. J. Q. B. 25 (where the House of Lards distinguished, if they did not overrule, R. v. Metropolitan Commissioners of Sewers (1852), 22 L. J. Q. B. 234; R. v. Burslem L. B. (1859), 29 L. J. Q. B. 242; and In re Bradby (or Bradley) and Southampton L. B. (1855), 24 L. J. Q. B. 239, which were cases under different statutes). (x) Re Walker and Beckenham L. B,. (1884), 50 L. T. 207; cf. Re Neiobold and Metropolitan Rail. Co. (1863), 14 C. B. N. S. 405; Brierley Hill L. B. . 40 (8). (») Public Health (London) Aot, 1891, 83. 100, 101. (Jc) London Government Aot, 1890', o. 4. (I) Swanston v. Twickenham L. 13. (1879;, 11 Oh. D. 838; 48 L. J. Ch. 623, METROPOLIS MANAGEMENT ACTS. - J A7 and may include an embankment, through which the sewer passes, keeping the Thames, from overflowing low-lyine lands (mj. .Sections 69 and 1-35 of the Act of 18-5-5 empower any borough Power, to council or the London County Council to carry, in connec- execntaworks - tion with the sewers respectively vested in them, any sewers or works through, across or under any street or place laid out as or intended for a street, or through or under any cellar or vault which may be under the pavement or carriage-way of any street, or into, through or under any lands whatsoever, making compensation for any damage done, as is provided under section 22-5 of the Act. .Section 27 of the Act of lsoS empowers the London County Council, subject to the previous approval of the Admiralty, to construct works on the bed or shores of the Thames (ri) below high-water mark, which may interfere with the navigation of the Thames: and section 2h> requires the plans of any works to be executed by the London County Council on the banks, bed or shore, which may interfere with the free navigation of the river, to be approved by the Conservators of the Thames before the works are commenced. The only condition in all these sections as to carrying sewers or Rights works through private property is the payment of compensation, acquired on and there is no obligation to purchase the lands or easements compensation, required f oj. The amount of compensation would be assessed in reference to the subjacent support which a sewer would require, and where the adjacent lands were the property of the same owner probably in reference to adjacent support f p 1 . Where subjacent or adjacent support has been paid for, the local authority acquires a right to the maintenance of their -ewer. Where no compensa- tion has been paid to an adjacent owner, there is no right to adjacent support against such owner; but, if necessary, such adjacent lands or easement can be purchased under sections 150 — 1-56 (q } . (mj Poplar District Board v. Knight (1858;, 28 L. J. II. C. 37. Cf. Sutio:, v. Mayor, §o. of Norwich (1858), 27 L. J. Ch. 739. (/<> See Brovmlow v. Metropolitan Board of Works (1864;, 33 L. J. C. P. 233 : I^mdon C. C. v. Port of London Authority, [1914] 2 Ch. 362; 84 L. J. Ch. 20. (o) SUtinton v. Woolryoh and Metropolitan Board of Works (1857), 26 L. J. Ch. 300; North London Bail. Co. v. Metropolitan Board of Works (1859;, 28 L. -J. Ch. 909; Hughes v. Metropolitan Board of Works (1861), 4 L. T. 318. (p) In re Corporation of Dudley (1881), 8 Q. B. D. 86; 51 L. J. Q. B. 121. (q) Metropolitan Board of Works v. MetiOfioUtan Rail. Co. (1869), L. R. 4 O. P. 192: 348 METROPOLIS MANAGEMENT ACTS. Assessment of compensation before two justices or arbitrators. Purchase of lands or easements. Section 225 of the Act of 1855 enacts that the amount of com- pensation, in cases of dispute, to be made bj the London County Council or any borough council (r), shall, unless otherwise pro- vided, be settled by and recovered before two justices, unless the amount claimed exceed 501., in which case the amount shall be settled by arbitration, according to the provisions contained in the Lands Clauses Act, 1845, which are applicable where questions of disputed compensation are authorized or required to be settled by arbitration. This section and sections 69 and 135 contain the word " compensation," but not the words " full compensation " of section 308 of the Public Health Act, 1875. Therefore, although under the Metropolis Local Management Acts owners injured are entitled to claim compensation on the same basis as under section 68 of the Lands Clauses Act, 1845, they could not have any larger claim (s). There is, however, no substantial difference between the Lands Clauses Act and the Public Health Act as to the character or quantum of compensation (£). Sections 150 — 155 of the Metropolis Local Management Act, 1855, empower the London County Council and any borough council (r) to purchase or take on lease any land, or any right or easement in or over any land, which they may deem necessary and expedient in connection with sewerage works. The Lands Clauses Act, 1845, is incorporated (except the provisions as to forfeitures, penalties and costs), but the compulsory powers of purchase of land or any right or easement in or over land are only incorporated so far as to enable the county council to take lands, &c, for the purpose of sewers or works for preventing the sewage of the metropolis from passing into the Thames in or near the metropolis, or otherwise for the purpose of the sewerage or drainage of the metropolis. These powers of compulsory taking cannot be exer- cised without the consent in writing of a Secretary of State. No compensation is given for injury done to lands where no lands of the claimant have been taken (u) . (>-) Substituted for the Metropolitan Board of Works and any vestry or district board by the Local Government Act, 1888, s. 40 (8), and the London Government Act, 1899, s. 4. (s) Of . Herring v. Metropolitan Board of Works (1865), 34 L. J. M. C. 224; Hall v. Mayor of Bristol (1867), L. R. 2 O. P. 322; Burgess v. Northwich I. B. (1880), 6 Q. B. D. 264; 50 L. J. Q. B. 219. (t) Brierley Hill L. B. v. Pern-sail (1884), 9 App. Oas. 595; 54 L. J. Q. B. 25. (w) Baker v. St. Marylebone Vestry (1876), 35 L. T. 129. METROPOLIS MANAGEMENT ACTS. 349 Section 153 requires previous notice to owners affected before applying for the consent of a Secretary of State. The London County Council or any borough council have an absolute discretionary right of disposing of lands purchased by them; and unless a right of pre-emption has been reserved to the owner upon the sale by him, there is no right of pre-emption, such as is given by sections 128, 129 and 130 of the Lands Clauses Act, 1845. The proviso to section 86 of the Metropolis Management Act, 1855, enacts that borough councils shall pay full compensation if they prejudicially affect any ancient mill, or any right connected therewith, or other right to the use of water. In the alternative any borough council may contract for the purchase of such mill, or any such right connected therewith, or other right to the use of water. This proviso does not apply to the London County Council. The rest of section 86 is repealed by section 142, but re-enacted by section 43 of the Public Health (London) Act, 1891, and the proviso is repeated in section 43. This does not alter the law as to borough councils, but the provisions of sections 100, 101 of the Act of 1891, enable the London County Council in certain cases to act as the .sanitary authority, in which event section 43 would apply to them. Section 22 of the Metropolis Local Management Act, 1862, enlarges the compulsory powers of taking lands given under section 150 of the Act of 1855, and enables the London County Council to take any lands which they may require for the purpose of making convenient roads or ways to or in connection with any sewers or works, or which they may require for making roads or ways during the construction of any sewerage works, or for spoil banks or places of deposit of surplus earth or other materials in the execution of any such works. Section 25 enables the London County Council to make and Accommoda- maintain certain accommodation works, or in lieu thereof to pay compensation . Sections 34 and 35 place limitations on the powers of the London Works affeet- r L . mg railways County Council and a borough council to enter upon any private and canals. lands on payment of compensation (x). Where the proposed works will interfere with any railway or canal, notice must be given to O) North London Rail. Co. v. Metropolitan Board of Works (1859), 28 L. J. Cli. 909. 350 METROPOLIS MANAGEMENT ACTS. the company affcctocl before the works are commenced, with a plan or section showing the nature of the proposed interference. If the company object on account of the probable interruption or endangering of the traffic thereon, the manner of executing the works is to be settled by an engineer appointed by the Board of Trade. The consent of the Board of Trade is required before the levels of a canal or railway can be interfered with, unless the owning companies consent (y) . These provisions do not affect the rights of railway and canal companies to compensation for the taking or injuriously affecting any land of" property of the company, or interrupting the traffic on the railway or canal, or to any damages or costs or expenses which the company is required to pay in consequence of the interruption . "Michael Section 73 extends and applies to all the metropolis the provisions Taylor's of 57 Geo. 3, c. xxix., " An Act for better paving, improving, and regulating the streets of the Metropolis, and removing and pre- venting Nuisances and Disturbances therein." Questions of compensation often arise under 57 Geo. 3, c. xxix. (commonly known as Michael Angelo Taylor's Act) (z). There are differences as to matters of procedure between the compensation sections of this Act (80 — 96) and the Lands Clauses Acts, but on matters of principle the same considerations apply, and compensa- tion is assessable on the same basis as it would be under the com- bined effect of the Lands Clauses Acts, and the Acquisition of Land (Assessment of Compensation) Act, 1919(a). House or land Before taking any lands or houses, &c. under the Act, the local must be . , i • t i i i i adjudged authority must, by resolution, adjudge that the same are obstruc- d os™ 'ive, anc ^ *hat P osse88 i° n of them is required for the purpose of sion thereof widening or altering the streets {aa) . If this adjudication is 9ary ' honest and bond fide, it will not be interfered with even though it is erroneous (&); but it must be honest and bond fide (r), and it cannot be validly made before the nature of the improvement (y) See also saving in Public Health (London) Act, 1891, s. 136, as to canals. (z) Appendix, p. 520. (a) 9 & 10 Geo. 5, c. 57. (aa) 57 Geo. 3, c. xxix. b. 80. (6) Thomas v. Daw (1866), L. R. 2 Oh. 1; 36 L. J. Ch. 201; Gard v. Commissioners of Sewers (1884), 28 Oh. D. 486; Gordon v. St. Mary Abbott's, Kensington, Vestry, [1894] 2 Q. B. 742; 63 L. J. M. O. 193; Parry v. Mayor, $o. of Hammersmith (1904), 21 Times L. R. 56. (c) Gard v. Commissioners of Sewers (1884), 28 Ch. D. 486; Lynch v. Com- missioners of Sewers (1886), 32 Oh. D. 72; 55 L. J. Ch. 409; Fernley v. Limehouse Board of Works (1899), 68 L. J. Ch. 344; (1900), 82 L. T. 524. METROPOLIS MANAGEMENT ACTS. 351 has been substantially decided upon (d) . Where the local authority had agreed to sell a house adjudicated necessary to a third party, thus depriving the owner of his right of pre-emption under section 96, it was held that the adjudication was not an honest one(e); but a prior arrangement with regard to the resale of so much of a building as is not required for widening, subject to the owner's right of pre-emption, does not vitiate any adjudication upon the question of necessity (/). Where by agreement between the local authority and the London County Council a tramway was to be laid down and certain authorized widenings to be made in connection therewith, of which the local authority were to pay part of the expense, the adjudication by the local authority was held to be bond fide (g). Unless the statutory provisions axe complied with, the local authority will be restrained from pro- ceeding (h). It has been held that under section 80 the local authority are Part of a entitled to take portion only of any house or land (7i\ but in order houee - to justifj' such a course the facts must be such that persons acting in a quasi-judicial capacity can honestly come to the conclusion that it is unnecessary to take the whole (i). The owner (/c) can compel them to take the whole of a house if the removal of the part will substantially alter the character or condition of the house (I), or injure the enjoyment of the house in the manner in which it was formerly enjoyed (m); and will not necessarily be deprived of this right by negotiations for the sale of a part (■»). The mere fact that the claimants bought the land, the subject of the claim, (d) Lynch v. Commissioners of Sewers (1886), 32 Cli. D. 72; 55 L. J. Ch. 409. (e) Femiey v. Limehonse Board of Works (1899), 68 L. J. Ch. 344. (/) Pescod v. Westminster Corporation, [1905] 2 Ch. 475. (g) Tarry v. Mayor, §c. of Hammersmith (1904), 21 Times L. R. 56. (») Thomas v. Pair (1S66), L. R. 2 Oh. 1; 36 L. J. Ch. 201; Lynch v. ■Commissioners of Sewers (1S86), 32 Ch. D. 72; 55 L. J. Ch. 409. (») Paries v. Corporation of the City of London, [1913] 1 Ch. 415; and cases cited therein. (7c) The wishes of the freeholder must be considered as well as those of the tenant: Beyfus v. Westminster Corporation (1914), 84 L. J. Ch. 838. (I) Gordon v. St. Mary Abbott's, Kensington, Vestry, [1894] 2 Q. B. 742; 63 L. J. M. O. 193; Thompson v. Hammersmith Corporation, [1906] 1 Ch. 299. («») Gordon v. St. Mary Abbott's, Kensington, Vestry, supra; Gibbon v. Paddington Vestry, [1900] 2 Ch. 794; 69 L. J. Ch. 746; Paries v. Corporation of the City of London, [1913] 1 Ch. 415: Beyfus v. Westminster Corporation (1915), 84 L. J. Ch. 838; and in the ease of a factory, Green v. Hackney Corporation, [1910] 2 Ch. 105. (») Gibbon v. Paddington Vestry, [1900] 2 Ch. 794; 69 L. J. Ch. 746. 352 METROPOLIS MANAGEMENT ACTS. with a knowledge of the scheme does not preclude them from relief (o). The whole of a house cannot be taken when, in fact, a part only of it is obstructive (p), even if the removal of the part actually required would destroy the identity of the house as a house (q), unless it can be shown that it is necessary that the whole should be taken (r), or that the remaining portion is useless to the owner (q). The attitude which the owner takes up is not to be disregarded, for by demolishing part only the local authority maj' leave a part which the owner is willing and desirous to make by reconstruction into an effectual house (s). The question will be one of fact in each particular case (t), and the various decisions are not altogether reconcileable . to treat -^ ne ■^■°^ ^ oes n °t re q uire a notice to treat (u), but it is usual to serve one. If a notice is served, its operation will be governed by the same principles as those governing a notice to treat under the Lands Clauses Act, 1845, and the Acquisition of Land (Assessment of Compensation) Act, 1919 (x); it must be treated as good or repudiated as a whole, and when repudiated may be withdrawn altogether by the local authority {y). The questions arising out of the payment of compensation into Court in proceedings under this Act have been dealt with under the general heading (z) . (o) Thompson v. Hammersmith Corporation, [1906] 1 Ch. 299. (jf>) Gard v. Commissioners of Sewers (1884), 28 Ch. D. 486; Teuliere v. St. Mary Abbott's, Kensington, Vestry (1885), 30 Ch. D. 642; 55 L. J. Oh. 23; Aldis v. London Corporation, [1899] 2 Ch. 169; 68 L. J. Ch. 576. Cf. Fertile? v. Limehoitse Board of Works (1899), 68 L. J. Ch. 344. (g) Aldis v. London Corporation, [1899] 2 Oh. 169; 68 L. J. Ch. 576. (r) Fernley v. Limehoitse Board of Works (1900), 82 L. T. 524. (s) /. L. Denman § Co. v. Westminster Corporation, [1906] 1 Ch. 464,. followed Daines v. Corporation of the City of London, [1913] 1 Ch. 415. As to where there are several owners in one house, see Pescod v. Westminster Cor- poration, [1905] 2 Ch. 475. (t) G-ard v. Commissioners of Sewers (1884), 28 Ch. D. 486, per Bowen, L. J., at p. 513. (it) Lynch v. Commissioners of Sewers (1886), 32 Ch. D. 72, per Cotton, L. J., at p. 85; 55 L. J. Oh. 409. (x) Birch v. St. Marylebone Vestry (1869), 20 L. T. 697; Ecclesiastical Commissioners v. Commissioners of Sewers (1880), 14 Ch. D. 305; Wild v. Woolwich Borough Council, [1910] 1 Ch. 35. Vide ante, pp. 55, 65, 326. (y) Wild v. Woolwich Borough Council, [1910] 1 Ch. 35. (z) Book I., Chap. XVII., p. 248. METROPOLIS MANAGEMENT ACTS. 353 The Metropolis Management (Thames River Prevention of Metropolis Floods) Amendment Act, 1879, empowers the London County ^Xenf Council to take and use premises required for the purpose of Aot > 1879 - executing flood works. The provisions of sections 152 and 153 of the Metropolis Local Management Act, 1855, apply when lands are taken under the Act of 1879, and the word " owner " has the same meaning as in the Lands Clauses Act, 1845. Compensation in respect of injury done or lands taken under the Compensation Act of 1879 is settled by a standing arbitrator. The appointment gL^ai diree- of the arbitrator and proceedings before the arbitrator are regulated ti°ns. by sections 27 and 28. The amount of compensation under section 26 is assessed subject to the following special direc- tions (a): — (a) The validity of the claim is to be decided by the arbitrator. (b) Compensation is to be assessed in regard to the nature of the flood works and the manner in which they have been executed . (c) The benefit which has accrued or which may reasonably be expected to accrue to the claimant by reason of the execution of the works is to be taken into account (b). (d) The arbitrator may include or exclude an allowance in respect of compulsory powers. (e) The arbitrator may make such order as he thinks just as to payment of costs wholly or in part by the board or the claimant. The larger metropolitan street improvements are carried out under private Acts which, subject to special exceptions, incorporate the Lands Clauses Acts (c) . (a) As to the effect of the general provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919, on special directions of this nature in an Act of local applicability, see. Mayor, #c. of Blackpool v. S,tarr Estates, Ltd., [1922] 1 A. C. 27. (b) Cf. Light Railways Act, 1896, s. 13, post, p. 613. (c) Cf. London County Council (Improvements) Act, 1897 (60 & 61 Vict, c. ccxlii.) (Holborn to Strand). C. 23 354 CHAPTER V. LAND TAKEN UNDER THE HOUSING OF THE WORKING CLASSES AND TOWN PLANNING ACTS (fl) . Certain new principles. Act of 1890. Act of 1919 not generally applicable to Parts I. and II. Section I. — Housing. Certain new principles of compensation were introduced into a series of Acts which contained provisions regulating the taking of lands and the assessment of compensation when it was desired to provide better accommodation for the poorer classes or to deal with insanitary areas in towns. These Acts are now all repealed and superseded by the Housing of the Working Classes Act, 1890 (53 & 54 Vict. c. 70), with the amending Acts of 1900 and 1903 (63 & 64 Vict. c. 59, and 3 Edw. 7, c. 39), the Housing, Town Planning, &c. Act, 1909 (9 Edw. 7, c. 44), and the Housing, Town Planning. &c. Act, 1919 (9 & 10 Geo. 5, c. 35) {ad). The repealed Acts fell into three classes, and this division has been preserved in the Act of 1890 and the subsequent Acts. Part I. of the Housing of Working Classes Act, 1890 (which is here called the principal Act), deals with "Unhealthy Areas," Part II. with " Unhealthy Dwelling-Houses," and Part III. with "Working Class Lodging Houses." The provisions with respect to the purchase and taking of lands otherwise than by agreement under Part I. and Part II. of the principal Act are not — as far as the rules for assessing compensa- tion are concerned — affected by the Acquisition of Land (Assess- ment of Compensation) Act, 1919 (6). Section 7 of the latter Act (c) contains a proviso to the following effect: — " Nothing in this Act relating to the rules for assessing compensation shall affect any special provisions as to the assessment (a) As to payment of money into Court, see ante, Chap. XVII., pp. 248, 265. (aa) Certain minor amendments, unconnected with compensation, were enacted by the Housing Act, 1921 (11 & 12 Geo. 5, u. 19). (i) 9 & 10 Geo. 5, c. 57. (c) 9 & 10 Geo.. 5, «. 57. HOUSING AND TOWN PLANNING. 355 of the value of land acquired for the purposes of Part I. or Part II, of the Housing of the Working Classes Act, 1890 .... and contained in that Act or any Act amending that Act, if and so far as the provisions in those Acts are inconsistent with the rules under this Act, and the provisions of the Second Schedule to the Housing of the Working Classes Act, 1890, as amended by any subsequent enactment (except paragraphs (4), (5), (29) and (31) thereof) shall apply to an official arbitrator as they apply to an arbitrator appointed under that schedule, and an official arbitrator may exer- cise all the powers conferred by those provisions on such arbitrator." The provisions with respect to the purchase and taking of lands Butapplicable otherwise than by agreement under Part III. of the principal Act are, however, governed by the Acquisition of Land (Assessment of Compensation) Act, 1919, and it must be borne in mind that the provisions of the Act or Order by which the land is authorized to be acquired have effect subject to the Acquisition of Land (Assessment of Compensation) Act, 1919, in relation to matters dealt with in that Act, and so far as inconsistent with that Act the provisions of the Act or Order authorizing the taking of the land have no effect (d). The provisions with regard to the sanctioning authorities and to the extent of the purposes for which land can be acquired by local authorities under these Acts are not here dealt with as they do not come within the scope of this book . Part I. of the Housing of the Working Classes Act, 1890, deals Part I. with unhealthy areas. Improvement schemes under the Act are ^* aIthy carried out under a provisional order (e), It would seem that the notice under section 7 (b) creates no legal relationship between the parties such as that created by a notice to treat under the Lands Clauses Act, 1845 (/). When the confirming Act has been passed authorizing an improvement scheme, it is the duty of the local authority to take steps for purchasing the land required for the scheme (g). (rf) 9 & 10 Geo. 5, o. 57, s. 7 (1). (e) Ss. 7 and 8, as amended by 3 Edw. 7, c. 39, 3. 5, and 9 Edw. 7, c. 44, s. 24 (1) and sched. 6. (/) Burges v. Bristol Urban Sanitary Authority (1886), 2 Times L. E. 719, on the similar provisions of the Public Health Act, 1875, s. 175 ; London C. C. v. Wilson's Executors, [1916] 1 K. B. 837. (?) S. 12. Certain leasehold interests need not be acquired: 9 & 10 Geo. 5, o. 35, sched. 2. 23 (2) 356 HOUSING AND TOWN PLANNING. Purchase of Th.e local authority may take by agreement any lands required agreement. for the purpose of carrying into effect the scheme authorized by the confirming Act; but may only exercise compulsory powers over lands proposed by the scheme in the confirming Act to be taken compulsorily. The provisions of the Lands Clauses Acts with respect to the purchase and taking of lands otherwise than by agreement only apply to the extent set forth in the second schedule to the principal Act. In other respects the Lands Clauses Acts are incorporated (h). Special provi- j n a8se8srno - the compensation (i) — sion as to oom- ° r ^ ' pensation. (l.)--(a) the estimate of the value of the lands or interests shall be based upon the fair market value (k), as estimated at the time of the valuation being made, due regard being had to the nature and then condition of the property, and the probable duration of the buildings in their existing state, and to the state of repair thereof without any addi- tional allowance in respect of the compulsory purchase of an area or of any part of an area in respect of which an official representation has been made (I), or of any lands included in a scheme which, in the opinion of the arbi- trator, have been so included as falling under the de- scription of property which may be constituted an un- healthy area under Part I. (m); and (b) in such estimate any addition to or improvement of the pro- perty made after the date of the publication of the ad- vertisement of the scheme shall not (unless such addition or improvement was necessary for the maintenance of the property in a proper state of repair) be included, nor in the case of any interest acquired after that date shall any separate estimate of the value thereof be made (A) S. 20. Wilkins v. Birmingham Corporation (1883), 25 Ch. D. 78, 81; London C. C. v. Wilson's Executors, [1916] 1 K. B. 837. (i) In certain cases these provisions do not apply: 9 & 10 Geo. 5, c. 35, s. 9 (2), post, pp. 359, 560. (&) In n Chandler's Wiltshire Breioery Co. and London C. C, [1903] 1 K. B. 569. The estimate is not limited to the value of the property as given in the estimate under the scheme provided for by ss. i and 6: Dye v. Patman (1898), 46 W. R. 200. (1) Lord Mayor of Dublin v. Dowling (1880), 6 L. R. Ir. 502. (m) Gough v. Mayor, $c. of Liverpool (1891-2), 7 Times L. R. 581 ; 8 Time? L. R. 247, 323. HOUSING AND TOWN PLANNING. 357 so as to increase the amount of compensation payable (n) ; and (2.) In the case of a house or premises situate within an un- healthy area evidence is receivable to prove (o) — (1st) that the rental of the house or premises was enhanced by reason of the same being used for illegal purposes or being so overcrowded as to be dangerous or injurious to the health of the inmates; or (2ndly) that the house or premises are in such a condition as to be a nuisance within the meaning of the Acts relating to nuisances, or are in a state of defective sanitation, or are not in reasonably good repair; or (3rdly) that the house or premises are unfit, and not reasonably capable of being made fit, for human habitation; and, if the arbitrator is satisfied by such evidence, then the com- pensation — (a) shall in the first case so far as it is based on rental be based on the rental which would have been obtainable if the house or premises were occupied for legal purposes and only by the number of persons whom the house or premises were under all the circumstances of the case fitted to accommodate without such overcrowding as is dangerous or injurious to the health of the inmates; and (b) shall in the second case be the amount estimated as the value of the house or premises if the nuisance had been abated, or if they had been put into a sanitary condition, or into reasonably good repair, after deducting the estimated expense of abating the nuisance, or putting them into such condition or repair, as the case may be; and (c) shall in the third case be the value of the land, and of the materials of the buildings thereon. Section 121 of the Lands Clauses Act, 1845, as to compensation for interests less than a year(p), and section 133, as to making good deficiency in land tax and poor's rate (q), are incorporated. Before applying to the arbitrator to determine the compensation O) Higgins v. Mayor of Dublin (1891), 28 L. B. Ir. 484. (o) Cf. B . 41, post, p. 364, and 9 Edw. 7, c. 44, s. 29, post, p. 360. {p) Wilkins v. Birmingham Corporation (1883), 25 Ch. D. 78; 53 L. J. Oh. 93. (?) St. Leonard's, Shoreditch, Vestry v. London C. C, [1895] 2 Q. B. 104; 34 L. J. Q. B. 615. 358 HOUklNG AND TOWN PLANNING. Easements. Procedure to assess com- pensation. Enlargement of powers of arbitrator. Taking part of house, building, or manufactory. in respect of any particular lands or interests the local authority are to send by post a notice of their intention to the owners or reputed owners (r) . Upon the purchase of lands, rights of way and other easements are extinguished, and any person who has sustained loss is entitled to compensation (s), to be determined in the manner in which compensation for lands is determinable under the Act, or as near thereto as circumstances admit (i). This provision extends to rights of light (w), and includes cases where a right or easement is in process of being acquired by enjoyment under the Pre- scription Act at the date when the local authority acquire the land {x) . Such an inchoate right may be taken into consideration in assessing the amount of compensation, but the extinction is absolute, and the time for prescription can only begin to run afresh, even if the local authority do nothing to obstruct the inchoate right, from the date of such extinction (x). The adjoining owner, who is deprived of his light by the action of the local authority, is entitled to compensation to the extent to which the value of his house is affected by the operation of section 22 (y) . The procedure to assess compensation under the principal Act, Part I., will be found in the Appendix, p. 539. The special powers of an arbitrator under the principal Act are now as follows: — ■ 1 . An arbitrator has the same powers for apportioning any rent- charge, chief or other rent, payment or incumbrance, or any rent payable in respect of lands comprised in a lease as two justices have under the Lands Clauses Act, 1845 (z). 2 . Notwithstanding anything in section 92 of the Lands Clauses Act, 1845, the arbitrator may determine that such part of any (r) S. 6, as amended by 9 & 10 Geo. 5, c. 35, sohed. 2. As to the date for assessing value, see London C. C. v. Wilson's Executors, [1916] 1 K. B. 837. (s) Swainston v. Finn and Metropolitan Board of Works (1883), 52 L. J. Ch. 235; Badham v. Karris (1882), 52 L. J. Ch. 237, n. (0 S. 22, and 9 Edw. 7, u. 44, s. 27. (m) In such a case compensation cannot be awarded for loss of profit or goodwill in a trade or business carried on in the premises: In re Harvey and London C. C, [1909] 1 Ch. 528. (*) Barlow v. Boss (1890), 24 Q. B. D. 381; 59 L. J. Q. B. 183. (y) S. G. Of. In re London, Tilbury § Southend Rail. Co. and Gower's Walk Sc/wols (1889), 24 Q. B. D. 326, 331; 59 h. J. Q. B. 162. (z) Schedule 2, par. 11. HOUSING AND TOWN PLANNING. 359 house, building, or manufactory as is proposed to be taken by the local .authority can be taken without material damage to such house, building, or manufactory, and, if he so determine, may award compensation in respect of the severance of the part so proposed to be taken in addition to the value of that part, and thereupon the party interested shall be required to sell and convey to the local authority such part without the local authority being obliged to purchase the greater part or whole of such house, building, or manufactory (a). Where land included in any scheme made under Part I. of Provisions as the principal Act (other than land included in such a scheme only men t of com- for the purpose of making the scheme efficient and not on account pensation. of the .sanitary condition of the premises thetreon or of those premises being dangerous or prejudicial to health) is acquired compulsorily, the compensation to be paid for the land, including any buildings thereon, shall be the value at the time the valuation is made of the land as a site cleared of buildings and available for development in accordance with the requirements of the build- ing byelaws for the time being in force in the district (b) ; and to these lands the provisions of section 21 of the principal Act cease to apply in so far as they are inconsistent or in conflict with the above provisions (c) . These provisions do not apply to land which is not " unhealthy," and is only included for the purpose of making the scheme efficient. In such a case the provisions of section 21 of the prin- cipal Act apply without modification (d) ■ The more important provisions of section 21 of the principal Act are shortly as follows: — The estimate of the value is to be based on the fair market value (e), due regard being had to the nature and condition of the property and buildings, without any additional allowance for compulsory purchase in the case of unhealthy lands. Additions and improvements subsequent to the advertisement of the scheme (directed to be issued under section 7) are not normally to be (o) Schedule 2, par. 12. (b) 9 & 10 Geo. 5, c. 35, a. 9 (1). (o) S. 9 (2). (d) And have been held to include loss of trade profits: Lord Mayor of Dublin v. Bowling (1880), 6 L.. R. Ir. 502, 509. As to a, covenant tying a public-house, see In re Chandler's Wiltshire Brewery Co.. and London C. C, [1903] 1 K. B. 569. (e) See Gough v. Liverpool Corporation (1891), 65 L. T. 512. 360 HOUSING AND TOWN PLANNING. allowed for, nor are interests subsequently acquired to be separately valued so as to increase the compensation (e) . Evidence is admissible as to nuisance, defective sanitation or repair, or unfitness for human habitation and of the rental being enhanced by reason of user for illegal purposes or overcrowding (/). In which cases there are special rules limiting the amount of compensation. If in the opinion of the Ministry of Health it is necessary that provision should be made by the scheme for the re-housing of persons of the working classes on the land or part thereof when cleared, or that the land or a part thereof when cleared should be laid out as an open space, the compensation payable to all persons interested in any " unhealthy " land included in the scheme (but not land included only to make the scheme efficient) is to be reduced by a proportion based on the difference in values between an ordinary cleared site and a cleared site under the scheme. Omitted The amount of purchase-money or compensation to be paid in pursuance of section 124 of the Lands Clauses Act, 1845, in respect of any estate, right or interest in or charge affecting any of the scheduled lands, under Part I., which the local authority have, through mistake or inadvertence, failed or omitted duly to purchase or make compensation for, shall be awarded by the arbitrator and be paid, in like manner, as near as may be, as the same would have been awarded and paid if the claim had been delivered to the arbitrator before the day fixed for the delivery of statements of claim (g) . Where the interest of a landowner was omitted from a pro- visional award, it was held that he was nevertheless a person interested in the award, and that the arbitrator could consider his claim, and alter the award by inserting the amount of his interest (h) . Cost8 - If the arbitrator is satisfied that the failure or omission to purchase an estate, right, interest or charge arose from any default on the part either of the claimant or tof the local authority, he may direct the costs to be paid by the party so in default (i). (e) See HUjcfins v. Lord Mayor, cfe. of Dublin (1901), 28 L. R. ir. 484. (/) And see 9 Edw. 7, u. 44, a. 29. (ff) Schedule 2, par. 13. O) Oarr v. Metropolitan Board of Worles (1880), 14 Ch. D. 807. (i) Schedule 2, par. 13. This is probably not inconsistent with the provisions of s. 5 of 9 & 10 Geo. 5, o. 57. HOUSING AND TOWN PLANNING. 361 Part II. of the principal Act, after dealing with the closing and P^t H- demolition of dwelling-houses unfit for human habitation, contains Unhealthy oo ■•it • dwe llin g- in section 38 provisions dealing with obstructive buildings, which houses. are defined as buildings which, although not in themselves unfit Demolition of for human habitation, are so situate that by reason of proximity buildings™ 5 to, or contact with, any other buildings, they cause one of the following effects: — (a) Stop or impede (fc) ventilation, or otherwise make or conduce to make the other buildings to be in a condition unfit for human habitation, or dangerous or injurious to health; or (b) Prevent proper measures from being carried into effect for remedying any nuisance injurious to heaith, or other evils complained of in respect of such other buildings. Where a local authority direct the demolition of an obstructive building, sub-sections 4 — 9 of section 38 apply. Notice of the intention of the local authority to consider the demolition must be served on the owner (J) . The point of time at which ownership is determined is the date of the service of notices of an intention to consider the making of a demolition order and not the date of the order (I) . By sub-section 4, when the order of demolition is made and is not appealed against, or is unsuccessfully appealed against, the local authority may purchase the lands on which the obstructive building is erected as if they had been authorized by a special Act to pur- chase the same. The purchase may be effected at any time within a year after the making of the order, or if it is appealed against from the date of its confirmation. The provisions of the Lands Clauses Acts and Acquisition of Land (Assessment of Compensa- tion) Act, 1919, as to the purchase of lands otherwise than by agreement, apply to a purchase under this sub-section, subject, however, to the provisions of Part II. of the principal Act (m). By sub-section 5, the owner of the lands may, within a month Right of after receiving notice to purchase, declare that he desires to retain retain site, the site of the obstructive building, and undertake to pull down, (k) 9 Edw. 7, o. 44, sohed. 2. (0 S. 38 (3). See B. v. St. Marylebone Vestry (1887), 20 Q. B. D. 415; 57 L. J. M. G. 9. The expression "owner" includes leasees and mortgagees except persons holding ox entitled to the rents and profits under a lease the original term whereof is less than twenty-one years: 9 Edw. 7, e. 44, s. 49 (2). O) S. 41, post, pp. 364, 536. 362 HOUSING AND TOWN PLANNING. or let the local authority pull down, the building. On giving this notice and undertaking, the owner of the site is entitled to retain the site, and to receive compensation from the local authority for the pulling down of the building. By sub-section 6, the amount of compensation for pulling down the building and the amount of compensation on the purchase of the site are, in case of difference, to be settled by arbitration in manner provided by Part II. of the principal Act (m) . Power to take Where the local authority has powers of compulsory purchase, obstructive tne owner of a house or other building (n) or manufactory cannot building. insist on his entire holding being taken where part only is proposed to be taken as obstructive, and where, in the opinion of the arbitrator to whom the question of disputed compensation is sub- mitted, such part can be severed from the remainder of the house or factory without material detriment thereto, provided that the arbitrator may award compensation for severance in addition to the value of the part taken (o). Amount of The amount of compensation where the site is retained, and the and^urohase- amount of purchase-money where the site is taken, and the appor- money. tionment of such compensation and purchase-money (p), are, in case of difference, to be settled by arbitration, as provided by section 41 of the principal Act. Contribution By section 38 (8), where, in the opinion of the arbitrator (q), b^nented™ 1868 the demolition of an obstructive building adds to the value of other buildings by removing the obstruction as defined in sec- tion 38 (1), the arbitrator has power to apportion so much of the compensation to be paid for the demolition of the obstructive building as may be equal to the increase in the value of such other buildings, amongst such other buildings respectively. The amounts apportioned are to be deemed private improvement expenses, and improvement rates may be levied on the occupiers of such premises accordingly (r). By section 38 (9), if any dispute arises between (m) S. 41, post, pp. 364, 536. (») 9 Edw. 7, o. 44, sehed. 2. 0) S. 38 (7). (p) 9 Edw. 7, v. 44, o. 28 (1). Where the amount has been settled otherwise than by arbitration under the principal Act the apportionment may be made by an arbitrator specially appointed for the purpose: ». 28 (2). It is not clear whether such an arbitration would be within the Acquisition of Land (Assess- ment of Compensation) Act, 1919. (?) Similar provisions to those in note (p) apply aa to the apportionment of the betterment charge: 9 Edw. 7, o. 44, s. 28 (2). (r) The " principle of betterment," vide ante, p. 315. HOUSING AND TOWN PLANNING. 363 the owner or occupier of any such building and the arbitrator by whom the apportionment is made, such dispute is to be settled by two justices in manner provided by the Lands Clauses Act, 1845, in cases where the compensation claimed in respect of lands does not exceed 50 1. Under section 39 of the principal Act, the local authority may Reoonstruc- direct the preparation of a reconstruction scheme in the following tlon scheme - cases : — (1 ) Where an order for demolition of an insanitary or obstructive building has been made (s), and where it seems expedient to utilize the site of the building ordered to be demolished, (a) as a highway or open space, (b) for dwellings of the working classes, or (c) for exchange for other land more suitable for the erection of such dwellings. (2) Where the demolition, reconstruction, and rearrangement of any buildings (which with their appurtenances are too small to constitute an unhealthy area under Part I. of the principal Act) would remove conditions dangerous or prejudicial to the health of the inhabitants of the buildings in question or neighbouring build- ings, arising from the closeness, narrowness, or bad condition of the buildings in question, or the want of light, air, or ventilation, or any other sanitary defect. Notice of the scheme is served in the same way as notice of a scheme under Part I. of the principal Act, and the local authority has to obtain from the Ministry of Health an order sanctioning the scheme. The order may incorporate the provisions of the Lands Clauses Acts, and so far as it does so is to be deemed the special Act, and the local authority the promoters (t). Upon sanction of the scheme the local authority may purchase the area comprised in the scheme (w) . The local authority must acquire the scheduled area within three years from the confirmation of the order (a;), and the provisions of Part I. of the Act as to the extinction of rights of way and other easements apply also to a reconstruction scheme (y) . In all cases in which the amount of compensation, under Part II. Assessment L . . of eompenaa- of the principal Act, is to be settled by arbitration, similar pro- tion. visions to those under Part I. (z), where "unhealthy" land is (s) Vide ante, pp. 361, 362. (t) S. 39 (7). («) S. 39 (4). O) S. 39 (7). (y) S. 39 (8). 0) Vide ante, p. 359. 364 HOUSING AND TOWN PLANNING. Part III. ' ' Working class lodging houses." Power to acquire lands compulsorily. Speoial procedure. being acquired have effect, section 41 of the principal Act taking the j)lace of section 21. The provisions of section 41 are substantially the same as those in section 21 with the exclusion of the provisions as to additions and improvements subsequently made and interests subsequently acquired, but in addition allowance is made in respect of any increased value given to other dwelling-houses of the same owner by the alteration or demolition by the local authority of any buildings (a). The remainder of the provisions of section 41 are set out in the Appendix at p. 536, but the majority of these are no longer appli- cable, the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919, having taken their place. Part III. of the principal Act deals with the provision of working class lodging houses. This expression includes separate houses or cottages whether containing one or several tenements (6) ; the expression cottage may include a garden of not more than one acre (c) . The local authority has power to acquire lands compulsorily (d) for these purposes (e) under Part III. of the principal Act, section 57, as amended by section 2 of the Housing, Town Plan- ning, &c. Act, 1909. These powers have been extended (/) to include power — (a) to acquire any houses or other buildings standing on the proposed site; (b) to acquire houses which might be made suitable for the working classes together with any lands occupied there- with. Section 57 of the principal Act incorporated sections 175 — 178 of the Public Health Act, 1875, but for the provisions of the operative section 176 has been substituted the procedure under section 2 of the Housing, Town Planning, &c. Act, 1909, which (a) S. 41 (2) (b); the "principle of betterment," vide ante, p. 315. (J) 53 & 54 Viet. o. 70, ». 53 (1) . (e) 9 Edw. 7, o. 44, s. 50. (d) But not the lands of local authorities or public undertakers, or parks, gardens, pleasure grounds, &o. : 9 Edw. 7, u. 44, a. 45. (e) Lands so acquired can be used for any purpose within this part of the principal Act, and the deposited plana need not be adhered to: Bradshaw v. Bray V. B. 0., [1907] 1 Ir. E. 152. (/) 9 & 10 Geo. 5, u. 35, s. 12 (1). HOUSING AND TOWN PLANNING. 365 procedure only applies in so far as it is not inconsistent with the procedure laid down by the Acquisition of Land (Assessment of Compensation) Act, 1919. The procedure under section 2 of the Act of 1909 is set out in the first schedule to the Act, which, inter alia, incorporates the Lands Clauses Acts (except section 127 of the Act of 1845) and the minerals clauses (sections 77 — 85) of the Railways Clauses Consolidation Act, 1845. Special power is given to enter on lands required for the purposes of Part III. of the principal Act after giving fourteen days' notice without previous consent or compliance with sections 84 — 90 of the Lands Clauses Consolidation Act, 1845, but subject to the payment of compensa- tion and interest thereon as if these sections had been complied with (g) . Paragraph 8 of the schedule provides that the arbi- trator shall so far as practicable in assessing compensation act upon his own knowledge and experience but subject as aforesaid is to hear by themselves or their agents any authorities or parties authorized to appear, and is to hear witnesses, but except in such cases as the Ministry of Health otherwise direct is not to hear council (sic) or expert witnesses (h) . Compensation for ecclesiastical lands is to be paid to the Eccle- Ecclesiastical siastical Commissioners and not as directed by the Lands Clauses Acts (i) . Certain general provisions are contained in the Acts applicable Provisions to all three Parts, the principles of which (so far as compensation a {j three is concerned) are as follows: — Parts. Where purchase-money or compensation is payable to a local Compensation authority it may be paid into Court (7c) or with the consent of the ^ ^"local Ministry of Health may instead be paid and applied as the authority. Ministry determine, the decision of the Ministry being final and conclusive (Z). (?) 9 & 10 Geo. 5, c. 35, a. 10 (1). S. 10 (2) makes similar provisions in the ease of purchase by agreement or appropriation of land in the possession of a tenant for a year or from year to year; see Lands Clauses Consolidation Act, 1845, B . 121, ante, p. 173. (h) It is difficult to say how far this is inconsistent with the provisions of tha Acquisition of Land (Assessment of Compensation) Act, 1919. See ss. 2 (3), 3 (1) and 7 (1) of that Act. (0 Par. 12. (k) 53 & 54 Vict. c. 70, ached. 2, par. 20, incorporating ss. 69—80 of the Lands Clauses Act, 1845. (0 9 Edw. 7, o. 44, s. 5. 366 HOUSING AND TOWN PLANNING. Deficiency in Section 133 of the Lands Clauses Consolidation Act (which land tax or poor's rate. provides for the land tax and poor's rate being made good by the promoters) (m) does not apply in the case of lands acquired by local authorities for the purpose of these Acts. Ancient N land which is the site of an ancient monument or other object of archaeological interest may be acquired for the purposes of these Acts (w). Commons and Provision embodying a reinstatement principle is made for the open spaces, protection of commons, open spaces, and allotments (o). Acquisition of For the purposes of a scheme under the Acts the local authority "" ' "'' '"" are authorized to abstract water from any river, stream, lake, &c, in like manner as they are authorized to acquire land, subject to a prior obligation of affording a sufficient supply of water to any riparian owners, &c. who are deprived of water by the abstrac- tion (p). Section II. — Town Planning. Town plan- Town planning schemes were introduced by the Housing, Town ning schemes. pi ajQn i ng; & c . Act, 1909, which empowered local authorities (q) to prepare such a scheme with the authority of the Local Government Board (r). Such a scheme may be made as respects any land which is in course of development or appears likely to be used for building purposes, with the general object of securing proper sanitary conditions, amenity, and convenience in connection with the laying out and use of the land and of any neighbouring lands (s). The expression "land likely to be used for building purposes " includes any land likely to be used for open spaces, roads, streets, parks, pleasure or recreation grounds, or for incidental purposes, and the decision as to whether land is likely to be used for building purposes rests with the Ministry of Health, (m) See ante, p. 299. («) 9 Edw. 7, o. 44, s. 45. (o) 9 Edw. 7, c. 44, s. 73. (p) 9 &, 10 Geo. 5, o. 35, s. 14. These powers are subject to the provisions of s. 52 of the Public Health Act, 1875, and do not apply to water already appropriated under statutory power or needed for canals, &c. (q) Alone or jointly with any other local authorities: 9 & 10 Geo. 5, c. 35, s. 42. (>-) The Housing, Town Planning, &o. Act, 1919, makes this authorization no longer necessary except in special cases: 9 & 10 Geo. 5, c. 35, s. 42. 0) 9 Bdw. 7, c. 44, s. 54 (1), as amended by 9 & 10 Geo. 5, c. 35, sched. 3. HOUSING AND TOWN PLANNING. 367 whose decision is final (t). The Ministry of Health have wide powers as to prescribing general and special provisions for carrying out any town planning schemes, which provisions take effect as part of the scheme (w). These powers are set out in the Fourth Schedule to the Act of 1909 and in section 55 (1) and (2) (x). The Ministry of Health may make regulations as to the procedure with regard to a scheme, including the publication of notices, and hearing of objections by persons affected (y) . Any person whose property is injuriously affected is entitled Injurious to compensation from the responsible authority if he makes a affeotlou - claim within the time limited by the scheme (z) . No claim can be Work done made on account of any building erected on or contract made or f^ ter resolu- other thing done with respect to land included in the scheme after the resolution of the local authority to prepare or adopt the scheme or after the date when such resolution takes effect, as the case may be (a) . The responsible authority can also make a claim as to betterment Betterment. and recover from any person whose property is increased in value one-half of the amount of the increase (&). The above sections do not deal with the acquisition of land com- Compensation pulsorily for the purposes of a town planning scheme, but only with taken, compensation for injurious affection, and consequently the assess- ment of such compensation is governed by the Town Planning Acts and not by the Acquisition of Land (Assessment of Compen- sation) Act, 1919. The question of whether compensation is payable and the amount of such compensation is to be referred to a single arbitrator appointed by the Ministry of Health, unless the parties agree upon (0 9 Edw. 7, c 44, s. 54 (7). («) 9 Edw. 7, o. 44, s. 55 (1) and (2). (») Post, pp. 557, 550. (y) 9 Edw. 7, o. 44, 3 . 56 and sched. 5, as amended by 9 & .10 Geo. 5, c. 35, uched. 3; post, pp. 551, 558. (z) 9 Edw. 7, o. 44, s. 58 (1). The time limited must not be less than three months after notice of approval of the scheme: ibid. («) 9 Edw. 7, o. 44, s. 58 (2), as amended by 9 & 10 Geo. 5, c 35, sohed. 3. See In re Ellis and Ruislip-N orthwood V. D. C-, [1920] 1 K. B. 343, 361. But this provision does not apply as regards work done before the date of approval of the scheme to complete a building or carry out a contract already commenced (ibid.), or where permission has been granted by the Ministry of Health to develop an estate, &c: 9 & 10 Geo. 5, c. 35, 3. 45. (6) 9 Edw. 7, c. 44, s. 58 (3); cf. ante, pp. 315, 362, 364. 368 HOUSING AND TOWN PLANNING. Determina- tion by Ministry of Health. some other method of determination (c). Compensation is also payable in respect of expenditure incurred by any person for the purpose of complying with a scheme which has been revoked, and is to bo assessed in a similar manner (d) . The amount due as compensation or for betterment may be recovered summarily as a civil debt (e). Where the provisions of a town planning scheme are such as would have been enforceable as byelaws (/) no compensation is payable in respect of their enforcement (g) ; nor where the pro- visions deal with the free space around the buildings (/), the number of buildings to be erected, or the height and character of the buildings, provided the Ministry of Health consider such pro- visions reasonable (i). Section 60 of the 1909 Act gives the responsible authority or local authority (k) power to purchase land for town planning schemes either by agreement or compulsorily with authorization. Where the land is to be acquired compulsorily the provisions of Part III. of the Housing of Working Classes Act, 1890 (I), apply as amended by sections 2 and 45 of the 1909 Act (m). It will be noticed that Part III. of the Act of 1890 is applied in its unamended form save for the amendments contained in sections 2 and 45 of the 1909 Act, and in the 1919 Act (n). Where the Ministry of Health are authorized to determine any matter with respect to a town planning scheme they may — except as otherwise expressly provided — determine the matter as arbi- trators, in which case, and where they are required so to act, the provisions of the Regulation of Railways Act, 1868 (o), respect- ing arbitrations by the Board of Trade and the enactments amend- ing those provisions are to apply (p) . (c) 9 Edw. 7, c. 44, s. 58 (4). (d) 9 Edw. 7, o. 44, s. 58 (6). (e) 8, 58 (5). (/) A " building- line " provision has been held not to come within either of these expressions: In re Ellis and Muislip-N orthwood U. J>. C ., [1920] 1 K. B. 343. (?) S. 59 (1). (i) S. 59 (2). (ft) S, 60 (2). (0 53 & 54 Vict. o. 70. (m) 9 Edw. 7, c. 44, s. 60 (1). («) 9 & 10 Geo. 5, c. 35, s. 40. (o) 31 & 32 Vict. c. 119. (?>) 9 Edw. 7, o. 44, s. 62. HOUSING AND TOWN PLANNING. 369 No person is to obtain compensation in respect of a town plan- ning scheme in addition to compensation in respect of the same matter or thing under any other enactment, and the amount of compensation in respect of a town planning scheme must not exceed the amount recoverable in respect of the samo matter or thing under any other enactment (q). The Housing (Additional Powers) Act, 1919, makes provision Garden cities, for the compulsory acquisition of land by the Minister of Health or a local authority (r) for the purpose of its development by one or more local authorities or by any authorized association as a garden city, suburb, or village. , The Minister has first to obtain the consent of the Treasury, and to consult with the Board of Trade, the Ministry of Agriculture and Fisheries, and the Minister of Transport (s) . The provisions of Part III. of the Housing Acts, 1890 to 1919, are to apply for the purposes of the acquisition of land (t), whether by the Minister or a local authority. An authorized association is any society, company, or body of persons approved by the Minister and not trading for profit or whose con- stitution forbids payment of a rate of interest or dividend greater than that authorized for the time being by the Treasury (w) . The Towns Improvement Clauses Act, 1847 (" An Act for consolidating in one Act certain provisions usually contained in Acts for paving, draining, cleansing, lighting and improving Towns ") (x), when incorporated with a special Act applies the provisions of the Lands Clauses Acts with certain minor amend- ments (y) . (?) S. 59 (3). , (r) S. 10 (3). (s) 9 & 10 Geo,. 5, o. 99, ». 10 (1); and see s. 15 (2). (0 S. 10 (2). («) S. 10 (4), as amended by the Housing Act, 1921 (11 & 12 Geo. 5, c. 19), 8. 6. (a) 10 & 11 Vict. c. 34. (y) Ss. 19 — 21 are the principal material clauses. 24 370 CHAPTER VI. AGRICULTURE AND ALLIED PURPOSES. Section I. — Small Holdings and Allotments. hm- a The Sma11 Holdings and Allotments Act, 1908 (a), consolidated Allotments, the law dealing -with the provision of allotments and small holdings by public authorities and with the acquisition of land for those purposes. This Act (called hereafter the principal Act) has been amended and extended by the Small Holdings Act, 1910 (b), the Small Holding Colonies Act, 1916 (c), the Acquisition of Land (Assessment of Compensation) Act, 1919 (d), and the Land Settle- ment (Facilities) Act, 1919 (e), which Acts now together form the code dealing with this subject. Section 7 (2) of the Acquisition of Land (Assessment of Com- pensation) Act, 1919, provides that the provisions of that Act are to apply in the case of compulsory hiring under the principal Act (/) or any Act amending the principal Act, and that any matter required to be determined (under those Acts) by a valuer appointed by the Ministry of Agriculture and Fisheries is to be determined by an official arbitrator under the Acquisition of Land (Assessment of Compensation) Act, 1919. It will be noticed that the wording of this sub-section differs somewhat from the wording of sub-section (1), which deals with O) 8 Edw. 7, u. 36, repealing 50 & 51 Vict. o. 48 (the Allotments Act, 1887); 53 & 54 Vict. c. 65 (the Allotments Act, 1890); 55 & 56 Vict. c. 31 (the Small Holdings Act, 1892). (Z>) 10 Edw. 7 & 1 Geo. 5, c. 34. (e) 6 & 7 Geo. 5, c. 38 (as amended and made perpetual by 9 & 10 Geo. 5, v--. 59, sched. 3). (d) 9 & 10 Geo.. 5, c. 57 (see s. 7 (2)). (e) 9 & 10 Geo. 5, o. 59. (/) It is not thought that this is intended to have effect in any way as » repeal, but merely to bring compulsory hiring within the terms of s. 7 (1). AGRICULTURE AND ALLIED PURPOSES. 371 the compulsory acquisition of land as distinct from the compulsory hiring. Section 7 (1) provides that the provisions of the Act by -which the land is authorized to be acquired or of any Act incor- porated therewith are to have effect (in relation to matters dealt with by the Acquisition of Land, &c. Aot, 1919) subject to the latter Act, and so far as inconsistent therewith are to cease to have or are not to have effect. The principal Act is divided into three parts, the first dealing with small holdings, the second with allotments, and the third with general matters, including the acquisition of land. Sections 7 (2) and 25 (2) empower county councils (and in Power to certain cases the Ministry of Agriculture and Fisheries (g)), and ao< l mreland - in the case of allotments borough, urban district or parish councils to acquire land compulsorily (h) for small holdings (i) or allot- ments (k). Sections 39 — 42 of the principal Act deal with the acquisition of land. Where a council propose to purchase land compulsorily they may submit to the Ministry an order (I) putting in force as respects the land specified in the order the provisions of the Lands Clauses Acts with respect to the purchase and taking of land otherwise than by agreement (to), subject to the provisions set out in Part I. of the First Schedule to the Act. This Schedule must now be read in conjunction with the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919. The Schedule provides for the incorporation of the Lands Clauses (?) S. 20; 9 & 10 Geo. 5, c. 59, ss. 3, 4. (A) For the case of an injunction restraining a county council from serving a notice for acquisition of lands and interfering with a public auction sale, see Gaslcell v. Somersetshire C. C. (1920), 18 L. G. R. 245. (») For the definition of small holding, see 8 Edw. 7, c. 36, ss. 42 and 61, and 9 & 10 Geo. 5, o. 59, ss. 17 and 20 (1). Of. Woodford Land and Building Co., Ltd. v. Woodford U. D. C. (1921), 19 L. G. R. 559. (k) See also 9 & 10 Geo. 5, o. 59, 63. 10 and 13. (I) The order when confirmed by the Ministry is final and not open to review by the Court: Mx parte Singer (1909), 25 Times L. R. 718. Cf. R. v. Bedford- shire C. C, [1920] 2 K. B. 465; Woodford Land and Building Co., Ltd. v. Woodford V. D. C. (1921), 19 L. G. R. 559. ()») S. 39 (1). The council have a power of entry on giving fourteen days' notice after service of notice to treat, and ss. 84 — 90 of the Lands Clauses Aot, 1845, do not apply, though compensation plus interest must be paid in a like manner. But when this power is made use of, the council cannot thereafter withdraw under ». 39 (8): 9 & 10 Geo. 5, c. 59, ». 2. 24 (2) 372 AGRICULTURE AND ALLIED PURPOSES. Acts (n), subject to the necessary adaptations, and sections 77 — 85- of the Railways Clauses Consolidation Act, 1845 (o), but the arbitration is to be before an official arbitrator (p), who shall, so far as practicable, in assessing compensation act upon his own knowledge and experience, though he is to hear the parties or their agents and witnesses, but not (except in such cases as the Ministry direct) counsel or expert witnesses (g) . There are provisions as to costs and the payment of compensa- tion monies with regard to ecclesiastical land similar to those already noticed under Part III. of the Housing Acts(r). The Land Settlement (Facilities) Act, 1919, "repealed one of the steps necessary for acquiring powers, namely, the submission of the order to, and its confirmation by the Ministry of Agricul- ture (s), but it introduced, by section 10, a fetter upon the exer- cise of powers which had not existed before, that is to say, it rendered the consent of the Ministry necessary to the exercise of the powers " (t) . The effect of this section is that the making of the order is conclusive evidence that it has been duly made and is intra vires (u) . Compulsory Where the council propose to hire land compulsorily (z), they may in a similar manner submit an order to the Ministry for hiring the land specified for any period not less than 14 nor more than 35 years («/), and the provisions of Part I. of the First Schedule apply in like manner as if the word " hiring " were substituted (n) The provisions of these Acts with regard to the sale of superfluous lands are now expressly excepted: 9 & 10 Geo. 5, c. 59, s. 12 (3), post, p. 594. (o) Ante, p. 131. As to the effect of this incorporation, see Earl of Carlisle v. Northumberland 0. G. (1911), 105 L. T. 797. O) 9 & 10 Geo,. 5, a. 57, ». 7 (1). (g) Schedule I. par. 5. (r) Ante, p. 365, and post, p. 577. (s) S. 1 (1). The repeal is only a temporary one for three years from the passing of the Act of 1919. (t) R. v. Bedfordshire 0. C, [1920] 2 K. B. 465, per Sankey, J., at p. 483; but see the exception to the necessity for consent contained in the last words of s. 10. Of. Gaakell v. Somersetshire C. C. (1920), 18 L. G. R. 245. (a) Woodford Land and Building Co., Ltd. v. Woodford U. D. C. (1921), 19 L. G. R. 559. (x) Similar provisions apply as to entry by notice after notice to treat: ante, p. 94; 9 & 10 Geo. 5, c. 59, s. 2 (4). (y) But subject to a right to renew the lease for a further similar period. In such a case, in reassessing the rent the arbitrator must not take into con- sideration any increase in value arising from the establishment of other small holdings or certain improvements: s. 44. AGRICULTURE AND ALLIED PURPOSES. 373 ior "purchase," but subject to the modifications contained in Part II. of that Schedule (z), and in the Acquisition of Land Assessment of Compensation) Act, 1919(a). The second part of the Schedule provides for the form of the lease to be granted, and sets out the matters which are to be determined by the official arbitrator in default of agreement. These are: — (a) The amount of rent to be paid by the council. Matters for (b) The amount of any other compensation to be paid by the determiaa- 8 council to any other person entitled in respect of the tion - land or any interest therein or in respect of improve- ments executed on the land or otherwise. (c) Where part only of a holding held for an unexpired term is hired the rent to be paid for the residue of the holding during the remainder of the term (b). There is a proviso which entitles a tenant in occupation to re- •quire, by notice in writing served on the council, that any claim he may have against the council under the Agricultural Holdings Act, 1908, may be determined under that Act, in which case the arbitration is to be under that Act and not under the principal Act. The official arbitrator in fixing the rent is to take the following Rent, matters into consideration: — (a) The rent (if any) at which the land has been let. (b) Assessments for Income Tax and Rating. (c) Loss by severance. (d) Terms and conditions of the lease (including any reser- vation of sporting or fishing rights) . (e) All other circumstances connected with the land. But the arbitrator must not make any allowance in respect of any possible future user of the land for purposes for which the owner is entitled under the Act to resume possession (c) . The compensation to a tenant for severance is as far as possible to be provided for in fixing the rent that he is to pay for the land remaining in his possession (d). The official arbitrator has wide powers of obtaining any assis- ts) S. 39 (2). The wording of Schedule I., Part II., has been amended by 9 & 10 Geo. 5, c. 59, sched. 2; cf. Knowles v. Salford Corporation (1922), 38 Times L. R. 316. (a) 9 & 10 Geo. 5, o. 57, a. 7 (2), ante, p. 321. (6) Schedule I., Part II., par. 3; and see 9 &10 Geo. 5, c. 57, s. 1 (1). (c) Schedule I., Part II., par. 4. (d) Schedule I., Part II., par. 5. 374 AGRICULTURE AND ALLIKD PURPOSES. Easements. Withdrawal of notice to treat after assessment of compensa- tion. Limited owners. Exempted lands. Provision for resumption by owner. tance, information, or explanation he may require, and of inspect- ing any books, vouchers, accounts, &c. (e). Provision is made in the principal Act for the continuance of any existing easement or the creation of new easements, which matters would fall to be taken into consideration by the official arbitrator in fixing compensation. Where the land is hired new easements are to be created for the term of the hiring only (/). When the amount of compensation or rent has been determined in respect of any land to be acquired or hired compulsorily the council may, if it appears that the land cannot be let for small holdings or allotments at such rent as to secure the council from loss, at any time within six weeks of the determination of the amount of compensation withdraw any notice to treat in respect of the land by a notice in writing. In such cases the persons who have been served with a notice of withdrawal may obtain compensation for an}- loss or expenses sustained or incurred by reason of the notices to treat and of withdrawal, and in default of agreement the amount of compensation is to be determined by arbitration (g). Certain limited owners are given powers to sell or lease land for the purposes of the Act (h) . Section 41 as modified by section 16 of the Land Settlement (Facilities) Act, 1919, protects from acquisition holdings of 50 acres or less in extent and land required for the amenity or con- venience of a mansion house, woodlands not wholly surrounded by or adjacent to land acquired by a council under the Act, and land the property of any local authority or public undertaker or which is the site of an ancient monument or other object of archa?ological interest (i) . The owner of land compulsorily hired can resume possession of the whole or part of such land, if he can show to the satisfaction of the Ministry that he requires it for building, mining, or other industrial purposes. He must give 12 months (k) notice in writing of his intention to resume, and where he resumes part only the amount of rent to be paid for the remainder must be determined in default of agreement by arbitration (Z). (e) Schedule I., Part II., par. 6. (/) S. 39 (4). Iff) S. 39 (8); of. 9 & 10 Geo. 5, c. 57, s. 5 (2). (A) S. 40. (s) And as to commons, &c, see 9 & 10 Geo. 5, c. 59, s. 28, post, p. 596. (&) Or such shorter notice as may be required by the order for compulsory hiring: 9 & 10 Geo. 5, c. 59, sched. 2. (0 8 Edw. 7, o. 36, s. 46. AGRICULTURE AND ALLIED PURPOSES. 375 Provision is made for the payment of compensation for improve- Compensation ... , . L tor improve- ments by the council to its tenants (m) and by the owner to the ments. council {n) and to the tenant in possession where notice to quit is given by the landlord or the council with a view to the land being used for small holdings (o) . As above stated, the clauses of the Lands Clauses Acts dealing Superfluous with superfluous lands do not apply to lands acquired under the au ' principal Act (p) . Section 15 of the principal Act and section 12 of the Land Settlement (Facilities) Act, 1919, deal with the disposal of superfluous land and give the council a free hand as to such disposal. But where the owner of a holding desires to use the holding for purposes other than agriculture, he must before doing so, offer it for sale first to the council and secondly to the original owner or his representatives. The principal Act applied sections 127 — 130 of the Lands Clauses Act, 1845, to such a transaction, but the effect of section 12 (3) of the Land Settlement (Facilities) Act, 1919, is apparently to repeal such application, leaving the procedure at large. The Small Holding Colonies Act, 1916 (q), deals with the ac- quisition of land by agreement only, and for that purpose and for the sale of superfluous land incorporates the Lands Clauses Acts (r) . Section II. — Economic Development of Land, &c, and Road Improvement. The Development and Eoad Improvement Funds Act, 1909 (s) *f™™ ^ (called hereinafter the Development Act), by Part I. constituted Commia- a body of Development Commissioners, with power to make sloners - orders (t) empowering government departments, public authorities, universities, colleges, schools, or institutions, or associations of persons or companies not trading for profit (s), to acquire land O) S, 47 (1), (3). O) S. 47 (2), and 9 & 10 Geo. 5, c. 59, s. 23. (o) 10 Edw. 7 & 1 Geo. 5, c. 34. Of. In re Evans and Glamorgan C. C. (1912), 28 Times L. R. 517. (p) Ante, p. 372. (?) 6 & 7 Geo. 5, u. 38, a9 amended by 8 & 9 Geo. 5, u. 26, and 9 & 10 Geo. 5, c. 59, sehed. 3. (r) S. 1 (4). (s) 9 Edw. 7, c. 47, s. 1 (1), post, p. 581. Of. Improvement of Land Aut, 1864 (27 & 28 Vict. o. 114). W S. 5 (1). 376 AGRICULTURE AND ALLIED PURPOSES. compulsory for the purposes specified in section 1 (1). The pro- cedure as to the compulsory acquisition of land is set out in the Schedule to the Act (u) . Where the land is to be acquired compulsorily by a government department or any local or public authority (x), the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919 (y), will apply, but not otherwise. The Schedule provides for the incorporation of the Lands Clauses Acts, and sections 77 — 85 of the Railways Clauses Con- solidation Act, 1845 (2), in the draft order (a), subject to certain modifications. The reference is to a single arbitrator, appointed by the Lord Chief Justice, who has special powers as to costs. There is no additional allowance for compulsory purchase, and there is a set-off of any betterment (b). Section 5 (2) of the Development Act protects from acquisition such places as parks, gardens, home farms, and the property of local authorities and public undertakings, &c, and ancient monu- ments, &c. The provisions of the Lands Clauses Acts as to the sale of superfluous lands are not to apply (c) . A portion only of a building may be acquired if the arbitrator is of opinion that severance will not be materially detrimental to the owner, and in such case compensation is to be paid for severance (d). The order may provide for the continuance of existing easements or the creation of new easements (,e) . Compensation monies for glebe, &c, are to be paid to the Ecclesiastical Commission (/) . Powers of Part II. of the Development Act deals with road improvement, Road Board. :_ and constitutes a Jtioad .Board with power to make advances to highway authorities for roads, and thereafter to authorize them O) Post, p. 585. (#) Vide ante, p. 320. («/) 9 & 10 Geo. 5, e. 57, ss. 1, 7, 12. (z) Ante, p. 131. O) Pars. 1 and 2. (S) Par. 2 (a), (b), (c). Vide ante, p. 315. O) Par. 2 (d). (fl) Par. 4. (e) Par. 5. (/) Par. 6. AGRICULTURE AND ALLIED PURPOSES. 377 to construct and maintain new roads (g) . Where the highway authority are under the Act constructing or improving roads they may acquire the necessary land (h) . Where the Road Board are constructing a new road they may acquire the necessary land, and land on either side within 220 yards of the medium filum (i) . Where it is necessary for either authority to obtain compulsory powers, the provisions of the Schedule to the Development Act (fc) apply. The Road Board have power, with Treasury approval, to sell superfluous lands (I) . Provisions as to the protection of commons, open spaces, and allotments are included (m) . Under the Land Drainage Acts (n), the commissioners having Land powers under those Acts are authorized in certain cases to acquire land compulsorily, and also to remove, 'in certain cases, mill dams, weirs, &c. In every case compensation is payable in accordance with the Lands Clauses Acts, which are incorporated. Under the Commons Act, 1899 (o), local authorities under a Commons. scheme for the regulation of a common have to pay compensation for the extinction or injurious affection of outstanding rights under ■the provisions of the Lands Clauses Acts. Foreshore rights and easements can be acquired compulsorily Foreshore, under an order made under the Salmon and Fresh Water Fisheries Act, 1907 (p). The Forestry Commissioners, established under the Forestry Forestry. Act, 1919 (g), have power to acquire land compulsorily for the purposes of the Act under an order made by the Development Commissioners, the provisions-being, with minor variations, similar to those contained in the Development Act (r) . 00 Ss. 8 and 10. (/*) S. 11 (3). (i) S. 11 (1). (k) Ante, p. 376, and post, p. 385. (I) S. 11 (6). O) S. 19. 00 10 & 11 Vict. o. 38, S3. 8, 9, 10 and 11; 24 & 25 Vict. c. 133, ss. 17, 30,26,28. The Land Drainage Act, 1914 (5 & 6 Geo. 5, c. 4), was of temporary duration only (s. 4 (2)), and applied the Development Act, a. 1 (d). O) 62 & 63 Vict. c. 30, s. 6. GO 7 Edw. 7, o. 15, ss. 1, 2 (1) (e), 2 (2). See also as to compensation in connection with fishery harbours, the Fishery Harbours Act, 1915 (5 & 6 Geo. 5, c. 48), s. 2 (6). (?) 9 & 10 Geo. 5, e. 58. The principal material sections are ss. 3 (3) (b), 7, and the Schedule. 0) 9 Edw. 7, c. 47, ante, p. 375. 378 CHAPTER VII. PROVISION OF PUBLIC SERVICES BY STATE OR LOCAL AUTHORITIES. Telegraphs. The Postmaster-General has power to place telegraphic lines (a) in, on, or over any lands or building, including both public pro- perty, such as streets, &c, and private property. There are special provisions in the Telegraph Acts, 1863 to 1916, for the protection of local authorities (6), public undertakers, and the managers of public recreation grounds, under which rights in respect of streets, railways, canals, recreation grounds, &c, are dealt with. The Telegraph Acts, 1863 to 1916, contain a series of provisions for the payment of compensation where property, rights or interests are acquired compulsorily, or damage or injury is caused by the execution or maintenance of telegraph works. The procedure to be adopted for the assessment of compensation is in the main that authorized by the Lands Clauses Acts, and the Acquisition of Land (Assessment of Compensation) Act, 1919; there are various exceptions which are of minor importance only (c) . Where private property is concerned, the Telegraph (Construc- tion) Act, 1916 (d), provides that if the owner, lessee, or occupier of any land or building refuses or fails to give his consent to the placing of lines across his land or building within two months after receiving notice (e), a difference is deemed to have arisen, and sections 3, 4 and 5 of the Telegraph Act of 1878 apply (d). (a) Which expression includes telephones : Att.-Gen. v . Edison Telephone Co. of London (1880), 6 Q. B. D. 244. Of. P.2I.G. v. Edinburgh Corporation (1899), 10 Ry. & O. T. O. 247. (J) P.M.G. v. London. Corporation (1898), 14 Times I>. R. 222; P.31.G. v. Edinburgh Corporation (1899), 10 Ry. & C. T. C. 247. (c) Act of 1863, ss. 27 (2), 28, 29; Act of 1868, s. 9; Act of 1869, a. 10; Act of 1878, s. 13, &c. As to a case of compensation for damage occasioned by the execution of telegraph works to electric mains, see St. James' and Pall Mall Electric Light Co., Ltd. v. R. (1904), 73 L». J. K. B. 518. (d) 6 & 7 Geo. 5, l-. 40, a. 1. The Acquisition of Land (Assessment of Compensation) Act, 1919, does not appear to apply, as the Postmaster-General has no power of compulsory acquisition save by the decision of the tribunal. (e) 41 & 42 Viet. „. 76, a. 12. PROVISION OF PUBLIC SERVICES BY STATE AUTHORITIES. 379* Where such a difference has arisen it is referred to the arbitra- tion (/) of a police or stipendiary magistrate (or failing him a County Court judge), with an appeal to the Railway and Canal Commission (g) . The tribunal may, if after hearing the parties they think it just, give their consent either unconditionally or subject to such pecuniary or other terms, conditions, or stipulations as they may think just (h), provided that the consent shall not be given unless the tribunal is satisfied that the owner's refusal is contrary to the public interest (i) . In deciding as to the con- sent or terms (which may include the lines being carried under- ground), the tribunal shall have regard inter alia to the effect upon the amenities or value of the land (i) . It is very unusual for any order to be made that a rental shall be paid to the owner of a street or public road for the erection of telegraph posts. There is, in fact, no recorded case (k) . In the case of emergency in connection with construction or maintenance, the Postmaster-General has an absolute right of entry; otherwise, on failure to agree, he must apply to the tribunal (I) . The Postmaster-General, with the consent of the Treasury, may Post Office. purchase land (which expression includes easements) for the pur- pose of the Post Office (to) . For this purpose the Lands Clauses Acts with minor variations are incorporated, but the compulsory provisions are not to be put in force until the sanction of Parlia- ment has been obtained (n), and are thereupon subject to the provisions of the Acquisition of Land (Assessment of Compensa- tion) Act, 1919. There are analogous provisions whereby land may be acquired Naval and by agreement or compulsorily for naval, military, and kindred ^J^ 7 ' °' (/) As to procedure, &c, see post, p. 600. (ff) Which is a re-hearing: P.M.G. v. Hutchings, [1916] 1 K. B. 774. See 8 Edw. 7, u. 33, a. 6. (h) 41 & 42 Vict. o. 76, as. 3, 4 and 5. (») 6 fc 7 Geo. 5, o. 40, ». 1. (V) P.M.G. v. RutoUngs, [1916] 1 K. B. 774, per Lush, J., at p. 777. (I) S. 4. (m) Post Office Act, 1908 (8 Edw. 7, c. 48), s. 46 (1). (») The procedure is for the Postmaster-General to serve notice on the owners and occupiers concerned asking for assent or objections; the Treasury holds a local inquiry and if satisfied submits a public Bill to Parliament. There is provision for a reference to a slelect committee if the Bill is petitioned against : ». 46 (2). 380 PROVISION OF PUBLIC SERVICES purposes (o) . The statutory provisions are principally contained in the following Acts, which incorporate the Lands Clauses Acts with minor variations, and are subject to the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919: — Customs Consolidation Act, 1853 (16 & 17 Vict. c. 107), as. 333 —345; Coastguard Service Act, 1856 (19 & 20 Vict. c. 83), s. 5; Admiralty Lands and Works Act, 1864 (27 & 28 Vict. c. 57); Customs Buildings Act, 1879 (42 & 43 Vict. c. 36), ss. 5 and 6; Military Lands Act, 1892 (55 & 56 Vict. c. 43); Merchant Ship- ping Act, 1894 (57 & 58 Vict. c. 60) (Lighthouses), s. 639; Naval Works Act, 1895 (58 & 59 Vict. c. 35), s. 2; Military Manoeuvres Act, 1897 (60 & 61 Vict. c. 43), s. 6; Military Lands Act, 1900 (63 & 64 Vict. c. 56), ss. 3 & 4; Territorial and Eeserve Forces Act, 1907 (7 Edw. 7, c. 9), s. 4 (1) (c); Naval Lands (Volunteers) Act, 1908 (8 Edw. 7, c. 25). Education. The Education Act, 1921 (p), which is a consolidating Act repealing the majority of the earlier Acts, provides in Part IX. (g) for the acquisition, appropriation, and alienation of land required for the purposes of the Act. Where land is purchased by agree- ment the Lands Clauses Acts are incorporated (r) ; in the case of compulsory purchase an order of the Board of Education has to be obtained in accordance with the provisions of the Fifth Schedule, and the Lands Clauses Acts as modified by the Acqui- sition of Land (Assessment of Compensation) Act, 1919 (s), together with sections 77 — 85 of the Railways Clauses Consolida- tion Act, 1845 (t), are to be incorporated, subject to the necessary adaptations, in the order. The Act contains (w) provisions as to user for other purposes of land held for educational purposes similar to those in the Public Health Acts Amendment Act, 1907 (w), and the provisions of the Charitable Trusts Acts are applied to the sale, leasing, and exchange of superfluous lands or buildings (x) . (o) See also Defence Act, 1842, ante, p. 335. (p) 11 & 12 Geo. 5, u. 51, post, p. 608. (g) Ss. 109—117 and sched. 5. (r) S. 110. S. 116 extends these powers to managers and others. (s) Ante, p. 319; post, p. 478. (t) The mines aad minerals clauses, ante, p. 131; post, p. 452. (u) S. 114; and see s. 113. O) Post, pp. 518, 519. (as) S. 115. BY STATE OR LOCAL AUTHORITIES. 381 Certain other local or public authorities have the power to acquire land for the purposes of institutions of various kinds. The principal of these powers are as follows : — Under the Prisons Acts, 1865 (y) and 1884 (z), the prison autho- Prisons, rity or the Secretary of State may acquire lands for the building, enlarging, altering, &c. of prisons, the Lands Clauses Acts being applied. Under the Isolation Hospitals Act, 1893 (a), the hospital com- Isolation mittee, subject to the directions of the county council, may acquire p land for hospitals, the Public Health Acts (b) being applied for this purpose. Under the Diseases of Animals Act, 1894 (c), the local authority Diseases of may acquire land for wharves, stations, lairs, &c. Under the Mental Deficiency Act, 1913 (d), land may be ac- Asylums, quired by the local authority for asylums, &c, the Local Govern- ment Act, 1888 (e) (in the case of a county council), and the Public Health Acts (/) (in the case of the council of a county borough), being applied. Under the provisions of the Open Spaces Act, 1906 (g), which Open spaces, gives power to provide open spaces, &c, the local authority is not to take away or injuriously affect any estate, interest, or right of a profitable or beneficial nature over or affecting an open space or burial ground without paying compensation. The compensa- tion is to be ascertained and provided in the same manner as if it were compensation for lands purchased and taken otherwise than by agreement or injuriously affected under the Lands Clauses Acts. (y) 28 & 29 Vict. c. 126, ss. 44 and 45. (z) 47 & 48 Vict. u. 51, a. 2. (a) 56 & 57 Vict. c. 68, s. 11. (6) Ante, p. 338. (c) 57 & 58 Vict. c. 57, ss. 32 and 33. (d) 3 & 4 Geo. 5, c. 28, s. 38 (3). (e) Ante, p. 345. (/) Ante, p. 338. \g) 6 Edw. 7, o. 25, s. 13. -382 CHAPTER VIII. PROVISION OF PUBLIC SERVICES BY RAILWAY COMPANIES AND OTHER SEMI-PUBLIC OR PRIVATE AUTHORITIES. In the case of a variety of public utility services, special statutory provision has been made for the assistance of the promoters or undertakers in the acquisition of land. These classes include both cases where the undertakers are a semi-public body (e.g., in some cases waterworks or electric light undertakings, port and harbour authorities), and cases where the undertakers are a private company or association (e.g., railways, waterworks, gas and electric light How far companies) . With regard to the former category, it has been t" * 1 ?/ A lon ° f h^d ( a ) th at the intention of the legislature in passing the Acqui- XjctIlCL ( A.8SG83 - mentofCom- sition of Land (Assessment of Compensation) Act, 1919 (b), is Act Sa i9i9 t° draw a distinction between a body of persons, such as an applicable. ordinary railway company, which trades for profit, and a body of persons who are unlike a railway company, inasmuch as they do not trade for the purpose of making a profit which would be available for the purpose of division in the form of dividend. The true meaning of the section (c) is to include within the term "public authority" any body of persons authorized by statute to carry on a public undertaking which does not trade with the object of making profits for themselves, or of distributing profit as dividend (d) . So far, therefore, as the bodies or authorities mentioned in this chapter come within this decision, the Act of 1919 will apply. Most of the relevant provisions of the Railways and Waterworks Clauses Acts have been already dealt with in Book I., as they are closely bound up with the consideration of the Lands Clauses Acts; it only remains to mention some special provisions in the case of railways, and to refer shortly to certain statutes dealing with semi-public or private undertakings of public utility. (a) Metropolitan Water Board v. Berton, [1921] 1 Oh. 299. (6) 9 & 10 Geo. 5, c. 57. Vide ante, Book II., Chap. I., p. 315. (c) S. 12 (2) of the Act of 1919. (d) See note (a), supra. PROVISION OF PUBLIC SERVICES BY RAILWAY COMPANIES, ETC. 383 Railways (dd) . A procedure whereby, after the promoters of a railway have Railways contracted by agreement for the purchase of all the lands, &c. FaoUitie^Aot required, their scheme may be authorized by certificate of the 186 *- Board of Trade, laid before and not objected to by Parliament, is contained in the Eailways Construction Facilities Act, 1864(e). Little use, however, has been or is likely to be made of this form of procedure. In one matter of detail, there is a special provision in the case Special pro- of railway companies which makes the procedure different from ^^in^ent that of the Lands Clauses Acts. It is provided under section 36 of of surveyor the Eailway Companies Act, 1867 (/), that a surveyor appointed l. Cl. Act, under section 85 of the Lands Clauses Act, 1845, should in the case 1845 - of railways be appointed by the Board of Trade instead of by two justices, and that the sureties required to the bond should be approved by the Board of Trade instead of by two justices. Such approval is only necessary when the parties differ (g) . In connection with the electrification of railways under the Electrifica- Railways (Electrical Power) Act, 1903 (h), the Board of Trade order may contain provisions authorizing the acquisition of land for generating stations, &c, but if the order gives any com- pulsory powers in this respect, such powers require Parliamentary •confirmation . In the case of the abandonment of railways, provision was made Abandon- by the Abandonment of Railways Acts, 1850 and 1869 (i), for o fi850 CB compensation to the various classes of owners who have suffered and 1869 - by the construction of abandoned works or by the abandonment. As, however, such an abandonment can only be effected under warrant of the Board of Trade, the grant of which is discretionary, and the Board has adopted the view that its powers only apply to railways authorized before 1867, the Acts have now little or no practical importance, a special Act being in effect necessary in each case to authorize an abandonment. (dd) A certain number of cases dealing with minor points under the Railway Acts have been inserted as notes to the Acts, post, p. 440 et seqq. (e) 27 & 28 Viet. e. 121. (/) Post, p. 458. 0) Loosemore v. Tiverton, §e. Rail. Co. (1882), 22 Ch. D. 25, 40. (h) 3 Edw. 7, c. 30, s. 2. (t) 13 & 14 Vict. o. 83; 32 & 33 Vict. c. 114. 3 84 PROVISION OF PUBLIC SERVICES BY RAILWAY COMPANIES, ETC. Parliamen- p y trie Parliamentary Deposits and Bonds Act, 1892 (k), it is tary Deposits J , , , . J * . . \ \ ' j and Bonds enacted that where m pursuance 01 any general or special Act, Act, 1892. or ru j eg ma( j e thereunder (I), a deposit is standing in the name of the Paymaster-General, and the undertaking has not been com- pleted within the time limited, the High Court may, notwith- standing anything in the general or special Act or rules, order the deposit fund to be applied towards compensating any land- owners or other persons whose property has been interfered with or otherwise rendered less valuable by the commencement, con- struction, or abandonment of the undertaking, or any portion thereof, or who have been subjected to injury or loss in conse- quence of any compulsory powers of taking property given in connection with the undertaking, and have received no compen* sation or inadequate compensation for such injury or loss(ra). The powers of the High Court cannot be exercised until the time limited has expired (re), or the promoters have put it out of their power to complete (o) ; but since the passing of the Act of 1892 it is no longer necessary for a special Abandonment Act to be passed before an order can be made dealing with the deposit fund, provided the fact of non-completion within the time limited is established (p) . The compulsory powers of taking property are not exercised by the mere service of a notice to treat (q), even if followed by a contract so as to entitle the landowner to a prior claim on the deposit fund given under the terms of a special Act (r) . The words "by the commencement, construction, or abandon- ment of the undertaking " must be read disjunctively, and the landowner's claim may be for injury from any one of these causes. The measure of the injury must be determined by comparing the value of the estate immediately before and immediately after the act or acts of the promoters on which the claim is based. The injury must be a necessary consequence of the action on which the (ft) 55 & 56 Vict. u. 27, s. 1 (1), post, p. 609. (/) E.g., the Tramways Act, 1870, and the Board of Trade Rules, 1892, made thereunder. (m) There is a further provision for compensation to road authorities in the ease of tramway companies. («) Ex parte Chambers, [1893] 1 Ch. 47. (o) In re the Peckham, §0. Tramways Bill, [1910] 2 Ch. 1. (p) Re Torrington and Ohehampton Railway Bill, 1895, [1907] 1 Ch. 186. (?) Vide ante, p. 55. (r) Re Vxbridge and Richmansworth Rail. Co. (1890), 43 Ch. D. 536. PROVISION OF PUBLIC SERVICES BY RAILWAY COMPANIES, ETC. 385 claim is based; the mere existence of a collateral covenant (s) may increase the value of the land, but the breach of such a cove- nant must not be confused with (e.g.) the abandonment of the railway. If the abandonment and the breach are indistinguishable, then the case may be within the Act, but when you can distinguish between them, the claim can only be made in respect of the abandonment (t). Applications relating to deposit funds are made in chambers to a judge of the Chancery Division under R. S. C, 0. LV r. 2 (6). Light Railways. The Light Railways Acts, 1896 (u) and 1912 (v), and Part V. Light of the Railways Act, 1921 (x), enacted "for the purpose of Railwa y e - facilitating the construction and working of light railways in Great Britain," make provision for orders subject to confirmation by the Minister of Transport. The Lands Clauses Acts and other Clauses Acts may or may not be incorporated in the order, and if incorporated may be incorporated with modifications such as are made or authorised to be made by the Development and Road Improvement Funds Act, 1909 (y). Section 13 of the Act of 1896 provides that all questions of Compensation compensation shall be determined by a single arbitrator appointed uu er ' by the parties, or, if they do not concur, by the Board of Trade (z) . The arbitrator, in determining the amount of compensation, is Betterment, directed to have regard to the extent to which the remaining and contiguous lands and hereditaments belonging to the same pro- (s) Cf. In re West Yorkshire Tramways Act, 1906, [1913] 1 Ch. 170. («) In re Potteries, #o. Sail. Co. (1883), 25 Oh. D. 251; In re Ruthin, %n. Hallway Act (1886), 32 Ch. D. 438; In re Southport and Lytham Tramroad Act, 1900, [1911] 1 Ch. 120. («) 59 & 60 Vict. c. 48; post, p. 614. («) 2 & 3 Geo. 5, o. 19; post, p. 618. (<5) 11 & 12 Geo. 5, c. 55, sa. 68—74; post, p. 619. (y) Ss. 11 and 12 of 1896 Act, and s. 69 of the 1921 Act; as to the provisions of the Development, &c. Act, 1909, vide post, p. 581. (s) The effect of ss. 8 and 9 of the Act of 1912, which deal with " any matters which under any order are to be determined by arbitration," upon the above provision is by no means clear. Such matters would not appear to include the assessment of compensation, which is dealt with by s. 13 of the Act of 1896 and not- by the order; but cf. contra in the case of a special Act the words, of Lindley, M. R., in London and North Western Bail. Co. v. Runcorn R. D. C '., [1898] 1 Ch. 561, at p. 563. C. 25 386 PROVISION OF PUBLIC SERVICES BY RAILWAY COMPANIES, ETC. Arbitration Act, 1889, in- corporated. prietor may be benefited by the proposed light railway. This principle, of allowing a set-off to the extent to which the remaining and contiguous lands of the same proprietor may be benefited byi the proposed light railway, is new in its application to railways, and it is difficult to draw any distinction in principle between a light railway and an ordinary railway subject to the usual Board of Trade regulations. By section 13 (3) of the Act of 1896, the Arbitration Act, 1889, " shall apply to any arbitration under this section," while as a general practice the Lands Clauses Acts are also incorporated. This has given rise to some difficulties in view of the difference in the provisions of the two Acts as to arbitrations. It has been held that the effect of section 13 is to substitute a single arbitrator for the tribunals theretofore existing for the assessment of com- pensation in all cases, but that the new legislation (applying the Arbitration Act, 1889) only extends to the assessment of the amount of compensation and the basis of the assessment, and does not extend to the enforcing of the award after it has been made. The award therefore remains enforceable as it was under the Lands Clauses Act, 1845, s. 35, unaffected, in this respect, by the Arbitration Act, 1889 (a) . And similarly where the arbitrator awards costs to be paid by one of the parties to the submission, either party can require, under the Lands Clauses (Taxation of Costs) Act, 1895, that the costs shall be taxed and settled by one of the Masters of the Supreme Court, whose decision is not open to review (b). On the other hand it has been held that the costs of the refer- once and award are in the discretion of the arbitrator in view of the fact that the Arbitration Act, 1889, applies, and notwith- standing the incorporation of the Lands Clauses Acts (e). Section 4 of the Act of 1912 gives power to modify section 92 of the Lands Clauses Act, 1845 (d), as to taking part of a house, &c, except where the part cannot be severed without material detriment. (a) R. v. Barton and Imniing/utm Light Rail. Co., [1912] 3 K. B. 72, per Lord Alverstone, C. J. O) In re Cannings, Ltd. and Middlesex C. C, [1907] 1 K. B. 51 (C. A.). See also the Light Railways (Costs) Rules, 1898, S. R. & 0. 1898, No. ^?-f. LIS (c) Baxter v. Midland Rail. C\o. (1905), 93 L.. T. 538; and see S. C. (1906), 95 L. T. 20. ((?) See ante, p. 35. PROVISION OF PUBLIC SERVICES BY RAILWAY COMPANIES, ETC. 387 Miscellaneous " Clauses Acts." The various " Clauses Acts," such as the Towns Improvement Clauses Act, 1847 (10 & 11 Vict. c. 34), the Harbours, Docks and Piers Clauses Act, 1847 (10 & 11 Vict. c. 27) (e), the Markets and Fairs Clauses Act, 1847 (10 & 11 Vict. c. 14), the Cemeteries •Clauses Act, 1847 (10 & 11 Vict. c. 65), the Gas and Water Works Facilities Act, 1870 (33 & 34 Vict. c. 70), the Electric Lighting (Clauses) Act, 1899 (62 & 63 Vict. c. 19), introduce no new principles of compensation, incorporating the whole or part of the Lands Clauses Acts as occasion requires. The Electricity (Supply) Act, 1919 (9 & 10 Geo. 5, c. 100), contains in section 22 (with ■certain special safeguards for railways, canals, and docks, &c.) provisions for the acquisition of compulsory wayleaves with the consent, of the Board of Trade, the provisions being substantially .similar to those in the Telegraph Acts (/), and there are some- what similar provisions for compulsory purchase in the Lloyd's Signal Stations Act, 1888 (g) . The Brine Pumping (Compensation for Subsidence) Act, 1891 (h), makes provision in certain districts and under certain •circumstances for the award by a Compensation Board " of ■compensation for subsidence due to brine pumping. («) Of. Liverpool and North Wales Steamship Co., Ltd. v. Mersey Trading Co., Ltd., [1909] 1 Ch. 209. (/) Ante, p. 378. (,r/) 51 & 52 Vict. u. 29, =. 2. (A) 54 & 55 Vict. o. 40; and aee the Housing and Town Planning:, &c - Act, 1919 (9 & 10 Geo. 5, o. 35), ». 36. 25 (2) 389 APPENDIX OF STATUTES. Book I. Section I. — Lands Clauses Acts. THE LANDS CLAUSES CONSOLIDATION ACT, 1845 (a). 8 & 9 Vict. c. 18. An Act for consolidating in one Act certain Provisions usually Amended as to inserted in Acts authorizing the taking of Lands for Under- f. el l"f 5 %- t takings of a Public Nature. 70 [8th May, 1845. [Whereas it is expedient to comprise in one general act sundry •provisions usually introduced into acts of parliament relative to the acquisition of lands required for undertakings or works of a public nature, and to the compensation to be made for the same, and that as well for the purpose of avoiding the necessity of repeating such 'provisions in each of the several acts relating to such undertakings as for ensuring greater uniformity in the provisions themselves ; May it therefore please your Majesty that it may be enacted, and be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons in this present parliament assembled, and by the authority of the same, that (&)] This act shall apply to every undertaking authorized Act to apply by any act which shall hereafter be passed, and which shall authorize to all under - the purchase or taking of lands for such undertaking, and this act ta ™S? shall be incorporated with such act, and all the clauses and provisions ac t s hereafter of this act save so far as they shall be expressly varied or excepted to be passed. by any such act, shall apply to the undertaking authorized thereby, so far as the same shall be applicable to such undertaking, and shall, as well as the clauses and provisions of every other act which shall be incorporated with such act, form part of such act, and be construed together therewith as forming one act. (a) The Act is printed in full, notwithstanding the various formal and sub- stantial repeals, inasmuch as, before the repeals, it was incorporated in many Special Acts, to which the repeal probably doe3 not extend. (b) Repealed by Statute Law Revision Act, 1891, s. 1. 390 APPENDIX OF STATUTES — BOOK I. Interpreta- tions in this act: " special act:" ' ' pre- scribed : ' ' ' the works : ' ' ' promoters of the under- taking: : " Interpreta- tions in this and the special act : Number : Gender : "lands:" "lease:" "month: " " superior courts : ' ' "oath:" ' county : " (Interpretation and Citation.) And with respect to the construction of this act and of acts to be incorporated therewith, be it enacted as follows: — 2. The expression " the special act " used in this act shall he construed to mean any act which shall be hereafter passed which shall authorize the taking of lands for the undertaking to which the same relates, and with which this act shall be so incorporated as aforesaid; and the word " prescribed," used in this act in reference to any matter herein stated, shall be construed to refer to such matter as the same shall be prescribed or provided for in the special act, and the sentence in which such words shall occur shall be construed as. if, instead of the word " prescribed," the expression " prescribed for that purpose in the special act" had been used; and the expression "the works " or " the undertaking " shall mean the works or under- taking, of whatever nature, which shall by the special act be autho- rized to be executed; and the expression "the promoters of the undertaking " shall mean the parties, whether company, undertakers, commissioners, trustees, corporations, or private persons, by the special act empowered to execute such works or undertaking (c). 3. The following words and expressions, both in this and the special act, shall have the several meanings hereby assigned to them, unless there be something either in the subject or context repugnant to such construction; (that is to say,) Words importing the singular number only shall include the plural number, and words importing the plural number only shall include the singular number (d): Words importing the masculine gender only shall include females (d): The word " lands " shall extend to messuages, lands, tenements and hereditaments, of any tenure (e): The word "lease " shall include an agreement for a lease: The word " month " shall mean calendar month (d): The expression " superior courts " shall mean her Majesty's superior courts of record at Westminster or Dublin, as the case may require: The word " oath " shall include affirmation in the case of Quakers, or other declaration lawfully substituted for an oath in the case of any other persons exempted by law from the necessity of taking an oath (/) : The word " county " shall include any riding or other like division of a county, and shall also include county of a city or county of a town (gr): (e) Vide ante, p. 47. ((f) See Interpretation Act, 1889 (52 k, 53 Vict. c. 63), s. 1. (e) Vide ante, p. 8. (/) See Interpretation Act, 1889, ». 3. (SO See Interpretation Act, 1889, s. 4, which applies to special acts passed after 1850. THE LiNDS CLAUSES CONSOLIDATION ACT, 1845. 391 The word "sheriff" shall include under-sheriff, or other legally "the sheriff:" competent deputy ; and where any matter in relation to any lands is required to be done by any sheriff, or by any clerk of the peace, "the clerk of the expression "the sheriff," or the expression "the clerk of the tne P eace: " peace," shall in such case be construed to mean the sheriff or the clerk of the peace of the county, city, borough, liberty, cinque port, or place where such lands shall be situate; and if the lands in question, being the property of one and the same party, be situate not wholly in one county, city, borough, liberty, cinque port, or place, the same expression shall be construed to mean the sheriff or clerk of the peace of any county, city, borough, liberty, cinque port, or place where any part of such lands shall be situate: The word "justices" shall mean justices of the peace acting for "justices:" the county, city, liberty, cinque port, or place, where the matter requiring the cognizance of any such justice shall arise, and who shall not be interested in the matter; and where such matter shall arise in respect of lands being the property of one and the same party, situate not wholly in any one county, city, borough, liberty, cinque port, or place, the same shall mean a justice acting for the county, city, borough, liberty, cinque port, or place where any part of such lands shall be situate, and who' shall not be interested in such matter; and where any matter shall be authorized or required to be done by two justices, the expression "two justices" shall be understood to mean two "two jus- justices assembled and acting together: tlces: Where under the provisions of this or the special act, or any act "owner:" incorporated therewith, any notice shall be required to be given to the owner of any lands, or where any act shall be authorized or required to be done with the consent of any such owner, the word " owner " shall be understood to mean any person or cor- poration who, under the provisions of this or the special act, would be enabled to sell and convey lands to the promoters of the undertaking: The expression "the bank" shall mean the Bank of England "the bank." where the same shall relate to moneys to be paid or deposited in respect of lands situate in England, and shall mean the Bank of Ireland where the same shall relate to moneys to be paid or deposited in respect of lands situate in Ireland. i. [And be it enacted that] (h) in citing this act in other acts of Short title of parliament, and in legal instruments, it shall be sufficient to use the tneact - expression "The Lands Clauses Consolidation Act, 1845 " (i). (h) Eepealed, S. L. R. Act, 1891, s. 1. 0') Expended to all instruments and documents by Interpretation Act, 1889, s. 35 (1). For the meaning of the expression " Lands Clauses Acts " in any Act passed after 1st January, 1890, cf . Interpretation Act, 1889, s. 23. 392 APPENDIX OF STATUTES — BOOK I. Form in which por- tions of this act may be incorporated with other acts. (Mode of partial Incorporation.) 5. And whereas it may be convenient in some cases to incorporate with acts of parliament hereafter to be passed some portion only of the provisions of this act: be it therefore enacted, that, for the pur- pose of making any such incorporation, it shall be sufficient in any such act to enact that the clauses of this act with respect to the matteir so proposed to be incorporated (describing such matter as it is described in this act in the words introductory to the enactment with respect to such matter) shall be incorporated with such act, and thereupon all the clauses and provisions of this act with respect to the matter sp incorporated shall, save so far as they shall be expressly varied or excepted by such act, form part of such act, and such act shall be construed as if the substance of such clauses and provisions were set forth therein with reference to the matter to which such act shall relate (k). Power to pur- chase lands by agreement. Parties under disability enabled to sell and convey. (Purchase of Lands by, Agreement (I).) And with respect to the purchase of lands by agreement, be it enacted as follows: 6. Subject to the provisions of this and the special act it shall be lawful for the promoters of the undertaking to agree with the owners of any lands by the special act authorized to be taken, and which shall be required for the purposes of such act, and with all parties having any estate or interest in such lands, or by this or the special act enabled to sell and convey the same, for the absolute purchase, for a consideration in money, of any such lands, or such parts thereof as they shall think proper, and of all estates and interests in such lands of what kind soever. 7. It shall be lawful for all parties, being seised, possessed of, or entitled to any such lands, or any estate or interest therein, to sell and convey or release the same to the promoters of the undertaking, and to enter into all necessary agreements for that purpose; and particularly it shall be lawful for all or any of the following parties so seised, possessed, or entitled as aforesaid so to sell, convey, or release; (that is to say) all corporations, tenants in tail or for life, married women seised in their own right or entitled to dower, guardians, committees of lunatics and idiots, trustees or feoffees in trust for charitable or other purposes, executors and administrators, and all parties for the time being entitled to the receipt of the rents and profits of any such lands in possession or subject to any estate in dower, or to any lease for life, or for lives and years, or for years, or any less interest; and the power so to sell and convey or release as aforesaid may lawfully be exercised by all such parties, other than married women entitled to dower, or lessees for life, or for lives and years, or for years, or for any less interest, not only on behalf of themselves, and their respective heirs, executors, administrators and successors, but also for and on behalf of every person entitled in (7c) See Interpretation Act, 1889, s. 35 (2), (3)'. (Z) Ante, p. 53. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 393 .reversion, remainder, or expectancy after them or in defeasance of the estates of such parties, and as to such married women, whether they be of full age or not, as if they were sole and of full age, -and as to such guardians, on behalf of their wards, and as to such committees, on behalf of the lunatics and idiots of whom they are the committees respectively, and that to the same extent as sucb wives, wards, lunatics, and idiots respectively could have exercised the same power under the authority of this or the special act if they had respectively been under no disability, and as to such trustees, executors, and administrators, on behalf of their cestui que trusts, whether infants, issue unborn, lunatics, femes covert, or other persons, and that to the same extent as such cestui que trusts respectively ■could have exercised the same powers under the authority of this and the special act if they had respectively been under no disability (m). 8. The power hereinafter (n) given to enfranchise copyhold lands, Parties under .as well as every other power required to be' exercised by the lord of disability to any manor pursuant to the provisions of this or the special act, or exerclse ° tner any act incorporated therewith, and the power to release lands from .any rent, charge, or incumbrance, and to agree for the apportion- ment of any such rent, charge, or incumbrance shall extend to and may lawfully be exercised bj 7 every party hereinbefore enabled to sell and convey or release lands to the promoters of the undertaking. 9. The purchase-money or compensation to be paid for any lands Amount of to be purchased or taken from any party under any disability or compensation incapacity, and not having power to sell or convey such lands except "t c «™ j r under the provisions of this or the special act, and the compensation disability to to be paid for any permanent damage or injury to any such lands, be ascertained shall not, except where the same shall have been determined by the °f valu ation, verdict of a jury, or by arbitration, or by the valuation of a surveyor t ^ e tank, appointed by two justices under the provision hereinafter contained, be less than shall be determined by the valuation of two able prac- tical surveyors, one of whom shall be nominated by the promoters of the undertaking, and the other by the other party, and if such two surveyors cannot agree in the valuation, then by such third sur- veyor as any two justices shall upon application. of either party, after notice to the other party, for that purpose nominate; and each of such two surveyors, if they agree, or if not then the surveyor nomi- nated by the said justices, shall annex to the valuation a declaration in writing, subscribed by them or him. of the correctness thereof; and all such purchase-money or compensation shall be deposited in the bank for the benefit of the parties interested, in manner here- inafter (o) mentioned (p) . 10. It shall be lawful (q) for any person seised in fee of or entitled ^^{ n f° T to dispose of absolutely for his own benefit any lands authorized to be titled^ lands' 1 " purchased for the purposes of the special act to sell and convey such may be sold on chief rents. O) Vide mite, p. 47. (») S. 96. (o) S. 69. (p) Vide ante, p. 57. (?) Ss. 10, 11, are extended by L. 01. Act, 1860, ss. 2 and 3 (ivfni, p. 436), to persons under disability or incapacity. 394 APPENDIX OF STATUTES — BOOK I. Payment of rents to be charged on tolls. Power to purchase lands required for additional accommo- dation. Authority to sell and re- purchase such lands. Restraint on purchase from incapacitated persons. Municipal corporations not to sell "without the approbation of the Treasury. lands or any part thereof unto the promoters of the undertaking, in consideration of an annual rent-charge payable by the promoters of the undertaking, [but, except as aforesaid, the consideration to be- paid for the purchase of any such lands, or for any damage done thereto, shall be in, a gross sum (r)]. 11. The yearly rents reserved by any such conveyance shall be- charged on the tolls or rates, if any, payable under the special act, and shall be otherwise secured in such manner as shall be agreed between the parties, and shall be paid by the promoters of the .undertaking as such rents become payable; and if at any time any such rents be not paid within thirty days after they so become payable, and after demand thereof in writing, the person to whom any such rent shall be payable may either recover the same from the promoters of the undertaking, with costs of suit, by action of debt in any of the superior courts, or it shall be lawful for him to levy the same by distress of the goods and chattels of the promoters, of the ■undertaking (s) . 12. In case the promoters of the undertaking shall be empowered by the special act to purchase lands for extraordinary purposes, it shall be lawful for all parties who, under the provisions hereinbefore contained, would be enabled to sell and convey lands, to sell and convey the lands so authorized to be purchased for extraordinary purposes. 13. It shall be lawful for the promoters of the undertaking to sell the lands which they shall have so acquired for extraordinary pur- poses, or any part thereof, in such manner, and for such considera- tions, and to such persons as the promoters of the undertaking may think fit, and again to purchase other lands for the like purposes, and afterwards sell the same, and so from time to time; but the total quantity of land to be held at any one time by the promoters of the undertaking, for the purposes aforesaid, shall not exceed the prescribed quantity. 14. The promoters of the undertaking shall not, by virtue of the power to purchase land for extraordinary purposes, purchase more- than the prescribed quantity from any party under legal disability, or who would not be able to sell and convey such lands except under the powers of this and the special act; and if the promoters of the under- taking purchase the said quantity of land from any party under such legal disability, and afterwards sell the whole or any part of the land so purchased, it shall not be lawful for any party being under legal disability to sell to the promoters of the undertaking any other lands in lieu of the land so sold or disposed of by them. 15. Nothing in this or the special act contained shall enable any municipal corporation to sell for the purposes of the special act,, without the approbation of [the Commissioners of her Majesty's (£)] Treasury (u) [of the United Kingdom of Great Britain and Ireland,. 0) Repealed by L. CI. Act, 1860, s. 1; vide infra, p. 436. (s) For method of levying distress 1 , see ss. 138 et seqq. (0 Repealed by S. L. R. Act, 1894, s. 1. (a) Now the Ministry of Health. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 395 or any three of them (x)], any lands which they could not have sold without such approbation before the passing of the special act, other than such lands as the company are by the powers of this or the special act empowered to purchase or take compulsorily. (Purchase and taking of Lands otherwise than by Agreement.) And with respect to the purchase and taking of lands otherwise than by agreement, be it enacted as follows: 16. Where the undertaking is intended to be carried into effect Capital to be by means of a capital to be subscribed by the promoters of the under- subscribed taking, the whole of the capital or estimated sum for defraying the pu lsory expenses of the undertaking shall be subscribed under contract powers of binding the parties thereto, their heirs, executors, and administrators, P urcfl ase put for the payment of the several sums by them respectively subscribed, "* ° rce ' before it shall be lawful to put in force any of the powers of this or the special act, or any act incorporated therewith, in relation to the compulsory taking of land for the purposes of the undertaking. 17. A certificate under the hands of two justices, certifying that A certificate the whole of the prescribed sum has been subscribed shall be sufficient °. f two J us - evidence thereof, and on the application of the promoters of the under- g^j en , fj, fc taking, and the production of such evidence as such justices think the capital proper and sufficient, such justices shall grant such certificate has been accordingly. subscribed. 18. When the promoters of the undertaking shall require to pur- Notice of chase or take any of the lands which by this or the special act, or any J 11 ^ 611 , 110 ^ to act incorporated therewith, they are authorized to purchase or take, they shall give notice thereof to all the parties interested in such lands, or to the parties enabled by this act to sell and convey or release the same, or such of the said parties as shall, after diligent inquiry, be known to the promoters of the undertaking, and by such notice shall demand from such parties the particulars of their estate and interest in such lands, and of the claims made by them in respect thereof; and every such notice shall state the particulars of the lands so required, and that the promoters of the undertaking are willing to treat for the purchase thereof, and as to the compensation to be made to all parties for the damage that may be sustained by them by reason of the execution of the works. 19. All notices required to be served by the promoters of the Service of undertaking upon the parties interested in or entitled to sell any notices on such lands shall either be served personally on such parties or left o00up i ers f at their last usual place of abode, if any such can after diligent lands, inquiry be found, and in case any such parties shall be absent from the United Kingdom, or cannot be found after diligent inquiry, shall also be left with the occupier of such lands, or if there be no such occupier, shall be affixed upon some conspicuous part of such lands. 20. If any such party be a corporation aggregate, such notice shall Service of be left at the principal office of business of such corporation, or, if no notice on a such office can after diligent inquiry be found, shall be served on a^Jregate" O) Repealed by S. L. E. Act, 1894, s. 1. 39B APPENDIX OF STATUTES — BOOK I. some principal member, if any, of such corporation, and such notioe shall also be left with the occupier of such lands, or, if there be no such occupier, shall be affixed upon some conspicuous part of such lands . If parties fail 21. If, for twenty-one days after the service of such notice, any to treat, or in suo j 1 party shall fail to state the particulars of his claim in respect pute, question °f an y sucri land, or to treat with the promoters of the undertaking to be settled in respect thereof, or if such party and the promoters of the under- as after taking shall not agree as to the amount of the compensation to be paid by the promoters of the undertaking for the interest in such lands belonging to such party, or which he is by this or the special act enabled to sell, or for any damage that may be sustained by him by reason of the execution of the works, the amount of such com- pensation shall be settled in the manner hereinafter provided for settling cases of disputed compensation. {Justices.) Disputes as to 22. If no agreement be come to between the promoters of the compensation undertaking and the owners of or parties by this act enabled to sell amount arL d. convey or release any lands taken or required for or injuriously claimed does affected by the execution of the undertaking, or any interest in such ?°* exc ? lands, as to the value of such lands or of any interest therein, or as settled by two ^° * ne compensation to be made in respect thereof, and if in any such justices. case the compensation claimed shall not exceed fifty pounds, the same shall be settled by two justices (y). Compensa- 23 («). If the compensation claimed or offered in any such case tion exceeding shall exceed fifty pounds, and if the party claiming compensation settled by desire to have the same settled by arbitration, and signify such arbitration or desire by notice in writing to the promoters of the undertaking, jury, at the ■ before they have issued their warrant to the sheriff to summon a jury partTclaim- 6 ia res P ect of sucn lands, under the provisions hereinafter contained, ingoompensa- stating in such notice the nature of the interest in respect of which tion. such party claims compensation, and the amount of the compensation so claimed, the same shall be so settled accordingly; but unless the party claiming compensation shall as aforesaid signify his desire to have the question of such compensation settled by arbitration, or if when the matter shall have been referred to arbitration the arbi- trators or their umpire shall for three months have failed to make their or his award, or if no final award shall be made, the question of such compensation shall be settled by the verdict of a jury, as hereinafter provided. Methodof 24. It shall be lawful for any justice, upon the application of for settling either party with respect to any question of disputed compensation disputes as to t>y this or the special act, or any act incorporated therewith, authorized compensation to be settled by two justices, to summon the other party to appear by justices. before two justices, at a time and place to be named in the summons, ■ (?/) Vide ante, p. 177. (z) Ss. 23, 25— 37 are affected by the Arbitration Act, 1889 (52 & 53 Viet, e. 49), s. 24 {post, p. 472); vide ante, p. 185. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 397 and upon the appearance of such parties, or, in the absence of any of them, upon proof of due service of the summons, it shall be lawful for such justices to hear and determine such question, and for that purpose to examine such parties or any of them, and their witnesses, upon oath, and the costs of every such inquiry shall be in the dis- cretion of such justices, and they shall settle the amount thereof. (Arbitration (a).) 25. When any question of disputed compensation by this or the Appointment special act, or any act incorporated therewith, authorized or required oi , arbltrator to be settled by arbitration, shall have arisen, then, unless both tforaare^o parties shall concur in the appointment of a single arbitrator, each be determined party, on the request of the other party, shall nominate and appoint ^7 arbitra- an arbitrator, to whom such dispute shall be referred; and every appointment of an arbitrator shall be made on the part of the pro- moters of the undertaking under the hands of the said promoters or any two of them, or of their secretary or clerk, and on the part of any other party under the hand of such party, or if such party be a corporation aggregate under the common seal of such corporation; and such appointment shall be delivered to the arbitrator, and shall be deemed a submission to arbitration on the part of the party by whom the same shall be made; and after any such appointment shall have been made neither party shall have power to revoke the same without the consent of the other (6), nor shall the death of either party operate as a revocation; and if for the space of fourteen days after any such dispute shall have arisen, and after a request in writing, in which shall be stated the matter so required to be referred to arbitration, shall have been served by the one party on the other party to appoint an arbitrator, such last-mentioned party fail to appoint such arbitrator,' then upon such failure the party making the request and having himself appointed an arbitrator, may appoint such arbitrator to act on behalf of both parties, and such arbitrator may proceed to hear and determine the matters which shall be in dispute, and in such case the award or determination of such single arbitrator shall be final (c) . 26. If, before the matters so referred shall be determined, any Vacancy of arbitrator appointed by either party die, or become incapable, the arbitrator to party by whom such arbitrator was appointed may nominate and besu PP lled - appoint in writing some other person to act in his place, and if, for the space of seven days after notice in writing from the other party for that purpose, he fail to do so (d), the remaining or other arbi- trator may proceed ex parte, and every arbitrator so to be substituted as aforesaid shall have the same powers and authorities as] were (a) Vide ante, p. 185. (b) See Arbitration Act, 1889 (52 & 53 Vict. c. 49), ss. 1, 2 (post, p. 472) ; vide ante, p. 190. (c) See Arbitration Act, 1889, a. 6 (b) ; ante, p. 191. (d) See Arbitration Act, 1889, s. 5 (b) ; ante, p. 191. 398 APPENDIX OF STATUTES — BOOK I. Appointment of umpire. Board of trade em- powered to appoint an umpire on neglect of the arbitrators, in case of railway •companies. In case of death of single arbi- trator the matter to begm de novo. If either arbi- trator refuse to act the other to pro- ceed ex parte. If arbitrators fail to make their award within twenty-one days the matter to go to the umpire. Power of arbitrators to call for books, &c. Arbitrator or umpire to make a de- claration. vested in the former arbitrator at the time of such his death or disability as aforesaid. 27. Where more than one arbitrator shall have been appointed, such arbitrators shall, before they enter upon the matters referred to them, nominate and appoint, by writing under their hands, an umpire to decide on any such matters on which they shall differ, or which shall be referred to him under the provisions of this or the special act, and if such umpire shall die, or become incapable to act, they shall forthwith, after such death or incapacity, appoint another umpire in his place, and the decision of every such umpire on the matters so referred to him shall be final. 28. If in either of the cases aforesaid the said arbitrators shall refuse, or shall, for seven days after request of either party to such arbitration, neglect to appoint an umpire, the board of trade, [in any case in which a railway company shall be one party to the arbitration, and two justices in any. other casej] (e) shall, on the application of either party to such arbitration, appoint an umpire, and the decision of such umpire on the matters on which the arbi- trators shall differ, or which shall be referred to him under this or the special act, shall be final. 29. If, when a single arbitrator shall have been appointed, such arbitrator shall die or become incapable to act before he shall have made his award, the matters referred to him shall be determined by arbitration under the provisions of this or the special act in the same manner as if such arbitrator had not been appointed. 30. If, where more than one arbitrator shall have been appointed, either of the arbitrators refuse or for seven days neglect to act, the other arbitrator may proceed ex parte, and the decision of such other arbitrator shall be as effectual as if he had been the single arbitrator appointed by both parties. 31. If, where more than one arbitrator shall have been appointed, and where neither of them shall refuse or neglect to act as aforesaid, such arbitrators shall fail to make their award within twenty-one days after the day on which the last of such arbitrators shall have been appointed, or within such extended time (if any) as shall have been appointed for that purpose by both such arbitrators under their hands, the matters referred to them shall be determined by the umpire to be appointed as aforesaid. 32. The said arbitrators or their umpire may call for the production of any documents in the possession or power of either party which they or he may think necessary for detenmining the question in dispute (/), and may examine the parties or their witnesses on oath, and administer the oaths necessary for that purpose (g). 33. Before any arbitrator or umpire shall enter into the considera- (e) Repealed by L.. 01. (Umpire) Adt, 1883, 9. 1 (post, p. 439), vide ante, p. 192. (/) See Arbitration Act, 1889, Sched. I. (f) ; post, p. 477. (ff) See Arbitration Act, 1889, s. 7 (a), Sched. I. (g); ante, p. 193. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 399 tion of any matters referred to him, he shall, in the presence of a justice, make and subscribe the following declaration; that is to say, " I, A. B., do solemnly .and sincerely declare, that I will faithfully and honestly, and to the best of my skill and ability, hear and determine the matters referred to me under the provisions of the act [naming the special act]. A.B. " Made and subscribed in the presence of ." And such declaration shall be annexed to the award when made; and if any arbitrator or umpire having made such declaration shall wil- fully act contrary thereto he shall be guilty of a misdemeanor. 34. All the costs (/i) of any such arbitration, and incident thereto, Costs of arbi- to be settled by the arbitrators, shall be borne by the promoters of tration, how the undertaking, unless the arbitrators shall award the same, or a t0 te borne - less sum than shall have been offered by the promoters of the undertaking, in which case each party shall bear his own costs incident to the arbitration, and the costs of the arbitrators shall be borne by the parties in equal proportions (i) . 35. The arbitrators shall deliver their award in writing to the Award to be promoters of the undertaking, and the said promoters shall retain delivered to the same, and shall forthwith, on demand, at their own expense, of^h^under- 8 furnish a copy thereof to the other party to the arbitration, and shall taking. at all times, on demand, produce the said award, and allow the same to be inspected or examined by such party or any person appointed by him for that purpose. 36. The submission to any such arbitration may be made a rule Submission of any of the superior courts, on the application of either of the ma y be made parties (ft). ^«* 37. No aw.ard made with respect to any question referred to . , arbitration under the provisions of this or the special act shall be set vo i,j through aside for irregularity or error in matter of form (f). error in form. (Jury(m).) 38. Before the promoters of the undertaking shall issue their Promoters of warrant for summoning a jury for settling any ease of disputed the under- compensation, they shall give not less than ten days' notice to the n ot!cf before 6 other party of their intention to cause such jury to be summoned, and summoning a in such notice the promoters of the undertaking shall state what sum jury. of money they are willing to give for the interest in such lands sought to be purchased by them from such party, and for the damage to be sustained by him by the execution of the works. 39. In every case in which any such question of disputed com- Warrant for pensation shall be required to be determined by the verdict of a jury, ^"J^" 8 the promoters of the undertaking shall issue their warrant to the addressed to sheriff requiring him to summon a jury for that purpose, and such the sheriff, warrant shall be under the common seal of the promoters of the (A) As to taxation, vide ante, p. 202. (0 See Arbitration Act, 1889, Sched. I. (i) ; ante, p. 200. (*) Superseded by Arbitration Act, 1889, s. 1 ; ante, p. 191, post, p. 472. (0 Of. Arbitration Act, 1889, s. 7 (c) ; post, p. 473. (m) Vide ante, Oh. XII., p. 205. 400 APPENDIX OF STATUTES — BOOK I. Provisions applicable to sheriff to apply to coroner. Jury to be summoned. Jury to be impanelled. Sheriff to preside. undertaking, if they be a corporation, or if they be not a corporation! under the hands and seals of such promoters or any two of them; and if such sheriff be interested in the matter in dispute, such application shall be made to some coroner of the county in which the lands in question, or some part thereof, shall be situate, and if all the coroners of such county be so interested such application may be made to- some person having filled the office of sheriff or coroner in such county, and who shall be then living there, and who shall not be interested in the matter in dispute; and with respect to the persons last mentioned, preference shall be given to one who shall have most recently served either of the said offices; and every ex-sheriff, coroner, or ex-coroner, shall have power, if he think fit, to appoint a deputy or assessor. 40. Throughout the enactments contained in this act relating to- the reference to a jury, where the term " sheriff " is used, the provi- sions applicable thereto shall be held to apply to every coroner or other person lawfully acting in his place ; and in every case in which any such warrant shall have been directed to any other person than. the sheriff, such sheriff shall, immediately on receiving notice of the delivery of the warrant, deliver over, on application for that purpose, to the person to whom the same shall have been directed, or to any person appointed by him to receive the same, the jurors book and special jurors list belonging to the county where the lands in question shall be situate. 41. Upon the receipt of such warrant the sheriff shall summon a jury of twenty-four indifferent persons, duly qualified to act as common jurymen in the superior courts, to meet at a convenient time and place to be appointed by him for that purpose, such time not being less than fourteen nor more than twenty-one days after the receipt of such warrant, and such place not being more than eight miles distant from the lands in question, unless by consent of the parties interested, and he shall forthwith give notice to the promoters of the works of the time and place so appointed by him. 42. Out of the jurors appearing upon such summons a jury of twelve persons shall be drawn by the sheriff, in such manner as juries for trials of issues joined in the superior courts are by law required to be drawn, and if a sufficient number of jurymen do not appear in obedience to such summons the sheriff shall return other indifferent men, duly qualified as aforesaid, of the bystanders, or others that can speedily be procured, to make up the jury to thie number aforesaid; and all parties concerned may have their lawful challenges against any of the jurymen, but no such party shall challenge the array. 43. The sheriff shall preside on the said inquiry, and the party claiming compensation shall be deemed the plaintiff, and shall have all such rights and privileges as the plaintiff is entitled to in the trial of actions at law; and, if either party so request in writing, the sheriff shall summon before him any person considered necessary to be examined as a witness touching the matters in question, and on the like request the sheriff shall order the jury, or any six or more of THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 401 them, to view the place or matter in controversy,, in like manner as View by jury, views may be had in the trial of actions in the superior courts. 44. If the sheriff make default in any of the matters hereinbefore Penalty on required to be done by him in relation to any such trial or inquiry he sheriff and shall forfeit fifty pounds for every such offence, and such penalty shall ^faul/ ° r be recoverable by the promoters of the undertaking by action in any of the superior courts; and if any person summoned and returned upon any jury under this or the special act, whether common or special, do not appear, or if appearing he refuse to make oath, or in any other manner unlawfully neglect his duty, he shall, unless he show reasonable excuse to the satisfaction of the sheriff, forfeit a sum not exceeding ten pounds; and every such penalty payable by a sheriff or juryman shall be applied in satisfaction of the costs of the inquiry, so far as the same will extend; and, in addition to the penalty hereby imposed, every such juryman shall be subject to the same regulations, pains and penalties as if such jury had been returned for the trial of an issue joined in any of the superior courts. 45. If any person duly summoned to give evidence upon any such Penalty on inquiry, and to whom a tender of his reasonable expenses shall have witnesses been made, fail to appear at the time and place specified in the "f^f Bummons, without sufficient cause, or if any person, whether sum- moned or not, who shall appear as a witness, refuse to be examined on oath touching the subject-matter in question, every person so offending shall forfeit to the party aggrieved a sum not exceeding- ten pounds. 46. Not less than ten days' notice of the time and place of the Notice of inquiry shall be given in writing by the promoters of the undertaking ln 1 mr y- to the other party. 47. If the party claiming compensation shall not appear at the time If the party appointed for the inquiry, such inquiry shall not be further proceeded olal / nl ?? in, but the compensation to be paid shall be such as shall be asoer- tne i nqu j ry tained by a surveyor appointed by two justices in manner hereinafter not to provided. proceed. 48. Before the jury proceed to inquire of and assess the compensa- Jury to be tion or damage in respect of which their verdict is to be given, they sworn, shall make oath that they will truly and faithfully inquire of and assess such compensation or damage, and the sheriff shall administer such oaths, as well as the oaths of all persons called upon to give evidence. 49. Where such inquiry shall relate to the value of lands to be Sums to be purchased, and also to compensation claimed for injury done or to be P* 1 ^™ f done to the lands held therewith, the jury shall deliver their verdict lands anVW separately for the sum of money to be paid for the purchase of the damage to be- lauds required for the works or of any interest therein belonging to assessed the party with whom the question of disputed compensation shall 8e P ara e 7- have arisen, or which under the provisions herein contained, he is enabled to sell or convey, and for the sum of money to be paid by way of compensation for the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such c 26 402 APPENDIX OF STATUTES — BOOK I, Verdict and judgment to be recorded. Costa of the inquiry, how to be borne. Particulars of the costs. Payment of costs. lands by the exercise of the powers of this or the special act, or any act incorporated therewith. 50. The sheriff before whom such inquiry shall be held shall give judgment for the purchase-money or compensation assessed by such jury, and the verdict and judgment shall be signed by the sheriff, and being so signed shall be kept by the clerk of the peace among the records of the general or quarter sessions of the county in which the lands or any part thereof shall be situate in respect of which such purchase-money or compensation shall have been awarded; and such verdicts and judgments shall be deemed records, and the same or true copies thereof shall be good evidence in all courts and elsewhere, and all persons may inspect the said verdicts and judgments, and may have copies thereof or extracts therefrom, on paying for each inspection thereof one shilling, and for every one hundred words copied or extracted therefrom sixpence, which copies or extracts the clerk of the peace is hereby required to make out, and to sign and certify the same to be true copies. 51. On every such inquiry before a jury, where the verdict of the jury shall be given for a greater sum than the sum previously offered by the promoters of the undertaking, all the costs of such inquiry shall be borne by the promoters of the undertaking; but if the verdict of the jury be given for the same or a less sum than the sum previously offered by the promoters of the undertaking, or if the owner of the land shall have failed to appear at the time and place appointed for the inquiry, having received due notice thereof, one-half of the costs of summoning, impanelling, and returning the jury, and of taking the inquiry, and recording the verdict and judgment thereon, in case such verdict shall be taken, shall be defrayed by the owner of the lands, and the other half by the promoters of the undertaking, and each party shall bear his own costs, other than as aforesaid, incident to such inquiry. 52. The costs of any such inquiry shall, in case of difference, be settled by one of the masters of the Court of Queen's Bench of England or Ireland, according as the lands are situate, on the appli- cation of either party, and such costs shall include all reasonable costs, charges, and expenses incurred in summoning, impanelling, and returning the jury, taking the inquiry, the attendance of witnesses, the employment of counsel and attorneys, recording the verdict and judgment thereon, and otherwise incident to such inquiry (?j). 53. If any such costs shall be payable by the promoters of the undertaking, and if within seven days after demand such costs be not paid to the party entitled to receive the same, they shall be recoverable by distress, and on application to any justice he shall issue his warrant accordingly; and if any such costs shall be payable by the owner of the lands or of any interest therein, the same may be deducted and retained by the promoters of the undertaking out of any money awarded by the jury to such owner or determined by the valuation of a surveyor under the provision hereinafter contained; and the pay- («) Ci. L. CI. (Taxation of Coats) Act, 1895, s. 1 {post, p. 440). Vide ante, p. 217. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 403 merit or deposit of the remainder, if any, of such money, shall be deemed payment and satisfaction of the whole thereof, or if such costs shall exceed the amount of the money so awarded or determined, the excess shall be recoverable by distress, and on application to any justice he shall issue his warrant accordingly. ■ 54. If either party desire any such question of disputed compen- Special jury sation as aforesaid to be tried before a special jury, such question to be , 8Um " shall be so tried, provided that notice of such desire, if coming from request rf^ 6 the other party, be given to the promoters of the undertaking before either party. they have issued their warrant to the sheriff; and for that purpose the promoters of the undertaking shall by their warrant to the sheriff require him to nominate a special jury for such trial; and thereupon the sheriff shall, as soon as conveniently may be after the receipt by hiin of such warrant, summon both the parties to appear before him, by themselves or their attorneys, at some convenient time and place appointed by him for the purpose of nominating a special jury (not being less than five nor more than eight days from the service of such summons); and at the place and time so appointed the sheriff shadl proceed to nominate and strike a special jury, in the manner in which such juries shall be required by the laws for the time being in force, to be nominated or struck by the proper officers of the superior courts, and the sheriff shall appoint a day, not later than the eighth day after striking- of such jury, for the parties or their agents to appear before him to reduce the number of such jury, and thereof shall give four days' notice to the parties; and on the day so appointed the sheriff shall proceed to reduce the said special jury to the number of twenty, in the manner used and accustomed by the proper officers of the superior courts. 55. The special jury on such inquiry shall consist of twelve of the Deficiency of said twenty who shall first appear on the names being called over, e P eo,al J ur y- the parties having their lawful challenges against any of the said jurymen; and if a full jury do not appear, or if after such challenges a full jury do not remain, then, upon the application of either party, the sheriff shall add to the list of such jury the names of any other disinterested persons qualified to act as special or common jurymen, who shall not have been previously struck off the aforesaid list, and who may then be attending the court or can speedily be procured, so as to complete such jury, all parties having their lawful challenges against such persons; and the sheriff shall proceed to the trial and. adjudication of the matters in question by such jury, and such trial shall be attended in all respects with the like incidents and con- sequences, and the like penalties shall be applicable, as hereinbefore provided in the case of a trial by common jury. 56. Any other inquiry than that for the trial of which such special Other in- jury may have been struck and reduced as aforesaid may be tried by ^™ e 8 s pe 'f 8 [ e such jury, provided the parties thereto respectively shall give their jury by consent to such trial. consent. 57. No juryman shall, without his consent, be summoned or Jurymen not required to attend any such proceeding as aforesaid more than once *° ^^ "J year . once a y ear _ 26 (2) 404 APPEXDIX OF STATUTES— BOOK I. Compensation to absent parties to be determined by a surveyor appointed by two justices. Two justices to nominate a surveyor. Declaration to be made by the surveyor. Valuation, &c. to be pro- duced to the owner of the lands on demand. Expenses to be borne by promoters. Purchase - money and compensa- tion, hosv to be estimated. (Compensation to Absent Owners (o).) 58. The purchase -money or compensation to be paid for any lands to be purchased or taken by the promoters of the undertaking from any party who, by reason of absence from the kingdom, is prevented from treating, or who cannot, after diligent inquiry, be found, or who shall not appear at the time appointed for the inquiry before the jury as hereinbefore provided for, after due notice thereof, and the com- pensation to be paid for any permanent injury to such lands, shall be such as shall be determined by the valuation of such able practical surveyor as two justices shall nominate for that purpose as herein- after mentioned (p). 59. Upon application by the promoters of the undertaking to two justices, and upon such proof as shall be satisfactory to them, that any such party is, by reason of absence from the kingdom, prevented from treating, or cannot after diligent inquiry be found, or that any such party failed to appear on such inquiry before a jury as aforesaid, after due notice to him for that purpose, such justices shall, by writing under their hands, nominate an able practical surveyor for determin- ing such compensation as aforesaid, and such surveyor shall determine the same accordingly, and shall annex to his valuation a declaration in writing subscribed by him of the correctness thereof. 60. Before such surveyor shall enter upon the dutj" of making such valuation as aforesaid he shall, in the presence of such justices, or one of them, make and subscribe the declaration following at the foot of such nomination: (that is to say, ) " I, A. B., do solemnly and sincerely declare, that I will faithfully, impar- tially, and honestly, according to the best of my skill and ability, execute the dnty of making the valuation hereby referred to me. , ' A. B " ilade and subscribed in the presence of And if any surveyor shall corruptly make such declaration, or having made such declaration, shall wilfully act contrary thereto, he shall be guilty of a misdemeanor. 61. The said nomination and declaration shall be annexed to the valuation to be made by such surveyor, and shall be preserved together therewith by the promoters of the undertaking, and they shall at all times produce the said valuation and other documents, on demand, to the owner of the lands comprised in such valuation, and to all other parties interested therein. 62. All the expenses of and incident to every such valuation shall be borne by the promoters of the undertaking. 63. In estimating the purchase-money or compensation to be paid by the promoters of the undertaking, in any of the cases aforesaid, regard shall be had by the justices, arbitrators or surveyors, as the case may be, not only to the value of the land to be purchased, or taken by the promoters of the undertaking, but also to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or (r>) Title ante, pp. 70, 174. O) Ante, p. 174. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 405 otherwise injuriously affecting such other lands by the exercise of the powers of this or the special act, or any act incorporated therewith. 64. When the compensation payable in respect of any lands, or Where com- any interest therein, shall have been ascertained by the valuation of pensation to a surveyor, and deposited in the bank under the provisions herein absent party contained, by reason that the owner of or party entitled to convey, terminedby such lands, or such interest therein as aforesaid, could not be found, a surveyor, or was absent from the kingdom, if such owner or party shall be tne P art y ma 7 dissatisfied with such valuation it shall be lawful for him, before he jJXuttedtT shall have applied to the Court of Chancery for payment or invest- arbitration, ment of the moneys so deposited under the provisions herein con- tained, by notice in writing to the promoters of the undertaking, to require the question of such compensation to be submitted to arbitra- tion, and thereupon the same shall be so submitted accordingly, in the same manner as in other cases of disputed compensation herein- before authorized or required to be submitted to arbitration. 65. The question to be submitted to the arbitrators in the case last Question to aforesaid shall be, whether the said sum so deposited as aforesaid by be submitted the promoters of the undertaking was a sufficient sum, or whether any Gators *" and what further sum ought to be paid or deposited by them. 66. If the arbitrators shall award that a further sum ought to be if further paid or deposited by the promoters of the undertaking, they shall pay sum awarded, or deposit, as the case may require, such further sum within fourteen P romot ersto days after the making of such award, or in default thereof the same 8ame w ithi n may be enforced by attachment, or recovered with costs, by action or 14 days, suit in any of the superior courts . 67. If the arbitrators shall determine that the sum so deposited Costs of the was sufficient, the costs of and incident to such arbitration to be arbltratlon - determined by the arbitrators shall be in the discretion of the arbi- trators, but if the arbitrators shall determine that a further sum ought to he paid or deposited by the promoters of the undertaking, all the costs of and incident to the arbitration shall be borne by the promoters of the undertaking. (Compensation for Lands taken or Injuriously, Affected, dc.) 68. If any party shall be entitled to any compensation in respect To be settled of any lands, or of any interest therein, whch shall have been taken by arbitration for or injuriously affected by the execution of the works, and for °he ration o£ which the promoters of the undertaking shall not have made satis- the party faction under the provisions of this or the special act, or any act claiming corn- incorporated therewith, and if the compensation claimed in such case Platoon, shall exceed the sum of fifty pounds such party may have the same settled either by arbitration or by the verdict of a jury, as he shall think fit; and if such party desire to have the same settled by arbitra- tion, it shall be lawful for him to give notice in writing to the promoters of the undertaking of such his desire, stating in such notice the nature of the interest in such lands in respect of which, he claims compensation, and the amount of the compensation so claimed therein; and unless the promoters of the undertaking be wiling to pay the amount of compensation so claimed, and shall 406 APPENDIX OF STATUTES BOOK 1. enter into a written agreement for that purpose within twenty-one days after the receipt of any such notice from any party so entitled, the same shall be settled by arbitration in the manner herein pro- vided; or if the party so entitled as aforesaid desire to have such question of compensation settled by jury, it shall be lawful for him to : give notice in writing of such his desire to the promoters of the .undertaking, stating such particulars as aforesaid, and unless, the promoters of the undertaking be willing to pay the amount of com- pensation so claimed, and enter into a written agreement for that purpose, they shall, within twenty-one days after the receipt of such notice, issue their warrant to the sheriff to summon a jury for settling the same in the manner herein provided, and in default thereof they shall be liable to pay to the party so entitled as aforesaid the amount of compensation so claimed, and the same may be re- covered by him, with costs, by action in any of the superior courts. (Payment to Persons having Limited Interests or under Disability, or whose Title is Defective (#)•) And with respect to the purchase-money or compensation coming to parties having limited interests, or prevented from treating, or not making title, be it enacted as follows: Purchase- g9. If the purchase -money or compensation which shall be payable ableto parties ^ n res P ec * ; °f arL y lands, or any interest therein, purchased or taken under dis- by the promoters of the undertaking from any corporation, tenant for ability _ life or iii tail, married woman seised in her own right or entitled to SiOOMx/bf dower, guardian, committee of lunatic or idiot, trustee, executor, or deposited in administrator, or person having a partial or qualified interest only in the bank. such lands, and not entitled to sell or convey the same except under the provisions of this or the special act, or the compensation to be paid for any permanent damage to any such lands amount to or exceed the sum of two hundred pounds, the same shall be paid into the bank, in the name and with the privity of the accountant-general of the Court of Chancery (r) [in England if the same relate to lands in England or Wales, or the accountant-general of the Court of Exchequer in Ireland if the same relate to lands in Ireland] (s), to be placed to the account there of such accountant-general, ex parte the promoters of the undertaking (describing them by their proper name), in the matter of the special act (citing it), pursuant to the method prescribed by any act for the time being in force for regulat- ing moneys paid into the said courts; and such moneys shall remain so deposited until the same be applied to some one or more of the following purposes (that is to say) : Application I n the purchase or redemption of the land tax, or the discharge of deposited 8 &n ^ < k* )t or incumbrance affecting the land in respect of which (?) Vide ante, p. 248. (r) The paymaster-general is substituted for the accountant-general by the Court of Chancery (Funds) Act, 1872 (35 & 36 Vict. c. 44), s. 6. (s) Repealed by S. L. R. Act, 1892. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 407 such money shall have been paid, or affecting other lands settled therewith to the same or the like uses, trusts, or purposes; or In the purchase of other lands to be conveyed, limited, and settled upon the like uses, trusts, and purposes, and in the same manner as the lands in respect of which such money shall have been paid stood settled; or If such money shall be paid in respect of any buildings taken under the authority of this or the special act, or injured by the proximity of the works, in removing or replacing such buildings, or substituting others in their stead, in such manner as the Court of Chancery shall direct; or In payment to any party becoming absolutely entitled to such money. 70. Such money may be so applied as aforesaid upon an order of Order for the Court of Chancery [in England, or the Court of Exchequer in application Ireland] (<), made on the petition of the party who would have been and ™ ve8t_ entitled to the rents and profits of the lands in respect of which such w hile. money shall have been deposited; and until the money can be so applied it may, upon the like order, be invested by the said accountant-general in the purchase of three per centum consolidated or three per centum reduced bank annuities, or in government or real securities, and the interest, dividends and annual proceeds thereof paid to the party who would for the time being have been entitled to the rents and profits of the lands. 71. If such purchase-money or compensation shall not amount to g um8 f rom the sum of two hundred pounds, and shall exceed the sum of twenty 201. to 200?. to pounds, the same shall either be paid into the bank, and applied in be deposited the manner hereinbefore directed with respect to sums amounting to trustees ° or exceeding two hundred pounds, or the same may lawfully be paid to two trustees to be nominated by the parties entitled to the rents or profits of the lands in respect whereof the same shall be payable, such nomination to be signified, by writing under the hands of the party so entitled; and in case of the coverture, infancy, lunacy, or other incapacity of the parties entitled to such moneys, such nomination may lawfully be made by their respective husbands, guardians, committees, or trustees; but such last-mentioned application of the moneys shall not be made unless the promoters of the undertaking approve thereof and of the trustees named for the purpose; and the money so paid to such trustees, and the produce arising therefrom, shall be by such trustees applied in the manner hereinbefore directed with respect to money paid into the bank, but it shall not be necessary to obtain any order of the court for that purpose . 72. If such money shall not exceed the sum of twenty pounds, the s ums no t ex- same shall be paid to the parties entitled to the rents and profits ceeding 201. to of the lands in respect whereof the same shall be payable, for their b ° P?^ to own use and benefit, or in case of the coverture (m), infancy, idiotcy, lunacy, or other incapacity of any such parties, then such money 6hall (<) Repealed by S. L. It. Act, 1892. («) See Married Women's Property Act, 1882, ss. 1 (1), 2, 19. 408 APPENDIX OF STATUTES — BOOK I. All sums pay- able under contract with persons not absolutely entitled, to be paid into bank. Court of Chancery may direct appli- cation of money in respect of leases or reversions as they may think just. Upon deposit being made, the owners of the lands to convey, or in default the lands to vest in the pro- moters of the be paid, for their use, to the respective husbands, guardians, com- mittees, or trustees of such persons. 73. All sums of money exceeding twenty pounds, which ma\ r be payable by the promoters of the undertaking in respect of the taking, using, or interfering with any lands under a contract or agreement with any person who shall not be entitled to dispose of such lands, or of the interest therein contracted to be sold by him absolutely for his own benefit, shall be paid into the bank or to trustees in manner aforesaid; and it shall not be lawful for any contracting party not entitled as aforesaid to retain to his own use any portion of the sums so agreed or contracted to be paid for or in respect of the talcing, using, or interfering with any such lands, or in lieu of bridges, tunnels, or other accommodation works, or for assenting to or not opposing the passing of the bill authorizing the taking of such lands, but all such moneys shall be deemed to have been contracted to be paid for and on account of the several parties interested in such lands, as well in possession as in remainder, reversion, or expectancy: pro- vided always, that it shall be in the discretion of the Court of Chancery [in England, or the Court of Exchequer in Ireland] (x), or the said trustees, as the case may be, to allot to any tenant for life, or for any other partial or qualified estate, for his own use, a portion of the sum so paid into the bank, or to such trustees as aforesaid, as compensation for any injury, inconvenience, or annoyance which he may be considered to sustain, independently of the actual value of the lands to be taken, and of the damage occasioned to the lands held therewith, by reason of the taking of such lands and the making of the works. 74. Where any purchase-money or compensation paid into the bank under the provisions of this or the special act shall have been paid in respect of any lease for a life or lives or years, or for a life or lives and years, or any estate in lands less than the whole fee simple thereof, or of any reversion dependent on any such lease or estate, it shall be lawful for the Court of Chancery [in England, or the Court of Exchequer in Ireland] (x), on the petition of any party interested in such money, to order that the same shall be laid out, invested, accumulated, and paid in such manner as the said court may consider will give to the parties interested in such money the same benefit therefrom as they might lawfully have had from the lease, estate, or reversion in respect of which such money shall have been paid, or as near thereto as may be. 75. Upon deposit in the bank in manner hereinbefore 'provided of the purchase-money or compensation agreed or awarded to be paid in respect of any lands purchased or taken by the promoters of the undertaking under the provisions of this or the special act, or any act incorporated therewith, the owner of such lands, including in such term all parties by this act enabled to sell or convey lands, shall, when required so to do by the promoters of the undertaking, (x) Repealed by S. L. R. Act, 1892. See as to Ireland, Supreme Court of Judicature Act (Ireland), 1877. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 4U9 duly convey such lands to the promoters of the undertaking, or as undertaking they shall direct; and in default thereof, or if he fail to adduce a upon a deed good title to such lands to their satisfaction, it shall be lawful for the executed^ promoters of the undertaking, if they think fit, to execute a deed poll under their common seal if they be a corporation, or if they be not a corporation under the hands and seals of the promoters, or any two of them, containing a description of the lands in respect of which such default shall be made, and reciting the purchase or taking thereof by the promoters of the undertaking, and the names of the parties from whom the same were purchased or taken, and the deposit made in respect thereof, and declaring the fact of such default having been made, and such deed poll shall be stamped with the stamp duty which would have been payable upon a conveyance to the promoters of the undertaking of the lands described therein ; and thereupon all the estate and interest in such lands of or capable of being sold and conveyed by the party between whom and the promoters of the undertaking such agreement shall have been come to, or as between whom and the promoters of the undertaking such purchase-money or compensation shall have been determined by a jury, or by arbitrators or by a surveyor appointed by two justices as herein provided, and shall have been deposited as aforesaid, shall vest absolutely in the promoters of the undertaking, and as against such parties, and all parties on behalf of whom they are hereinbefore enabled' to sell and convey, the promoters of the undertaking shall be entitled to imme- diate possession of such lands. 76. If the owner of any such lands purchased or taken by the Where parties promoters of the undertaking, or of any interest therein, on tender of refuse to the purchase-money or compensation either agreed or awarded to be not B jJ w title paid in respect thereof, refuse to accept the same, or neglect or fail to or cannot be make out a title to such lands, or to the interest therein claimed by found, the him, to the satisfaction of the promoters of the undertaking, or if he P ( ^ e y ^'be refuse to convey or release such lands as directed by the promoters of deposited, the undertaking, or if any such owner be absent from the kingdom, or cannot after diligent inquiry be found, or fail to appear on the inquiry before a jury, as herein provided for, it shall be lawful for the promoters of the undertaking to deposit the purchase-money or com- pensation payable in respect of such lands, or any interest therein, in the bank, in the name and with the privity of the accountant-general of the Court of Chancery (y) [in England or the Court of Exchequer in Ireland^ («), to be placed, except in the cases herein otherwise provided for, to his account there, to the credit of the parties interested in such lands (describing them so far as the promoters of the undertaking can do), subject to the control and disposition of the said court. 77. Upon any such deposit of money as last aforesaid being made, Upon deposit the cashier of the bank shall give to the promoters of the under- ^ e ™| t m t ^ e a taking, or to the party paying in such money by their direction, a given, and the (y) Now the paymaster-general (Court of Chancery (Funds) Act, 1872, s. 6). (V) Repealed by S. L. E. Act, 1892. See as to Ireland, Supreme Court of Judicature Act (Ireland), 1877. 410 APPENDIX OF STATUTES BOOK I. lands to vest upon a deed poll being executed. Application of moneyB so deposited. Party in pos- session to be deemed the owner. Costs in cases of money deposited. receipt for such money, specifying therein for what and for whose- use (described as aforesaid) the same shall have been received, and in respect of what purchase the same shall have been paid in; and it shall be lawful for the promoters of the undertaking 1 , if they think fit, to execute a deed poll under their common seal if they be a corporation, or if they be not a corporation, under the hands and seals of the said promoters or any two of them, containing a descrip- tion of the lands in respect whereof such deposit shall have been, made, and declaring the circumstances under which and the names of the parties to whose credit such deposit shall have been made, and such deed poll shall be stamped with the stamp duty which would have been payable upon a conveyance to the promoters of the under- taking of the lands described therein; and thereupon all the estate and interest in such lands of the parties for whose use and in respect- whereof such purchasei-money or compensation shall have been deposited shall vest absolutely in the promoters of the undertaking, and as against such parties they shall be entitled to immediate pos- session of such lands. 78. Upon the application by petition of any party making claim to the money so deposited as last aforesaid, or any part thereof, or to the lands in respect whereof the same shall have been so deposited, or any part of such lands, or any interest in the same, the said Court of Chancery [in England or the Court of Exchequer in Ireland] (z), may, in a summary way, as to such court shall seem fit, order such money to be laid out or invested in the public funds, or may order distribution thereof, or payment of the dividends thereof, according to the respective estates, titles or interests of the parties making claim to such money or lands, or any part thereof, and may make such other order in the premises as to such court shall seem fit. 79. If any question arise respecting the title to the lands in respect whereof such moneys shall have been so paid or deposited as laforesaid, the parties respectively in possession of such lands, as being the owners thereof, or in receipt of the rents of such lands, as being entitled thereto at the time of such lands being purchased or taken, shall be deemed to have been lawfully entitled to such lands, until the contrary be shown to the satisfaction of the court; and unless the contrary be shown as aforesaid, the parties so in possession, and all parties claiming under them or consistently with their possession, shall be deemed entitled to the money so deposited, and to the' dividends or interest of the annuities or securities purchased there- with, and the same shall be paid and applied accordingly. 80. In all eases of moneys deposited in the bank under the provi- sions of this or the special act, or any act incorporated therewith, except where such moneys shall have been so deposited by reason of the wilful refusal of any party entitled thereto, to receive the same,, or to convey or release the lands in respect whereof the same shall be payable, or by reason of the wilful neglect of any party to make out a good title to the land required, it shall be lawful for the Court (z) Repealed by S. L. E. Act. Judicature Act (Ireland), 1877. 1892. See as to Ireland, Supreme Court of THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 411 of Chancery [in England or the Court of Exchequer in Ireland] (a), to order the costs of the following matters, including therein all reasonable charges and expenses incident thereto, to be paid by the (promoters of the undertaking, (that is to say,) the costs of the purchase or taking of the lands, or which shall have been incurred in consequence thereof, other than such costs as are herein otherwise provided for, and the costs of the investment of such moneys in government or real securities, and of the re-investment thereof in the purchase of other lands, and also the costs of obtaining the proper orders for any of the purposes aforesaid, and of the orders for the payment of the dividend and interest of the securities upon which such moneys shall be invested, and for the payment out of court of the principal of such moneys, or of the securities whereon the same shall be invested, and of all proceedings relating thereto, except such as are occasioned by litigation between adverse claimants: provided always, that the costs of one application only for re -investment in land shall be allowed, unless it shall appear to the Court of Chancery [in England or the Court of Exchequer in Ireland!}^'), that it is for the benefit of the parties interested in the said moneys that the same should be invested in the purchase of lands, in different sums and at different times, in which case it shall be lawful for the court, if it think fit, to order the costs of any such investments to be paid by the promoters of the undertaking (&). {Conveyances of Lands (c).) And with respect to the conveyances of lands, be it enacted as follows: 81. Conveyances of lands to be purchased under the provisions of Form of oon- this or the special act, or any act incorporated therewith, may be veyances. according to the forms in the schedules (A) and (B) respectively to this act annexed or as near thereto as the circumstances of the case will admit, or by deed in any other form which the promoters of the undertaking may think fit; and all conveyances made according to the forms in the said schedules or as near thereto as the circumstances of the case will admit, shall be effectual to vest the lands thereby con- veyed in the promoters of the undertaking, and shall operate to merge all terms of years attendant by express declaration, or by construction of law, on the estate or interest so thereby conveyed, and to bar and to destroy all such estates tail, and all other estates, rights, titles, remainders, reversions, limitations, trusts, and interests whatsoever, of and in the lands comprised in such conveyances which shall have been purchased or compensated for by the consideration therein mentioned; but although terms of years be thereby merged, they shall in equity afford the same protection as if they had been kept on foot, and assigned to a trustee for the promoters of the undertaking to attend the reversion and inheritance. (a) Repealed by S. L. R. Act, 1892. (b) Vide ante, p. 274. 0) Vide ante, p. 244. 412 APPENDIX OF STATUTES — BOOK I. Costs of con- veyances. Taxation of costs of con- veyances. 82. The costs of all such conveyances shall be borne by the promoters of the undertaking, and such costs shall include all charges and expenses incurred, on the part as well of the seller as of the purchaser, of all conveyances and assurances of any such lands, and of any outstanding terms or interests therein, and of deducing, evidencing, and verifying the title to such lands, terms, or interests, and of making out and furnishing such abstracts and attested copies as the promoters of the undertaking may require, and all other reasonable expenses incident to the investigation, deduction, and verification of such title. 83. If the promoters of the undertaking and the party entitled to any such costs shall not agree as to the amount thereof, such costs shall be taxed by one of the taxing masters of the Court of Chancery [or by a Master in Chancery in Ireland] (d), upon an order of the same court, to be obtained upon petition in a summary way by either of the parties ; and the promoters of the undertaking shall pay what the said master shall certify to be due in respect of such costs to the party entitled thereto, or in default thereof the same may be recovered in the same way as any other costs paj'able under an order of the said court, or the same may be recovered by distress in the manner herein- before provided in other cases of costs; and the expense of taxing such costs shall be borne by the promoters of the undertaking, unless upon such taxation one sixth part of the amount of such costs shall be disallowed, in which case the costs of such taxation shall be borne by the party whose costs shall be so taxed, and the amount thereof shall be ascertained by the said master, and deducted by him accord- ingly in his certificate of such taxation. Payment of price to be made previous to entry, except to survey, &c. (Entry upon Lands (e).) And with respect to the entry upon lands by the promoters of the undertaking, be it enacted as follows: 84. The promoters of the undertaking shall not, except by consent of the owners and occupiers, enter upon any lands which shall be required to be purchased or permanently used for the purposes and under the powers o'f this or the special act, until they shall either have paid to every party having any interest in such lands or deposited in the bank, in the manner herein mentioned, the purchase-money or compensation agreed or awarded to be paid to such parties respectively for their respective interests therein: provided always, that for the purpose merely of surveying and taking levels of such lands, and of probing or boring to ascertain the nature of the soil, and of setting out the line of the works, it shall be lawful for the promoters of the undertaking, after giving not less than three nor more than fourteen days' notice to the owners or occupiers thereof, to enter upon such lands without previous consent, making compensation for any damage thereby occasioned to the owners or occupiers thereof. (d) Repealed by S. L. R. Act, 1892. (e) Fide ante, p. 89. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 413 85. Provided also, that if the promoters of the undertaking shall be Promoters to desirous of entering upon and using any such lands before an agree- be allow ed to ment shall have been come to or an award made, or verdict given for beforepur" S the purchase-money or compensation to be paid by them in respect chase, on of such lands, it shall be lawful for the promoters of the undertaking mal png de- to deposit in the bank by way of security, as hereinafter mentioned, of security* 7 either the amount of purchase-money or compensation claimed by any and giving party interested in or entitled to sell and convey such lands, and who bond - shall not consent to such entry, or such a sum as shall, by a surveyor .appointed by two justices (/) in the manner hereinbefore provided in the case of parties who cannot be found, be determined to be the value of such lands, or of the interest therein which such party is entitled to or enabled to sell and convey, and also to give to such party a bond, under the common seal of the promoters, if they be a corporation, or if they be not a corporation under the hands and seals of the said promoters, or any two of them, with two sufficient sureties to be approved of by two justices in ease the parties differ, in a penal sum equal to the sum so to be deposited, conditioned for payment to such party, or for deposit in the bank for the benefit of the parties interested in such lands, as the ease may require, under the provisions herein contained, of all such purchase-money or compensation as may in manner hereinbefore provided be determined to be payable by the promoters of the undertaking in respect of the land so entered upon, together with interest thereon, at the rate of five pounds per centum per annum, from the time of entering on such lands until such pur- chase-money or compensation shall be paid to such part} 7 or deposited in the bank for the benefit of the parties interested in such lands under the provisions herein contained; and upon such deposit by way of security being made as aforesaid, and such bond being delivered or tendered to such non-consenting party as aforesaid, it shall be lawful for the promoters of the undertaking to enter upon and use such lands, without having first paid or deposited the purchase-money or compensation in other cases required to be paid or deposited by them before entering upon any lands to be taken by them under the provisions of this or the special act. 86. The money so to be deposited as last aforesaid shall be paid Upon deposit into the bank in the name and with the privity of the accountant- ^g™*^' general of the Court of Chancery (g) [in England or the Court of gi^eceipt. Exchequer in Ireland] (h), to be placed to his account there to the credit of the parties interested in or entitled to sell and convey the lands so to be entered upon, and who shall not have consented to such entry, subject to the control and disposition of the said court; and upon such deposit being made, the cashier of the bank shall give to the promoters of the undertaking, or to the party paying in such money by their direction, a receipt for such money, specifying therein (/) In the case of railways by the Board of Trade, see Railway Companies Act, 1867, s. 36, post, p. 458. (g) Now the paymaster-general (Court of Chancery (Funds) Act, 1872, s. 6). (f>) Repealed by S. L. R. Act, 1892. 414 APPENDIX OF STATUTES BOOK I. Deposit to remain as a security, and to be applied under the direction of the court. The company may pay the deposit money into the bank by way of security during the time that the office of the accountant- general is closed. Penalty on the promoters of the under- taking enter- ing upon lands without consent before for what purpose and to whose credit the same shall have been paid in. 87. The money so deposited as last aforesaid shall remain in the bank, by way of security to the parties whose lands shall so have been entered upon for the performance of the condition of the bond to be given by the promoters of the undertaking, as hereinbefore mentioned, and the same may, on the application by petition of the promoters of the undertaking, be ordered to be invested in bank annuities, or government securities, and accumulated; and upon the condition, of such bond being fully performed, it shall be lawful for the Court of Chancery [in England or the Court of Exchequer in Ireland] (h), upon a like application, to order the money so deposited, or the funds in which the same shall have been invested, together with the accumulation thereof, to be repaid or transferred to the promoters of the undertaking, or if such condition shall not be fully performed, it shall be lawful for the said court to order the same to be applied in such manner as it shall think fit for the benefit of the parties for whose security the same shall so have been deposited.. 88. If at any time the company be unable, by reason of the closing of the office of the accountant-general of the Court of Chancery (») [in England or the Court of Exchequer in Ireland] (h), to obtain his authority in respect of the payment of any sum of money so authorized to be deposited in the bank by way of security as aforesaid, it shall be lawful for the company to pay into the bank to the credit of such party or matter as the case may require (subject nevertheless to being dealt with as hereinafter provided, and not otherwise), such sum of money as the promoters of the undertaking shall, by some writing signed by their secretary or solicitors for the time being, addressed to [the governor and company of (/)'] the bank in that behalf, request, and upon any such payment being made the cashier of the bank shall give a certificate thereof; and in every such case, within ten days after the re-opening of the said accountant-general's office, the solicitor for the promoters of the undertaking shall there bespeak the direction for the payment of such sum into the name of the accountant-general (k), and upon production of such direction at the Bank of England the money so previously paid in shall be placed to the credit of the said accountant-general accordingly, and the receipt for the said payment be given to the party making the same in the usual way for the purpose of being filed at the Report office. 89. If the promoters of the undertaking or any of their contractors shall, except as aforesaid, wilfully enter upon and take possession of any lands which shall be required to be purchased or permanently used for the purposes of the special act, 'without such consent as 1 aforesaid, or without having made such payment for the benefit of (A) Eepealed by S. L.. E. Act, 1892. (i) Now the paymaster-general (Court of Chancery (Funds) Act, 1872, s. 6). (/) Repealed by S. L. E. Act, 1891. See Interpretation Act, 1889, a. 12, sub-ss. IS, 19. (ft) Now the paymaster-general (Court of Chancery (Funds) Act, 1872, s. 6). THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 415 :the parties interested in the lands, or such deposit by way of security payment of .as aforesaid, the promoters of the undertaking shall forfeit to the the P urohase - party in possession of such lands the sum of ten pounds over and molley ' above the amount of any damage done to such lands by reason of such entry and taking possession as aforesaid, such penalty and •damage respectively to be recovered before two justices; and if the promoters of the undertaking or their contractors shall, after con- viction in such penalty as aforesaid, continue in unlawful possession of any such lands, the promoters of the undertaking shall be liable to forfeit the sum of twenty-five pounds for every day they or their contractors shall so remain in possession as aforesaid, such penalty to be recoverable by the party in possession of such lands, with costs, by action in any of the superior courts: provided always, that nothing herein contained shall be held to subject the promoters of the under- taking to the payment of any such penalties as aforesaid, if they shall bond fide and without collusion have paid the compensation agreed or awarded to be paid in respect of the said lands to any person whom the promoters of the undertaking may have reasonably believed to be entitled thereto, or shall have deposited the same in the bank for the benefit of the parties interested in the lands, or made such deposit by way of security in respect thereof as hereinbefore mentioned, although such person may not have been legally entitled thereto. 90. On the trial of any action for any such penalty as aforesaid Decision of the decision of the justices under the provision hereinbefore contained justices not COT1 PlllSlVG £LR shall not be held conclusive as to the right of entry on any such to the ri ht { lands by the promoters of the undertaking. the promoters. 91. If in any case in which, according to the provisions of this or Proceedings the special act, or any act incorporated therewith, the promoters of m case of the undertaking are authorized to enter upon and take possession of ^gi™ erpoa . any lands required for the purposes of the undertaking, the owner session of or occupier of any such lands or any other person refuse to give up lands. the possession thereof, or hinder the promoters of the undertaking from entering upon or taking possession of the same, it shall be lawful for the promoters of the undertaking to issue their warrant to the sheriff to deliver possession of the same to the person appointed in such warrant to receive the same; and upon the receipt of such warrant the sheriff shall deliver possession of any such lands accord- ingly, and the costs accruing by reason of the issuing and execution of such warrant, to be settled by the sheriff, shall be paid by the person refusing to give possession, and the amount of such costs shall be deducted and retained by the promoters of the undertaking from the compensation, if any, then payable by them to such party, er if no such compensation be payable to such party, or if the same be less than the amount of such costs, then such costs, or the exctess thereof beyond such compensation, if not paid on demand, shall be levied by distress, and upon application to any justice for that purpose he shall issue his warrant accordingly. 92. And be it enacted, that no party shall at any time be required ^^^ f to sell or convey to the promoters of the undertaking a part only of sell part f a house. 416 APPENDIX OF STATUTES — BOOK I. any house or other building or manufactory, if such party be willing and able to sell and convey the whole thereof (I). Owners of intersected lands may insist on sale. Exception. Promoters of the under- taking- may insist on pur- chase where expense of bridges, &c. exceeds the value. (Intersected Lands (m).) And with respect to small portions of intersected land, be it enacted as follows: 93. If any lands not being situate in a town or built upon (n) shall be so cut through and divided by the works as to leave, either on both sides or on one side thereof, a less quantity of land than half a statute acre, and if the owner of such small parcel of land require the promoters of the undertaking to purchase the same along with the other land required for the purposes of the special act, the promoters of the undertaking shall purchase the same accordingly, unless the owner thereof have other land adjoining to that so left into which the same can be thrown, so as to be conveniently occupied therewith; and if such owner have any other land so adjoining, the 'promoters of the undertaking shall, if so required by the owner, at their own expense, throw the piece of land so left into such adjoining land, by removing the fences and levelling the sites thereof, and by soiling the same in a sufficient and workmanlike manner. 94. If any such land shall be so cut through and divided as to leave on either side of the works a piece of land of less extent than half a statute acre, or of less value than the expense of making a bridge, culvert, or such other communication between the land so divided as the promoters of the undertaking are, under the provisions of this or the special act, or any act incorporated therewith, compell- able to make, and if the owner of such lands have not other lands adjoining such piece of land, and require the promoters of the under- taking to make such communication, then the promoters of the under- taking may require such owner to sell to them such piece of land, and any dispute as to the value of such piece of land, or as to what would be the expense of making such communication, shall be ascer- tained as herein provided for cases of disputed compensation; and on the occasion of ascertaining the value of the land required to be taken for the purposes of the works, the jury or the arbitrators, as the case may be, shall, if required by either party, ascertain by their verdict or award the value of any such severed piece of land, and also what would be the expense of making such communication. Conveyances of copyhold lands to be enrolled. (Copyhold Lands (o).) And with respect to copyhold lands, be it enacted as follows: 95. Every conveyance to the promoters of the undertaking, of any lands which shall be of copyhold or customary tenure, or of the nature thereof, shall be entered on the rolls of the manor of which (I) Vide ante, p. 35. (w) Vide ante, p. 34. (n) Vide ante, pp. 44, 312; and cf. (o) Vide ante, p. 285. 128, post, p. 428. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 417 the same shall be held or parcel; and on payment to the steward of such manor of such fees as would be due to him on the surrender of the same lands to the use of a purchaser thereof he shall make such enrolment; and every such conveyance, when so enrolled, shall have the like effect in respect of such copyhold or customary lands, as if the same had been of freehold tenure; nevertheless, until such lands shall have been enfranchised by virtue of the powers hereinafter con- tained, they shall continue subject to the same fines, rents, heriots, and services as were theretofore payable and of right accustomed. 96. Within three months after the enrolment of the conveyance of Copyhold any such copyhold or customary lands, or within one month after the lands to be promoters of the undertaking shall enter upon and make use of the enfranuluse d- same for the purposes of the works, whichever shall first happen, or if more than one parcel of such lands holden of the same manor shall have been taken by them, then within one month after the last of such parcels shall have been so taken or entered on by them, the promoters of the undertaking shall procure the whole of the lands holden of such manor so taken by them to be enfranchised, and for that purpose shall apply to the lord of the manor whereof such lands are holden to enfranchise the same, and shall pay to him such compensation in Compensation respect thereof as shall be agreed upon between them and him, and forenfraD- if the parties fail to agree respecting the amount of the compensation to be paid for such enfranchisement, the same shall be determined as in other cases of disputed compensation; and in estimating such compensation the loss in respect of the fines, heriots, and other services payable on death, descent, or alienation, or any other matters which would be lost by the vesting of such copyhold or customary lands in the promoters of the undertaking, or by the enfranchisement of the same, shall be allowed for. 97. Upon payment or tender of the compensation so agreed upon Lord of the or determined, or on deposit thereof in the bank in any of the cases ™^°^ c ^ hereinbefore in that behalf provided, the lord of the manor whereof ®° p a y men t of such copyhold or customary lands shall be holden shall enfranchise compensation. such lands, and the lands so enfranchised shall for ever thereafter be held in free and common socage; and in default of such enfranchise- ment by the lord of the manor, or if he fail to adduce a good title Enfranchise- thereto to the satisfaction of the promoters of the undertaking, it ^"^^in shall be lawful for them, if they think fit, to execute a deed poll, £ ases _ duly stamped, in the manner hereinbefore provided in the case of the purchase of lands by them, and thereupon the lands in respect of the enfranchisement whereof such compensation shall have been deposited as aforesaid shall be deemed to be enfranchised, and shall be for ever thereafter held in free and common socage. 98. If any such copyhold or customary lands be subject to any Apportion- customary or other rent, and part only of the land subject to any ^?Lte? Y ~ such rent be required to be taken for the purposes of the special act, the apportionment of such rent may be settled by agreement between the owner of the lands and the lord of the manor on the one part, and the promoters of the undertaking on the other part, and if such apportionment be not so settled by agreement, then the same shall be n. 27 418 APPENDIX OF STATUTES — HOOK I. Compensation for common lands, where held of a manor, &c, how to be paid. Lord of the manor, &c, to convey to the promoters of the under- taking on receiving compensation for his interest. Deed poll to be executed in certain cases. settled by two justices: and the enfranchisement of any copyhold or customary lands taken by virtue of this or the special act, or the apportionment of such rents, shall not affect in other respects any custom by or under which any such copyhold or customary lands not taken for such purposes shall be held; and if any of the lands so required be released from any portion of the rents to which they were subject jointly with any other lands, such last-mentioned lands shall be charged with the remainder only of such rents ; and with reference to any such apportioned rents, the lord of the manor shall have all the same rights and remedies over the lands to which such apportioned rent shall have been assigned or attributed as he had previously over the whole of the lands subject to such rents for the whole of such rents. {Common or Waste Lands (p).) And with respect to any such lands, being common or waste lands, be it enacted as follows: 99. The compensation in respect of the right in the soil of any lands subject to any rights of common shall be paid to the lord of the manor, in case he shall be entitled to the same, or to such party, other than the commoners, as shall be entitled to such right in the soil; and the compensation in respect of all other commonable and other rights in or over such lands, including therein any commonable or other rights to which the lord of the manor may be entitled other than his right in the soil of such lands, shall be determined and paid and applied in manner hereinafter provided with respect to common lands the right in the soil of which shall belong to the commoners; and upon payment or deposit in the bank of the com- pensation so determined all such commonable and other rights shall cease and be extinguished. 100. Upon payment or tender to the lord of the manor, or such other party as aforesaid, of the compensation which shall have been agreed upon or determined in respect of the right in the soil of any such lands, or on deposit thereof in the bank in any of the cases hereinbefore in that behalf provided, such lord of the manor, or such other party as aforesaid, shall convey such lands to the promoters of the undertaking, and such conveyance shall have the effect of vesting such lands in the promoters of the undertaking, in like manner as if such lord of the manor, or such other party as aforesaid, had been seised in fee simple of such lands at the time of executing such conveyance; and in default of such conveyance it shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poll, duly stamped, in the manner hereinbefore provided in the case of the purchase of lands by them, and thereupon the lands in respect whereof such last-mentioned compensation shall have been deposited as aforesaid shall vest absolutely in the promoters of the undertaking, and they shall be entitled to immediate possession thereof, subicct nevertheless to the commonable and other rights theretofore affecting (p) Vide ante, p. 289. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 419 the same, until such rights shall have been extinguished by payment •or deposit of the compensation for the same in manner hereinafter provided. 101. The compensation to be paid with respect to any such lands Compensation being common lands, or in the nature thereof, the right to the soil of * or common which shall belong to the commoners, as well as the compensation n a " ^Ji crfa to be paid for the commonable and other rights in or over common manor, how to lands the right in the soil whereof shall not belong to the commoners, be . ascer - other than the compensation to the lord of the manor, or other party, tamed - entitled to the soil thereof, in respect of his right in the soil thereof, shall be determined by agreement between the promoters of the undertaking and a committee of the parties entitled to commonable or other rights in such lands, to be appointed as next hereinafter mentioned. 102. It shall be lawful for the promoters of the undertaking to A meeting of convene a meeting of the parties entitled to commonable or other * ne P ar _ti|8 rights over or in such lands to be held at some convenient place in the b e conTe ned. neighbourhood of the lands for the purpose of their appointing a committee to treat with the promoters of the undertaking for the compensation to be paid for the extinction of such commonable or other rights; and every such meeting shall be called by public advertisement, to be inserted once at least in two consecutive weeks in some newspaper circulating in the county or in the respective counties and in the neighbourhood in which such lands shall be -situate, the last of such insertions being not more than fourteen nor less than seven days prior to any such meeting; and notice of such meeting shall also, not less than seven days previous to the holding thereof, be affixed upon the door of the parish church where such, meeting is intended to be held, or if there be no such church some other place in the neighbourhood to which notices are usually affixed; and if such lands be parcel or holden of a manor, a like notice shall be given to the lord of such manor. 103. It shall be lawful for the meeting so called to appoint a Meeting to ■committee, not exceeding five in number, of the parties entitled to any ^^?* t ^_ such rights; and at such meeting the decision of the majority of the persons entitled to commonable rights present shall bind the minority and all absent parties. 104. It shall be lawful for the committee so chosen to enter into Committee to an agreement with the promoters of the undertaking for the com- ^meters of ° pensation to be paid for the extinction of such commonable and other the un( i er _ rights and all matters relating thereto, for and on behalf of them- taking, selves and all other parties interested therein; and all such parties shall be bound by such agreement; and it shall be lawful for such committee to receive the compensation so agreed to be paid, and the receipt of such committee, or of any three of them, for such compen- sation shall be an effectual discharge for the same; and such com- pensation, when received, shall be apportioned by the committee ■among the several persons interested therein, according to their respective interests, but the promoters of the undertaking shall not be 27 (2) 420 APPENDIX OF STATUTES — BOOK I. Disputes to be settled as in other cases. If no oom- mittee be appointed, the amount to be determined by a surveyor. Upon pay- ment of com- pensation payable to commoners the lands to vest. bound to see to the apportionment or to the application of such compensation, nor shall they be liable for the misapplication or non- application thereof. 105. If upon such committee being appointed they shall fail to agree with the promoters of the undertaking as to the amount of the compensation to be paid as aforesaid, the same shall be determined as in other cases of disputed compensation. 106. If, upon being duly convened by the promoters of the under- taking, no effectual meeting of the parties entitled to such common- able or other rights shall take place, or if, taking place, such meeting fail to appoint such committee, the amount of such compensation shall be determined by a surveyor to be appointed by two justices, as hereinbefore provided in the case of parties who cannot be found (g). 107. Upon payment or tender to such committee or any three of them, or if there shall be no such committee then upon deposit in the bank in the manner provided in the like case of the compensation which shall have been agreed upon or determined in respect of such commonable or other rights, it shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poll, duly stamped, in the manner hereinbefore provided in the case of the purchase of lands by them, and thereupon the lands in respect of which such compensation shall have been so paid or deposited shall vest in the promoters of the undertaking, freed and discharged from all such commonable or other rights, and they shall be entitled to immediate possession thereof ; and it shall be lawful for the Court of Chancery [in England, or the Court of Exchequer in Ireland] (r), by an order to be made upon petition, to order payment of the money so deposited to a committee to be appointed as aforesaid, or to make such other order in respect thereto, for the benefit of the parties ■interested, as it shall think fit (s) . Power to redeem mort- gages. (Mortgaged Lands (t) . ) And with respect to lands subject to mortgage, be it enacted as follows: 108. It shall be lawful for the promoters of the undertaking to purchase or redeem the interest of the mortgagee of any such lands which may be required for the purposes of the special act, and that whether they shall have previously purchased the equity of redemp- tion of such lands or not, and whether the mortgagee thereof be entitled thereto in his own right or in trust for any other party, and whether he be in possession of such lands by virtue of such mortgage or not, and whether such mortgage affects such lands solely, (q~) Ante, ss. 50, 51. O) Repealed by S. L. R. Act, 1892. (s) See also Inclosure Act, 1852, s. 22; Inclosure Act, 1854, ss. 15 — 20, post, p. 467; Commonable Rights Compensation Act, 1882, post, p. 469. (0 Vide ante, p. 293. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 421 or jointly with any other lands not required for the purposes of the special act, and in order thereto the promoters of the undertaking may pay or tender to such mortgagee the principal and interest due on such mortgage, together with his costs and charges, if any, and also six months' additional interest, and thereupon such mortgagee shall immediately convey his interest in the lands comprised in such mortgage to the promoters of the undertaking, or as they shall direct, or the promoters of the undertaking may give notice in writing to, such mortgagee that they will pay off the principal and interest due on such mortgage at the end of six months, computed from the day of giving such notice ; and if they shall have given any such notice, or if the party entitled to the equity of redemption of any such lands shall have given six months' notice of his intention to redeem the same, then at the expiration of either of such notices, or at any inter- mediate period, upon payment or tender by the promoters of the undertaking to the mortgagee of the principal money due on such mortgage, and the interest which would become due at the end of six months from the time of giving either of such notices, together with his costs and expenses, if any, such mortgagee shall convey or release his interest in the lands comprised in such mortgage to the promoters of the undertaking, or as they shall direct. 109. If, in either of the cases aforesaid, upon such payment or Deposit of tender, any mortgagee shall fail to convey or release his interest in mortgage such mortgage as directed by the promoters of the undertaking, or "g^^u" if he fail to adduce a good title thereto to their satisfaction, then it accept, shall be lawfful for the promoters of the undertaking to deposit in the bank, in the manner provided by this act in like cases, the principal and interest, together with the costs, if any, due on such mortgage, and also, if such payment be made before the expiration of six months' notice as aforesaid, such further interest as would at that time become due; and it shall be lawful for them, if they think fit, to execute a deed poll, duly stamped, in the manner hereinbefore pro- vided in the case of the purchase of lands by them; and thereupon, as well as upon such conveyance by the mortgagee, if any such be made, all the estate and interest of such mortgagee, and of all persons in trust for him, or for whom he may be a trustee, in such lands, shall vest in the promoters of the undertaking, and they shall be entitled to immediate possession thereof in case such mortgagee were himself entitled to such possession. 110. If any such mortgaged lands shall be of less value than the Sum to be principal, interest, and costs secured thereon, the value of such lands, P^Z*®? or the compensation to be made by the promoters of the undertaking ™ ceede the in respect thereof, shall be settled by agreement between the mort- value of the gagee of such lands and the party entitled to the equity of redemption lands, thereof on the one part, and the promoters of the undertaking on the other part, and if the parities aforesaid fail to agree respecting the amount of such value or compensation, the same shall be determined as in other cases of disputed compensation; and the amount of such value or compensation, being so agreed upon or determined, shall be paid by the promoters of the undertaking to the mortgagee in satis- 422 APPENDIX OF STATUTES BOOK I. Deposit of such sum ■when refused on tender. Sum to be paid where part only of mortgaged lands taken. faction of his mortgage debt so far as the same will extend, and upon payment or tender thereof the mortgagee shall convey or release all . his interest in such mortgaged lands to the promoters of the under- taking, or as they shall direct. 111. If, upon such payment or tender as aforesaid being made, any such mortgagee fail so to convey his interest in such mortgage or to adduce a good title thereto to the satisfaction of the promoters of the undertaking, it shall be lawful for them to deposit the amount of such value or compensation in the bank, in the manner provided by this act in like cases, and every such payment or deposit shall be accepted by the mortgagee in satisfaction of his mortgage debt, so far as the same will extend, and shall be a full discharge of such mort- gaged lands from all money due thereon; and it shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poll, duly stamped, in the mannner hereinbefore provided in the case of the purchase of lands by them; and thereupon such lands, as to all such estate and interest as were then vested in the mortgagee, or any person in trust for him, shall become absolutely vested in the promoters of the undertaking, and they shall be entitled to immediate possession thereof in case such mortgagee were himself entitled to such possession; nevertheless, all rights and remedies possessed by the mortgagee against the mortgagor, by virtue of any bond or covenant or other obligation, other than the right to such lands, shall remain in force in respect of so much of the mortgage debt as shall not have been satisfied by such payment or deposit. 112. If a part only of any such mortgaged lands be required for the purposes of the special act, and if the part so required be of less value than the principal money, interest, and costs secured on such lands, and the mortgagee shall not consider the remaining part of such lands a sufficient security for the money charged thereon, or be not willing to release the part so required, then the value of such part, and also the compensation (if any) to be paid in respect of the severance thereof or otherwise, shall be settled by agreement between the mortgagee and the party entitled to the equity of redemption of such land on the one part, and the promoters of the undertaking on the other, and if the parties aforesaid fail to agree respecting the amount of such value or compensation the same shall be determined as in other eases of disputed compensation; and the amount of such value or compensation, being so agreed upon or determined, shall be paid by the promoters of the undertaking to such mortgagee in satisfaction of his mortgage debt, so far as the same will extend; and thereupon such mortgagee shall convey or release to them, or as they shall direct, all his interest in such mortgaged lands the value whereof shall have been so paid; and a memorandum of what shall have been so paid shall be endorsed on the deed creating such mort- gage, and shall be signed by the mortgagee; and a copy of such memorandum shall at the same time (if required) be furnished by the promoters of the undertaking at their expense, to the party entitled to the equity of redemption of the lands comprised in such mortgage deed. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 423 113. If, upon payment or tender to any such mortgagee of the Deposit of amount of the value or compensation so agreed upon or determined, 8Ucl1 8um such mortgagee shall fail to convey or release to the promoters of the ^tmdei- lsed undertaking, or as they shall direct, his interest in the lands in respect of which such compensation shall so have been paid or tendered, or if he shall fail to adduce a good title thereto to the satisfaction of the promoters of the undertaking, it shall be lawful for the promoters of the undertaking to pay the amount of such value or compensation into the bank, in the manner provided by this act in the case of moneys required to be deposited in such bank, and such payment or deposit shall be accepted by such mortgagee in satisfaction of his mortgage debt, so far as the same will extend, and shall be a full discharge of the portion of the mortgaged lands so required from all money due thereon; and it shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poll, duly stamped, in the manner hereinbefore provided in the case of the purchase of lands by them ; and thereupon such lands shall become absolutely vested in the pro- moters of the undertaking, as to all such estate and interest as were then vested in the mortgagee, or any person in trust for him, and in case such mortgagee were himself entitled to such possession they shall be entitled to immediate possession thereof; nevertheless, every Powers of such mortgagee shall have the same powers and remedies for recover- mortgagee ing or compelling payment of the mortgage money, or the residue of^e^duTof thereof (as the case may be), and the interest thereof respectively, mortgage upon and out of the residue of such mortgaged lands, or the portion debt, thereof not required for the purposes of the special act, as he would otherwise have had or been entitled to for recovering or compelling payment thereof upon or out of the whole of the lands originally comprised in such mortgage. 114. Provided always, that in any of the cases hereinbefore pro- Compensation vided with respect to lands subject to mortgage, if in the mortgage to be made in deed a time shall have been limited for payment of the principal tf^ortgage 8 money thereby secured, and under the provisions hereinbefore con- paid off before tained the mortgagee shall have been required to accept payment of the stipulated his mortgage money, or of part thereof, at a time earlier than the time t,lme - so limited, the promoters of the undertaking shall pay to such mort- gagee, in addition to the sum which shall have been so paid off, all such costs and expenses as shall be incurred by such mortgagee in respect of or which shall be incidental to the re-investment of the sum so paid off, such costs in case of difference to be taxed and payment thereof enforced in the manner herein provided with respect to the costs of conveyances; and if the rate of interest secured by such mortgage be higher than at the time of the same being so paid off can reasonably be expected to be obtained on re-investing the same, regard being had to the then current rate of interest, such mortgagee shall be entitled to receive from the promoters of the undertaking, in addition to the principal and interest hereinbefore provided for, com- pensation in respect of the loss to be sustained by him by reason of his mortgage money being so prematurely paid off, the amount of such compensation to be ascertained, in case of difference, as in other cases of disputed compensation ; and until payment or tender of such 424 APPENDIX OF STATUTES BOOK I. Consideration to be paid for release of lands from rent-charges. Release of part of lands from charge. Deposit in ease of refusal to release. Charge to continue on lands not taken. compensation as aforesaid the promoters of the undertaking shall not be entitled, as against such mortgagee, to possession of the mortgaged lands under the provision hereinbefore contained. {Lands subject to Rent-charges, <&c. (u).) And with respect to lands charged with any rent-service, rent- charge, or chief or other rent, or other payment or incumbrance not hereinbefore provided for, be it enacted as follows: 115. If any difference shall arise between the promoters of the undertaking and the party entitled to any such charge upon any lands required to be taken for the purposes of the special act, respect- ing the consideration to be paid for the release of such lands there- from, or from the portion thereof affecting the lands required for the purposes of the special act, the same shall be determined as in other cases of disputed compensation. 116. If part only of the lands charged with any such rent-service, rent-charge, chief or other rent, payment or incumbrance, be required to be taken for the purposes of the special act, the apportionment of any such charge may be settled by agreement between the party entitled to such charge and the owner of the lands on the one part, and the promoters of the undertaking on the other part, and if such apportionment be not so settled by agreement the same shall be settled by two justices; but if the remaining part of the lands so jointly subject be a sufficient security for such charge, then, with consent of the owner of the lands so jointly subject, it shall be lawful for the party entitled to such charge to release therefrom the lands required, on condition or in consideration of such other lands remain- ing exclusively subject to the whole thereof. 117. Upon payment or tender of the compensation so agreed upon or determined to the party entitled to any such charge as aforesaid, such party shall execute to the promoters of the undertaking a release of such charge ; and if he fail so to do, or if he fail to adduce good title to such charge, to the satisfaction of the promoters of the under- taking, it shall be lawful for them to deposit the amount of such compensation in the bank in the manner hereinbefore provided in like cases, and also, if they think fit, to execute a deed poll, duly stamped, in the manner hereinbefore provided in the case of the purchase of lands by them, and thereupon the rent-service, rent-charge, chief or other rent, payment or incumbrance, or the portion thereof in respect whereof such compensation shall so have been paid, shall cease and be extinguished. 118. If any such lands be so released from any such charge or incumbrance, or portion thereof, to which they were subject jointly with other lands, such last-mentioned lands shall alone be charged with the whole of such charge, or with the remainder thereof, as the case may be, and the party entitled to the charge shall have all the same rights and remedies over such last-mentioned lands, for the whole or for the remainder of the charge, as the ease may be, as he had previously over the whole of the lands subject to such charge; (m) Vide ante, p. 297. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 425 and if upon any such charge or portion of charge being so released the deed or instrument creating or transferring such charge be tendered to the promoters of the undertaking for the purpose, they or two of them shall subscribe, or if they be a corporation shall affix their common seal to a memorandum of such release endorsed on such deed or instrument, declaring what part of the lands originally subject to such charge shall have been purchased by virtue of the special act, and if the lands be released from part of such charge, what proportion of such charge shall have been released, and how' much thereof continues payable, or if the lands so required shall have been released from the whole of such charge, then that the remaining lands are thenceforward to remain exclusively charged therewith; and such memorandum shall be made and executed at the expense of the promoters of the undertaking, and shall be evidence in all courts and elsewhere of the facts therein stated, but not so as to exclude any other evidence of the same facts. (Lands let on Lease (x).) And with respect to land's subject to leases, be it enacted as follows: 119. If any lands shall be comprised in a lease, for a term of years Where part unexpired, part only of which lands shall be required for the purposes onl J °* l ands of the special act, the rent payable in respect of the lands comprised t a k en ^g in such lease shall be apportioned between the lands so required, and rent to be the residue of such lands; and such apportionment may be settled apportioned, by agreement between the lessor and lessee of such lands on the one part, and the promoters of the undertaking on the other part, and if euch apportionment be not so settled by agreement between the parties, such apportionment shall be settled by two justices; and after such apportionment the lessee of such lands shall, as to all future accruing rent, be liable only to so much of the rent as shall be so apportioned in respect of the lands not required for the purposes of the special act; and as to the lands not so required, and as against the lessee, the lessor shall have all the same rights and remedies for the recovery of such portion of rent as previously to such appor- tionment he had for the recovery of the whole rent reserved by such lease; and all the covenants, conditions and agreements of such lease, except as to the amount of rent to be paid, shall remain in force with regard to that part of the land which shall not be required for the purposes of the special act, in the same manner as they would have done in case such part only of the land had been included in the 120. Every such lessee as last aforesaid shall be entitled to receive Tenants to be from the promoters of the undertaking compensation for the damage compensated, done to him in his tenancy by reason of the severance of the lands required from those not required, or otherwise by reason of the execution of the works. O) Vide ante, p. 298. 426 APPENDIX OF STATUTES — BOOK I. Compensation to be made to tenants from year to year, &c. Where greater interest claimed than from year to year, lease or grant to be produced. Limit of time for compul- sory purchase. 121. If any such lands shall be in the possession of any person, having no greater interest therein than as a tenant for a year, or from year to year, and if such person be required to give up possession of any lands so occupied by him before the expiration of his term or interest therein, he shall be entitled to compensation for the value of his unexpired term or interest in such lands, and for any just allow- ance which ought to be made to him by an incoming tenant, and for any loss or inj ury he may sustain, or if a part only of such lands be required, compensation for the damage done to him in his tenancy by severing the lands held by him, or otherwise injuriously affecting the same; and the amount of such compensation shall be determined by two justices, in case the parties differ about the same; and upon payment or tender of the amount of such compensation all such persons shall respectively deliver up to the promoters of the under- taking, or to the person appointed by them to take possession thereof, any such lands in their possession required for the purposes of the special act. 122. If any party, having a greater interest than as tenant at will, claim compensation in respect of any unexpired term or interest under any lease or grant of any such lands, the promoters of the undertaking may require such party to produce the lease or grant in respect of which such claims shall be made, or the best evidence- thereof in his power; and if after demand made in writing by the promoters of the undertaking, such lease or grant, or such best evidence thereof, be not produced within twenty-one days, the party so claiming compensation shall be considered as a tenant holding only from year to year, and be entitled to compensation accordingly. 123. And be it enacted, that the powers of the promoters of the- undertaking for the compulsory purchase or taking of lands for the purposes of the special act shall not be exercised after the expiration of the prescribed period, and if no period be prescribed, not after the expiration of three years from the passing of the special act. Purchase by promoters of the under- taking after entry on lands of in- terests the purchase whereof may have been omitted by mistake. (Omitted Interests in Lands (y).) And with respect to interests in lands which have by mistake been, omitted to be purchased, be it enacted as follows: 124. If, at any time after the promoters of the undertaking shall, have entered upon any lands which under the provisions of this or the special act, or any act incorporated therewith, they were authorized to- purchase, and which shall be permanently required for the purposes of the special act, any party shall appear to be entitled to any estate, right, or interest in or charge affecting such lands which the pro- moters of the undertaking shall through mistake or inadvertence have failed or omitted duly to purchase or to pay compensation for, then, whether the period allowed for the purchase of lands shall have expired or not, the promoters of the undertaking shall remain in the undisturbed possession of such lands, provided within six months after notice of such estate, right, interest, or charge, in case they (y) Vide ante, p. 68. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 427 same shall not be disputed by the promoters of the undertaking, or in ease the same shall be disputed, then within six months after the right thereto shall have been finally established by law in favour of the party claiming the same, the promoters of the undertaking shall purchase or pay compensation for the same, and shall also pay to such party, or to any other party who may establish a right thereto, full compensation for the mesne profits or interest which would have Mesne profits accrued to such parties respectively in respect thereof during the to De ac_ interval between the entry of the promoters of the undertaking countedfor - thereon and the time of the payment of such purchase-money or compensation by the promoters of the undertaking, so far as such mesne profits or interest may be recoverable in law or equity; and such purchase-money or compensation shall be agreed on or awarded and paid in like manner as according to the provisions of this act the same respectively would have been agreed on or awarded and paid in case the promoters of the undertaking had purchased such estate, right, interest, or charge before their entering upon such land, or as near thereto as circumstances will admit. 125. In estimating the compensation to be given for any such last- How value of mentioned lands, or any estate or interest in the same, or for any sucn interests mesne profits thereof, the jury, or arbitrators, or justices, as the case ™onteuBhalI may be, shall assess the same according to what they shall find to be estimated, have been the value of such lands, estate, or interest, and profits, at the time such lands were entered upon by the promoters of the under- taking, and without regard to any improvements or works made in the said lands by the promoters of the undertaking, and as though the works had not been constructed. 126. In addition to the said purchase-money, compensation, or Promoters of satisfaction, and before the promoters of the undertaking shall become the under- absolutely entitled to any such estate, interest, or charge, or to have ^^fateoT 7 the same merged or extinguished for their benefit, they shall, when litigation as the right to any such estate, interest, or charge shall have been to such disputed by the company, and determined in favour of the party interests, claiming the same, pay the full costs and expenses of any proceedings at law or in equity for the determination or recovery of the same to the parties with whom any such litigation in respect thereof shall have taken place; and such costs and expenses shall, in case the same shall be disputed, be settled by the proper officer of the court in which such litigation took place. (Superfluous Lands (z).) And with respect to lands acquired by the promoters of the under- taking under the provisons of this or the special act, or any act incorporated therewith, but which shall not be required for the purposes thereof, be it enacted as follows: 127. Within the prescribed period, or if no period be prescribed Lrac^snot^ within ten years after the expiration of the time limited by the ^^ ithin special act for the completion of the works, the promoters of the ten years after («) Vide ante, p. 303. 428 APPENDIX OF STATUTES BOOK I. expiration of time limited for comple- tion of works, or in de- fault to vest in owners of ■adjoining lands. Lands to be offered to owner of lands from which they were origin- ally taken, or to adjoining owners. Right of pre- emption to be claimed within six weeks. Evidence of refusal, &c. to exercise right. Differences as to price to be settled by arbitration. Lands to be conveyed to the pur- chasers. undertaking shall absolutely sell and dispose of all such superfluous lands, and apply the purchase-money arising from such sales to the purposes of the special act; and in default thereof all such superfluous lands remaining unsold at the expiration of such period shall there- upon vest in and become the property of the owners of the lands adjoining thereto, in proportion to the extent of their lands re- spectively adjoining the same. 128. Before the promoters of the undertaking dispose of any such superfluous lands they shall, unless such lands be situate within a town, or be lands built upon or used for building purposes (a), first offer to sell the same to the person then entitled to the lands (if any) from which the same were originally severed: or if such person refuse to purchase the same, or cannot after diligent inquiry be found, then the like offer shall be made to the person or to the several persons whose lands shall immediately adjoin the lands so proposed to be sold, such persons being capable of entering into a contract for the purchase of such lands; and where more than one such person shall be entitled to such right of pre-emption such offer shall be made to such persons in succession, one after another, in such order as the promoters of the undertaking shall think fit. 129. If any such persons be desirous of purchasing such lands, then within six weeks after such offer of sale they shall signify their desire in that behalf to the promoters of the undertaking, or if they decline such offer, or if for six weeks they neglect to signify their desire to purchase such lands, the right of pre-emption, of every such person so declining or neglecting in respect of the lands included in such offer shall cease; and a declaration in writing made before a justice by some person not interested in the matter in question, stating that such offer was made and was refused, or not accepted within six weeks from the time of making the same, or that the person or all the persons entitled to the right of pre-emption were out of the country, or could not after diligent inquiry be found, or were not capable of entering into a contract for the purchase of such lands, shall in all courts be sufficient evidence of the facts therein stated. 130. If any person entitled to such pre-emption be desirous of purchasing any such lands, and such person and the promoters of the undertaking do not agree as to the price thereof, then such price shall be ascertained by arbitration, and the costs of such arbitration shall be in the discretion of the arbitrators. 131. Upon payment or tender to the promoters of the undertaking of the purchase-money so agreed upon or determined as aforesaid they shall convey such lands to the purchasers thereof by deed under the common seal of the promoters of the undertaking, if they be a corporation, or if not a corporation under the hands and seals of the promoters of the undertaking, or any two of the directors or managers thereof acting by the authority of the body ; and a deed so executed shall be effectual to vest the lands comprised therein in the purchaser of such lands for the estate which shall so have been purchased by him; and a receipt under such common seal, or under the hands of (a) Vide ante, p. 312. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 429 two of the directors or managers of the undertaking as aforesaid, shall be a sufficient discharge to the purchaser of any such lands for the purchase-money in such receipt expressed to be received. 132. In every conveyance of lands to be made by the promoters of Effect of the undertaking under this or the special act the word " grant " shall * e wor f, . operate as express covenants by the promoters of the undertaking, conveyances, for themselves and their successors, or for themselves, their heirs, executors, administrators, and assigns, as the case may be, with the respective grantees therein named, and the successors, heirs, executors, administrators, and assigns of such grantees, according to the quality or nature of such grants, land of the estate or interest therein expressed to be thereby conveyed, as follows, except so far as the same shall be restrained or limited by express words contained in any such con- veyance: (that is to say,) A covenant that, notwithstanding any act or default done by the promoters of the undertaking, they were at the time of the execution of such conveyance seised or possessed of the lands or premises thereby granted for an indefeasible estate of inheritance in fee simple, free from all incumbrances done or occasioned by them, or otherwise for such estate or interest as therein expressed to be thereby granted, free from incumbrances done or occasioned by them: A covenant that the grantee of such lands, his heirs, successors, executors, administrators, and assigns (as the case may be), shall quietly enjoy the same against the promoters of the under- taking, and their successors, and all other persons claiming under them, and be indemnified and saved harmless by the promoters of the undertaking and their successors from all in- cumbrances created by the promoters of the undertaking: A covenant for further assurance of such lands, at the expense of such grantee, his heirs, successors, executors, administrators, or assigns (as the case may be), by the promoters of the under- taking, or their successors, and all other persons claiming under them: And all such grantees, and their several successors', heirs, executors, administrators, and assigns respectively, according to their respective quality or nature, and the estate or interest in such conveyance expressed to be conveyed, may in all actions brought by them, assign breaches of covenants, as they might do if such covenants were expressly inserted in such conveyances. {Land Tax and Poor's Rafe(h).) 133. And be it enacted, that if the promoters of the undertaking Land tax and become possessed by virtue of this or the special act, or any act P™™^^. incorporated therewith, of any lands charged with the land tax, or liable to be assessed to the poor's rate, they shall from time to time, until the works shall be completed and assessed to such land tax or poor's rate, be liable to make good the deficiency in the several (6) Vide ante, p. 299. 430 APPENDIX OF STATUTES — BOOK I. Land tax may be redeemed. Service of notices upon promoters. assessments for land tax and poor's rate by reason of such lands having been taken or used for the purposes of the works, and such deficiency shall be computed according to the rental at which such lands, with any building thereon, were valued or rated at the time of the passing of the special act; and on demand of such deficiency the promoters of the undertaking, or their treasurer, shall pay all such deficiencies to the collector of the said assessments respectively; nevertheless, if at any time the promoters of the undertaking think fit to redeem such land tax, they may do so in accordance with the powers in that behalf given by the acts for the redemption of the land tax. (Service of Notices, dc.) 134. And be it enacted, that any summons or notice, or any writ or other proceeding at law or in equity, requiring to be served upon the promoters of the undertaking, may be served by the same being left at or transmitted through the post directed to the principal office of the promoters of the undertaking, or one of the principal offices where there shall be more than one, or being given or transmitted through the post directed to the secretary, or in case there be no secretary the solicitor of the said promoters. Tender of amends. (Tender.) 135. And be it enacted, that if any party shall have committed any irregularity, trespass, or other wrongful proceeding in the execu- tion of this or the special act, or any act incorporated therewith, or by virtue of any power or authority thereby given, and if, before action brought in respect thereof, such party make tender of sufficient amends to the party injured, such last-mentioned party shall not recover in any such action; and if no such tender shall have been made it shall be lawful for the defendant, by leave of the court where such action shall be pending, at any time before issue joined, to pay into court such sum of money as he shall think fit, and thereupon such proceedings shall be had as in other cases where defendants, are allowed to pay money into court. Penalties to be summarily recovered before two justices. (Recovery of Penalties and Forfeitures. ) And with respect to the recovery of forfeitures, penalties, and costs, be it enacted as follows: 136. Every penalty or forfeiture imposed by this or the special act, or by any bye-law made in pursuance thereof, the recovery of which is not otherwise provided for, may be recovered by summary proceeding before two justices; [and on complaint being made to any justice he shall issue a summons requiring the party complained against to appear before two justices at a time and place to be named in such summons; and every such summons shall be served on the party offending either in person or by leaving the same with some inmate at his usual place of abode; and upon the appearance of the party complained against, or in his absence, after proof of the due THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 431 service of such summons, it shall be lawful for any, two justices to proceed to the hearing of the complaint, and that although no information in writing or in print shall have been exhibited before them ; and upon proof of the offence, either by the confession of the party, complained against, or upon the oath of one credible witness or more, it shall be lawful for such justices to convict the offender, and upon such conviction to adjudge the offender to pay, the penalty or forfeiture incurred, as well as such costs attending the conviction as such justices shall think flt(c).~\ [137. If, forthwith upon any such adjudication as aforesaid, the Penalties to be amount of the penalty or forfeiture, and of such costs as aforesaid, l ™ ied h >J be not paid, the amount of such penalty and costs shall be levied by tst ' re "- distress, and such justices or either of them shall issue their or his warrant of distress accordingly (c).] 138. Where in this or the special act, or any act incorporated Distress, how therewith, any sum of money, whether in the nature of penalty, costs, to be levied. or otherwise, is directed to be levied by distress, such sum of money shall be levied by distress and sale of the goods and chattels of the party liable to pay the same ; and the overplus arising firom the sale of such goods and chattels, after satisfying such sum of money and the expenses of the distress and sale, shall be returned, on demand, to the party whose goods shall have been distrained. 139. The justices by whom any such penalty or forfeiture shall Application be imposed may, where the application thereof . is not otherwise of penalties, provided for, award not more than one-half thereof to the informer, and shall award the remainder to the overseers of the poor of the parish in which the offence shall have been committed, to be applied in aid of the poor's rate of such parish, [or if the place wherein the offence shall have been committed shall be extra-parochial, then, such justices shall direct such remainder to be applied in aid, of the poor's rate of such extra-parochial place, or if there shall not be any poor's rate therein in aid of the poor's rate of any adjoining parish or district (d).~\ 140. If any such sum shall be payable by the promoters of the Distress undertaking, and if sufficient goods of the said promoters cannot be against the found whereon to levy the same, it may, if the amount thereof do treasurer, not exceed twenty pounds, be recovered by distress of the goods of the treasurer of the said promoters, and the justices aforesaid, or either of them, on application, shall issue their or his warrant ac- cordingly; but no such distress shall issue against the goods of such Notice to treasurer unless seven days' previous notice in writing, stating the treasurer, amount so due, and demanding payment thereof, have been given to such treasurer or left at his residence; and if such treasurer pay any Reimburse- money under such distress as aforesaid he may retain the amount so mentor paid by him, and all costs and expenses occasioned thereby, out of any treasurer. 00 Repealed by S. L. R. Act, 1892. Ss. 136, 137, 142, 143, 144, 146 are also repealed wholly or in part by the Summary Jurisdiction Act, 1884, s. 4, and the provisions of the Summary Jurisdiction Acts will now apply in their place. (d) Repealed by S. L. R. Act, 1875. 432 APPENDIX OF STATUTES BOOK I, Distress not unlawful for want of form, &c. Penalties to be sued for wuhiti six months. Penalty on making default. Form of con- viction. Proceedings not to be quashed for want of form, &c. Parties allowed to appeal to quarter ses- sions on giving security. money belonging to the promoters of the undertaking coming into his custody or control, or he may sue them for the same. 141. No distress levied by virtue of this or the special act, or any act incorporated therewith, shall be deemed unlawful, nor shall any party making the same be deemed a trespasser on account of any defect or want of form in the summons, conviction, warrant of distress, or other proceeding relating thereto, nor shall such party be deemed a trespasser ab initio on account of any irregularity afterwards com- mitted by him, but all persons aggrieved by such defect or irregularity- may recover full satisfaction for the special damage in an action upon the case. [142. No person shall be liable to the payment of any penalty or forfeiture imposed by virtue of this or the special act, or any act incorporated therewith, for any offence made cognizable before a justice, unless the complaint respecting such offence shall have been made before such justice within six months next after the commission of such offence(e).~\ [143. It shall be lawful for any justice to summon any person to appear before him as a witness in any matter in which such justice shall have jurisdiction under the provisions of this or the special act at a time and place mentioned in such summons, and to administer to him an oath to testify the truth in suclt matter ; and if any person so summoned shall, without reasonable excuse, refuse or neglect to appear at the time and place appointed for that purpose, having been paid or tendered a reasonable sum for his expenses, or if any person appearing shall refuse to be examined upon oath or to give evidence before such justice, every such person shall forfeit a sum not exceed- ing five pounds for every such offence (/).] [144. The justices before whom any person shall be convicted of any offence against this or the special act, or any act incorporated therewith, may cause the conviction to be drawn up according to the form in the schedule (C) to this act annexed (q) .~\ 145. No proceeding in pursuance of this or the special act, or any act incorporated therewith, shall be quashed or vacated for want of form, nor shall the same be removed by certiorari or otherwise into any of the superior courts. (Appeals to Quarter Sessions.) 146. If any party shall feel aggrieved by any determination or adjudication of any justice with respect to any penalty or forfeiture under the provisions of this or the special act, or any act incorporated therewith, such party may appeal to the general quarter sessions [for the county or place in which the cause of appeal shall have arisen ; but no such appeal shall be entertained unless it be made within jour months next after the making of such determination or adjudication, nor unless ten days' notice in writing of such appeal, stating the nature and grounds thereof, be given to the party against whom the appeal shall be brought, nor unless the appellant forthwith after such («) Repealed by S. L.. R. Act, 1892, and see note (o), ante. (/) Repealed by Summary Jurisdiction Act, 1884, s. i, so far as relates to any matter to which the Summary Jurisdiction Acts apply. (ff) Repealed by S. L. R. Act, 1892, and see note (o), ante. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. 433 notice enter into recognizances, with two sufficient sureties, before a justice, conditioned duly to prosecute such appeal, and to abide the order of the court thereon (h)~\. 147. At the quarter sessions for which such notice shall be given the Court to make court shall proceed to hear and determine the appeal in a summary 8uch order as way, or they may, if they think fit, adjourn it to the following they th !"; k sessions; and upon the hearing of such appeal the court may, if they rea80nable - think fit, mitigate any penalty or forfeiture, or they may confirm or quash the adjudication, and order any money paid by the appellant, or levied by distress upon his goods, to be returned to him, and may also order such further satisfaction to be made to the party injured as they may judge reasonable; and they may make such order concern- ing the costs, both of the adjudication and of the appeal, as they may think reasonable. (Application of 'Penalties in Metropolis.) 148. Provided always, [and be it enacted (i),] that notwithstanding Receiver of anything herein or in the special act, or any act incorporated there- the metropo- with, contained, every penalty or forfeiture imposed by this or the l\ t " : n , police special act, or any act incorporated therewith, or by any bye-law in r eceWe penal- pursuanoe thereof, in respect of any offence which shall take place ties incurrred within the metropolitan police district, shall be recovered, enforced, within his accounted for, and, except where the application thereof is otherwise d - istriot - specially provided for, shall be paid to the receiver of the metropolitan police district, and shall be applied in the same manner as penalties or forfeitures', other than fines upon drunken persons, or upon constables for misconduct, or for assaults upon police constables, are directed to be recovered, enforced, accounted for, paid, and applied by an act passed in the third year of the reign of her present Majesty, intituled "An Act for regulating the Police Courts in the Metropolis," and 2 & 3 Vict, every order or conviction of any of the police magistrates in respect of c. 71. any such forfeiture or penalty shall be subject to the like appeal and upon the same terms as is provided in respect of any order or convic- tion of any of the said police magistrates by the said last-mentioned act; and every magistrate by whom any order or conviction shall have been made shall have the same power of binding over the witnesses who shall have been examined, and such witnesses shall be entitled to the same allowance of expenses as he or they would have had or been entitled to in case the order, conviction and appeal had been made in pursuance of the provisions of the said last-mentioned act. (False Evidence.) [149. And be it enacted, that any person who upon any examination Persons upon oath under the provisions of this or the special act, or any act {^ilcelMle incorporated therewith, shall wilfully and corruptly give false evi- t0 p ' matties f dence, shall be liable to the penalties of wilful and corrupt per jury. per jury (k) .] O) Repealed as to England by Summary Jurisdiction Act, 1884, s. 4. See note (c), p. 431. W Repealed by S. L. R. Act, 1891. (A) Repealed by s. 17 and Schedule of the Perjury Act, 1911 (1 & 2 Geo. 5, o. 6) and replaced by s. 1 of that Act. C. 28 434 APPENDIX OF STATUTES — BOOK I. Copies of special act to be kept and deposited, and allowed to be inspected. 7 Will. 4 & 1 Vict. c. 83. Penalty on company fail- ing to keep or deposit such copies. Act not to extend to Scotland. Act may be amended this session. {Access to Special Act.) And with respect to the provision to be made for affording access to the special act by all parties interested, be it enacted as follows: 150. The company shall, at all times after the expiration of six months after the passing of the special act, keep in their principal office of business a copy of the special act, printed by the printers to her Majesty, or some of them; and where the undertaking shall be a railway, canal or other like undertaking, the works of which shall not be confined to one town or place, shall also within the space of such six months deposit in tlie office of each of the clerks of the peace of the several counties into which the works shall extend a copy of such special act so printed as aforesaid; and the said clerks of the peace shall receive, and they and the company respectively shall retain, the said copies of the special act, and shall permit all persons interested to inspect the same, and make extracts or copies therefrom, in the like manner, and upon the like terms, and under the like penalty for default, as is provided in the case of certain plans and sections by an act. passed in the first year of the reign of her present Majesty, intituled " An Act to compel Clerks of the Peace for counties and other Persons to take the Custody of such Documents as shall be directed to be deposited with them under the Standing Orders of either House of Parliament." 151. If the company shall fail to keep or deposit, as hereinbefore mentioned, any of the said copies of the special act, they shall forfeit twenty pounds for every such offence, and also five pounds for every day afterwards during which such copy shall be not so kept or d'jposited. (Extent.) 152. And be it enacted, that this act shall not extend to Scotland. [153. And he it enacted, that this act may be amended or repealed by any act to be passed in the present session of parliament (I) .] SCHEDULES referred to in the foregoing Act. SCHEDULE A. (m). Form of Conveyance. I , of , in consideration of the sum of paid to me [or, as the case may be, into the Bank of England [or Bank of Ireland], in the name and with the privity of the accountant-general of the Court of Chancery, ex parte "The Promoters of the Undertaking" [naming them], or to A. B. of and O. D. of , two trustees appointed to receive the same], pursuant to the [here name the special act], by the [here name the company or other promoters of the undertaking], incorporated [or constituted] by the said act, do hereby convey to the said company [or other description], their successors and assigns,' all [describing the premises to be conveyed], together with all ways, rights, and appurtenances thereto belonging, and all such estate, right, title and interest in (Z) Repealed by S. L. R. Act, 1875. Cf. Interpretation Act, 1889, s. 10. O) To sect. 81. THE LANDS CLAUSES CONSOLIDATION ACT, I860. 435 and to the same as I am or shall become seised or possessed of, or am by the said act empowered to convey, to hold the premises to the said company [or other description], their successors and assigns, for ever, according to the true intent and meaning of the said act. In witness whereof I have hereunto set my hand and seal, the day of , in the year of our Lord SCHEDULE B. (w). Form of Conveyance cm Chief Rent. I , of , in consideration of the rent-charge to be paid to me, my heirs and assigns, as hereinafter mentioned, by "The Promoters of the Under- taking" [naming them'], incorporated [or constituted] by virtue of the [here name the special act], do hereby convey to the said company [or other descrip- tion], their successors and assigns, all [describing the premises to be conveyed], together with all ways, rights, and appurtenances thereunto belonging, and all my estate, fight, title and interest in and to the same and every part thereof, to hold the said premises to the said company [or other description], their successors and assigns, for ever, according to the true intent and meaning of the said act, they the said company [or other description], their successors and assigns, yielding and payina unto me, my heirs and assigns, one clear yearly rent of by equal quarterly [or half-yearly, as agreed upon], portions henceforth, on the [stating the days], clear of all taxes and deductions. In witness whereof I here- unto set my hand and seal, the day of , in the year of our Lord [SCHEDULE 0. («). Form of Conviction, to ivit. Be it remembered, that on the day of , in the year of our Lord A. S. is convicted before tes C '., D., two of her Majesty's justices of the -peace for the county of [here describe the offence generally, and the time and place when and where committed], contrary to the [here name the special act]. Given under our hands and seals, the diay and year first above written. C. THE LANDS CLAUSES CONSOLIDATION ACTS AMENDMENT ACT, 1860. 23 & 24 Vict. c. 106. An Act to amend the Lands Clauses Consolidation Acts (1845) in regard to Sales and Compensation for Land by way of a Bent- charge, Annual Feu -Duty or Ground Annual, and to enable Her Majesty's Principal Secretary of State for the War Department to avail himself of the Poivers and Provisions contained in the same Acts. [20th August, 1860. [Whereas it is expedient to extend the- provisions of the Lands 8 # 9 Vict. Clauses Consolidation Act, 1845, in regard to sales of land, or com- "• 18. pensation for damages, in consideration of an annual rentcharge, annual feu duty or ground annual, and to enable her Majesty's prin- cipal secretary of state for the war department to avail himself of the O) To sect. 81. (») To sect. 144. Eepealed by Summary Jurisdiction Act, 1884, s. 4; see aote 0),«p. 431; and by S. L. It. Act, 1892. 28 (2) 436 APPENDIX OF STATUTES BOOK I. Fart of sect. 10 of recited act repealed. Sects. 10 and 1 1 of recited act as to power to sell, &c. lands for an annual rentcharge and to recover, ex- tended to all sales, &c. where parties are under disability. Similar proviso with regard to lands sold under sect. 10 of 8 & 9 Vict, c. 19. Amount of rentcharge to be settled in manner directed in the 9th section of recited acts. powers and provisions contained in the same act for the purchase of lands wanted for the service of the war department or for the defence of the realm : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and tem- poral, and Commons, in this present parliament assembled, and by the authority of the same, as follows (o) :] [1. So much of the tenth section of the Lands Clauses Consolida- tion Act, 1845, as provides that, save in the case of lands of which any person is seised in fee or entitled to dispose absolutely for their own benefit, the consideration to be paid for any lands, or for any damage done thereto, shall be in a gross sum, is hereby, repealed (p).] 2. The power to sell and convey lands in consideration of an annual rentcharge provided by the tenth section of the said act, and the power to recover such rentcharge provided by the eleventh section of the said act, are hereby extended to all eases of sale and purchase or compen- sation under the said act where the parties interested in such sale or entitled to such compensation are under any disability or incapacity, and have no power to sell or convey such lands, or to receive such compensation, except under the provisions of the said act. 3. The power to sell and convey lands in consideration of an annual feu duty or ground annual under the tenth section of the Lands Clauses Consolidation (Scotland) Act, 1845, and the power to recover such annual feu duty or ground annual, are . hereby extended to all eases of sale or purchase or compensation under the said act, where the parties interested in such sale are under any disability or incapa- city, and have no power to sell or convey such lands, or to receive such compensation, except under the provisions of the said act. 4. In every case of such sale or compensation by any parties other than parties seised in fee or entitled to dispose absolutely of the lands so sold or damaged, the amount of such rentcharge, annual feu duty or ground annual, hereinbefore mentioned, shall be settled in the manner directed in the ninth section of each of the said acts respec- tively: provided, that the amount of such annual rentcharge, annual feu duty or ground annual, shall in no case be less than one-fourth part greater than the net annual rent received by the parties bene- ficially interested in such lands upon an average of the last seven years; and that a charge of five per cent, on the gross sum estimated or fixed as aforesaid, by way of compensation for any damage that may be done to the said lands, shall in all such cases be added to and shall form a part of the said rentcharge, annual feu duty or ground annual; and that no fine, foregift, grassum, premium, or other con- sideration in the nature thereof, shall be paid or taken in respect of the lands so sold or damaged, other than the annual rentcharge, annual, feu duty or ground annual made payable for such lands: pro- vided also, that such rentcharge shall be and remain upon and for the same uses, trusts, and purposes as those upon which the rents and profits of the land so conveyed stood settled or assured at or imme- diately before the conveyance thereof, and shall be a first charge on ib.e tolls and rates, if any, payable under the special act. (o) Repealed by S. L. R. Act, 1892. O) Repealed by S. L. R. Act, 1875. THE LANDS CLAUSES CONSOLIDATION ACT, I860. 437 5. In case the promoters of the undertaking shall be empowered, If lands pur- by any act or acte relating thereto, to be passed after the passing of chased by way this act, to borrow money to an amount not exceeding a prescribed ? f rent « har ^ e . sum, then in the event of the promoters of the undertaking agreeing powera tobe at any time after the passing of this act with any person under the reduced pro- powers of this act and of either of the acts hereinbefore mentioned, or portionally. of either of the said acts, only for the purchase of any lands in con- sideration of the payment of a rentcharge, annual feu duty or ground annual, ihe powers of the promoters of the undertaking for borrowing money shall be reduced by an amount equal to twenty years' purchase of any rentcharge, annual feu duty or ground annual, so for the time being payable. [6. The clauses contained in " The Lands Clauses Consolidation Act Certain clauses (1845)," relating to the purchase of lands by agreement, and to agree- in 8 $ 9 ^ ici - ments for sale, and conveyances, sales, and releases of any lands or c , 18 ' e ^ tende j hereditaments, or any estate or interest therein, by parties under dis- ilnd^fir ability, shall extend and be applicable to all purchases of land and public pur- hereditaments for public purposes which shall be hereafter made by poses, the council of any city or borough, with the sanction of the com- missioners of her Majesty's treasury, under the powers for that pur- pose contained in " The Municipal Corporation Mortgages, &c. Act (1860) "(g).] 7. For the purchase or acquisition of any messuages, lands, tene- Power to ments, and hereditaments wanted for the service of the admiralty or secretary for of the war department or for the defence of the realm, it shall be war to U8 . e tte lawful for her Majesty's principal secretary of state for the war \ a promo ters n department for the time being to use all or any of the powers and of under- provisions by the Lands Clauses Consolidation Act, 1845, and by the takings by Lands Clauses Consolidation (Scotland) Act, 1845, given to promoters 8 & 9 ^ lct - of the undertaking, as therein mentioned, and for such purposes the said principal secretary shall be deemed and taken to be the promoters of an undertaking within the meaning of the said act, and all the powers and provisions thereof shall, if used by her Majesty's principal secretary of state for the war department, be treated as if they were contained in the fifth and sixth Victoria, chapter ninety-four, for the purpose of being used and made available by the principal officers of her Majesty's ordnance, and had been transferred to the said principal secretary for the time being by the eighteenth and nineteenth Victoria, chapter one hundred and seventeen, for the purposes aforesaid: pro- (?) Repealed generally as to England by S. L. R. Act, 1892. Repealed as to boroughs within the Municipal Corporations Act, 1882, by sect. 5 of that Act, sect. 107 of which substitutes the following provisions: "(1) Where a municipal corporation has not power to purchase or acquire land, or to hold land in mortmain, the council may, with the approval of the treasury, purchase or acquire any land In such manner and on such terms and conditions as the treasury approve, and the same may be conveyed to and held by the corporation accordingly. (2) The provisions of the Lands Clauses Consolidation Acts, 1845, 1860 and 1869, relating to the purchase of land by agreement, and to agreements for sale, and conveyances, sales, and releases of any lands or hereditaments, or any estate or interest therein by persons under disability, shall extend to all purchasers of land under this section." Sect. 72 of the Local Government Act, 1888, substitutes the Local Government Board for the Treasury. 438 APPENDIX OF STATUTES BOOK I. This act and 8 & 9 Vict. cc. 18 & 19, to be con- strued together. vided always, that nothing herein contained shall authorize any purchase otherwise than by agreement of any land, except according to the provisions of the twenty-third section of the said act of the fifth and sixth Victoria, or prejudice or affect the powers and authorities of the said principal secretary for the time being under the said last- mentioned statutes or either of thern. 8. This act shall be read and construed as part of the said Lands Clause* Consolidation Act, 1845, or of the Lands Clauses Consolidation (Scotland) Act, 1845, in all matters in which it relates to the said acts respectively ; and in citing this act in other acts of parliament, and in legal instruments, it shall be sufficient to use the expression of " The Lands Clauses Consolidation Acts Amendment Act, 1860." Costs of arbi- trations, where either party so requires, to be settled by a master of superior courts. Repeal of 31 & 32 Viet, c. 119, s. 33. Provision respecting lands in Westminster. THE LANDS CLAUSES CONSOLIDATION ACT, 1869. 32 & 33 Vjct. c. 18. An Act to amend the Lands Clauses Consolidation Act. [24th June, 1869. [Whereas it . is expedient that the provisions contained in " The Lands Glauses Consolidation Act, 1845," should be amended: Be it therefore enacted and declared by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows (r) :] [1. Where in England, under " The Lands Clauses Consolidation Act, 1845," or any act incorporating the same, any question of dis- puted compensation is determined by arbitration, the costs of and incidental to the arbitration and award shall, if either party so requires, be taxed and settled as between the parties by any one of the taxing masters of the superior courts of law ; and such fees may be taken in respect of the taxation as may be fixed in pursuance of the enactments relating to the fees to be demanded and taken in the offices of such masters, and all those enactments including the enact- ments relating to the taking of fees by means of stamps, shall extend to the fees in respect of the said taxation (s) .] [2. Section thirty-three of the Regulation of Railways Act, 1868, is hereby repealed, and any proceedings commenced in pursuance of tlxai section may be continued under this act as if they had been commenced under it(t).^\ 3. Where any lands by the special act authorized to be taken are situate within the city and liberty of Westminster, then, with respect to those lands, in every ease in which any question of disputed compensation is required by the Lands Clauses Consolidation Act, 1845, or any act amending the same, to be determined by the verdict ()■) Repealed by S. L. R. (No. 2) Act, 1893. 0) Eepealed by L. CI. (Taxation of Costs) Act, 1895, =..2; q. v. post, p. 440. (<) Repealed by S. L. R. Act, 1883. THE LANDS CLAUSES (UMPIRE) ACT, 1883. 439 of a jury, the high bailiff of the city and liberty of Westminster, or his deputy, shall be deemed to be substituted for the sheriff through- out such of the enactments of the Lands Clauses Consolidation Act, 184S, and any act amending the same as relate to the reference to a jury. 4. This act may be cited as " The Lands Clauses Consolidation Act, Short title. 1869," and shall be construed as one with' the Lands Clauses Construction Consolidation Act, 1845, and the Lands Clauses Consolidation Acts of Acta. Amendment Act, 1860, and these acts and this act may be cited together as the Lands Clauses Consolidation Acts, 1845, 1860, 1869. THE LANDS CLAUSES (UMPIRE) ACT, 1883. 46 Vjct. c. 15. An Act to amend the Lands Clauses Consolidation Act, 1845. [18th June, 1883. [Whereas it is expedient that the provisions contained in the Lands Clauses Consolidation Act, 1845, in relation to the appointment of umpires, should be amended : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows (w) :] 1 \The following words in] Section twenty-eight of the Lands Amendment Clauses Consolidation Act, 1845 [are hereby repealed, that is to say, of «otffl of "in any case in which a railway company shall be one party to the q 18> extend . arbitration, and two justices in any other case," and that section shall, ingthe power in relation to the appointment of any umpire under the provisions ofappoint- thereof after the passing of this act, apply as if such words were men of omitted, and the same section («)] shall [accordingly («)] be read ^£""7 and have effect as follows: Trade. " 28 If in either of the eases aforesaid the said arbitrators shall refuse, or shall for seven days after request of either party to such arbitration neglect, to appoint an umpire, the Board of Trade shall, on the application of either party to such arbitration appoint an umpire, and the decision of such umpire on the matters on which the arbitrators shall differ, or which shall be referred to him under this or the special act, shall be final." _ 2. This act may be cited as the "Lands Clauses (Umpire) Act, short title. 1883." («) Repealed by S. L. R. Act, 1898. 440 APPENDIX OF STATUTES — BOOK I. Pees for taxing coats in compensa- tion inquiries and arbitra- tions. 8 & 9 Vict. c. 18. 31 & 32 Vict. c. 119. 32 & 83 Vict. c. 18. Short title. THE LANDS CLAUSES (TAXATION OF COSTS) ACT, 1895 0). 58 Vict. c. 11. An Act to amend the Law relating to the Taxation of Costs under the Lands Clauses Acts. [14th May, 1895. Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows: 1. — (1.) Where under the Lands Clauses Consolidation Act, 1845, or any act incorporating; the same, any question of disputed compensation is determined by the verdict of a jury, or by arbitration, the costs of and incidental to the inquiry or to the arbitration and award (as the case may be), shall, if either party so requires, be taxed and settled as between the parties by one of the masters of the Supreme Court, and such fees shall be taken in respect of the taxation as may be fixed in pursuance of the enactments relating to the fees to be taken in the offices of those masters; and all those enactments (including the enactments relating to the taking of fees by means of stamps) shall extend to the fees in respect of such taxation. (2.) Section forty-five of the Regulation of Railways Act, 1868, and section one of the Lands Clauses Consolidation Act, 1869, are hereby repealed. 2. This act may be cited as the Lands Clauses (Taxation of Costs) Act, 1895. Section II. — Railways. THE RAILWAYS CLAUSES CONSOLIDATION ACT, 1845(y). 8 & 9 Vict. c. 20. An Act for consolidating in One Act certain Provisions usually inserted in Acts authorizing the making of Railivays. [8th May, 1845. [Whereas it is expedient to comprise in one general act sundry, provisions usually introduced into acts of parliament authorizing the construction of railways, and that as well for the purpose of avoid- ing the necessity of repeating such provisions in each of the several acts relating to such undertakings as for ensuring greater uniformity O) Vide ante, pp. 202, 218. (y~) In the case of the Railway Acts, a certain number of cases dealing with minor points have been inserted as notes to the Acts instead of being incor- porated in the text. THE RAILWAYS CLAUSES CONSOLIDATION ACT, 1845. 441 in the provisions themselves : and whereas a bill is now pending in parliament, intituled An Act for consolidating in one Act certain provisions usually inserted in Acts authorizing the talcing of Lands for Undertakings of a public nature, and which is intended to be called " The Land Clauses Consolidation Act, 184.5 " : may it there- fore please your Majesty that it may be enacted; and be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, That {z'\ This act shall apply to every railway which shall by any act which shall hereafter be passed be authorized to be constructed, and this act shall be incorporated with such act; and all the clauses and provisions of this act, save so far as they shall be expressly varied or excepted by any such act, shall apply to the undertaking authorized thereby, so far as the same shall be applicable to such undertaking-, and shall, as well as the clauses and provisions of every other act which shall be incorporated with such act, form part of such act, and be construed together therewith as forming one act. And with respect to the construction of this act and of other acts to be incorporated therewith, be it enacted as follows: 2. The expression " the special act," used in this act, shall be con- strued to mean any act which shall be hereafter passed authorizing the construction of a railway, and with which this act shall be so in- corporated as aforesaid; and the word '" prescribed," used in this act in reference to any matter herein stated, shall be construed to refer to such matter as the same shall be prescribed or provided for in the special act; and the sentence in which such word shall occur shall be ■construed as if, instead of the word " prescribed," the expression "prescribed for that purpose in the special act " had been used; and the expression "the lands " shall mean the lands which shall by the special act be authorized to be taken or used for the purposes thereof; and the expression "the undertaking" shall mean the railway and works, of whatever description, by the special act authorized to be executed. ***** And with respect to the construction of the railway and the works •connected therewith, be it enacted as follows: 6. (a) In exercising the power given to the company by the special act to construct the railway, and to take lands for that pur- pose, the company shall be subject to the provisions and restrictions ■contained in this act and in the said Lands Clauses Consolidation Act; and the company shall make to the owners and occupiers of and all other parties interested in any lands taken or used for the purposes of the railway, or injuriously affected by the construction thereof, full compensation for the value of the lands so taken or used, and for all ■damage sustained by such owners, occupiers, and other parties, hy reason of the exercise, as regards such lands, of the powers by this or the special act, or any act incorporated therewith, vested in the com- pany; and, except where otherwise provided by this or the special act, 1he amount of such compensation shall be ascertained and determined in the manner provided by the said Lands Clauses Consolidation Act Operation of this act confined to future railways. Interpreta- tions in this act: " Special act:". "pre- scribed : ' ' "the lands:" ' ' the under- taking. " The construc- tion of the railway to be subject to the provisions of this act and the Lands Clauses Con- solidation Act. (z) Repealed by S. L. R. Act, 1891. (a) Vide ante, p. 144. 442 APPENDIX OF STATUTES — BOOK I. for determining- questions of compensation with regard to lands pur- chased or taken under the provisions thereof; and all the provisions of the said last-mentioned act shall be applicable to determining the amount of any such compensation, and to enforcing the payment or other satisfaction thereof. Limiting deviation from datum line described on sections, &c. Proviso. Proviso. Public notice to be given previous to making greater deviations. Power to the owners of adjoining lands to appeal to the Board of Trade against such devia- tions. 11. In making the railway it shall not be lawful for the company to deviate from the levels of the railway, as referred to the common datum line described in the section approved of by parliament, and as marked on the same, to any extent exceeding in any place five feet, or, in passing through a town (6), village, street, or land continuously built upon, two feet, without the previous consent in writing of the owners and occupiers of the land in which such deviation is intended to be made ; or in case any street or public highway shall be affected by such deviation, then the same shall not be made without the like consent of the trustees or commissioners having the control of such street or public highway, or, if there be no such trustees or commis- sioners, without the like consent of two or more justices of the peace in petty sessions assembled for that purpose, and acting for the district in which such street or public highway may be situated, or without the like consent of the commissioners for any public sewers, or the proprietors of any canal, navigation, gas works, or waterworks affected by such deviation: provided always, that it shall be lawful for the company to deviate from the said levels to a further extent without such consent as aforesaid, by lowering solid embankments or viaducts, provided that the requisite height of headway as prescribed by act of parliament be left for roads, streets, or canals passing under the same: provided also, that notice of every petty sessions to be holden for the purpose of obtaining such consent of two justices as is hereinbefore required shall, fourteen days previous to the holding of such petty sessions, be given in some newspaper circulating in the county, and also be affixed upon the door of the parish church in which such deviation or alteration is intended to be made, or, if there be no church, some other place to which notices are usually affixed (c). 12. Before it shall be lawful for the company to make any greater deviation from the level than five feet, or, in any town, village, street, or land continuously built upon, two feet, after having obtained such consent as aforesaid, it shall be incumbent on the company to give notice of such intended deviation by public advertisement, inserted once at least in two newspapers, or twice at least in one newspaper, circulating in the district or neighbourhood where such deviation is intended to be made, three weeks at least before commencing to make such deviation ; and it shall be lawful for the owner of any lands pre- judicially affected thereby, at any time before the commencement of the making- of such deviation, to apply to the Board of Trade, after giving ten days' notice to the company, to decide whether, having regard to the interests of such applicants, such proposed deviation is proper to be made; and it shall be lawful for the Board of Trade, if they think fit, to decide such question accordingly, and by their certi- ficate in writing either to disallow the making of such deviation or to (b) Cf. L. CI. Act, 1845, ss. 93, 128, and vMe mite, pp. 44, 312. (c) See the Railways Clauses Act, 1883, ». 4. THE RAILWAYS CLAUSES CONSOLIDATION ACT, 1845. 443. authorize the making thereof, either simply or with any such modifi- cation as shall seem proper to the Board of Trade; and after any such certificate shall have been given by the Board of Trade it shall not be lawful for the company to make such deviation, except in conformity with such certificate. 13. Where in any place it is intended to carry the railway on an Arches, tun- arch or arches or other viaduct, as marked on the said plan or section, nels < &c - to the same shall be made accordingly ; and where a tunnel is marked on ^ e ™*^ e ^ s the said plan or section as intended to be made at any place, the same deposited 1 shall be made accordingly, unless the owners, lessees, and occupiers of plans. the land in which such tunnel is intended to be made shall consent that the same shall not be so made (d). 14. It shall not be lawful for the company to deviate from or alter Limiting the gradients, curves, tunnels, or other engineering works described in deviations the said plan or section, except within the following limits, and under fr ° m g radl- the following conditions ; (that is to say,) & c _ ' " Subject to the above provisions in regard to altering levels, it shall be lawful for the company to diminish the inclination or gradients of the railway to any extent, and to increase the said inclination or gradients as follows; (that is to say,) in gradients of an inclination not exceeding one in a hundred, to any extent not ex- ceeding ten feet per mile, or to any further extent which shall be certified hj the Board of Trade to be consistent with the public safety, and not prejudicial to the public interest; and in gradients of or exceeding the inclination of one in a hundred, to any extent not exoeeding three feet per mile, or to any further extent which shall be so certified by the Board of Trade as aforesaid: It shall be lawful for the company to diminish the radius of any curve described in the said plan to any extent which shall leave a radius of not less than half a mile, or to any further extent authorized by such certificate as aforesaid from the Board of Trade: It shall be lawful for the company to make a tunnel, not marked on the said plan or section, instead of a cutting, or a viaduct instead of a solid embankment, if authorized by such certificate as afore- said from the Board of Trade (e). 15. It shall be lawful for the company to deviate from the line Lateral delineated on the plans so deposited, provided that no such deviation deviations, shall extend to a greater distance than the limits of _ deviation delineated upon the said plans, nor to a greater extent in passing through a town, village, or lands continuously built upon than ten yards, or elsewhere to a greater extent than one hundred yards from the said line, and that the railway by means of such deviation be not made to extend into the lands of any person, whether owner, lessee, or occupier, whose name is not mentioned in the books of reference, with- out the previous consent in writing of such person, unless the name of such person shall have been omitted by mistake, and the fact that such omission proceeded from mistake shall have been certified in manner (d) See the Railways Clauses Act, 1863, s. 4. (e) Beardmer ». L. # N. W. Sail. Co. (1849), 1 Macn. & G. 112; S. v. Caledonian Sail. Co. (1851), 16 Q. B. 19; Att.-Gen. v. Tewkesbury $ Malvern Sail. Co. (1863), 32 L. J. Ch. 482. 444 APPENDIX OF STATUTES — BOOK I. Works to be executed. Inclined planes, &c. Alteration of course of rivers, &c. Drains, &c. Warehouses, &c. Alterations and repairs. General power. Proviso as to damages. herein or in the special act provided for in eases .of unintentional errors in the said books of reference. 16. (/) Subject to the provisions and restrictions in this and the special act, and any act incorporated therewith, it shall be lawful for the company, for the purpose of constructing' the railway, or the accommodation works connected therewith, hereinafter mentioned, to execute any of the following works; (that is to say,) They may make or construct, in, upon, across, under, or over any lands, or any streets, hills, valleys, roads, railroads, or tramroads, rivers (g), canals, brooks, streams, or other waters, within the lands described in the said plans, or mentioned in the said books of reference or any correction thereof, such temporary (h) or permanent inclined planes (i), tunnels, embankments, aqueducts, bridges, roads, ways, passages^ conduits, drains, pier;, arches, cuttings, and fences as they think proper; They may alter the cour.se of any rivers not navigable, brooks, streams, or watercourses, and of any branches of navigable rivers, such branches not being themselves navigable, within such lands, for the purpose of constructing and maintaining tunnels, bridges, passages, or other works over or under the same, and divert or alter, as well temporarily as permanently (fc), the course of any such rivers or streams of water, roads, streets, or ways, or raise or sink the level of any such rivers or streams, roads (I), streets, or ways, in order the more conveniently to carry the same over or under or by the side of the railway, as they may think proper; They may make drains or conduits into, through, or under any lands adjoining the railway, for the purpose of conveying water from or to the railway; They may erect and construct such houses, warehouses, offices, and other buildings, yards, stations, wharfs, engines, machinery, apparatus, and other works and conveniences as they think proper; They may from time to time alter, repair, or discontinue the before-mentioned works or any of them, and substitute others in their stead; and They may do all other acts necessary for making, maintaining, altering, or repairing, and using the railway: Provided (m) always, that in the exercise of the powers by this or the special act granted the company shall do as little damage as can be, and shall make full satisfaction in manner herein and in the special act, and any act incorporated therewith, provided, to all parties (/) Vide ante, p. 145. O) Abraham v. G. N. Sail. Co. (1851), 16 Q. B. 256. (/») Priestley v. Manchester § Leeds Rail. Co. (1840), 2 Rail. Cas. 134. (i) West Lancashire R. D. C. v. L. # Y. Rail. Co., [1903] 2 K. B. 394. (ft) Phillips v. L. B. f S. C. Rail. Co. (1862), 4 Gift. 46. (I) Marquis of Salisbury v. G. N. Rail. Co. (1858), 28 L. J., C. P. 40; £. # N. W. Rail. Co. v. Ogiem U. D. C. (1899), 80 L. T. 401, (m) R. v. E. $ W . India Docks $ Birmingham Junctio-n Rail. Co. (1853), 22 L. J. Q. B. 380; Fenwiek v. East London Rail. Co. (1875), U. E. 20 Eq. 544. THK RAILWAYS CLAUSES CONSOLIDATION ACT, 1845. 445 interested, for all damage by them sustained by reason of the exercise of such powers. ***** And with respect to the temporary occupation of lands near the rail- way during the construction thereof, be it enacted as follows: 30. Subject ; to the provisions herein and in the special act con- Company tamed, it shall be lawful for the company, at any time before the ma y occupy expiration of the period by the special act limited for the completion of tem P° ra "ly the railway to enter upon and use any existing private road, being a S' 6 ■«,- road gravelled or formed with stones or other hard materials, and not five hundred being an avenue or a planted or ornamental road, or an approach to yards of the any mansion house, within the prescribed limits, if any, or, if no rail way. limits be prescribed, not being more than five hundred yards distant from the centre of the railway as delineated on the plans; but before the company shall enter upon or use any such existing road they shall give three weeks' notice of their intention to the owners and occupiers of such road, and of the lands over which the same shall pass, and shall in such notice state the time during which, and the purposes for which, they intend to occupy such road, and shall pay to the owners and occupiers of such road, and of the lands through which the same shall pass, such compensation for the use and occupation of such road, either in a gross sum of money or by half-yearly instalments, as shall be agreed upon between such owners and occupiers respectively and the company, or in case they differ about the compensation the same shall be settled by two justices, in the same manner as any compensa- tion not exceeding fifty pounds is directed to be settled by the said Lands Clauses Consolidation Act. 31. It shall be lawful for the owners and occupiers of any such Power to road, and of the lands over which the same passes, within ten days owners and after the service of the aforesaid notice, by notice in writing to the occupiers of company to object to the company making use of such road, on the toobicct that ground that other roads such as the company are hereinbefore autho- other roads rized to use for the purposes aforesaid, or that some public road would should be be more fitting to be used for the same; and upon the objection being t aken - so made such prooeedings may be had as are hereinafter mentioned with respect to lands temporarily occupied by the company, in respect of which three weeks' notice is hereinafter required to be given, and in the same manner as if in the provisions relative to such proceedings the word road or roads, or the words road and the land over which the same passes, as the case may require, had been substituted in such provisions for the word lands. 32. Subject to the provisions herein and in the special act con- Power to take tained, it shall be lawful for the company, at any time before the temporary expiration of the period by the special act limited for the completion j^^thout of the railway, without making any previous payment, _ tender, or p^^, p ay . deposit, to, enter upon any lands within the prescribed limits, or, if no ment of price, limits be prescribed, not being more than two hundred yards distant from the centre of the railway as delineated on the plans, and not being a garden, orchard, or plantation attached or belonging to a house, nor a park, planted walk, avenue, or ground ornamentally planted, and not being nearer to the mansion house of the owner of any such lands than the prescribed distance, or if no distanoe be prescribed, then not nearer than five hundred yards 1 therefrom, and to occupy the said lands 446 APPKNDIX OF STATUTES BOOK I. Company to give notice previous to such tem- porary pos- session. Service of notices on owners and occupiers of lands. Power to owner to •object that so long as may be necessary for the construction or repair of that portion of the railway, or of the accommodation works connected therewith, hereinafter mentioned, and to use the same for any of the following purposes; (that is to say,) For the purpose of taking earth or soil by side cuttings therefrom; For the purpose of depositing spoil thereon; For the purpose of obtaining materials therefrom for the construc- tion or repair of the railway or such accommodation works as aforesaid; or For the purpose of forming roads thereon to or from or by the side of the railway: And in exercise of the powers aforesaid it shall be lawful for the com- pany to deposit and also to manufacture and work upon such lands materials of every kind used in constructing the railway, and also to dig and take from out of any such lands any clay, stone, gravel, sand, or other things that may be found therein useful or proper for con- structing the railway or any such roads as aforesaid, and for the purposes aforesaid to erect thereon workshops, sheds, and other buildings of a temporary nature: provided always, that nothing in this act contained shall exempt the company from an action for nuisance or other injury, if any done, in the exercise of the powers hereinbefore given, to the lands or habitations of any party other than the party whose lands shall be so taken or used for any of the purposes aforesaid: provided also, that no stone or slate quarry, brick field, or other like place, which at the time of the passing of the special act shall be commonly worked or used for getting materials therefrom for the purpose of selling or disposing of the same, shall be taken or used by the company, either wholly or in part, for any of the purposes lastly hereinbefore mentioned. 33. In case any such lands shall be required for spoil banks or for side cuttings, or for obtaining materials for the construction or repair of the railway, the company shall before entering thereon (except in the case of accident to the railway requiring immediate reparation) give three weeks' notice in writing to the owners and occupiers of such lands of their intention to enter upon the same for such purposes; and in case the said lands are required for any of the ' other purposes hereinbefore mentioned the company shall (except in the cases aforesaid) give ten days' like notice thereof, and the company shall in such notices respectively state the substance of the provisions hereinafter contained respecting the right of such owner or occupier to require the company to purchase any such lands, or to receive compensation for the temporary occupation thereof, as the case may be. 34. The said notice shall either be served personally on such owners and occupiers, or left at their last usual place of abode, if any such can, after diligent inquiry, be found, and in case any such owner shall be absent from the United Kingdom, or cannot be found after diligent inquiry, shall also be left with the occupier of such lands, or, if there be no such occupier, shall be affixed upon some conspicuous part of such lands. 35. In any case in which a notice of three weeks is hereinbefore required to be given it shall be lawful for the owner or occupier of the lands therein referred to, within ten days after the service of such THE RAILWAYS CLAUSES CONSOLIDATION ACT, 1845. 447 notice, by notice in writing to the company to object to the company other lands making use of such lands, either on the ground that the lands proposed ought t0 be to be taken for the purposes aforesaid, or some part thereof, or of the taken ' materials contained therein, are essential to be retained by such owner, in order to the beneficial enjoyment of other neighbouring lands belonging to him, or on the ground that other lands lying contiguous or near to those proposed to be taken would be more fitting to be used for such purposes by the company ; and upon objection being so made such proceedings may be had as hereinafter mentioned. 36. If the objection so made be on the ground that the lands Power to proposed to be taken, or some part thereof, or of the materials con- two justices tained therein, are essential to be retained by the owner in order to the *? °, rde ^ tha, K beneficial enjoyment of other neighbouring lands belonging to him, it materials shall be lawful for any justice, on the application of such owner, to shall not be summon the company to appear before two justices at a time and place taken. to be named in the summons, such time not being later than the expiration of the said twenty-one days' notice; and on the appearance of the company, or, in their absence, upon proof of due service of the summons, it shall be lawful for such justices to inquire into the truth of such ground of objection; and if it appear to such justices that for some special reason, to be stated in the order after mentioned, the lands so proposed to be taken, or any part thereof, or of the materials con- tained therein, are essential to be retained by the owner of such lands in order to the beneficial enjoyment of other neighbouring lands belonging to him, and ought not therefore to be taken or used by the company, it shall be lawful for such justices, by writing under their hands, to order that the lands so proposed to be taken, or some part thereof, or of the materials contained therein, to be specified in such order, shall not be taken or used by the company, and after service of such order on the company it shall not be lawful for them to take or use, without the previous consent in writing of the owner thereof, any of the lands or materials which by such order they are ordered not to take or use. 37. If the objection so made as aforesaid be on the ground Power to that other lands lying contiguous to those proposed to be taken, and "der other being sufficient in quantity, and such as the company are hereinbefore i an ds to be authorized to use for the purposes aforesaid, would be more fitting to taken. be used by the company, and if in such case the company shall refuse to occupy such other lands in lieu of those mentioned in the notice, it shall be lawful for any justice, on the application of such owner or occupier, to summon tbe company and the owners and occupiers of such other lands to appear before two justioes at a time and place to be named in such summons, such time not being more than fourteen days after such application nor less than seven days from the service of such summons; and on the appearance of the parties, or, in the absence of any of them, upon proof of due service of the summons, it shall be lawful for such justices to determine summarily which of the said lands shall be used by the company for the purposes aforesaid, and to authorize the company to occupy and use the same accordingly. ^ 38. If in the case last mentioned it shall appear to such jus- Power to the tices, upon the inquiry before them, that the lands of any other party justices to not summoned before them, being sufficient in quantity, and such ^^before as the company are hereinbefore authorized to take or use for the them 448 APPENDIX OF STATUTES — BOOK I. The com- pany to give sureties, if required. Company to separate the lands before using them. Lands taken for getting materials, &c. to be worked as the sur- veyor of owner may direot. . Owners of lands may compel com- pany to pur- chase lai»ds so temporarily occupied. purposes aforesaid, would be more fitting to be used by the company than tho lands of the person who shall have been so summoned as aforesaid, it shall be lawful for the said justices to adjourn such inquiry, and to summon such other person to appear before them at any time, not being more than fourteen days from such inquiry nor less than seven days from the service of such summons; and on the appearance of the parties, or, in the absence of any of them, on proof of due service of the summons, it shall be lawful for such justices to determine finally which lands shall be used for the purposes aforesaid, and to authorize the company to occupy and use the same accordingly. 39. Before entering, under the provisions hereinbefore contained, upon any such lands as shall be required for spoil banks or for side cuttings, or for obtaining materials or forming roads as aforesaid, the company shall, if required by the owner or occupier thereof, seven days at least before the expiration of the notice to take such lands as hereinbefore mentioned, find two sufficient persons, to be approved of by a justice, in case the parties differ, who shall enter into a bond to such owner or occupier in a penalty of such amount as shall be approved of by such justice, in case the parties differ, conditioned for the payment of such compensation as may become payable in respect of the same in manner herein mentioned. 40. Before the company shall use any such lands for any of the purposes aforesaid they shall, if required so to do by the owner or occupier thereof, separate the same by a sufficient fence from the lands adjoining thereto, with such gates as may be required by the said owner or occupier for the convenient occupation of such lands, and shall also, to all private roads used by them as aforesaid, put up fences and gates in like manner, in all cases where the same may be neces- sary to prevent the straying of cattle from or upon the lands traversed by such roads, and in case of any difference between the owners or occupiers of such roads and lands and the company as to the necessity for such fences and gates, such fences and gates as any two magistrates shall deem necessary for the purposes aforesaid, on application being made to them in like manner as hereinbefore is provided in respect to the use of such roads. 41. If any land shall be taken or used by the company, under the provisions of this or the special act, for the purpose of getting materials therefrom for the construction or repair of the railway, or the accommodation works connected therewith, they shall work the same in such manner as the surveyor or agent of the owner of such land shall direct, or, in case of disagreement between such surveyor or agent and the company, in such manner as any justice shall direct, on the application of either party, after notice of the hearing the application shall have been given to the other party. 42. In all cases in which the company shall in exercise of the powers aforesaid enter upon any lands for the purpose of making spoil banks or side cuttings thereon, or for obtaining therefrom materials for the construction or repair of the railway, it shall be lawful for the owners or occupiers of such lands, or parties having such estates or interests therein as, under the provisions in the said Lands Clauses Consolidation Act mentioned, would enable them to sell or convey lands to the company, at any time during the pos- session of any such lands by the company, and before such owners THE RAILWAYS CLAUSES CONSOLIDATION ACT, 1845. 449 or occupiers shall have accepted compensation from the company in respect of such temporary occupation, to serve a notice in writing on the company requiring them to purchase the said lands, or the estates and interests therein capable of being sold and conveyed by them respectively; and in such notice such owners or occupiers shall set forth the particulars of such their estate or interest in such lands, and the amount of their claim in respect thereof; and the company shall thereupon be bound to purchase the said lands, or the estate and interest therein capable of being sold and conveyed by the parties serving such notice. 43. In any of the eases aforesaid, where the company shall not Compensation be required to purchase such lands, and in all other cases where they to be made shall take temporary possession of lands by virtue of the powers 1°^™$°™** herein or in the special act granted, it shall be incumbent on the company, within one month after their entry upon such lands, upon being required so to do, to pay to the occupier of the said lands the value of any crop or dressing that may be thereon, as well as full compensation for any other damage of a temporary nature which he may sustain by reason of their so taking possession of his lands, and shall also from time to time during their occupation of the said lands pay half-yearly to such occupier or to the owner of the lands, as the case may require, a rent to be fixed by two justices, in case the parties differ, and shall also within six months after they shall have ceased to occupy the said lands, and not later than six months after the expiration of the time by the special act limited for the completion of the railway, pay to such owner and occupier, or deposit in the bank for the benefit of all parties interested, as the case may require, compensation for all permanent or other loss, damage, or injury that may have been sustained by them by reason of the exercise, as regards the said lands, of the powers herein or in the special act granted, including the full value of all clay, stone, gravel, sand, and other things taken from such lands. 44. The amount and application of the purchase money and other Compensation compensation payable by the company in any of the cases aforesaid taWafmider shall be determined in the manner provided by the said Lands Clauses the Lands Consolidation Act for determining the amount and application of Clauses Act. the compensation to be paid for lands taken under the provisions thereof. 45. And be it enacted, that it shall be lawful for the company, in Land to be addition to the lands authorized to be eompulsorily taken by them actional under the powers of this or the special act, to contract with any party stations, io. willing to sell the same for the purchase of any land adjoining or near to the railway, not exceeding in the whole the prescribed number of acres for extraordinary purposes; (that is to say,) For the purpose of making and providing additional stations, yards, wharfs, and places for the accommodation of passengers, and for receiving, depositing, and loading or unloading goods or cattle to be conveyed upon the railway, and for the erection of weighing machines, toll houses, offices, warehouses, and other buildings and conveniences: c. 29 450 APPENDIX OF STATUTES — BOOK I. bridges, &e. Fences : Drains : Watering places. For the purpose of making convenient roads, or ways to the rail- way, or any other purpose which may be requisite or convenient for the formation or use of the railway. And with respect to works for the accommodation of lands adjoin- ing the railway, be it enacted as follows: 68. The company shall make and at all times thereafter maintain the following works (n) for the accommodation of the owners and occupiers of lands adjoining the railway; (that is to say,) Such and so many convenient gates, bridges, arches, culverts, and passages (o) over, under, or by the sides of or leading to or from the railway as shall be necessary for the purpose of making good any interruptions caused by the railway to the use of the lands through which the railway shall be made; and such works shall be made forthwith after the part of the railway passing over such lands shall have been laid out or formed, or during the formation thereof: Also sufficient posts, rails, hedges, ditches, mounds, or other fences (p) for separating the land taken for the use of the railway from the adjoining lands not taken, and protecting such lands from trespass, or the cattle of the owners or occupiers thereof from straying thereout, by reason of the railway, toge- ther with all necessary gates made to open towards such adjoin- ing lands, and not towards the railway, and all necessary stiles: and such posts, rails, and other fences shall be made forthwith .after the taking of any such lands, if the owners thereof 6hall so require, and the said other works as soon as conveniently may be: Also all necessary arches, tunnels, culverts, drains (q), of other passages, either over or under or by the sides of the railway, of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the making of the railway, or as nearly so as may be ; and such works shall be made from time to time as the railway works proceed: Also proper watering places for cattle where by reason of the rail- way the cattle of any person occupying any lands lying near thereto shall be deprived of access to their former watering places; and such watering places shall be so made as to be at all times as sufficiently supplied with water as theretofore, and (») R. v. Fisher (1862), 32 L. J. M. O. 12. (o) United Lamd Co. v. G. 3. Sail. Co. (1875), L. R. 10 Oh. 586; Fiifli v. G. W. Rail. Co. (1879), 5 Ex. D. 254; G. N. Rail. Co. v. McAlister, [1897] 1 Ir. E. 587; G. W. Rail. Co. v. Talbot, [1902] 2 Ch. 759. (p) Richetts v. IE. § W. India Docks Co. § Birmingham Junction Rail. Go. (1852), 12 O. B. 160; Dawson v. Midland Rail. Co. (1872), L. E. 8 Ex. 8; Buxton v. N. E. Rail. Co. (1868), L. R. 3 Q. B. 549; Dixon v. G. W. Rail. Co., [1897] 1 Q. B. 300. (?) L. # N. W. Rail. Co. v. Runcorn R. D. C, [1898] 1 Oh. 34. THE RAILWAYS CLAUSES CONSOLIDATION ACT, 1845. 451 as if the railway had not been made, or as nearly so as may be; and i the company shall make all necessary watercourses and drains for the purpose of conveying water to the said watering places: Provided always, that the company shall not be required to make such accommodation works in such a manner as would prevent or obstruct the working or using of the railway, nor to make any accommodation works with respect to which the owners and occupiers of the lands shall have agreed to receive and shall have been paid compensation instead of the making them. 69. If any difference arise respecting the kind or number of any Differences as such accommodation works, or the dimensions or sufficiency thereof, to aocomm °- or respecting the maintaining thereof, the same shall be determined tobe'settled 8 by two justices; and such justices shall also appoint the time within by justices, which such works shall be commenced and executed by the com- pany 0). 70. If for fourteen days next after the time appointed by such Execution of justices for the commencement of any such works the company shall works *>? <• -i ii i • t ii n • owners on fail to commence such works, or having commenced shall fail to default by the proceed diligently to execute the same in a sufficient manner, it shall company. be lawful for the party aggrieved by such failure himself to execute such works or repairs; and the reasonable expenses thereof shall be repaid by the company to the party by whom the same shall so have been executed; and if there be any dispute about such expenses the same shall be settled by two justices; provided always, that no such owner or occupier or other person shall obstruct or injure the railway, or any of the works connected therewith, for a longer time nor use them in any other manner than is unavoidably necessary for the execution or repair of such accommodation works. 71. If any of the owners or occupiers of lands affected by such Power to railway shall consider the accommodation works made by the com- ? w ^ e f^ ° k pany, or directed by such justices to be made by the company, additional insufficient for the commodious use of their respective lands, it shall accommoda- be lawful for any such owner or occupier, at any time, at his own tlon works - expense, to make such further works for that purpose as he shall think necessary, and as shall be agreed to by the company, or, in case of difference, as shall be authorized by two justices. 72. If the company so desire, all such last-mentioned accommo- Such works dation works shall be constructed under the superintendence of their s ° Iu e B ^' engineer, and according to plans and specifications to be submitted un work the said mines or any part thereof for which the company shall wkthe* 7 not have agreed to pay compensation, so that the same be done in a mines, manner proper and necessary for the beneficial working thereof, and .according to the usual manner of working such mines in the district where the same shall be situate ; and if any damage (v) or obstruction be occasioned to the railway or works by improper working of such mines, the same shall be forthwith repaired or removed, as the case may require, and such damage made good, by the owner, lessee, or occupier of such mines or minerals, and at his own expence; and if such repair or removal be not forthwith done, or, if the company shall so think fit, without waiting for the same to be done by such owner, lessee, or occupier, it shall be lawful for the company to execute the same, and recover from such owner, lessee, or occupier the expence occasioned thereby, by action in any of the superior courts. 80. If the working of any such mines under the railway or works, Mining oom- or within the above-mentioned distance therefrom, be prevented as munioations. aforesaid by reason of apprehended injury to the railway, it shall be lawful for the respective owners, lessees, and occupiers of such mines, and whose mines shall extend so as to lie on both sides of the railway, to cut and make such and so many airways, headways, gateways, or water levels through the mines, measures, or strata, the working whereof shall be so prevented, as may be requisite to enable them to ventilate, drain, and work their said mines, but no such air- way, headway, gateway, or water level shall be of greater dimensions ■or section than the prescribed dimensions and sections, and where no •dimensions shall be described not greater than eight feet wide and eight feet high, nor shall the same be cut or made upon any part of the railway or works, or so as to injure the same, or to impede the jpassage thereon. 81. The company shall from time to time pay to the owner, lessee, Company to ■or occupier of any such mines extending so as to lie on both sides of m f ^^" for the railway all such additional expences and losses as shall be in- injury aone 'Curred by such owner, lessee, or occupier by reason of the severance to mines; of the lands lying over such mines by the railway, or of the con- tinuous working of such mines being interrupted as aforesaid, or by reason of the same being worked in such manner and under such restrictions as not to prejudice or injure the railway, and for any (v) Dudley Canal Navigation Co. v. Grazebroolc (1830), 1 B. & Ad. 59; Stourbridge Canal Co. v. Earl of Dudley (1860), 30 L, J. Q. B. 108; Knowles 4 Sons v. L. <$• Y. Rail. Co. (1889), 14 App. Cas. 248; L. % N. TV. Rail. Co. v. Evans. [1893] 1 Gh. 16; Dunn v. Bii mingham Canal Co. (1872), L. E. 8 Q. B. 42. 454 APPENDIX OF STATUTES — BOOK I. and also for any airway or other work made necessary by the railway. Power to company to enter and inspect the working of mines. Penalty for refusal to inspect. If mines improperly worked, the company may require means to be adopted for the safety of the rail- way. Arbitration. Appointment of arbitrators when ques- minerals not purchased by the company which cannot be obtained by reason of making and maintaining the railway; and if any dispute or question shall arise between the company and such owner, lessee, or occupier as aforesaid, touching the amount of such losses or ex- pences, the same shall be settled by arbitration (cc). 82. If any loss or damage be sustained by the owner or occupier of the lands lying over any such mines the working whereof shall have been so prevented as aforesaid (and not being the owner, lessee, or occupier of such mines), by reason of the making of any such airway or other work as aforesaid, which or any like work would not have been necessary to be made but for the working of such mines having been so prevented as aforesaid, the company shall make full compensation to such owner or occupier of the surface lands for the loss or damage so sustained by him. 83. For better ascertaining whether any such mines are being worked or have been worked so as to damage the railway or works, it shall be lawful for the company, after giving twenty-four hours' notice in writing, to enter upon any lands through or near which the railway passes wherein any such mines are being worked or are supposed so to be, and to enter into and return from any such mines or the works connected therewith; and for that purpose it shall be lawful for them to make use of any apparatus or machinery belonging to the owner, lessee, or occupier of such mines, and to use all necessary means for discovering the distance from the railway to the parte of such mines which are being worked or about so to be. 84. If any such owner, lessee, or occupier of any such mine shall refuse to allow any person appointed by the company for that purpose to enter into and inspect any such mines or works in manner afore- said, every person so offending shall for every such refusal forfeit to the company a sum not exceeding twenty pounds. 85. If it appear that any such mines have been worked contrary to the provisions of this or the special act, the company may, if they think fit, give notice to the owner, lessee, or occupier thereof to con- struct such works and to adopt such means as may be necessary or proper for making safe the railway, and preventing injury thereto; and if after such notice any such owner, lessee, or occupier do not forthwith proceed to construct the works necessary for making safe the railway, the company may themselves construct such works, and recover the expence thereof from such owner, lessee, or occupier by action in any of the superior courts. And with respect to the settlement of disputes by arbitration, be it enacted as follows: 126. When any dispute authorized or directed by this or the special act, or any act incorporated therewith, to be settled by arbitra- (x) Whitehouse v. Wolverhampton Bail. Co. (1869), L. R. 5 Ex. 6; Mordue v. Dean of Durham (1873), L. R. 8 O. P. 336; Barn si ey Canal Co. v. TwibM (1844), 13 L. J. Ch. 434; R. v. L. § N. W Rail. Co., [1894] 2 Q. B. 512. THE RAILWAYS CLAUSES CONSOLIDATION ACT, 1845. 455 tioa, shall have arisen, then, unless both parties shall concur in the tions are to appointment of a single arbitrator, each party, on the request of the be determined other party, shall nominate and appoint an arbitrator to whom such fo,f rl,itra " dispute shall be referred; and every appointment of an arbitrator shall be made on the part of the company, under the hand of the secretary or any two of the directors of the company, and on the part of any other party under the hand of such party, or if such party be a corporation aggregate, under the common seal of such corporation, and such appointment shall be delivered to the arbitrators, and shall be deemed a submission to arbitration on the part of the party by whom the same shall be made; and after any such appointment shall have been made neither party shall have power to revoke the same without the consent of the other, nor shall the death of either party operate as a revocation; and if for the space of fourteen days after any such dispute shall have arisen, and after a request in writing, in which shall be stated the matters so required to be referred to arbitration, shall have been served by the one party on the other party to appoint an arbitrator, such last-mentioned party fail to appoint such arbitrator, then upon such failure the party making the request, and having himself appointed an arbitrator, may appoint such arbitrator to act on behalf of both parties; and such arbitrator may proceed to hear and determine the matters which shall be in dispute; and in such case the award or determination of such single arbitrator shall be final. 127. If before the matters so referred shall be determined any Vacancy of arbitrator appointed by either party die, or become incapable to act, arbitrator to the party by whom such arbitrator was appointed ma} r nominate and appoint in writing some other person to act in his place, and if for the space of seven days after notice in writing from the other party for that purpose he fail to do so the remaining or other arbitrator may proceed ex parte; and every arbitrator so to be substituted as aforesaid shall have the same powers and authorities as were vested in the former arbitrator at the time of such his death or incapacity as aforesaid. 128. Where more than one arbitrator shall have been appointed, Appointment such arbitrators shall, before they enter upon the matters referred to of ™P lre - them, nominate and appoint by writing under their hands an umpire to decide on any such matters on which they shall differ, or which shall be referred to him under this or the special act; and if such umpire shall die, or become incapable to act, they shall forthwith after such death or incapacity appoint another umpire in his place; and the decision of every such umpire on the matters so referred to him shall be final. 129. If in either of the cases aforesaid the said arbitrators shall ^ a ^° m refuse, or shall for seven days after request of either party to such p ^ e r e e ™t* arbitration neglect to appoint an umpire, the Board of Trade shall, app ointan on the application of either party to such arbitration, appoint an umpire, on umpire; and the decision of such umpire on the matters on which ° e ^ to °4 the arbitrators shall differ, or which shall be referred to him under this or the special act, shall be final. 456 APPENDIX OF STATUTES — HOOK I. In case of death of single arbitrator the matter to If either arbitrator refuse to act the other to proceed ex parte. If arbitrators fail to make their award within twenty-one days the matter to go to the umpire. Power for arbitrators to call for books, &c. Arbitrator and umpire to make declaration. Costs to be in the discretion of the arbi- trators. Submission to arbitration may be made a rule of court. The award not to be set aside for matter of form. Service of notices upon company . 130. If, where a single arbitrator »hall have been appointed, such arbitrator shall die, or become incapable to act, before he shall have made his award, the matters referred to him shall be determined by arbitration, under the provisions of this or the special act, in the same manner as if such arbitrator had not been appointed. 131. If, where more than one arbitrator shall have been appointed, cither of the arbitrators refuse, or for seven days neglect to act, the other arbitrator may proceed ex parte, and the decision of such other arbitrator shall be as effectual as if he had been the single arbitrator appointed by both parties. 132. If, where more than one arbitrator shall have been appointed, and where neither of them shall refuse or neglect to act as aforesaid, such arbitrators shall fail to make their award within twenty-one days after the day on which the last of such arbitrators shall have been appointed, or within such extended time, if any, as shall have been appointed for that purpose by both such arbitrators under their hands, the matter referred to them shall be determined by the umpire to be appointed as aforesaid. 133. The said arbitrators or their umpire may call for the pro- duction of any documents in the possession or power of either party which they or he may think necessary for determining the question in dispute, and may examine the parties or their witnesses on oath, and administer the oaths necessary for that purpose. 134. Before any arbitrator or umpire shall enter into the con- sideration of any matters referred to him he shall, in the presence of a justice, make and subscribe the following declaration; that is to say, "I, A. B., do solemnly and sincerely declare, that I will faithfully and honestly, and to the best of my skill and ability, hear and determine the matters referred to me, under the provisions of the act [naming the special act"]. " Made and subscribed in the presence of ." And such declaration shall be annexed to the award when made ; and if any arbitrator or umpire, having made such declaration, shaJl wilfully act contrary thereto, he shall be guilty of a misdemeanor. 135. Except where by this or the special act, or any act incor- porated therewith, it shall be otherwise provided, the costs of and attending every such arbitration, to be determined by the arbitrators, shall be in the discretion of the arbitrators. 136. The submission to any such arbitration may be made a rule of any of the superior courts, on the application of cither of the parties. 137. No award made with respect to any question referred to arbitration under the provisions of this or the special act shall be set aside for irregularity or error in matter of form. 138. And be it enacted, that any summons or notice, or any writ, or other proceeding at law or in equity, requiring to be served upon the company, may be served by the same being left at or transmitted through the post directed to the principal office of the company, or THE RAILWAYS CLAUSES ACT, 1863. 457 ■one of their principal offices where there shall be more than one, or being given personally to the secretary, or in case there be no secretary then by being given to any one director of the company. ***** And with respect to the recovery of damag-es not specially pro- Recovery of vided for, and of penalties, and to the determination of any other damages and matter referred to justices, be it enacted as follows: penalties. 140. In all cases where any damages, costs, or expenses are by Provision for this or the special act, or any act incorporated therewith, directed to damages not be paid, and the method of ascertaining the amount or enforcing the pj-ovideTfor. payment thereof is not provided for, such amount, in case of dispute, shall be ascertained and determined by two justices; and if the .amount so ascertained be not paid by the company or other party liable to pay the same within seven days after demand, the amount may be recovered by distress of the goods of the company or other party liable as aforesaid; and the justices by whom the same shall have been ordered to be paid, or either of them, or any other justice, on application, shall issue their or his warrant accordingly (ij). THE EAILWAYS CLAUSES ACT, 1863. 26 & 27 Vict. c. 92. An Act for consolidating in One Act certain Provisions frequently inserted in Acts relating to Raihcui/s. [28th July, 1863. ***** Part II. Extension of Time. 20. Where a railway is authorized to be constructed by a special Parties •act passed either before or after the passing of this act, and the time *| t ^^^ y limited by the special act for the exercise of powers of compulsory time may purchase of lands, or of powers for construction of the railway and have oom- works, is extended by a special act hereafter passed and incorporating *^£°° 1 for this part of this act, then and in every such case the justices, arbi- damage . trators, umpires, or juries, as the case may be, who award or assess the ■compensation to be made by the company to the owners or occupiers of, or other persons interested in, lands taken or used for the purposes of the railway and works, or inj uriously affected by the construction thereof, shall, in estimating the amount of such compensation, have regard to, and assess compensation for, the additional damage (if any) (y) As regards this Act, this section h repealed by S. L. E. Act, 1892, but the section is incorporated in the Waterworks Clauses Act, 1847, by s. 85 of that Act, post, p. 467. 458 APPENDIX OF STATUTES — BOOK I. sustained by those owners, occupiers, or other persons, by reason of the extension of time. Existing con- 21. The extension of time shall not affect any contract entered notice to ^ a *° or no ^ oe given by the company before the passing of the special take lands not a °t granting the extension, for purchasing, taking, or using any lands to be affected, which the company was entitled to purchase, take, or use; but every such contract and notice shall be construed and take effect, and the same proceedings may be had thereunder, and all parties thereto shall be entitled to the same rights and remedies in respect thereof, at law and in equity, as if the extension had not been granted. THE RAILWAY COMPANIES ACT, 1867. 30 & 31 Vict. c. 127. An Act to amend the Law relating to Railway Companies. [20th August, 1867. Pvrchase of Lands. Amendment 36. Where after the passing of this act a company exercise the- (as to railway powers conferred on the promoters of the undertaking by section companies) of eiffhty _fi ve f the Lands Clauses Consolidation Act, 1845, the follow- sect. 85 of . to J . . in, n , 8 & 9 Vict. mg provisions shall nave errect: «• 1S - (1.) The surveyor to be appointed as in that section provided shall be appointed by the Board of Trade instead of by two justices, and all the provisions of that act relative to a surveyor appointed by two justices shall apply to a sur- veyor so appointed by the Board of Trade: (2.) The company shall give not less than seven days' notice of their intention to apply to the Board of Trade for the appointment of a surveyor to any party interested in or entitled to sell and convey the lands in question, and not consenting to the entry of the company: (3.) The valuation to be made by the surveyor so appointed shall include the amount of compensation for all damage and injury to be sustained by reason of the exercise of the powers conferred by the said section, as far as such damage and injury are capable of estimation: (4.) The sureties to the bond to be given by the company under that section shall, in case the parties differ, instead of being approved of by two justices, be approved of by the Board of Trade, after hearing the parties. THE REGULATION OF RAILWAYS ACT, 1868. 459 THE BEGULATION OF RAILWAYS ACT, 1868. 31 & 32 Vict. c. 119. An Act to amend the Law relating to Railways. [31st July, 1868. ***** 41. Whenever, in the case of any lands purchased or taken other- Company wise than by agreement for the purposes of any public railway, any ma y a PP 1 y to question of compensation in respect thereof, or any question of com- j 1 "™™™ law pensation in respect of lands injuriously affected by the execution of Westminster the works of any public railway, is under the provisions of the t0 hear oases Lands Clauses Consolidation Act, 1845, to be settled by the verdict of °*on°3™ 8a " a jury empannelled and summoned as in that act mentioned, the com- $ & 9 Vict, pany or the party entitled to the compensation may, at any time before o. 18. the issuing by the company [of a warrant] (z) to the sheriff as by that act directed, apply to a judge of any one of the superior courts of common law at Westminster, who shall, if he think fit, make an order for trial of the question in one of the superior courts upon such terms and in such manner as to him shall seem fit; and the question between the parties shall be stated in an issue to be settled in case of difference by the judge, or as he shall direct, and such issue may be entered for trial and tried accordingly in the same manner as any issue joined in an ordinary action at such place as the judge shall direct; and the proceedings in respect of such issue shall be under and subject to the control and jurisdiction of the court as in ordinary actions therein, but so nevertheless that the jury shall, where the issue relates to the value of lands to be purchased, and also to com- pensation claimed for injury done or to be done to lands held there- with, deliver their verdict separately in manner provided by the forty-ninth section of the Lands Clauses Consolidation Act, 1845. 42. Whenever a company is called upon or liable under the pro- Company- visions of the Lands Clauses Consolidation Act, 1845, to issue their may obtain warrant to the sheriff in the case of any disputed compensation, and J ud 8' e ' s °* iev the company shall obtain a judge's order as in the last preceding i S8U j n g section mentioned, the obtaining of such an order and notice thereof warrant. to the opposite party shall be a satisfaction of the company's duty in respect of the issue of the warrant. 43. The verdict of the jury and judgment of the court upon any Power of issue authorized by this act shall, as regards costs and every other verdict of matter incident to or consequent thereon, have the same operation ] '™7^*l t f and be entitled to the same effect as if that verdict and judgment had 3 t h e "court, been the verdict of a jury and judgment of a sheriff upon an inquiry conducted upon a warrant to the sheriff issued by the company under the Lands Clauses Consolidation Act, 1845. 44. In so far as any expression used in any of the three preced- Interpreta- ing sections of this act has any special meaning assigned to it by expressions" 11 the Lands Clauses Consolidation Act, 1845, each such expression shall in this act have the meaning so assigned to it. ***** (z) Semble, these words have been omitted by mistake: Tanner v. Swindon Rail. Co. (1881), 45 L. T. 209. 460 APPENDIX OF STATUTES — BOOK I. Section III. — Waterworks. Extent of aot Interpreta- tions in this act: " special act:" "pre- scribed: " " the lands and streams: " ' ' the under- taking : ' ' ' ' the under- takers. " THE WATERWORKS CLAUSES ACT, 1847(a). 10 & 11 Vict. c. 17 An Act for consolidating in One Act certain provisions usually contained in Acts authorizing the making of Waterworks for supplying Towns with Water. [23rd April, 1847. \_ Whereas it is expedient to comprise in one act sundry provisions usually contained in acts of parliament authorizing the construction of waterworks for supplying ioivns with water, and that as ivell for avoiding the necessity of repeating such provisions in each of the several acts relating to such undertakings as for ensuring greater uniformity in the provisions themselves : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parlia- ment assembled, and by the authority of the same, That] (b) This act shall extend only to such waterworks as shall be authorized by any act of parliament hereafter to be passed which shall declare that this act shall be incorporated therewith, and all the clauses of this act, save so far as they shall be expressly varied or excepted by any such act, shall apply to the undertaking authorized thereby, so far as the same shall be applicable to such undertaking, and shall, with the clauses of every other act which shall be incorporated therewith, form part of such act, and be construed therewith as forming one act. And with respect to the construction of this act and any act incor- porated therewith, be it enacted as follows: 2. The expression " the special act " used in this act shall be construed to mean any act which shall be hereafter passed authoriz- ing the construction of waterworks, and with which this act shall be incorporated; and the word " prescribed " used in this act in refer- ence to any matter herein stated shall be construed to refer to such matter as the same shall be prescribed or provided for in the special act, and the sentence in which such word occurs shall be construed as if, instead of the word " prescribed," the expression " prescribed for that purpose in the special act," had been used; and the expression " the lands and streams " shall mean the lands and streams of water which shall by the special act be authorized to be taken or used for the purposes thereof; and the expression "the undertaking" shall mean the waterworks, and the works connected therewith, by the special act authorized to be constructed; and the expression "the undertakers " shall mean the persons by the special act authorized to construct the waterworks. * * * * * (a) Vide ante, pp. 134, 145. (4) Repealed by S. L. E. Act, 1891. THE WATERWORKS CLAUSES ACT, 1847. 461 And with respect to the construction of the waterworks, be it enacted as follows: 6. Where by the special act the undertakers shall be empowered, Construction for the purpose of constructing or supplying waterworks (c>, to take ° f waterworks or use any lands or streams otherwise than with the consent of the to thVprovi- owners and occupiers thereof, they shall, in exercising the power so sionsofthis given to them, be subject to the provisions and restrictions contained ^ ct and the in this act, and if the waterworks be situated in England or Ireland, Consdi&E* to the provisions and restrictions contained in the Lands Clauses Acts, 1845. Consolidation Act, 1845, and if the waterworks be situated in Scot- land, the provisions and restrictions contained in the Lands Clauses Consolidation, Scotland, Act, 184.5; and shall make to the owners and occupiers of and all other parties interested in any lands or streams taken or used for the purposes of the special act, or inj uriously affected by the construction or maintenance of the works thereby authorized, or otherwise by the execution of the powers thereby con- ferred, compensation for the value of the lands and streams so taken or used, and for all damage sustained by such owners, occupiers, and other persons, by reason of the exercise, as to such lands and streams, of the powers vested in the undertakers by this or the special act, or any act incorporated therewith; and except where otherwise provided by this or the special act, the amount of such compensation shall be determined in the manner provided by the said Lands Clauses Consolidation Acts respectively for determining questions of com- pensation with regard to lands purchased or taken under the provi- sions thereof, and all the provisions of the said last-mentioned acts respectively shall be applicable to determine the amount of any such compensation, and to enforce payment or other satisfaction thereof. * * * * * 11. The undertakers in constructing the waterworks shall not Not to deviate deviate (d) from the line of the works laid down in the. said plan beyond limits more than the prescribed number of yards, and where no number of p i an 3 S) &J, pon yards is prescribed not more than ten yards, nor in any case to any greater extent than the line of lateral deviation described in the said plans with respect to such works, nor take nor use, for the purpo.se of such deviation, the lands of any person not mentioned in the books of reference, without his previous consent in writing, unless the name of such person shall have been omitted by mistake, and the fact that such omission happened from mistake shall have been certified in manner hereinbefore provided. 12. Subject to the provisions and restrictions in this and the special Undertakers, act, and any act incorporated therewith, the undertakers may execute provisions of any of the following works for constructing the waterworks; (that this and the is to say,) s P eoial act ', ., , , may execute They may enter upon any lands and other places described on the the works said plans and in the said books of reference, and take levels of herein named, the same, and set out such parts thereof as they shall think 0) See ante, p. 147. (d) Cl. R. CI. Act, 1845, a. 15, ante, p. 443. 462 APPENDIX OF STATUTES BOOK I. Undertakers to make com- pensation for Penalty for •obstructing construction of works. Penalty for illegally diverting water. necessary, and dig and break up the soil of such lands, and trench and sough the same, and remove or use all earth, stone, mines, minerals, trees, or other things dug or gotten out of the same: They may from time to time sink such wells or shafts, and make, maintain, alter, or discontinue such reservoirs, waterworks, cisterns, tanks, aqueducts, drains, cuts, sluices, pipes, culverts, engines, and other works, and erect such buildings, upon the lands and streams authorized to be taken by them, as they shall think proper, for supplying the inhabitants of the town or district within the prescribed limits with water: They may from time to time divert and impound the water from the streams mentioned for that purpose in the special act, or the said plans or books of reference, and alter the course of any such streams, not being navigable, and also take such waters as may be found in and under or on the lands to be taken for construct- ing the works: Provided always, that in the exercise of the said powers the under- takers shall do as little damage as can be, and in all cases where it can be done shall provide other watering places, drains, and channels for the use of adjoining lands, in place of any such as shall be taken away or interrupted by them, and shall make full compensation to all parties interested for all damage sustained (e) by them through the exercise of such powers. 13. Every person who shall wilfully obstruct any person acting under the authority of the undertakers in setting out the line of the works, or pull up or remove 1 any poles or stakes driven into the ground for the purpose of setting out the line of such works, or deface or destroy any works made for the same purpose, shall be liable to a penalty not exceeding five pounds for every such offence. 14. After the streams or supplies of water hereby or by the special act authorized to be taken by the undertakers shall have been so taken, every person who shall illegally divert or take the waters supplying or flowing into the streams so taken, or any part thereof, or who shall do any unlawful act whereby the said streams or supplies of water may be drawn off or diminished in quantity, and who shall not immediately repair the injury done by him, on being required so to do by the undertakers, so as to restore the said waters to the state in which they were before such act, shall forfeit to the undertakers any sum which shall be awarded, in England or Ireland, by two justices, and in Scotland by the sheriff, not exceeding five pounds for every day during which the said supply of water shall be diverted or diminished by reason of any act done by or by the authority of such person, and any sum so forfeited shall be in addition to the sum which he may be lawfully adjudged liable to pay to the undertakers for any damage which they may sustain by reason of their supply of water being diminished; and the payment of the sum so forfeited shall not bar or affect the right of the undertakers to bring or raise an action at law against such person for the damage so committed. (e) Vulr ante, p. 146. A9 to riparian and neighbouring owners' rights in waters, see Michael & Will on Gas and Water. THE WATERWORKS CLAUSES ACT, 1847. 463 15. Provided always, that nothing herein contained shall prevent Reservation the owners and occupiers for the time being of lands through or by °* existin g which such streams shall flow from using the waters thereof in such rl S ht8 - manner and to such extent as they might have done before the passing ■of the special act, unless they shall have received compensation in respect of their right of so using such water. And with respect to the construction of works for the accommoda- Differences tion of lands adjoining the waterworks, be it enacted as follows: aa to the . 16. Where by the special act the undertakers shall be required to of accomm"- erect any works for making good the interruption caused to any lands dation works, adjoining or near the waterworks, or otherwise, for the accommodation of such lands, then if any difference shall arise respecting the con- struction of any such accommodation works (/), or the kind or size or sufficiency thereof, or respecting the maintenance thereof, the same shall be determined in England or Ireland by two justices, and in Scotland by the sheriff, and such justices or sheriff shall also appoint the time within which such accommodation works shall be begun and finished by the undertakers. 17. If the undertakers shall for fourteen days next after the time If undertakers appointed by such justices or sheriff for the beginning of any such fail to execute accommodation works fail to begin such works, or, having begun o^sons* S ' such works, fail diligently to execute the same in a sufficient manner, aggrieved the person aggrieved by such failure may execute such works or may perform repairs; and the reasonable expenses thereof shall, on demand, be ™e same, and repaid by the undertakers to the person by whom the same shall so expense to the have been executed; and if there be any dispute about the amount or undertakers, nature of such expenses, the same shall be settled in England or Ireland by two justices, and in Scotland by the sheriff. And with respect to mines (g), be it enacted as follows: 18. The undertakers shall not be entitled to any mines of coal, Undertakers ironstone, slate, or other minerals under any land purchased by them, £° t m ™ t e 1 g led except only such parts thereof as shall be necessary to be dug or un iesspre- carried away or used in the construction of the waterworks, unless viouelypur- the same shall have been expressly purchased, and all such mines, chased, excepting as aforesaid, shall be deemed to be excepted out of the conveyance of such lands, unless they shall have been expressly named therein and conveyed thereby (h) . 19. The undertakers shall from time to time, within six months Map and plan from the time at which any pipes, conduits, or underground works of ro ™ d ^ orks shall have been laid down or formed by them, cause a survey and ^^ertekers map to be made of the district within which any such pipes or under- t0 be made, ground works shall be laid, on a scale not less than one foot to a mile, and shall cause to be marked thereon the course and situation of all existing pipes or conduits for the collection, passage, or dis- (/) Vide ante, p. 127; and R. CI. Act, 1845, ss. 68—74, ante, p. 450. (g) Fide ante, p. 134; and R. CI. Act, 1845, ss. 77—85, ante, p. 452. Oi) Sects. 18—27 are incorporated into the Public Health Act, 1875, for the support of sewers, &c. by the Public Health Act Amendment Act, 1883, s. 3 (post, p. 512). 464 APPENDIX OF STATUTES — BOOK I. Copies of such map or plan to be de- posited with clerk of the peace, &c. Clerks of the peace, &c. to receive and keep copies of the map, &c. and allow inspection. 7 Will. 4 & 1 Vict. v. 83. Mines lying near the works not to be worked until owners give notice to undertakers of their intentions. Upon receipt of notice, undertakers may take the mines, tribution of water and underground works belonging to them, in order to show all such underground works within the said district, and shall, within six months from the making of any alterations or additions, cause the said map to be from time to time corrected, and such additions made thereto as may show the line and situation of all such pipes, conduits, and underground works as may be laid down or formed by them from time to time after the passing of the special act, and such map and plan, or a copy thereof, with the date expressed thereon of the last time when the same shall have been so corrected as aforesaid, shall be kept in the office of the undertakers, and shall be open to the inspection of all persons interested in the same within the said district. 20. The undertakers shall, from time to time, within three months from the time at which any such map or plan, or any such correction thereof or addition thereto, shall have been made as aforesaid, deposit with the clerks of the peace in England or Ireland, and with the sheriff clerks in Scotland, of every county, and the town clerk of every burgh in Scotland, in which such district or any part thereof may be situate, and also with the parish clerks of the several parishes in England, and clerks of the union of the several parishes in Ireland, and the schoolmasters of the several parishes in Scotland, in which such underground works shall be situate, copies of the said map or plan, with all such particulars, and all such corrections and additions as aforesaid, so far as relates to such counties, burghs, and parishes respectively. 21. The said clerks of the peace, sheriff clerks, and town clerks, parish clerks, clerks of the union, and schoolmasters shall receive the said copies of the said map and plan respectively, and shall keep the same, and shall allow all persons interested to inspect the same, and take copies or extracts of and from the same, in the like manner, and upon the like terms, and under the like penalty for default, as is provided in the case of maps and plans deposited under an act passed in the first year of the reign of her Majesty, intituled, " An Act to compel Clerks of the Peace for Counties, and other Persons, to take the Custody of such Documents as shall be directed to be deposited with them under the Standing Orders of either House of Parliament." 22. Except where otherwise provided for by agreement between the undertakers and other parties, if the owner, lessee, or occupier of any mines or minerals lying under the reservoirs or buildings belong- ing to the undertakers, or under any of their pipes or works which shall be under ground, and shall be described in the map or plan which shall be so kept and deposited as hereinbefore mentioned, or within the prescribed distance, if any, and if no distance be prescribed within forty yards therefrom, be desirous of working the same, such owner, lessee, or occupier shall give the undertakers notice in writing of his intention so to do thirty days before the commencement of working; and upon the receipt of such notice it shall be lawful for the undertakers to cause such mines to be inspected by any person appointed by them for the purpose, and if it appear to the under- takers that the working of such mines or minerals is likely to damage THE WATERWORKS CLAUSES ACT, 1847. 465 the said works, and if they be willing to make compensation for such making com- mines to such owner, lessee, or occupier thereof, then he shall not pensationto work the same; and if the undertakers and such owner do not agree the owners - as to the amount of such compensation the same shall be settled as in other cases of disputed compensation. 23. If before the expiration of such thirty days the undertakers If company do not state their willingness to treat with such owner, lessee, or unwilling to occupier for the payment of such compensation, it shall be lawful for ^"ment „f' him to work the said mines, and to drain the same, by means of compensation, engines or otherwise, as if this act and the special act had not been <^™er may passed, so that no wilful damage be done to the said works, and so w ? rkthe that the said mines be not worked in an unusual manner; and if any damage or obstruction be occasioned to the works of the undertakers make^ood by the working of such mines in an unusual manner the same shall damage occa- be forthwith repaired or removed (as the case may require), and such siorie| i °y damage made good, by the owner, lessee, or occupier of such mines mine^im or minerals, and at his own expence, and if such repair or removal unusual be not forthwith clone, or if the undertakers shall so think fit, without manner, waiting for the same to be done by such owner, lessee, or occupier, it shall be lawful for the undertakers to execute the same, and recover from such owner, lessee, or occupier the expence occasioned thereby, by action in any of the superior courts. 24. If the working of any such mines under the said works of Mining com- the undertakers or within the above-mentioned distance therefrom be munications. prevented as aforesaid by reason of apprehended injury to such works, it shall be lawful for the respective owners, lessees, and occupiers, of such mines to cut and make such and so many airways, headwaj's, gateways, or water levels through the mines, measures, or strata the working whereof shall be so prevented as may be requisite to enable them to ventilate, drain, and work any mines or minerals on each or either side thereof, but no such airway, headway, gateway, or water level shall be of greater dimensions or sections than the prescribed dimensions or sections, and where no dimensions are prescribed eight feet wide and eight feet high, nor shall the same be cut or made upon any part of the said works so as to injure the same. 25. Except where otherwise provided for by agreement the under- Company to takers shall from time to time pay to the owner, lessee, or occupier p e a n ^°™" to of any mines of coal, ironstone, and other minerals extending so as owne r, lesssei , to lie on both sides of any reservoirs, buildings, pipes, conduits, or or occupier of other works, all such additional expences and losses as shall be mines for incurred by such owner, lessee, or occupier by reason of the severance f^™'^ of the lands over such mines or minerals by such reservoirs or other reason of ' works, or of the continuous working of such mines or minerals being mines being- interrupted as aforesaid, or by reason of the same being worked under wor e the restrictions contained in this or the special act ; and for any mines or minerals not purchased by the undertakers which cannot be obtained by reason of making and maintaining the said works, or by reason of such apprehended injury from the working thereof as aforesaid; and if any dispute or question shall arise between the Disputes to undertakers and such owner, lessee, or occupier as aforesaid touching b8 ,?? tt1 ^ hj c. 30 «'-'i'"'*' ' 466 APPENDIX OF STATUTES — BOOK I. Power to company to enter and inspect the working of mines, after giving notice of the same. Nothing to prevent undertakers from being liable to actions for injury done to mines. Power to break up streets, &c, under super- intendence, and to open drains. Not to enter on private land without consent. the price of such minerals, the same shall be settled by arbitration in such manner as is provided by the Lands Clauses Consolidation Act if the undertaking shall be situate in England or Ireland, and by the Lands Clauses Consolidation (Scotland) Act if the undertaking shall be situate in Scotland. 26. For better ascertaining whether any such mines are being worked or have been worked so as to damage the said works it shall be lawful for the undertakers, after giving twenty-four hours' notice in writing, to enter upon any lands through or near which the said works are situate, and wherein any such mines are being worked or are supposed so to be, and to enter into and return from any such mines or the works connected therewith, and for that purpose it shall be lawful for them to make use of any apparatus or machinery belonging to the owner, lessee, or occupier of such mines, and to use all necessary means for discovering the distance from the said works to the parts of such mines which are being worked or about to be worked. 27. Nothing in this or the special act shall prevent the under- takers from being liable to any action or other legal proceeding to which they would have been liable for any damage or injury done or occasioned to any mines by means or in consequence of the water- works, in case the same had not been constructed or maintained by virtue of this act or the special act. And with respect to the breaking up of streets for the purpose of laying pipes, be it enacted as follows: 28. The undertakers, under such superintendence as is herein- after specified, may open and break up the soil and pavement of the several streets and bridges within the limits of the special act; and may open and break up any sewers, drains, or tunnels within or under such streets and bridges, and lay down and place within the same limits pipes, conduits, service pipes, and other works and engines, and from time to time repair, alter, or remove the same, and for the purposes aforesaid remove and use all earth and materials in and under such streets and bridges, and do all other acts which the under- takers shall from time to time deem necessary for supplying water to the inhabitants of the district included within the said limits, doing as little damage as can be in the execution of the powers hereby or by the special act granted, and making compensation for any damage which may be done in the execution of such powers. 29. Provided always, that nothing herein contained shall autho- rize or empower the undertakers to lay down or place any pipe, conduit, service pipe, or other work in any land not dedicated to public use without the consent of the owners or occupiers thereof, except that the undertakers at any time may enter upon and lay or place any new pipe in the place of an existing pipe in any land wherein any pipe hath been already lawfully laid down or placed in pursuance of this or the special act, or any other act of parliament, and may repair or alter any pipe so laid down. THE INCLOSUEE ACT, 1854. 467 And with respect to the recovery of damages not specially pro- Recovery of vided for, and of penalties, and to the determination of any other dama g es and matter referred to justices or to the sheriff, be it enacted as follows: pena lea ' 85. If the waterworks be in England or Ireland, the clauses of Railways the Kailway Clauses Consolidation Act, 1845, with respect to the aBtodama ' 8 ' recovery of damages not specially provided for, and of penalties, and & c .°to be m-"' to the determination of any other matter referred to justices (i), shall oorporated be incorporated with this and the special act; and if the waterworks with this and be in Scotland, the clauses of the Eailways Clauses Consolidation Aot Spe ° ia Act (Scotland), 1845, with respect to the recovery of damages not 8 & 9 y iot specially provided for, and to the determination of any other matter O o. 20, 33. referred to the sheriff or to justices, shall be incorporated with this and the special act; and such clauses shall apply to the waterworks and to the undertakers respectively, and shall be construed as if the word " undertakers " had been inserted therein instead of the word "company." ***** Section IV. — Commons. THE ENCLOSURE ACT, 1854. 17 & 18 Vict. c. 97. ***** 15. Where any money shall have been or may hereafter be paid to Application a committee under the Lands Clauses Consolidation Act, 1845, or fj° m P™- under any railway or other special act by which money may have been ^°^ on or directed or authorized to be paid to a committee as compensation for righte paid the extinction of commonable or other rights, or for lands, being under 8 & .9 common lands or in the nature thereof, the right to the soil of which *«*• «■ «■ may have belonged to the commoners, and the majority of such com- mittee shall be of opinion that the provisions of such act for the apportionment thereof cannot be satisfactorily carried into effect, such majority may make application in writing to the commissioners (fc) to call a meeting of the persons interested in such compensation money, to determine whether or not such compensation money shall be apportioned under the provisions of this Act. 16 If the majority in number and interest shall resolve that such Money to be compensation money shall be apportioned, the amount of such com- garfmto pensation money shall be forthwith paid into the Bank oi England, England _ to the credit of an account to be named by the inclosure commissioners for England and Wales W; and the said committee shall be absolutely discharged from all liability in respect of such compensation money, (t) Vide ante, p. 183. (k) Now the Ministry of Agriculture. 30 (2) 468 APPENDIX OF STATUTES — BOOK I. InterestB to be ascer- tained by commis- sioners. As to the payment of costs of inclosure commis- sioners, and as to the residue of monies. upon payment thereof into the Bank of England as hereinbefore directed. 17. As soon as the said monies shall have been paid into the bank as aforesaid, the said inclosure commissioners (I), or any assistant commissioner appointed or to be appointed by them for that purpose, shall proceed to ascertain, determine, and award the names of the parties who were entitled to such estates, rights, and interests in the said common and commonable lands, and the amount or value of their respective shares, rights, and interests therein, and the proportionate amount of the price so to be paid as aforesaid for such estates, rights, and interests to which each party so entitled as aforesaid is entitled, in respect of his share, right, or interest as aforesaid; and the award of the commissioners (I) under their common seal, or assistant com- missioner in writing under his hand and seal, shall be binding on all parties claiming such estates, rights, and interests as aforesaid; and for the purpose of ascertaining the rights and interests of such parties as aforesaid it shall be lawful for the said inclosure commissioners (/) or assistant commissioner to call such meetings as they or he shall think fit of all persons having or claiming any such rights or interests in the said common and commonable lands as aforesaid, at such time and place as the said commissioners (I) or assistant commissioner shall think fit, so as the same shall be appointed by a public notice thereof in writing to be affixed at least twelve days before such meeting on the principal outer door of the parish church in which such land or any part is situate; and to be inserted in one of the public news- papers published or generally circulated in the county in which such land is situate ; and at such meeting the said commissioners (I) or assistant commissioner do and shall proceed to examine into and ascertain all and every the claims which shall be made or put forward in respect of any such rights or interests as aforesaid, and the relative and proportionate value of the estates, rights, and interests of any person or persons claiming to be entitled thereto, and for that purpose do and may employ any valuer or surveyor, and call for and receive such records, deeds, and writings, and such other proof or evidence, as the said commissioners (I) or assistant commissioner may think fit; and they and he are and is hereby authorized and required to take the testimony of any witnesses upon oath (which oath they and he are and is respectively hereby empowered to administer), or to take the affirmation of such witnesses in cases where affirmation is' allowed by law instead of oath. 18. All the costs and expenses of the said inclosure commis- sioners (I) and assistant commissioner, and of any valuer or surveyor employed by them or him under the provisions hereinbefore con- tained, shall, in the first place, be paid out of such compensation monies, and the residue of the said monies shall be paid and divided between and amongst the said several parties to be named in the said award, and in the shares and proportions to be ascertained and set forth in such award. (I) Now the Ministry of Agriculture. THE COMMONABLE EIGHTS COMPENSATION ACT, 1882. 469 19. When it shall appeal' to the commissioners (I) or assistant Compensa- oommissioner that any of the parties entitled to such rights or interests. f on : for . .are only entitled thereto for a limited interest, then it shall be lawful reTtsto be' 6 " for them or him, by their or his award, to direct that the monies to paid to be paid in respect of such right or interest, where the same shall trustees, exceed twenty pounds, shall be paid to the trustees acting under the will, conveyance, or settlement under which such person having such limited interest shall be interested in such rights or interests, and where there are no trustees then into the hands of trustees to be appointed under the hands and seal of the commissioners, to be held by them on trusts similar to the uses or trusts to which such rights or interests had been immediately before the payment of such monies into the bank subject or as near thereto as the said commis- sioners (I) or assistant commissioner can ascertain; and the receipts of any trustees to whom any such monies shall be paid as aforesaid shall be good and sufficient discharges for the same: provided always, that the payment of all such sums shall from time to time be subject to such rules and regulations, for the purpose of ensuring the pay- ment thereof to the person or persons duly entitled to receive the same, as the said commissioners (I) shall by any order direct. 20. In all cases where the sum payable by virtue of such award, As to sums in respect of any estate, right, or interest, shall not exceed twenty P a y at| l e in pounds, and the person entitled to such estate, right, or interest shall i an d e no t ex- be under any disability, or incapacity, such sum shall and may be ceeding 20/. paid to the guardian, committee, or husband of such person; and where any such person shall have a limited interest only in such estate, right, or interest, the whole of such sum shall and may, nevertheless, be paid to the person having such limited interest, to his or her guardian, committee, or husband, as the case may be. THE COMMONABLE EIGHTS COMPENSATION ACT, 1882. 45 Vict. c. 15. An Act to provide for the better application of Moneys paid by way of Compensation for the compulsory acquisition of Com- mon Lands and extinguishment of Rights of Common (to). [19th June, 1882. 1. This act may be cited as the Commonable Eights Compensation Short title. Act, 1882. 2.— (I.) With respect to any money which has been or hereafter Application may be paid by any railway or other public company or corporate y o £° m ^" sa " •body or otherwise under the provisions of the Lands Clauses Aot for^onmon lands. (I) Now the Ministry of Agriculture. (») The preamble was repealed by S. L. R. Act, 1898. 470 APPENDIX OP STATUTES BOOK I. and any act incorporated therewith, or of any other act of parliament to a committee of commoners as compensation for the extinguish- ment of commonable or other rights or for lands being common lands or in the nature thereof the right to the soil of which may belong to the commoners, the committee (or a majority in number thereof) or, after the expiration of twelve months from the payment of such money to the committee, any three of the persons claiming to be interested in such money may make application in writing to the commissioners to call a meeting of the persons interested in such money to consider the application thereof, and the commissioners shall call a meeting accordingly, and at such meeting the majority in number and the majority in respect of interest of the persons present may decide by resolution that such money shall be applied and laid out in one or more of the following ways: (a.) In the improvement of the remainder of the common land in respect of a portion of which such money has been paid; (b.) In defraying the expense of any proceedings under the Metro- 8 & 9 Vict. politan Commons Acts or under the Inclosure Acts, 1845 to o. 118, &c. 1878, with reference to a scheme for the local management, or a provisional order for the regulation, of such common land, or of any application to parliament for a private bill or otherwise for the preservation and management of such common land as an open space; (o.) In defraying the expense of any legal proceedings for the protection of such common land, or the commoners' rights over the same; (d.) In the purchase of additional land to be used as common land; (e.) In the purchase of land to be used as a recreation ground for the neighbourhood; and any such resolution shall bind the minority and all absent parties, and the commissioners shall make an order under their seal for the payment to them of any expenses incurred by them in relation to the matter, and (subject to such payment) for the application of the money according to such resolution, and the committee or the persons in whose names such money stands or is invested, or the survivors or survivor in account of such persons, or the legal personal representa- tive of such survivor, shall, upon service of any such order of the commissioners as aforesaid upon them or any of them or any person on their behalf as the commissioners may direct, pay and apply the said money or realise any security in which the same is invested, and pay and apply the proceeds thereof in manner directed by the said order. (2.) Any land so purchased as aforesaid for use as common land shall be conveyed to and vest in trustees upon trusts for the persons interested, such trustees to be appointed, and such trusts, and the powers and duties of the trustees, and provisions for the appointment of new trustees from time to time to be declared and provided by an order under the seal of the commissioners, pursuant to resolutions tO' be passed at a special meeting of the persons interested, convened by the said commissioners by such majorities as aforesaid. THE COMMONABLE RIGHTS COMPENSATION ACT, 1882. 471 (3.) Every appointment of a new trustee or of new trustees, in pursuance of this act, shall be subject to confirmation by the com- missioners under their seal, and upon such confirmation the land shall vest in the remaining and the newly appointed trustees without any conveyance. (4.) The commissioners shall publish such notice of any meeting- held under this act, and frame such rules and give such directions for the conduct of such meetings and the service of orders made by them under this act as they may deem fit, and may, if they think fit, direct an assistant commissioner appointed by them to preside at any such meeting, and any such meeting may be adjourned from time to time. (5.) Any land so purchased as aforesaid for use as recreation ground shall be conveyed to and vest in the local authority as specified in the schedule to this act for the district within which such land is situate, and shall be held and managed by such local authority, subject to and in accordance with the provisions relating to recreation grounds respectively contained in the In closure Acts, 1845 to 1878. 3. Any moneys heretofore paid or hereafter to be paid by any Application railway or other public company or body corporate or otherwise under °f compensa- the provisions of the Lands Clauses Act, 1845, and any act incor- for^areation porated therewith, or of any other act of parliament, to any local grounds and authority as specified in the schedule to this act, or to the church- field gardens, wardens and overseers of a parish in respect of any recreation ground or allotment for field gardens taken under the powers of any such act or acts of parliament shall be applied in manner provided by the Inclosure Acts, 1845 to 1878, as amended by the Commons Act, 42&43Vict. 1879, with respect to the surplus rents arising from recreation grounds o. 37. and field gardens respectively. 4. In any case where money paid by way of compensation as afore- Provision for said has, before the passing of this act, been applied in any one or case3 wne re more of the ways authorised by this act, a resolution may be passed, by way of at any meeting of the persons interested, called by the commissioners compenaa- in manner provided by this act, by such majorities as aforesaid tl 1 0n ^ as , approving of such application, and such application shall, upon the applied in ^ allowance of such resolution by the commissioners under their seal, the manner be deemed to have been lawfully made under the provisions of this authorised act; and the committee or other persons by whom such money has y been so applied shall thereupon be discharged from all liability in respect of such money so applied. And the provisions in this act contained with respect to the declaration of trusts, and the powers and duties of trustees, and the appointment of new trustees, from time to time, shall apply in every case in which such money has, before the passing of this act, been laid out in the purchase of land. 5. Copies of all orders made by the commissioners under this act Deposit of shall be deposited and kept in like manner as copies of an award are by the Inclosure Act, 1845, directed to be deposited and kept. 6. This act shall not extend to the New Forest. ^New" ° f Forest. [Schedule. 472 APPENDIX OF STATUTES — BOOK I. SCHEDULE. Situation of Land. Within the Metropolis Not within the Metropolis, hut within the district of an urban sanitary authority, as denned by the Public Health Act, 1875, or any act amending the same. Elsewhere than within the Metropolis or the district of an urban sanitary authority as above denned. Local Authority. The Metropolitan Board of Works. The urban sanitary authority. The churchwardens and overseers of the parish. Section V. — Arbitration. THE ARBITRATION ACT, 1889 (w). 52 & 53 Vict. c. 49. Submission to be irrevocable, and to have effect as an order of court. Provisions implied in submissionp. Reference to official referee. Power to stay proceedings where there is a submission. References by Consent out of Court. 1. A submission, unless a contrary intention is expressed therein, shall be irrevocable, except by leave of the court or a judge, and shall have the same effect in all respects as if it had been made an order of court. 2. A submission, unless a contrary intention is expressed therein, shall be deemed to include the provisions set forth in the first schedule to this act, so far as they are applicable to the reference under the submission. 3. Where a submission provides that the reference shall be to an official referee, any official referee to whom application is made shall, subject to any order of the court or a judge as to transfer or other- wise, hear and determine the matters agreed to be referred. 4. If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that court to stay the proceedings, and that court or a judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the sub- mission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all O) Vide ante, pp. 185, 329 et seqq. THE ARBITRATION ACT, 1889. 473 things necessary to the proper conduct of the arbitration, may make an order staying the proceedings. 5. In any of the following cases: — Power for the fa) Where a submission provides that the reference shall be to a ! ! °?f*™ °?" single arbitrator, and all the parties do not after differences appoint an have arisen concur in the appointment of an arbitrator: arbitrator, (b) If an appointed arbitrator refuses to act, or is incapable of J*]^[ re ' b ° r acting, or dies, and the submission does not show that it was. trator. intended that the vacancy should not be supplied, and the parties do not supply the vacancy: (c) Where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator and do not appoint him: (d) Where an appointed umpire or third arbitrator refuses to act, or is incapable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be supplied, and the parties or arbitrators do not supply the vacancy: any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator. If the appointment is not made within seven clear days after the service of the notice, the court or a judge may, on application by the party who gave the notice, appoint an arbitrator, umpire, or third arbitrator, who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties. 6. Where a submission provides that the reference shall be to two Power for arbitrators, one to be appointed by each party, then, unless the sub- g^^ - mission expresses a contrary intention — supply (a) If either of the appointed arbitrators refuses to act, or is in- vacancy. capable of acting, or dies, the party who appointed him may appoint a new arbitrator in his place: (b) If, on such a reference, one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent: Provided that the court or a judge may set aside any appointment made in pursuance of this section. 7. The arbitrators or umpire acting under a submission shall, unless: *°™™ t °l the submission expresses a contrary intention, have power— (a) to administer oaths to or take the affirmation of the parties and witnesses appearing; and (b) to state an award as to the whole or part thereof in the form of a special case for the opinion of the court; and (c) to correct in an award any clerical mistake or error arising from any accidental slip or omission. 474 APPENDIX OF STATUTES BOOK I. Witnesses may be sum- moned by subpoena. Power to enlarge time for making award. Power to remit award. Power to set aside award. Enforcing award. 8. Any party to a submission may sue out a writ of subpoena ad testificandum, or a writ of subpoena duces tecum, but no person shall be compelled under any such writ to produce any document which he could not be compelled to produce on the trial of an action. 9. The time for making an award may from time to time be enlarged by order of the court or a judge, whether the time for making the award has expired or not. 10. — (1.) In all cases of reference to arbitration the court or a judge may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire. (2.) Where an award is remitted, the arbitrators or umpire shall, unless the order otherwise directs, rnake their award within three months after the date of the order. 11. — (1.) Where an arbitrator or umpire has misconducted him- self, the court may remove him. (2.) Where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the court may set the award aside. 12. An award on a submission may, by leave of the court or a judge, be enforced (o) in the same manner as a judgment or order to the same effect. Reference for report. Power to refer in certain cases. References under Order of Court. 13. — (1.) Subject to rules of court and to any right to have parti- cular cases tried by a jury, the court or a judge may refer any question arising in any cause or matter (other than a criminal pro- ceeding by the Crown) for inquiry or report to any official or special referee. (2.) The report of an official or special referee may be adopted wholly or partially by the court or a judge, and if so adopted maj r be enforced as a judgment or order to the same effect. 14. In any cause or matter (other than a criminal proceeding by the Crown), — (a) If all the parties interested who are not under disability consent; or, (b) If the cause or matter requires any prolonged examination of documents or any scientific or local investigation which cannot in the opinoin of the court or a judge conveniently be made before a jury or conducted by the court through its other ordinary officers; or, (c) If the question in dispute consists wholly or in part of matters of account; the court or a judge may at any time order the whole cause or matter, or any question or issue of fact arising therein, to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an official referee or officer of the court. (o) See R. S. C, 0. XLII., r. 31a. THE ARBITRATION ACT, 1889. 475 15.— (1.) In all cases of reference to an official or special referee Powers and or arbitrator under an order of the court or a judge in any cause or remuneration matter, the official or special referee or arbitrator shall be deemed to of /'. eferi ' es and be an officer of the court, and shall have such authority, and shall ar ltra ° rS ' conduct the reference in such manner, as may be prescribed by rules of court, and subject thereto as the court or a judge may direct. (2.) The report or award of any official or special referee or arbitrator on any such reference shall, unless set aside by the court or a judge, be equivalent to the verdict of a jury. (3.) The remuneration to be paid to any special referee or arbi- trator to whom any matter is referred under order of the court or a judge shall be determined by the court or a judge. 16. The court or a judge shall, as to references under order of the Court to have court or a judge, have all the powers which are by this act conferred powers as in on the court or a judge as to references by consent out of court. consent* 8 hj 17. Her Majesty's Court of Appeal shall have all the powers con- Court j A ferred by this act on the court or a judge thereof under the provisions pealto have relating to references under order of the court. powers of court. General. 18.— (1.) The court or a judge may order that a writ of subpoena Powerto corn- ed testificandum or of subpeena duces tecum shall issue to compel the pel attendance attendance before an official or special referee, or before any arbitrator witness m i i t an y p ar t °t or umpire, or a witness wherever he may be within the United the United Kingdom. Kingdom, (2.) The court or a judge may also order that a writ of habeas and to order corpus ad testificandum shall issue to bring up a prisoner for exa- t0 i S8ue . mination before an official or special referee, or before any arbitrator or umpire. 19. Any referee, arbitrator, or umpire may at any stage of the statement of proceedings under a reference, and shall, if so directed by the court case pending or a judge, state in the form of a special case for the opinion of the arbltratl0n - court any question of law arising in the course of the reference. 20. Any order made under this act may be made on such terms as Costs, to costs, or otherwise, as the authority making the order' thinks just. 21. Provision may from time to time be made by Eules of Court Exercise of for conferring on any master, or other officer of the Supreme Court, powers by all or any of the jurisdiction conferred by this act on the court or a ^rTtSc'ers judge (p). [22. Any person who wilfully and corruptly gives false evidence Penalty for before any referee, arbitrator, or umpire shall be guilty of perjury, perjury, as if the evidence had been given in open court, and may he dealt with, prosecuted, and punished accordingly] (q). 23. This act shall, except as in this act expressly mentioned, Crown to apply to any arbitration to which her Majesty the Queen, either in be bound, right of the Crown, or of the Duchy of Lancaster or otherwise, or the O) See R. S. C, 0. LIV., r. 12a. (?) Repealed by s. 17 and Schedule of the Perjury Act, 1911 (1 & 2 Geo. 5, c 6) and replaced by s. 1 of that Act. 476 APPENDIX OF STATUTES BOOK I. Application of act to re- ferences under statutory- powers. Saving for pending arbitrations. Repeal. Definitions. Extent. Commence- ment. Short title. Duke of Cornwall, is a party, but nothing in this act shall empower the court or a judge to order any proceedings to which her Majesty or the Duke of Cornwall is a party, or any question or issue in any such proceedings, to be tried before any referee, arbitrator, or officer without the consent of her Majesty or the Duke of Cornwall, as the case may be, or shall affect the law as to costs payable by the Crown. 24. This act shall apply to every arbitration under any act passed before or after the commencement of this act as if the arbitration were pursuant to a submission, except in so far as this act is incon- sistent with the act regulating the arbitration or with any rules or procedure authorized or recognized by that act. 25. This act shall not affect any arbitration pending at the com- mencement of this act, but shall apply to any arbitration commenced after the commencement of this act under any agreement or order made before the commencement of this act. 26— (1.) The enactments described in the second schedule to this act are hereby repealed to the extent therein mentioned, but this repeal shall not affect anything done or suffered, or any right acquired or duty imposed or liability incurred, before the commencement of this act, or the institution or prosecution to its termination of any legal proceeding or other remedy for ascertaining or enforcing any such liability. (2.) Any enactment or instrument referring to any enactment re- pealed by this act shall be construed as referring to this act. 27. In this act, unless the contrary intention appears, — " Submission " means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not. " Court " means her Majesty's High Court of Justice. " Judge " means a judge of her Majesty's High Court of Justice. " Eules of Court " means the Rules of the Supreme Court made by the proper authority under the Judicature Acts. 28. This act shall not extend to Scotland or Ireland. 29. This act shall commence and come into operation on the first day of January one thousand eight hundred and ninety. 30. This act may be cited as the Arbitration Act, 1889. SCHEDULES. THE FIRST SCHEDULE. Provisions to be implied in Submissions. a. If no other mode of reference is provided, the reference shall be to a single arbitrator (r). b. If the reference is to two arbitrators, the two arbitrators may appoint an umpire at any time within the period during which they have power to make an award (s). (r) See ss. 5, 7, ante. (s) See ss. 5, 6, ante. THE ARBITRATION ACT, 1889. 477 c. The arbitrators shall make their award in writing within three months after entering on the reference, or after having been called on to act by notice in writing from any party to the submission, on or before any later day to which the arbitrators, by any writing signed by them, may from time to time enlarge the time (t) lor making the award. d. If the arbitrators have allowed their time or extended time to expire without making an award, or have delivered to any party to the submission or to the umpire a notice in writing, stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators. e. The umpire shall make his award within one month after the original or extended time appointed for making the. award of the arbitrators has expired, or on or before any later day to which the umpire by any writing signed by him may from time to time enlarge the time for making' his award. f . The parties to the reference, and all persons claiming- through them respec- tively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire, on oath or affirmation, in relation to the matters in dis- pute, and shall, subject as aforesaid, produce before the arbitrators or umpire all books, deeds, papers, accounts, writings and documents within their possession or power respectively which may be required or called for, and do all other things which during the proceedings on the reference the arbitrators or umpire may require («). g. The witnesses on the reference shall, if the arbitrators or umpire thinks fit, be examined on oath or affirmation (»). h. The award to be made by the arbitrators or umpire shall be final and binding on the parties and the persons claiming under them respectively. i. The costs of the reference and award shall be in the discretion of the arbitrators or umpire, who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client. THE SECOND SCHEDULE. Enactments Repealed. Session and Chapter. Title or Short Title. Extent of Repeal. 9 Will. 3, c. 15 An Act for determining differences by arbitration. The whole Act. 3&4 Will. 4, e. 42 .. An Act for the further Sections thirty-nine to forty- amendment of the law and one, both inclusive. the better advancement of justice. The CommonLaw Procedure 17 & 18 Vict. o. 125 .. Sections three to seventeen, Act, 1854. both inclusive. 36 & 37 Vict. u . 66 The Supreme Court of Judi- Section fifty- six, from " Sub- cature Act, 1873. ject to any Rules of Court " down to " as a judgment by the Court," both inclusive, and the words "Special re- ferees or." Sections fifty- seven to fifty-nine, both in- clusive. 47 & 48 Vict. c. 61 The Supreme Court of Judi- Sections nine to eleven, both cature Act, 1884. inclusive. (t) See s. 9, ante. («) See ss. 7, 8, 18, ante, and R. S. C, 0. XXXVI., rr. 48— 55c. (*) See ss. 7, 8, 18, ante, and R. S. 0., 0. XXXVI., rr. 49, 50, 55c. 478 Book II. Section I. (a). Tribunal for assessing compensation in respect of land compulsorily acquired for public purposes. THE ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT, 1919. 9 & 10 Geo. 5, c. 57. 1. — (1.) Where by or under any statute (whether passed before or after the passing of this Act) land is authorised to be acquired compulsorily by any Government Department or any local or public authority, any question of disputed compensation, and, where any part of the land to be acquired is subject to a lease which comprises land not acquired, any question as to the apportionment of the rent payable under the lease, shall be referred to and determined by the arbitration of such one of a panel of official arbitrators to be appointed under this section as may be selected in accordance with rules made by the Reference Committee under this section. (2.) Such number of persons, being persons with special know- ledge in the valuation of land, as may be appointed for England and Wales, Scotland and Ireland by the Reference Committee, shall form a panel of persons to act as official arbitrators for the purposes of this Act in England and Wales, Scotland and Ireland respectively: Pro- vided that of the members of the said panel for England and Wales one at least shall be a person having special knowledge of the valuation of land in Wales and acquainted with the Welsh language. (3.) A person appointed to be a member of the panel of official arbitrators shall hold office for such term certain as may be determined by the Treasury before his appointment, and whilst holding office shall not himself engage, or be a partner of any other person who engages, in private practice or business. (4.) There shall be paid out of moneys provided bj Parliament to official arbitrators such salaries or remuneration as the Treasury may determine. (5.) The Reference Committee — (a) for England and Wales shall consist of the Lord Chief Justice of England, the Master of the Rolls and the President of the Surveyors' Institution ; (a) See Book II., Chap. II., ante, p. 319. THE ACQUISITION OF LAND (COMPENSATION) ACT, 1919. 479 . 5 - is referred to arbitration, as if the Board of Agriculture for Scotland were the acquiring authority, and as if in the said sub-section (11) there were substituted for the Lord Ordinary on the Bills and the Lord Ordinary, except where the Lord Ordinary is therein last referred to, such person as may be prescribed by rules made by the Reference Com- mittee for Scotland; and the provisions of that Act, includ- ing the Second S-hedule to the Agricultural Holdings » Edw. 7, (Scotland") Act, 1908, as thereby applied, shall in relation to such determination have effect subject to the aforesaid provisions of this Act: 31 (2) 484 APPENDIX OF STATUTES — BOOK II. 48 & 49 Vict. o.77. Short title, commence- ment and interpreta- tion. (b) " High Court " means either division of the Court of Session; " arbitrator " means arbiter, and " easement " means ser- vitude . (2.) This Act shall apply to Ireland subject to the following modi- fication : — Nothing- in this Act shall affect the determination of the price or compensation to be paid on the compulsory acquisition of land by the Irish Land Commission or Congested Districts Board for Ireland under any statute or the special provisions contained in the Labourers (Ireland) Act, 1885, and the enactments amend- ing the same, with respect to the jurisdiction of the Irish Land Commission in cases where land is taken compulsorily under those provisions for a term of years. 12. — (1 .) This Act may be cited as the Acquisition of Land (Assess- ment of Compensation) Act, 1919, and shall come into operation on the first day of September nineteen hundred and nineteen, but shall not apply to the determination of any question where before that date the appointment of an arbitration, valuation, or other tribunal to determine the question has been completed, or a jury has been empanelled for the purpose. (2.) For the purposes of this Act, the expression "land " includes water and any interests in land or water and any easement or right in, to, or over land or water, and " public authority " means any body of persons, not trading for profit, authorised by or under any Act to carry on a railway, canal, dock, water or other public undertaking. Short title. Interpreta- tion'. THE ACQUISITION OF LAND (ASSESSMENT OF COM- PENSATION) RULES, 1919, dated December 2, 1919, MADE UNDER THE ACQUISITION OF LAND (ASSESSMENT OF Compensation) Act, 1919 (9 & 10 Geo. 5, c. 57) (6). In pursuance of the Acquisition of Land (Assessment of Compen- sation) Act, 1919, the Reference Committee for England and Wales constituted under that Act hereby make the following Rules:— 1. These Rules may be cited as the Acquisition of Land (Assess- ment of Compensation) Rules, 1919. 2. — (1.) In these Rules, unless the context otherwise requires: The expression " the Act " means the Acquisition of Land (Assess- ment of Compensation) Act, 1919: The expression " arbitrator " means an official arbitrator: The expression " question " means any question of disputed com- pensation, or any question of the apportionment of a rent, which is to be referred to and determined by arbitration in manner provided by the Act. (4) S. B.. & 0. 1919, No. 1836/L.30. THE ACQUISITION OF LAND (COMPENSATION) RULES, 1919. 485 (2.) The Interpretation Act, 1889, applies for the purpose of the interpretation of these Rules as it applies for the purpose of the inter L pretation of an Act of Parliament. 3.— (1.) Where any question has arisen either the acquiring Application .authority or the claimant may at any time after the expiration of for selection fourteen days from the date on which the notice to treat was served arbiter send to the Reference Committee an application for the selection of ** ' ^ ° T ' .an arbitrator. (2.) The acquiring authority or the claimant, as the case may be, shall, immediately after sending the application to the Reference Committee, send notice of the fact to the claimant or the acquiring authority, as the case may be, together with a copy of the application. (3.) An application for the selection of an arbitrator shall be in the form set out in the schedule to these Rules or in a form to the like effect. 4.— (1.) The Reference Committee, on receiving a valid application Selection of for the selection of an arbitrator, shall, as soon as may be, proceed to official select from the panel an arbitrator to deal with the case. arbitrator. (2.) The Reference Committee shall, as soon as they have selected the arbitrator, inform the acquiring authority and the claimant of the name and address of the person so selected. 5.— (1.) The arbitrator selected shall, as soon as may be, proceed Consideration with the determination of the question in dispute, and shall arrange 0I questions with the acquiring authority and the claimant the time and place of j,it tor the hearing. (2.) The Reference Committee shall send to the arbitrator selected a copy of the application for the appointment of an arbitrator, and the acquiring authority and the claimant shall furnish to the arbitrator on his request any document or other information which it is in their or his power to furnish and which the arbitrator may require for the purpose of considering and determining the case. (3.) Subject to the provisions of the Act and of these Rules the proceedings before an arbitrator shall be such as the arbitrator, subject to any special directions of the Reference Committee, may in his discretion think fit. 6. The Reference Committee may, in the case of the death or the Power to incapacity of the arbitrator originally selected, or if it is shown to select another ■ the Committee that it is expedient so to do, in any other case, at any arb j tI . ator> time before the arbitrator has made his award, revoke the reference of the question to the selected- arbitrator and select another arbitrator for the purpose of determining the question. 7.— (1.) Where notices to treat have been served for the acquisi- Consolidation tion of the several interests in the land to be acquired and questions » f ^™ to as to the amount of the compensation have arisen in the case of any ^veraf two or more of those interests the acquiring authority may, subject interests in as hereinafter provided, either on making the application for the the same selection of an arbitrator to hear the claims or at any time thereafter an • make an application to the Reference Committee to have the same person selected as the arbitrator to hear and determine all the claims to which the application relates: 486 APPENDIX OF STATUTES BOOK II. Provision as to payment of fees prescribed by Treasury. Provision as to sending notioe. Informalities not neces- sarily to invalidate proceedings. Provided that no such applicatioa shall be made as respects a claim if an arbitrator has already entered on the consideration of the claim. (2.) On receiving an application under this Eule the Reference Committee shall select the same person to act as arbitrator in respect of all the claims to which the application relates, and so far as necessary for that purpose may revoke any selection previously made. (3.) An application under this Eule shall be in the form set out in the schedule to these Rules or in a form to the like effect. (4.) Where the same person has been selected under this Rule to act as arbitrator in respect of two or more claims the acquiring authority may at any time after he has been so selected apply to him for an order that all the claims shall be heard together. (5.) Notice of intention to apply to the arbitrator for such' an order as aforesaid shall be sent to each claimant and the notice shall specify the date on which and the place at which the arbitrator will hear any objection which may be made to the application. (6.) If any claimant objects to have his claim heard together with the other claims he shall within seven days after the receipt of the notice aforesaid send notice of his objection to the acquiring authority and the arbitrator. (7.) Where the acquiring authority apply for an order under this Rule the arbitrator after taking into consideration any objections made to the application shall make such order in the matter as he thinks proper having' regard to all the circumstances of the case. (8.) On an application for an order under this Rule an order for consolidation may be made if the arbitrator thinks fit with respect to some only of the claims, and the order may in any case be made subject to such special directions as to costs, witnesses, method of procedure, and otherwise as the arbitrator thinks proper. 8. — (1.) If the fees prescribed by the Treasury in pursuance of the powers conferred on them by sub-section (6) of section three of the Act include a fee in respect of an application under these Rules or a fee in respect of the hearing before an official arbitrator, the prescribed fee shall be collected by means of adhesive stamps affixed to or stamps impressed on the application and the award of the arbitrator respectively. (2.) Any application under these Rules which is not properly stamped in accordance with the foregoing provision shall be treated as invalid, and the award of an official arbitrator shall not be delivered out by him unless and until it has been properly stamped in accordance with the said provision. 9. Any notice or other document required or authorised to be sent to any person for the purpose of these Rules shall be deemed to be duly sent by post addressed to that person at his ordinary address, and the address of the Reference Committee shall for this purpose be —J. Johnston, Esq., Secretary to the Reference Committee, Room 174, Royal Courts of Justice, Strand, London, W.C.2. 10. Save as herein otherwise expressly provided, any failure on the part of any authority or any person to comply with the provisions of these Rules shall not render the proceedings, or anything done in pursuance thereof, invalid, unless the arbitrator so directs. THE ACQUISITION OF LAND (COMPENSATION) BULKS, 1919. 48? SCHEDULE. A. Form of Application for Selection of Official Arbitrator. Acquisition of Land (Assessment of Compensation) Act, 1919. Application for Selection of Official Arbitrator. To the Eeference Committee. I, being the claimant [or, We being the acquiring authority! specified in the annexed particulars, hereby apply for the selection pursuant to the above Act, of an official arbitrator to hear and determine the question of which particulars are annexed. *Signed Date * H the application is signed by an agent, add " by , his [or their] Particulars. Name and address of acquiring authority: Name and address of acquiring authority's solicitor or agent: Name and address of claimant: Name and address of claimant's solicitor or agent: Description of land to be acquired: Situation of land to be acquired: County Parish Nature of question (whether as to amount of compensation or apportionment of rent): Interest in respect of which compensation is claimed: B. Form of Application to have same Person appointed as Arbitrator on Claims in respect of various Interests in same Land. Acquisition of Land (Assessment of Compensation) Act, 1919. Application to have same person appointed as Arbitrator on Claims in respect of various interests in same land. To the Eeference Committee. We, being the acquiring authority in the case of the land specified in the annexed particulars, apply, pursuant to the Pules made under 488 APPENDIX OF STATUTES BOOK II. the above Act, to have the same person selected as the official arbitrator to hear and determine all the claims for compensation made in respect of the several interests in the said land. No official arbitrator has been selected in the case of any of the said claims [or An official arbitrator has already been selected in the case of the claims of the persons numbered in the annex of particulars, namely Mr. in the case of No. 1 state the facts]. *Signed Date * If the application is signed by an agent of the applicants, add " by , their agent." Particulars. Name and address of acquiring authority: Name and address of acquiring authority's solicitor or agent: Description of land to be acquired: Situation of land to be acquired: County Parish Names and addresses of (i) the persons Nature of Interest, entitled to the several interests in the land, and (ii) their respective solicitors or agents: i- (i; i- (ii) 2- (i) 2. (") 3- (i) 3. (ii) We, the Reference Committee for England and Wales under the Acquisition of Land (Assessment of Compensation) Act, 1919, have made the above rules in pursuance of the powers conferred on us by the said Act. EEADING-, C.J. STEENDALE, M.E. ANDEEW YOUNG, P.S.I. 2nd December, 1919. THE DEFENCE ACT, 1842. 489 Section II.— Emergency Powers of the Crown (c). THE DEFENCE ACT, 1842. 5 & 6 Vict. c. 94. 16. And be it enacted, that it shall be lawful for the principal Principal officers of Her Majesty's ordnance for the time being- to enter on, officers may survey, and mark out, or to cause to be surveyed and marked out, any authorize lands, buildings, or other hereditaments or easements wanted for surveyed the iserviee of the Ordnance Department, or for the defence of the mark out realm, or to stop up or divert any public or private footpaths or landa > and bridle-roads, and to treat and agree with the owner or owners of owntrTfor such lands, buildings, hereditaments, or easements, or with any the absolute person or persons interested therein, either for the absolute purchase purchase thereof, or for the possession or use thereof during such time as the ™ ereof - exigence of the public service shall require. 17. Provided always, and be it enacted, that whenever any foot- When foot- path or bridle-road shall be stopped up as aforesaid, another path paths, &e. are or road shall be provided and made in lieu thereof respectively, at other paths' to the expense of the Ordnance Department, and at such convenient be made in distance therefrom as to the principal officers of Her Majesty's. l ieu thereof, ordnance for the time being shall seem proper and necessary. 18. And be it enacted, that it shall be lawful for all bodies politic Bodies politic or corporate, ecclesiastical or civil, and all feoffees or trustees for may agree for charitable or other public purposes, and for all tenants for life and lan( j 8 &0 tenants in tail, and for the husbands, guardians, trustees, committees, curators, or attornies of such of the owners or proprietors of or persons: interested in any such lands, buildings, or other hereditaments so surveyed and marked out as shall be femes covert, infants, lunatics, idiots, or persons beyond the seas, or otherwise incapable of acting for themselves, to contract and agree with such principal officers, either for the absolute sale of such lands, buildings, or other heredita- ments, or for the grant of any lease, either for any term of years certain therein, or for such period as the exigence of the public service shall require, and to convey, surrender, demise, or grant the same to such principal officers, in trust for Her Majesty, her heirs and successors, accordingly; and all such contracts, sales, conveyances, surrenders,' leases, and agreements shall be valid and effectual in law to all intents and purposes whatsoever. 19. And be it enacted, that in case any such bodies or other persons i„ default of hereby authorized to contract on behalf of themselves or others as ^^ e ° r aforesaid, or any other person or persons interested in any such lands, par ti e8 donot buildings, or other hereditaments which shall be so marked out and ag ree, the surveyed as aforesaid, shall for the space of fourteen days next after persons O) See Book II., Chap. III., ante, p. 334. 490 APPENDIX OF STATUTES — BOOK II. authorized "by Her Majesty may require two justices, &c. to put Her Majesty's officers in possession. Jury to be summoned to value the premises. notice in writing subscribed by or on behalf of the said principal officers shall have been given to the chief officer or officers of any such body, or to such other persons hereby authorized to contract on behalf of others, or interested themselves, as aforesaid, or left at his, her, or their usual place of abode, refuse or decline to treat or agree, or by reason of absence shall be prevented from treating or agreeing with the said principal officers, or shall refuse to accept such sum of money as shall be offered by the said principal officers as the con- sideration for the absolute purchase of such lands, buildings, or other hereditaments, or such annual rent or sum as shall be offered for the hire thereof, either for a time certain or for such period as the exigence of the public service may require, then and in such case it shall be lawful for the said principal officers to require two or more justices of the peace, or three or more deputy-lieutenants (one of whom shall be a justice of the peace), or two or more deputy-governors for the county, riding, stewartry, city, or place where such lands, buildings, or other hereditaments shall be, to put the said principal officers, or any person appointed by them, into immediate possession of such lands, buildings, or other hereditaments, which such justices or deputy-lieutenants or deputy-governors are hereby required to do, and shall for that purpose issue their warrants under their hands and seals, commanding possession to be so delivered, and shall also issue their warrants to the sheriff of the county, riding, stewartry, city, or place wherein such lands, buildings, or hereditaments shall be situate, to summon a jury; and every such sheriff is hereby authorized and required to summon and return a jury, properly qualified, of the number of twenty-four, and in the manner required by the laws of England, Ireland, and Scotland respectively, who shall meet at some convenient time and place to be mentioned in such summons, out of whom a jury of twelve shall be drawn, in such manner as juries for the trial of issues joined in Her Majesty's Courts at Westminster and Dublin are drawn by law in England and Ireland respectively, and in such manner as juries are drawn by law for any trial in Scotland ; and in case a sufficient number shall not appear, the said sheriff shall choose others of the by-standers, or that can speedily be procured, being qualified as aforesaid; and the said jurymen may be challenged by the parties on either side, but not the array; and the said justices, deputy-lieutenants, or governors respectively may summon witnesses, and adjourn any such meeting if jurymen or witnesses do not attend; and the jury, on hearing any witnesses and evidence that may be produced, shall on their oaths (which oaths, as also the oaths of such witnesses, the said justices, deputy-lieu- tenants, or governors respectively are hereby empowered and required to administer,) find the compensation to be paid, either for the absolute purchase of such lands, buildings, or other hereditaments, or for the possession or use thereof, as the case may be: Provided always, that it shall not be lawful for the said principal officers to use any lands, buildings, or hereditaments taken under the compul- sory process aforesaid for the barrack service, or to erect any barrack buildings thereon. THE DEFENCE ACT, 1842. 491 20. Provided always, and be it enacted, that if the said principal Appeal may officers, or any person interested in the lands, buildings, or other be made to hereditaments so marked out and surveyed, shall be dissatisfied with * e ? ourt of the verdict of any such jury, it shall be lawful for them, or their &o°if e either attornies, in England and Ireland, to apply to the Court of Exchequer party is dia- at Westminster or Dublin respectively in the term next, and in satisfied with Scotland to apply within fourteen days after the finding- any such ofU^*^ verdict to the Court of Session in Scotland in time of session, or Lord Ordinary on the Bills in time of vacation, and to suggest to the said pourts or Lord Ordinary respectively that they have reason to be dissatisfied with such verdict, and forthwith give notice thereof to the said principal officers on the one part, or to the party so interested as aforesaid on the other part (as the case may be) ; and thereupon, in England and Ireland, the proceedings that shall have been had and the verdict of such jury shall be returned into the said Courts of Exchequer respectively, and if it shall appear to the said Courts to be proper, such suggestion shall be entered on such proceedings as aforesaid, and a writ shall thereupon, by Rule of such Court, or order of any judge of such Court, be directed to the sheriff of the county where such lands, buildings, or other hereditaments shall lie, or, if the same shall lie in two counties, to the sheriff of either of such counties, to summon either a common or special jury, according to the application that shall have been made in that behalf, and as the Court and as such judge shall allow, and who shall respectively be qualified, according to law, to appear "before the said justice or justices of assize or nisi prius of that county at the next assizes or sitting; of nisi prius, if the same shall not happen sooner than twenty-one days after such suggestion, otherwise at the next succeeding assizes or sittings, and the compensation to be paid either, for the absolute purchase or for the possession or use of such lands, buildings, or other hereditaments (as the case shall be) shall at such assizes or sittings be ascertained by such jury, in like manner as any damages may be inquired of upon any inquisition or inquiry of damages by any jury before any judge of assize or nisi prius and the verdict of such jury shall be returned to the said Court of Exchequer, and shall be final and conclusive; and in Scotland, if it shall appear proper to the said Court of Session or Lord Ordinary, upon such application, so to do, the said Court or Lord Ordinary shall order and direct the sheriff of the county where such lands, buildings, or other heredita- ments shall lie. or if the same shall lie in two counties, to the sheriff of either of such counties, to summon another jury in the manner in which juries are summoned in Scotland, properly qualified according to law, to appear before the Lords or Lord of Justiciary at the next circuit, if the same shall not happen sooner than twenty-one days after such application, otherwise at the next succeeding circuit, and the compensation as aforesaid for the lands, buildings, or other hereditaments (as the case shall be) shall at such circuit be ascer- tained by a jury drawn from the jury summoned as aforesaid in such manner as juries are drawn in Scotland, under the direction of the said Lords or Lord of Justiciary aforesaid, and the verdict of such last-mentioned jury shall be final and conclusive, without being 492 APPENDIX OP STATUTES — BOOK II. Jury may ascertain the proportion to be paid out of compensa- tion for land to lessees, &c. Court to require the party to give security for costs. Lands not to be taken for the defence of the realm without con- sent of the owners, unless in certain subject to review or challenge of any kind: Provided always, that it shall be lawful for the Court that shall have allowed such inquiry, on any application made within four days after the commencement of the succeeding term, or session if in Scotland, to order any new trial in relation thereto. 21. Provided always, and be it enacted, that it shall be lawful for any jury impannelled before any justice of the peace or magistrate, or deputy-lieutenant or deputy-governor, or before any judge of assize or nisi prius, to ascertain the compensation to be paid for any lands, buildings, or other hereditaments under this Act, and they are hereby required to ascertain and settle the proportion to be paid out of such compensation to any persons having any interest as lessees or tenants at will, or otherwise, in any such lands, buildings, or other hereditaments, and the proportion to be paid out of such compensa- tion shall be returned on the verdict: Provided also, that where any such inquiry before any judge of assize or nisi prius shall be had on the application of any such lessee or tenant at will, or other person having any inferior interest in any such lands, buildings, or other hereditaments, who may have been dissatisfied with the proportion of compensation settled by the jury to be paid in respect of such interest, it shall not be lawful for the jury in any such case to alter the amount of the entire compensation awarded by any former verdict to be paid for such lands, buildings, or other hereditaments, but only the proportion thereof to be paid to the person or persons having separate interests therein; and it shall not be lawful for any jury on any such inquiry as aforesaid had before any judge of assize or nisi prius, as to any such compensation, on the application of any such officer as aforesaid, in any case in which the whole compensation awarded by them shall be the same as the whole compensation awarded by the former jury, to alter the proportion that shall have settled by any such former jury, as to any separate interests in any such lands, buildings, or other hereditaments. 22. Provided also, and be it enacted, that it shall be lawful for the Court or judge or Lord Ordinary making any such rule or order to require that the party on whose application the same shall be made shall give such security as shall to such Court, judge, or Lord Ordinary seem proper, for payment of costs, under such circumstances as 1 shall be specified in any rule or order made for that purpose. 23. Provided always and be it enacted, that no such lands, build- ings, or other hereditaments shall be so taken without the consent of the owner or owners thereof, or of any such person or persons as aforesaid, acting for or on the behalf of the owner or owners thereof, unless the necessity or expediency of taking the same shall be first certified by the Lord Lieutenant, or two of the deputy-lieutenants, or by the governor or two deputy-governors of the county, riding, stewartry, city, or place in which such lands, buildings, or other here- ditaments lie, and unless the taking of such lands, buildings, or other hereditaments be authorized by a warrant under the hand or hands of the Lord High Treasurer, or of the Commissioners of Her Majesty's Treasury of the United Kingdom of Great Britain and Ireland, for THE DEFENCE ACT, 1842. 493 the time being, or any three or more of them or unless the enemy shall have actually invaded the United Kingdom at the time when such lands, buildings, or other hereditaments shall be so taken. 24. And be it enacted, that in all cases where any lands, buildings, Erections on or other hereditaments shall have been taken under the provisions lands taken of the said recited Act of the forty-fourth year of the reign of His ^ a tem P°" Majesty King George the Third, or shall be taken under the provi- toTeremoTed sions of this Act, for any term of years, or for such period onlv as before the the exigencies of the public service shall require, it shall be lawful for re^reTto the said principal officers, notwithstanding anything hereinbefore the owner! contained, or any other law to the contrary thereof notwithstanding, an d compen- at any time before the possession thereof shall be delivered up to the ? ation , sha11 j.i £ n . r , . be made for owner or owners thereof, or other person or persons acting on his, the injury her, or their behalf, to take down and remove all such buildings or done. ' other erections which shall or may have been built or erected thereon for the public service, after the same was or were so taken as aforesaid, and to carry away the materials thereof, making such compensation to the owner or owners of such lands, buildings, or other heredita- ments, or other person or persons acting on his, her, or their behalf, for the damage or injury which may have been done thereto or to the soil thereof, by the erection of any such buildings, or otherwise, in consequence of the same having been occupied for the public service, as the said principal officers shall think reasonable, and as shall be agreed upon in that behalf; and if such owner or owners, or other In case of person or persons aoting on his, her, or their behalf, shall not be disagreement, willing to accept the compensation so offered, it shall be lawful for sat ion shall he the said principal officers to apply to and require two justices of the settled, peace of the county', riding, stewartry, city, or place to settle and ascertain the compensation which ought to be made for such damage or injury as aforesaid, and such justices shall settle and ascertain the same accordingly, and shall grant a certificate thereof; and the amount of such compensation, so settled and ascertained and certified, shall forthwith be paid by the treasurer, accountant, or other proper officer for the time being of the office or department for the use of which such lands, buildings, or other hereditaments shall have been taken, to the person or persons entitled thereto: Provided always, that Act not to nothing in this Act contained shall extend or be construed to extend l^.f^J nt to alter, prejudice, or affect any agreement which hath been or shall between the or may be entered into by the said principal officers with any owner parties, or owners of any such lands, buildings, or other hereditaments^ or other person or persons acting on his, her, or their behalf, in relation to any such buildings or erections, but every such agreement shall remain valid and effectual in like manner as if this Act had not been passed. 25. And be it enacted, that where any money shall have been or ^^ e shall be agreed, or shall have been or shall be required by the verdict ™°™£ le to of any jury, to be paid or given by the said principal officers, for the bodies politic, absolute purchase or exchange of any messuages, buildings, castles, &c, how to he forts, lines, or other fortifications, manors, lands, grounds, tenements, nested, or hereditaments, or of any reversion, as aforesaid, or of the enfran- 494 APPENDIX OF STATUTES — BOOK II. chisement of any copyhold or purchase of any other interest belonging to any such body, or other person or persons under any disability or incapacity, or not having the absolute interest therein, the said money, if the same shall amount to or exceed the sum of two hundred pounds, shall be paid into the hands or in the name of the remembrancer or other proper officer of Her Majesty's Court of Exchequer at West- minster or Dublin, or the Queen's Remembrancer or other proper officer of the said Court at Edinburgh, respectively, for the time being, for the use and benefit of the owners or proprietors of such messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, or hereditaments, and such remembrancer, Queen's Re- membrancer or other proper officer respectively is hereby authorized and required to receive or accept and to give a discharge for the same, and upon the acceptation or receipt thereof to sign a certificate to the barons or judges of the said Court of Exchequer under his hand, purporting and signifying that such money or other considera- tion was received or accepted by and paid to him in pursuance of this Act, for the use and benefit of such owners or proprietors as shall be named in such certificate; and the said certificate shall be filed or deposited in the said Court of Exchequer at Westminster, Dublin, or Edinburgh respectively, and a true copy thereof, signed by the said remembrancer, Queen's Remembrancer, or other proper officer respectively of such Court, shall and may be read and allowed as evidence for the purposes hereinafter mentioned; and the said re- membrancer, Queen's Remembrancer, or other proper officer respec- tively is hereby required, upon receipt of any such sum or sums of money as aforesaid, to pay the same into the Bank of England, or Bank of Ireland, or Bank of Scotland, or Royal Bank of Scotland, as the case may require, and immediately upon the filing or depositing of such certificate the said messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, or hereditaments, shall be and become vested in the said principal officers of the Ordnance for the time being, for the service of the said Ordnance Department, or for the defence of the realm, in trust for Her Majesty, her heirs and successors. Barons, &c. of 26. And be it enacted, that the barons or judges of Her Majesty's Exchequer Court of Exchequer at Westminster, Dublin, or Edinburgh, of the order for the Degree of the Coif, for the time being, or any one or more of them, investment of shall be and they or he are or is hereby authorized and empowered, such purchase i n a summary way, upon motion or petition for or on behalf of any money, person or persons interested in or entitled to the benefit of the money so paid to and received by the said Queen's Remembrancer or other proper officer respectively, or the interest or produce thereof, and upon reading the certificate directed to be signed by the said remembrancer. Queen's Remembrancer, or other proper officer re- spectively concerning the same as aforesaid, and receiving such further satisfaction as they or he shall think necessary, to make and pro- nounce such orders and directions for paying the said money or any part of the same, or for placing out such part thereof as shall be principal in the public funds, or upon Government or real securities; THE DEFENCE ACT, 1^42. 495 and for payment of the dividends or interest thereof, or any part thereof, to the respective persons entitled to receive the same, or for laying out the principal or any part thereof in the purchase of other lands or hereditaments, to be conveyed and settled to, for, and upon the same uses, trusts, intents, or purposes as the said messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, or hereditaments, so purchased or taken, stood settled at the time of the payment of such money as aforesaid, or as near thereto as the same can be done, or otherwise concerning the disposition of the said money or any part thereof, and the interest of the same, or any part thereof, for the benefit of the person and persons entitled to and interested in the same respectively, or for appointing any person or persons to be a trustee or trustees for all or any of such purposes, as the said Court shall think just and reasonable. 27. Provided always, and be it enacted, that in case such purchase Investment money as is lastly hereinbefore mentioned shall be less than the sum oi P urcnase of two hundred pounds, and shall exceed the sum of twenty pounds, less'than 20 W. then and in all such cases the same shall, at the option of the person or persons for the time being entitled to the rents and profits of the messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, or hereditaments, so purchased, or of his, her, or their guardian or guardians, committee or committees, in case of infancy or lunacy, to be signified in writing under their respective hands, be paid into the hands of the said remembrancer, Queen's Remembrancer, or other public officer respectively of the said Court of Exchequer, in order to be applied in manner hereinbefore directed ; or otherwise the same shall be paid, at the like option, to three trustees, to be nominated by the person or persons making such option, and approved of by the said principal officers, or any three or more of them, such nomination or approbation to be signified in writing under the hands of the nominating and approving parties, in order that such principal money may be invested in the purchase of stock in the public funds, and that such stock, when purchased, and the dividends arising therefrom, may be applied in manner herein- before directed, so far as the case be applicable, without obtaining or being required to obtain the order, direction, or approbation of the said Court of Exchequer. 28. Provided always, and be it enacted, that in case such purchase Investment money shall be less than twenty pounds, then and in all such cases' of purchase the same shall be applied to the use of the person or persons who i^than^o" would for the time being be entitled to the rents and profits of the messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, and hereditaments, so purchased, in such manner as the said principal officers, or any three or more of them, shall think fit, or in case of infancy or lunacy, then to his, her, or their guardian or guardians, committee or committees, for the use and benefit of such person or persons entitled respectively. 29. And be it enacted, that upon the death or removal of any such Stock and remembrancer, Queen's Eemembrancer, or other proper officer re- ^™^ tl . es spectively, all stock and securities vested in him by virtue of this ™^ m m 496 APPENDIX OF STATUTES BOOK II. brancer, &c. shall, in case of death or removal, vest in the successor. Persons in possession deemed en- titled to the premises until the contrary shall be shown. For enrolment of deeds relating to lands, &c. in England and Wales. Deeds not required to be acknow- ledged, &o. Office copies of enrolments of such deeds, &c. admis- sible in evidence. Act shall vest in the succeeding 1 remembrancer, Queen's Remem- brancer, or other proper officer respectively, for the purpose hereinbefore mentioned, without any assignment or transfer ; and all monies paid into the said banks respectively, in pursuance of this Act, or remaining in the hands of any remembrancer, Queen's Remembrancer, or other proper officer respectively, at his death or removal, and not invested in the funds, or placed out on securities, as aforesaid, shall be paid over to the succeeding Queen's Remembrancer or other proper officer respectively for the time being. 30. Provided always, and be it enacted, that where any question shall arise touching the title of any person to any money to be paid into the Bank of England, or Bank of Scotland, or Royal Bank of Scotland, in the name and with the privity of the remembrancer of the Court of Exchequer, or the Queen's Remembrancer or other proper officer, pursuant to the directions of this Act, or to any bank annuities to be purchased with any such money, or the dividends or interest of any such bank annuities, the person or persons who shall have been in possession of the property so purchased at the time of the purchase shall be deemed to have been lawfully entitled to such property according to such possession, until the contrary shall be shown to the satisfaction of the said Court of Exchequer, and the dividends or interest of the bank annuities to be purchased with such money, and also the capital of such bank annuities, shall be paid, applied, and disposed of accordingly, unless it shall be made to appear to the said Court that such possession or receipt was wrongful, and that some other person or persons was or were lawfully entitled to such property. 31. And be it enacted, that it shall be lawful for the said principal officers to cause all or any deeds, decrees, evidences, or writings, or other instruments whatsoever, relating to any messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, or hereditaments, in England or Wales, now or hereafter vested in the said principal officers, to be enrolled in the office of the remem- brancer of Her Majesty's Court of Exchequer, or in the High Court of Chancery, and such fees shall be paid for such enrolment as the Lord High Treasurer or the Commissioners of Her Majesty's Trea- sury shall from time to time appoint, not exceeding such fees as have been used and accustomed to be taken. 32. And be it enacted, that any rule or practice requiring deeds to be acknowledged, or requiring an affidavit or declaration to be made of the due execution of any deeds before enrolment, shall not apply to any deed, decree, evidence, or writing, or other instrument whatsoever by this Act required to be enrolled in Her Majesty^ Courts of Chancery or Exchequer in England or Ireland. 33. And be it enacted, that a copy of the enrolment of every such deed, decree, writing, or other instrument as aforesaid, signed by the proper officer having the custody of such enrolment, and proved upon oath to be a true copy, shall for every purpose whatsoever be sufficient evidence of the contents of such deed, decree, writing, or other instrument in all Courts of law and equity, and on every other occasion THE DEFENCE ACT, 1842. 497 whatsoever shall be of the same force and effect, to all intents and purposes, as such deed, decree, writing, or other instrument would be if the same were respectively produced and shown forth. 34. And be it enacted, that it shall be lawful for the said principal Ordnance officers, and their successors for the time being-, and they are hereby ma y sue authorized and empowered, to bring, prosecute, and maintain any ^'^1 action or actions of ejectment, or other proceedings at law or in officers of Her equity, for recovering possession of any messuages, buildings, castles, Majesty's lines, or other fortifications, manors, lands, tenements, or heredita- °^ an t oe '" mente, as now are or hereafter may be vested in them by this Act, naming them, or otherwise howsoever, and to distrain or sue for any' arrears of rent which shall have become or shall become due for or in respect thereof under any parol or other demise from the said principal officers, and also to bring, prosecute, and maintain any other action or suit in respect of or in relation to such messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, or hereditaments last aforesaid, or of any trespass or encroachment committed thereon, or damage or injury done thereto, and also upon all covenants and contracts whatsoever now or hereafter made by, to, or with the said principal officers relating to the said Ordnance or Barrack Department, or the defence of the realm; and also to pro- secute, any other action, suit, or legal proceedings, civil or criminal, concerning the goods or chattels, stores, monies, and other property, under the care, control, and disposition of the said principal officers; and that in every such action, suit, or other proceedings the said principal officers for the time being shall be called " the principal officers of Her Majesty's Ordnance," without naming them or any of them; and no such action, suit, or other proceedings shall abate by the death, resignation, or removal of such principal officers or any of them, any thing in any Act or Acts of Parliament, or law or laws, to the contrary thereof notwithstanding: Provided nevertheless, that Privileges nothing herein contained shall be taken to defeat or abridge, in any andprero- such action, suit, or other proceedings, the legal rights, privileges, Crowrfnot to and prerogatives of Her Majesty, her heirs and successors, but that be curtailed, in all such actions, suits, or other proceedings, brought or instituted in the name and on behalf of the principal officers of Her Majesty's Ordnance, and in all matters relating thereunto, it shall be lawful for the said principal officers to claim, exercise, and enjoy all the same rights, privileges, and prerogatives which have been heretofore claimed, exercised, and enjoyed in any actions, suits, or other pro- ceedings whatsoever in any Court of law or equity, by Her Majesty or her predecessors, in the same manner as if the subject-matter of the said suits or other proceedings were vested in the Crown, and as if the Crown were actually a party to such actions, suits, or other proceedings: Provided also, that it shall be lawful for Her Majesty to proceed by information in her Court of Exchequer, or by any other Crown process, legal or equitable, in any case in which such actions, suits, arbitrations, or other proceedings might have been otherwise instituted. * * * '* * c. 32 498 APPENDIX OF STATUTES — BOOK II. Principal officers em- powered to give notices, make claims, and authorize entries, &c. Principal officers ex- empted from pergonal responsibility. 36. And be it enacted, that it shall be lawful for the said principal officers for the time being and they are hereby authorized and empowered to give any notice, make any claim or demand, and to depute or authorize any person or persons to make an entry which shall be requisite or expedient to be given or made by or on behalf of Her Majesty, her heirs or successors, with a view either to compel any tenant, lessee, or occupier of any part or parts of the said possessions of the Crown which are or may be by law vested in the principal officers of Her Majesty's Ordnance, to quit or deliver up the possession thereof, or to compel the performance of any covenant, contract, or engagement in relation thereto, or to recover possession on non-performance of any covenant, contract, or agreement, or to compel the payment of any sum of money which ought to be paid in respect thereof, and to give any other notice, make any other claim or demand, and depute any person or persons to make any other entry which shall or may be requisite or expedient to be given or made by or for or on behalf of Her Majesty, her heirs or successors, touching any of the said possessions which are or may be by law vested in the principal officers of Her Majesty's Ordnance; and that every such notice, claim, or demand which shall be given or made in writing under the hands of the said principal officers for the time being, or any two of them, for any of the purposes aforesaid, and every entry which shall be made by any person or persons deputed or authorized by the said principal officers to make the same, on behalf of Her Majesty, her heirs or successors, into or upon any of the said < estates or possessions, shall be good, valid, and effectual to all intents and purposes whatsoever. 37. And be it enacted, that nothing contained in this Act, or to be contained in any covenant, contract, lease, or other instrument hereby authorized to be entered into, made, taken, or executed by the said principal officers or any of them, shall extend to charge the person or persons of all or any of the said principal officers executing any such covenant, contract, lease, or other instrument, or the heirs, executors, or administrators of the same principal officers, or any of them, or their or any of their own proper lands, tenements, goods, or chattels, with or for the performance of all or any of the covenants, conditions, or agreements in the same covenant, contract, lease, or other instrument to be contained on the part of the same principal officers, or any of them, nor shall any officer of Her Majesty's Ordnance be personally liable, nor shall the property of any such officer be liable, to any legal process or execution in such actions, suits, arbitrations, or other proceedings as aforesaid. THE DEFENCE ACT, 1854. 499 THE DEFENCE ACT, 1854. 17 & 18 Vict. c. 67. 1. It shall be lawful for the principal officers for the time being of Principal Her Majesty's Ordnance (if they shall think proper so to do) to use ° ffioera of and avail themselves of all the powers and provisions contained in ^"avail the Lands Clauses Consolidation Act, 1845, for the purpose of ascer- themselves of taining, making, and paying compensation for and extinguishing all certain powers rights of common, commonable, and other rights in, over, or affecting s°&lTvict m any lands the soil of which has at any time been or shall hereafter be c. 18, as to purchased or taken by the said principal officers, under the Act of the extinguish- Fifth and Sixth Victoria, chapter ninety-four, and for such purpose m f a nshtfi & i the principal officers for the time being of Her Majesty's Ordnance shall be deemed and taken to be promoters of an undertaking within the meaning of the said Lands Clauses Consolidation Act, 1845, and all the powers and provisions of the last-mentioned Act may, if necessary, be treated as if they had been contained in the said Act of the Fifth and Sixth Victoria, chapter ninety-four, for the purpose of being used or made available by the said principal officers for the time being: Provided always, that nothing herein contained shall prejudice or affect the powers and authorities of the principal officers of Her Majesty's Ordnance for the time being under the last-men- tioned statute. 2. And in case the said principal officers of Her Majesty's Board Power of of Ordnance shall have purchased or shall hereafter purchase any valuer land, and the common, commonable, and other rights in and over ^erliiclo- the same, and a valuer shall have been appointed in the matter of sure Act to any inclosure proceeding in respect of such lands under the provisions cease on of "The Acts for the Inclosure, Exchange, and Improvement of ^^n Land," the duties and powers of such valuer in relation to the land rights by so purchased shall, upon payment of the purchase money for such Ordnance, common, commonable, and other rights over the same, cease and determine, and the Inclosure Commissioners for England and "Wales ? valuation in manner following; that is to say, the said Secretary of sur?eyor t State shall make application to two justices, and upon proof satis- be appointed factory to them that any such party is by reason of absence from the by two Kingdom prevented from treating, or cannot after diligent inquiry justices. he found, such justices shall, by writing under their hands, nominate a competent surveyor for determining the amount of such compensa- tion as aforesaid, and such surveyor shall determine the same accord- ingly, and shall annex to his valuation a declaration in writing- subscribed by him of the correctness thereof. 15. If any surveyor wilfully and corruptly make any incorrect Surveyor or false valuation, or wilfully and corruptly act in the matter hereof, ^™S g^ he shall be guilty of a misdemeanor. guilty of 16. The said nomination shall be annexed to the valuation to be a m i s . made by such surveyor, and shall be preserved together therewith demeanor, by the said Secretary of State, who shall at all times produce the Valuation to said valuation and other documents, on demand, to all parties inte- £e pres^^d rested in the lands comprised therein. on demand 6 17. Where any damage has been sustained by reason of any works authorised by this Act in or upon lands required to be kept free ^Melrtained from buildings and other obstructions, in respect of which works com- when works pensation has not been agreed upon, awarded, or otherwise ascer- done, tained prospectively, compensation shall be paid in respect thereof 502 APPENDIX OF STATUTES BOOK II. In estimating damage from works regard to be had to advantages derived. Where any agreement in restraint of building exists, re- gard to be had thereto in estimating compensation. when the works have been done, such compensation to be deter- mined in like manner as other compensation under this Act, or as near thereto as circumstances admit. 18. In determining the amount of compensation in respect of damage sustained by reason of any such works regard shall be had to any increase in the extent of land capable of being brought under cultivation by removal of banks, fences, hedges, and ditches, and to any improved drainage and other advantages derived from any such works. 19. Where any covenant or agreement has been entered into with the principal officers of Her Majesty's Ordnance or with the said Secretary of State in restraint of the right to build on any lands, and such covenant or agreement is legally or equitably binding on the owner of the lands, regard shall be had in ascertaining the amount of compensation to be paid under this Act for or in respect of such lands (whether the same are required to be taken absolutely or are required to be kept free from buildings) to the existing restriction arising out of such covenant or agreement. Provision for payment and application of compensation money in certain cases. On payment into Court of compensation, an addition to be made to meet future expenses. Provision for payment into Court on failure for three months Payment and Application of Compensation in certain Cases. 20. Any compensation payable under this Act, for or in respect of any lands, or any interest therein, taken from or holden by any owner who by reason of absence is prevented from treating as afore- said, or who cannot after diligent inquiry be found, or who refuses to accept such compensation, or neglects or fails to make out a title to such lands or the interest therein claimed by such owner to the satisfaction of the said Secretary of State; And any compensation payable for or in respect of any lands or any interest /therein taken from or holden by any corporation or person not having, independently of this Act and the Defence Act, 1842, as amended as aforesaid, power to agree as to the amount of such compensation, or to sell and convey such lands or such interest, Shall be paid and applied in manner directed by the sections numbered twenty-five to thirty of the Defence Act, 1842 (and with regard to England), as amended by section eight of the Act of the session holden in the twenty-second and twenty-third years of Her Majesty, chapter twenty-one, as if the said sections expressly extended to the said compensation. 21. Where any compensation is required to be paid into the Bank of England or Ireland under this Act, there shall be added thereto a sum of thirty pounds as an equivalent for the expenses consequent upon such payment, and upon such compensation, with such additional sum (which shall be deemed part of such compensation), being so paid, the said Secretary of State shall be discharged from all liability in respect thereof, and the Court of Chancery may allot to any tenant for life or for any other partial or qualified estate in respect of any expenses of investment incurred by him any portion of any such compensation which the Court may deem just. 22. The said Secretary of State may in any case at or after the expiration of three months from the time at which the compensation for any lands has been agreed upon or otherwise ascertained, if the owner thereof have not in the meantime made out a title thereto THE DEFENCE ACT, I860. 503 to the satisfaction of the said Secretary of State, pay such com- after compel pensation, without such addition as aforesaid, into the Bank of sationascer- England or Ireland, in manner herein-before referred to and such tainedt ° payment shall discharge the said Secretary of State from all liability m™ a m respect of the money so paid: Provided always that the Court of Chancery may, upon application for payment of such money to the party entitled, in case the Court be of opinion that there was no unreasonable delay in deducing the title, or that a good title was shown, order all or any costs occasioned by such payment into Court to be paid by the said Secretary of State. 23. All orders and directions in relation to any money paid into Orders con- the .Bank ot England in the name and with the privity of the oerning Accountant-General of the Court of Chancery under this Act or the ™ one J paid securities in or upon which the same may be invested, or the dividends Say be We or interest on such money and securities, which under the said Acts at chambers, the Court of Chancery is empowered to make or give, on motion or petition, may be made or given by the Master of the Eolls or any of the Vice-Chancellors while sitting at Chambers, upon summons, in like manner as in other cases in which proceedings may be so had before the Master of the Eolls and Vice-Chancellor, subject, never- theless, to any general rules and orders which may hereafter be made concerning the practice, proceedings, or business of the said Court. Subsequent Compensation for Interests omitted to be purchased. 36. If at any time after the said Secretary of State has entered Provision as upon any lands vested in him under this Act, any party appear to to interests be entitled to any estate, right, or interest in or charge affecting omlt * ed *? be such lands which through mistake and inadvertence has been omitted to be purchased or compensated for, the said Secretary of State shall nevertheless remain in the undisturbed possession of such lands, and shall be deemed to have an indefeasible title thereto, but shall pay compensation for any such estate, right, interest, or charge, which but for this enactment might be recovered or enforced, and also pay to such party, or to any other party who may establish a right thereto, full [compensation for the mesne profits or interest which would have accrued, to such parties respectively in respect thereof during the interval between the entry of the said Secretary of State thereon and the time of the payment of such compensation by the said Secretary of State so far as such mesne profits or interest may be recoverable at law or in equity: Such compensation shall be agreed on or awarded and paid in like manner as the same would have been agreed on or awarded and paid in case the said Secretary of State had purchased or compensated, for such estate, right, interest, or charge before his entering upon such lands, or as near thereto as circumstances will admit. 37. In estimating the compensation to be given for any such estate, How value right, interest, or charge affecting any lands, or for any mesne profits ^ n 8 ^ be or interest, the jury or justices, as the case may be, shall assess the estimate( j. same according to the value of the lands at the time the same were entered upon by the said Secretary of State and without regard to any improvements or works made by him. 504 APPENDIX OF STATUTES BOOK II. Secretary of State to pay the costs of litigation as to such lands. 38. In addition to the said compensation, the said Secretary of State shall, when the right to any such estate, right, interest, or charge has been disputed by him and determined in favour of the party claiming the same, pay the full costs and expenses of any proceedings at law or in equity for the determination or recovery of the same to the parties with whom any such litigation in respect thereof has taken place, and such costs and expenses shall, in case the same be disputed, be settled by the proper officer of the Court in which such litigation took place. 5 & 6 Vict, c. 94, amended as herein stated. Amendment of the Defence Act, 1842. 46. And whereas the Defence Act, 1842, has been amended by divers Acts, and it is expedient further to amend the same: The following provisions of this Act in relation to lands to be taken under this Act shall be applicable where lands are surveyed and marked out under the Defence Act, 1842, as amended as afore- said; (that is to say,) The provisions concerning the mode of serving notices on owners, lessees, and occupiers, and of notices, writs, or other documents on the said Secretary of State: The provisions concerning the determination of the amount of compensation for lands otherwise than by agreement: The provisions concerning the payment and application of com- pensation, and the disposition of securities on which the same may be invested, and of the interest and dividends of such compensation and securities: And the provision concerning interests omitted to be purchased, which last-mentioned provision shall apply as well with respect to lands already taken by the said Secretary of State as with respect to lands to be hereafter taken by him under the said Defence Act as amended as aforesaid. THE EANGES ACT, 1891. 54 & 55 Vict. c. 54. 2. — (1) Where any land is acquired, either under the Defence Act, 1842, and the Acts amending the same, or for military purposes under any Act with which the Lands Clauses Acts are incorporated, the person or authority acquiring the land may require that the compensation to be paid for the land be settled by arbitration and not by reference to a jury, and thereupon the provisions of the Lands Clauses Acts with reference to arbitration shall, if not already applic- able, apply for the purpose of settling the compensation. THE EMERGENCY POWERS ACT, 1920. 505 THE EMERGENCY POWERS ACT, 1920. 10 & 11 Geo. 5, c. 55. 1.— (1) If at any time it appears to His Majesty that any action Issue of has been taken or is immediately threatened by any persons or body proclamations of persons of such a nature and on so extensive a scale as to be emer g en °y- calculated, by interfering with the supply and distribution of food, water, fuel, or light, or with the means of locomotion, to deprive the ■community, or any substantial portion of the community, of the essentials of life, His Majesty may, by proclamation (hereinafter referred to as a proclamation of emergency), declare that a state of emergency exists. No such proclamation shall be in force for more than one month, without prejudice to the issue of another proclamation at or before the end of that period. (2) Where a proclamation of emergency has been made, the occa- sion thereof shall forthwith be communicated to Parliament, and, if Parliament is then separated by such adjournment or prorogation as will not expire within five days, a proclamation shall be issued for the meeting of Parliament within five days, and Parliament shall accordingly meet and sit upon the day appointed by that procla- mation,' and shall continue to sit and act in like manner as if it had stood adjourned or prorogued to the same day. 2. — (1) Where a proclamation of emergency has been made, and Emergency so long as the proclamation is in force, it shall be lawful for His regulations. Majesty in Council, by Order, to make regulations for securing the essentials of life to the community, and those regulations may confer or impose on a Secretary of State or other Government department, or any other persons in His Majesty's service or acting on His Majesty's behalf, such powers and duties as His Majesty may deem necessary for the preservation of the peace, for securing and regu- lating the supply and distribution of food, water, fuel, light, and other necessities, for maintaining the means of transit or locomotion, and for any other purposes essential to the public safety and the life of the community, and may make such provisions incidental to the powers aforesaid as may appear to His Majesty to be required for making the exercise of those powers effective: Provided that nothing in this Act shall be construed to authorise the making of any regulations imposing any form of compulsory military service or industrial conscription: Provided also that no such regulation shall make it an offence for any person or persons to take part in a strike, or peacefully to per- suade any other person or persons to take part in a strike. (2) Any regulations so made shall be laid before Parliament as soon as may be after they are made, and shall not continue in force after the expiration of seven days from the time when they are so laid unless a resolution is passed by both Houses providing for the continuance thereof. (3) The regulations rnay provide for the trial, by courts ot sum- mary jurisdiction, of persons guilty of offences against the .regula- tions; so, however, that the maximum penalty which may be inflicted for any offence against any such regulations shall be imprisonment 506 APPENDIX OF STATUTES BOOK II. 56 & 57 Viot. o. 66. Short title and applica- tion. with or without hard labour for a term of three mouths, or a fine of one hundred pounds, or both such imprisonment and fine, together with the forfeiture of any goods or money in respect of which the offence has been committed: Provided that no such regulations shall alter any existing procedure in criminal cases, or confer any right to punish by fine or imprisonment without trial. (4) The regulations so made shall have effect as if enacted in this Act, but may be added to, altered, or revoked by resolution of both Houses of Parliament or by regulations made in like manner and subject to the like provisions as the original regulations; and regulations made under this section shall not be deemed to be statutory rules within the meaning of section one of the Eules Publication Act, 1893. (5) The expiry or revocation of any regulations so made shall not be deemed to have affected the previous operation thereof, or the validity of any action taken thereunder, or any penalty or punish- ment incurred in respect of any contravention or failure to comply therewith, or any proceeding or remedy in respect of any such punish- ment or penalty. 3. — (1) This Act may be cited as the Emergency Powers Act, 1920. (2) This Act shall not apply to Ireland. Section III. (e) . — Public Health and Metropolis Management. THE PUBLIC HEALTH ACT, 1875 (/). 38 & 39 Vict. c. 55. An Act for consolidating and amending the Acts relating to Public Health in England. [11th August, 1875. Power to purchase lands. Purchase of Land. 175. Any local authority may for the purposes and subject to the provisions of this act purchase or take on lease sell or exchange any lands (g), whether situated within or without their district; they may also buy up any water-mill dam or weir which interferes with the proper drainage of or the supply of water to their district. (e) See Book II., Chap. IV., ante, p. 338. A certain number of cases dealing with minor points under the Public Health Acta have been inserted as notes to the Acts. (/) Vide ante, p. 338. (g) Tunbridge Wells Corporation v. Baird, [1896] A. C. 434; St. Mary, Battersea, Vestry v. County of London and Brush Provincial E. L. Co., [1899] 1 Ch. 474; Westminster Corporatim v. L. # N. W. Rail. Co., [1905] A. C. 426. THE PUBLIC HEALTH ACT, 1875. 507 Aay lands acquired by a local authority in pursuance of any powers in this act contained and not required for the purpose for which they were required shall (unless the Local Government Board otherwise direct (h)) be sold at the best price that can be gotten for the same, and. the proceeds of such sale shall be applied towards discharge, by means of a sinking fund or otherwise, of any principal moneye which have been borrowed by such authority on the security of the fund or rate applicable by them for the general purposes of this act, or if no such principal moneys are outstanding shall be carried to the account of such fund or rate. 176. With respect to the purchase of lands by a local authority Regulations for the purposes of this act, the following regulations shall be as to purchase .observed; (that is to say,) of land. (1.) The Lands Clauses Consolidation Acts, 1845, 1860, and 1869, shall be incorporated with this act, except the provisions relating to access to the special act, and except section one hundred and twenty-seven of the Lands Clauses Consolidation Act, 1845: (2.) The local authority, before putting in force any of the powers of the said Lands Clauses Consolidation Acts with respect to the purchase and taking of lands otherwise than by agreement, shall Publish once at the least in each of three consecutive weeks in the month of November, in some local news- paper circulated in their district, an advertisement describing shortly the nature of the undertaking in respect of which the lands are proposed to be taken, naming a place where a plan of the proposed under- taking may be seen at all reasonable hours, and stating the quantity of lands that they require; and shall further Serve a notice (f) in the month of December on every owner or reputed owner, lessee or reputed lessee, and occupier of such lands, denning in each case the particular lands intended to be taken, and requiring an answer stating whether the person so served assents, dissents, or is neuter in respect of taking such lands: (3.) On compliance with the provisions of this section with respect to advertisements and notices, the local authority mav, if they think fit, present a petition under their seal to the Local Government Board. The petition shall state the lands intended to be taken, and the purposes for which they are required, and the names of the owners, lessees and occupiers of lands who have assented, dissented or are neuter in respect of the taking such lands, or who have returned no answer to the notice; it shall pray that the local authority may, with reference to such lands be allowed to put in force the powers of the said Lands Clauses Con- (h) Att.-Gen. v. JSamoell V. D. C, [1900] 1 Ch. 51. (0 Buraes v. Bristol Urban Sanitary Authority (1886), 2 Times L. B. 719: Birch v. St. MoryUbove Vestry (1869), 20 L. T. 697; of. Kiggms v. Lord Mayor of Dublin (1891), 28 L. R. Ir. 484. 508 APPENDIX OF STATUTES BOOK II. Power to let lands. Provision for lands belong- ing to the Duchy of Lancaster. solidation Acts with respect to the purchase and taking of lands otherwise than by agreement, and such prayer shall be supported by such evidence as the Local Government Board requires: (4.) On the receipt of such petition and on due proof of the proper advertisements having been published and notices served the Local Government Board shall take such petition into consideration, and may either dismiss the same, or direct a local inquiry as to the propriety of assenting to the prayer of such petition; but until such inquiry has been made no provisional order shall be made affecting any lands without the consent of the owners lessees and occupiers thereof: (5.) After the completion of such inquiry the Local Government Board may, by provisional order, empower the local authority to put in force, with reference to the land* referred to in such order, the powers of the said Lands Clauses Consolida- tion Acts with respect to the purchase and taking of lands otherwise than by agreement, or an)- of them, and either absolutely or with such conditions and modifications as the Board may think fit, and it shall be the duty of the local authority to serve a copy of any order so made in the manner and on the person in which and on whom notices in respect of such lands are required to be served: Provided that the notices by this section required to be given in the months of November and December may be given in the months of September and October or of October and November, but in either of such last-mentioned cases an inquiry preliminary to the provisional order to which such notices refer shall not be held until the expiration of one month from the last day of the second of the two months in which the notices are given; and any notices or orders by this section required to be served on a number of persons having any right in over or on lands in common may be served on any three or more of such persons on behalf of all such persons. 177. Any local authority may, with the consent of the Local Government Board, let for any term any lands which they may possess, as and when they can conveniently spare the same. 178. The chancellor and council of the Duchy of Lancaster for the time being may, if they think fit, (but subject and without prejudice to the rights of any lessee tenant or occupier,) from time to time contract with any local authority for the sale of, and may (subject as afore- said) absolutely sell and dispose of, for such sum as to the said chancellor and council may appear sufficient consideration, the whole or any part of any lands belonging to her Majesty her heirs or successors in right of the said duchy, or any right interest or easement in through over or on any such lands which for the purposes of this act such local authority from time to time deem it expedient to purchase; and on payment of the purchase money, as provided by the Duchy of Lan- caster Lands Act, 1855, the said chancellor and council may grant and assure to the said authority, under the seal of the said duchy, in the name of her Majesty her heirs or successors the subject of such contract or sale, and such money shall be dealt with as if such subject had been sold under the authority of the Duchy of Lancaster Lands Act, 1855. THE PUBLIC HEALTH ACT, 1875. 509 Arbitration. 179. In case of dispute as to the amount of any compensation to be Mode of made under the provisions of this act (except where the mode of reference to determining the same is specially provided for), and in ease of any arbltratlon - matter which by this act is authorised or directed to be settled by arbitration (k), then, unless both parties concur in the appointment of a single arbitrator, each party shall appoint an arbitrator to whom the matter shall be referred. 180. With respect to arbitrations under this act, the following Regulations regulations shall be observed; (that is to say,) as to arbitra- (1.) Every appointment of an arbitrator under this act when made on behalf of the local authority shall be under their common seal, and on behalf of any other party under his hand (I), or if such party be a corporation aggregate under their common seal: (2.) Every such appointment shall be delivered to the arbitrators, and shall be deemed a submission to arbitration by the parties making the same: (3.) After the making of any such appointment the same shall not be revoked without the consent of both parties, nor shall the death of either party operate as a revocation: (4.) If for the space of fourteen days after any matter by this act authorised or directed to be settled by arbitration has arisen, and notice in writing by one party who has duly appointed an arbitrator has been given to the other party, stating the matter to be referred, and accompanied by a copy ofsueh appointment, the party to whom notice is given fails to appoint an arbitrator, the arbitrator appointed by the party giving the notice shall be deemed to be appointed by and shall act on behalf of both parties: (5.) If before the determination of any matter so referred any arbitrator dies or refuses or becomes incapable to act, the party by whom such arbitrator was appointed may appoint in writing another person in his stead; and if such party fails so to do for the space of seven days after notice in writing from the other party in that behalf, the remaining arbitrator may proceed ex parte; and every arbitrator so appointed shall have the same powers and authorities as were vested in the arbitrator in whose stead the appointment is made: . , , t (6.) If a single arbitrator dies or becomes incapable to act before the making of his award, or fails to make his award withm twenty-one days after his appointment, or within such extended time, if any, as may have been duly appointed by him for that purpose, the matters referred to him l shall be again referred to arbitration under the provisions of this act, as if no former reference had been made: (*) Ex parte Rayner (1878), 3 Q. B. D. 446; Re Chetterfielrl Corporation and Brampton Local Board, (1886), 50 J. P. 824. (0 In re Gfifford and Bury Town Council (1888), 20 Q. B. D. 368. 510 APPENDIX OF STATUTES — BOOK II. (7.) Where there is more than one arbitrator, the arbitrators shall, before they enter on the reference, appoint by writing under their hands an umpire, and if the person appointed to be umpire dies or becomes incapable to act, the arbitrators shall forthwith appoint another person in his stead; and if the arbitrators neglect or refuse to appoint an umpire for seven days after being requested so to do by any party to the arbitration, the Local Government Board shall, on the appli- cation of any such party, appoint an umpire: (8.) If the arbitrators fail to make their award within twenty-one days after the day on which the last of them was appointed, or within such extended time (if any) as may have been duly appointed by them for that purpose, the matters referred shall be determined by the umpire: (9.) The time (m) for making an award by arbitrators under this act shall not in any case be extended beyond the period of two months from the date of the submission, and the time (ra) for making an award by an umpire under this act shall not in any case be extended beyond the period of two months from the date of the reference of the matters to him: (10.) Before any arbitrator or umpire enters on a reference under this act he shall make and subscribe the following declara- tion before a justice of the peace; (that is to say,) "I, A.B., do solemnly and sincerely declare that I will faithfully and honestly, and to the best of my skill and ability, hear and determine the matters referred to me under the Public Health Act, 1875. A.B." (11.) Such declaration shall be annexed to the award when made; and any arbitrator or umpire who wilfully acts contrary to such declaration shall be guilty of a misdemeanour: (12.) Any arbitrator arbitrators or umpire appointed by virtue of this act may require the production of such documents in the possession or power of either party as they or he may think necessary for determining the matters referred, and may examine the parties or their witnesses on oath: (13.) The costs of and consequent upon the reference shall be in the discretion of the arbitrator or arbitrators, or (in case the matters referred are determined by an umpire) of the umpire (o): (14.) Any submission to arbitration under the provisions of this act may be made a rule of any of the superior courts, on the application of any party thereto: (15.) The award of arbitrators or of an umpire under this act shall be final and binding on all parties to the reference (p). (m) Knowles $ Sen, Ltd. v. Bolton Corporation, [1900] 2 Q. B. 253; approv- ing Warburton v. Raslingden L. B. (1879), 48 L.. J. Q. B. 451; and overruling In re Mackenzie and Ascot G-as Co. (1886), 17 Q. B. D. 114. (») In re Yeadon Local Board and Teadon Waterworks Co. (1888), 41 Ch. D. 52. (o) Peake v. Finohley L. B. (1887), 57 L. T. 882; In re Chesterfield, Cor- poration and Brampton L. B. (1886), 50 J. P. 824. (p) Final as to amount only, not as to liability: Brierley Hill L. B. v. \PearsaU (1884), 9 App. Cas. 595. THE PUBLIC HEALTH ACT, 1875. oil 181. All questions referable to arbitration under this act may, Claims under when the amount in dispute is leas than twenty pounds, be determined twenty at the option of either party before a court of summary -jurisdiction P ounds ma 7 but the court may if it thinks fit, require that any work in respect of t—^f which the claim of the local authority is made and the particulars of summary the claim be reported on to them by any competent surveyor, not jurisdiction, being- the surveyor of the local authority; and the court may deter- mine the amount of costs incurred in that behalf, and by whom such costs or any part of them shall be paid. ***** 305. Whenever it becomes necessary for a local authority or any of Entry on their officers to enter examine or lay open any lands or premises for lands f ° r P u r- the purpose of making plans surveying measuring taking levels poses of act making keeping in repair or examining works, ascertaining the course of sewers or drains, or ascertaining or fixing boundaries, and the owner or occupier of such lands or premises refuses to permit the same to be entered upon examined or laid open for the purposes aforesaid or any of them, the local authority may, after written notice to such owner or occupier, apply to a court of summary jurisdiction for an order authorising the local authority to enter examine and lay open the said lands and premises for the purposes aforesaid or any of them. If no sufficient cause is shown against the application the court may make an order accordingly, and on such order being made the local authority or any of their officers may, at all reasonable times between the hours of nine in the forenoon and six in the afternoon, enter examine or lay open the lands or premises mentioned in such order, for such of the said purposes as are therein specified, without being subject to any action or molestation for so doing: provided that, except in case of emergency, no entry shall be made or works com- menced under this section unless at least twenty-four hours' notice of the intended entry, and of the object thereof, be given to the occupier of the premises intended to be entered. ***** 308(g). Where any person sustains any damage (r) by reason of Compensa- the exercise of any of the powers' of this act, in relation to any ^LT" matter as to which he is not himself in default, full compensation (s) looa i au tho- shall be made to such person by the local authority exercising such rity. (q) Vide ante, p. 340. (r) Ball v. Mayor, Sfc. of Bristol (1867), L. E. 2 C. P. 322; Sellors v. Matlock Bath L. B. (1885), 14 Q. B. D. 928; Durrani v. Branksome U. D. C, [1897] 2 Ch. 291; In re Better and Birkenhead Corporation, [1893] 2 Q. B. 77; Walsharv v. Brighouse Corporation, [1899] 2 Q. B. 286; Burnett v. Eccles Corporation, [1900] 2 Q. B. 423. (s) Cowper Essex v. Acton L. B. (1889), 14 App. Cas. 153; Uttley v. Todmorden L. B. (1874), 44 L. J. O. P. 19; Boderiok v. Astern L. B. (1877), 5 Oh. D. 328; Swanston v. Twickenham L. B. (1879), 11 Ch. D. 838; Sill v. Wallasey L. B., [1894] 1 Ch. 133; Davis v. Witney U. D. C. (1899), 63 J. P- 279; M. v. Wallasey L. B. (1869), L. K. 4 Q. B. 351; Nutter v. Accrmgton L. B. (1879), 4 Q. B. D. 375; Burgess v. Northwich L. B. (1880), 6 Q. B. D. 264. 512 APPENDIX OF STATUTES BOOK II. As to con- struction of incorporated acts. powers; and any dispute as to the fact of damage or amount of com- pensation (t) shall be settled by arbitration in manner provided by this act, or if the compensation claimed does not exceed the sum of twenty pounds, the same may at the option of either party be ascertained by and recovered before a court of summary jurisdiction. 316. In the construction of the provisions of any act incorporated with this act the term "the special act" includes this act, and, in the case of the Lands Clauses Consolidation Acts, 1845, 1860, and 1869, any order confirmed by parliament and authorising the purchase of lands otherwise than by agreement under this act; the term "the limits of the special act" means the limits of the district; and the urban or rural authority shall be deemed to be " the promoters of the undertaking," "the commissioners," or "the undertakers," as the case may be. All penalties incurred under the provisions of any act incorporated with this act shall be reoovered and applied in the same way as penalties incurred under this act. Saving for 332. Nothing in this act shall be construed to authorise any local water rights authority to injuriously affect any reservoir canal river or stream or generally. ^g f ee< j ers thereof or the supply quality or fall of water contained in any reservoir canal river stream or in the feeders thereof, in cases where any body of persons or person would, if this act had not passed, have been entitled by law to prevent or be relieved against the injuriously affecting such reservoir canal river stream feeders or such supply quality or fall of water, unless the local authority first obtain the consent in writing of the body of persons or person so entitled as aforesaid (u) . Short title and construc- tion. THE PUBLIC HEALTH ACT, 1875 (SUPPORT OF SEWERS), AMENDMENT ACT, 1883. 46 & 47 Vict. c. 37. An Ac!: to amend the Public Health Act, 1875, and to make provision with respect to the support of public sewers and seivage works in mining districts. [25th August, 1883. Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows: 1. This act may be cited as the Public Health Act, 1875 (Support of Sewers), Amendment Act, 1883, and shall be construed as one with (0 Brierley Eill L. B. v. Pearsall (1884), 9 App. Cas. 595; Bradford L. B. v. Eopwood (1858), 6 W. R. 818. («) Remedy is action, not compensation: R. v. Darlington L. B. (1865), 35 L. J. Q. B. 45; Roberts v. Gwyrfai B. D. C, [1899] 1 Oh. 583. THE PUBLIC HEALTH ACT, 1875, AMENDMENT ACT, 1883. 513 the Public Health Act, 1875 (in this act called the principal act), as amended by the acts for the time being in force amending the same. 2. In this act, — Interpreta- The expression "sanitary work'' means any existing or future tl0n ' building or work constructed by or vested in or under the control of a local authority under the powers or for the purposes of so much of the principal act or of any general or local act or provisional order as relates to the construction or maintenance of any works of sewerage, drainage, sewage disposal, lighting, or water supply, and includes any fixtures, pipes, fittings, or apparatus connected with any such work, and belonging to or used by the local authority: The expression " support " includes vertical and lateral support: The expression "sanitary act" means the act or provisional order under the authority of which a sanitary work has been or is con- structed or is maintained, whether such act or order was passed and confirmed before or after the commencement of this act: The expression " person " includes a body corporate. 3. The provisions of the Waterworks Clauses Act, 1847, sections Application eighteen to twenty-seven (both inclusive;, with respect to mines, shall, °| ^° V1810D8 in relation to any sanitary work of a local authority, be deemed to be Waterwor t s incorporated with this act and with the sanitary act under the autho- clauses Act, rity of which such sanitary work has been or is constructed or is main- 1847, tamed, with the following modifications (that is to say):— _ ^n, with (1.) For the purposes of such incorporation the said provisions of refipe ' ct to the Waterworks Clauses Act, 1847, shall be construed as if mines, to the expression " the undertakers " referred to the local autho- sanitary rity, and as if the expression "the special act" referred to ™?™ ovel such sanitary act and this act, and as if expressions relating to pipes, conduits, or other works referred to the sanitary (2.) The local authority, by or with any notice under the Water- works Clauses Act, 1847, of willingness to treat for or make compensation, or of intention to prevent or interfere with the working of any mines, may specify and define the nature and extent of support (x) which they require to be left, and any such notice may extend to minerals beyond the distance ot forty yards mentioned in the said act or to such less distance as the" local authority think fit: . (3.) As regards sanitary works existing at the passing of this act ^ > the local authority shall cause the survey and map referred to in section nineteen of the Waterworks Clauses Act 184 to be made within twelve months after the passing of this (4.) The amount of any compensation in respect of support for a sanitarv work payable by a local authority under the provi- sos of the Waterworks Clauses Act, 1847, as moorpojated with this act or the sanitary act. .together with the costs ot aad incident to settling the same by arbitration or ofcenn^ shall be paid, charged, and borne in the same manner, and subject to the same powers and provisions as to borrowing (*) In re Corporation of Dudley (1881), 8 Q. B. D. SB. oo C. 514 APPENDIX OF STATUTES — BOOK II. Limitation of right to support for sanitary ■works over mines. Savings. and otherwise, as is provided with respect to the expenses of the construction or maintenance of the sanitary work by the sanitary act: (5.) A local authority may from time to time make agreements with the owners, lessees, or occupiers of or the persons working any mine for compromising any claim made or to he made in respect of anything done or omitted before the passing of this act in relation to the matters in this act mentioned or otherwise for carrying into effect the purposes of this act in relation to the past or future working of mines. The provisions of this act shall apply to every sanitary work as defined in this act, whether the land on, in, over, or under which such work is situate is or is not vested in or occupied by the local authority, and is or is not wholly or partially dedicated to the public as a street, highway, or public place. 4. Except as in this act provided, a local authority shall not by reason only of anything contained in the sanitary act under the authority of which a sanitary work has been or is constructed or maintained be deemed to have acquired or to be entitled to or to be bound to acquire or make compensation for any right of support for such sanitary work as against any person owning or working or being lessee or occupier of or entitled to work or otherwise interested in any mine; and nothing in such sanitary act shall be deemed to have subjected or to subject any such person to any liability to the local authority in respect of damage to a sanitary work caused in or con- sequent upon the working of any mines in a reasonable and proper manner. 5. Nothing in this act shall be construed to repeal, invalidate, or affect any express enactment in a sanitary or other act with respect to rights of support for sanitary works, or any agreement made before the passing of this act with respect to such rights, or to affect any action, arbitration, or other legal proceedings concluded before or pending at the passing of this act. Where any right of support has been acquired before the passing of this act by a local authority in respect of any sanitary work, and no compensation is at the passing of this act recoverable in respect of such right, nothing in this act shall be construed to apply to the work in respect of which such right has been acquired, or operate to deprive the local authority of such right or to entitle any person to any compensation in respect thereof, to which such person would not have been entitled if this act had not been passed. THE LOCAL GOVERNMENT ACTS, 1888 AND 1894. 515 THE LOCAL GOVERNMENT ACT, 1888. 51 & 52 Vict. c. 41. An Act to amend the Laics relating to Local Government in England and Wales, and for other purposes connected therewith. [13th August, 1888. ***** 65.— (1.) A county council may, from time to time, for the purpose of any of their powers and duties, including those which are to be executed through the standing joint committee, acquire, purchase, or take on lease, or exchange any lands or any easements or rights over ■or in land, whether situate within or without the county, and may acquire, hire, erect, and furnish such halls, buildings, and offices as they may from time to time require, whether within or without their •county. (2.) For the purpose of the purchase, taking on lease, or exchange of such lands, sections one hundred and seventy-six, one hundred and seventy-seven, and one hundred and seventy-eight of the Public Health Act, 1875, shall apply as if they were herein re-enacted, and in terms made applicable to the county council. (3.) Where the county council, with the consent of the Local 'Government Board, sell any land, the proceeds of such sale shall be applied in such manner as the said Board sanction towards the dis- charge of any loan of the council, or otherwise, for any purpose for Tvhich capital may be applied by the council. THE LOCAL GOVERNMENT ACT, 1894. 56 & 57 Vict. c. 73. An Act to make further provision for Local Government in England and Wales. [5th March, 1894. ***** 9.-(l.) For the purpose of the acquisition of land by a parish ^g^ of ■council the Lands Clauses Acts shall be incorporated with this act, a ^ lsl except the provisions of those acts with respect to the purchase and taking of land otherwise than by agreement, and section one hundred and seventy-eight of the Public Health Act, 1875, shall apply as if 38 & 39 Vict, the parish council were referred to therein. (2.) If a parish council are unable to acquire by agreement and on reasonable terms suitable land for any purpose for which they are ■authorised to acquire it, they may represent the case to the county council, and the county council shall inquire into the representation. . Q & gl yict (3.) If on any such representation, or on any proceeding under the . 48 . Allotments Acts, 1887 and 1890, a county council are satisfied that 53 & 54 Vict. 33 (2) " 65 ' 516 APPENDIX OF STATUTES — BOOK II, suitable land for the said purpose of the parish council or for the purpose of allotments (as the case may be^, cannot be acquired on reasonable terms by voluntary agreement, and that the circumstances are such as to justify the county council in proceeding under this section, they shall cause such public inquiry to be made in the parish, and such notice to be given both in the parish and to the owners, lessees, and occupiers of the land proposed to be taken as may be prescribed, and all persons interested shall be permitted to attend at the inquiry, and to support or oppose the taking of the land. (4.) After the completion of the inquiry, and considering all objections made by any persons interested, the county council may make an order for putting in force, as respects the said land or any part thereof, the provisions of the Lands Clauses Acts with respect to the purchase and taking of land otherwise than by agreement. (5.) If the county council refuse to make any such order, the parish council, or, if the proceeding is taken on the petition of the district council, then the district council, may petition the Local Government Board, and that board after local inquiry may, if they think proper, make the order, and this section shall apply as if the order had been made by the county council. Any order made under this subsection overruling the decision of the county council shall be laid before parliament by the Local Government Board. (6.) A copy of any order made under this section shall be served in the prescribed manner, together with a statement that the order will become final and have the effect of an act of parliament, unless within the prescribed period a memorial by some person interested is pre- sented to the Local Government Board praying that the order shall not become law without further inquiry. (7.) The order shall be deposited with the Local Government Board, who shall inquire whether the provisions of this section and the prescribed regulations have been in all respects complied with; and if the Board are satisfied that this has been done, then, after the prescribed period — (a) If no memorial has been presented, or if every such memorial has been withdrawn, the board shall, without further inquiry, confirm the order: (b) If a memorial has been presented, the Local Government Board shall proceed to hold a local inquiry, and shall, after such inquiry, either confirm, with or without amendment, or disallow the order: (o) Upon any such confirmation the order, and if amended as so amended, shall become final and have the effect of an aot of parliament, and the confirmation by the Local Government Board shall be conclusive evidence that the requirements of this act have been complied with, and that the order has been duly made, and is within the powers of this act. (8.) Sections two hundred and ninety-three to two hundred and ninety-six, and subsections (1) and (2) of section two hundred and ninety-seven of the Public Health Act, 1875, shall apply to a local inquiry held by the Local Government Board for the purposes of this THE LOCAL GOVERNMENT ACT, 1894. 517 section, as if those sections and subsections were herein re-enacted and in terms made applicable to such inquiry. (9.) The order shall be carried into effect, when made on the petition of a district council, by that council, and in any other case by the county council. (10.) Any order made under this section for the purpose of the purchase of land otherwise than by agreement shall incorporate jthe Lands Clauses Acts and sections seventy-seven to eighty-five of the 8 & 9 Vict. Kailways Clauses Consolidation Act, 1845, with the necessary adapta- e - 20 - tions, but any question of disputed compensation shall be dealt with in the manner provided by section three of the Allotments Act, 1887 and provisoes (a), (b), and (c) of subsection (4) of that section are incorporated with this section and shall apply accordingly; provided that in determining the amount of disputed compensation the arbi- trator shall not make any additional allowance in respect of the purchase being compulsory. (11.) At any inquiry or arbitration held under this section the person or persons holding the inquiry or arbitration shall hear any authorities or parties interested by themselves or their agents, and shall hear witnesses, but shall not, except in such cases as may be prescribed, hear counsel or expert witnesses. (12.) The person or persons holding a public inquiry for the pur- poses of this section on behalf of a county council shall have the same powers as an inspector or inspectors of the Local Government Board when holding a local inquiry; and section two hundred and ninety-four of the Public Health Act, 1875, shall apply to the costs of inquiries held by the county council for the purpose of this section as if the county council were substituted for the Local Government Board. (13.) Subsection (2) of section two, if the land is taken for allot- ments, and, whether it is or is not so taken, subsections (5), (6), (7), and (8) of section three of the Allotments Act, 1887, and section 50 & 51 Vict, eleven of that act, and section three of the Allotments Act, 1890, are °- 48 - incorporated with this section, and shall, with the prescribed adapta- 53 & 5 * vict - tions, apply accordingly. °* (14.) Where the land is acquired otherwise than for allotments, it shall be assured to the parish council; and any land purchased by a county council for allotments under the Allotments Acts, 1887 and 1890, and this act, or any of them, shall be assured to the parish council, and in that case sections five to eight of the Allotments Act, 1887, shall apply as if the parish council were the sanitary authority. (15.) Nothing in this section shall authorise the parish council to acquire otherwise than by agreement any land for the purpose of any supply of water, or of any right of way. (16.) In this section the expression " allotments " includes common pasture where authorised to be acquired under the Allotments Act, 1887. (17.) Where, under the Allotments Act, 1890, the Allotments Act, 1887, applies to the- purchase of land by the county council, that act shall apply as amended by this section, and the parish council shall 518 APPENDIX OF STATUTES — BOOK II. have the like power of petitioning 1 the county council as is given to six parliamentary electors by section two of the Allotments Act, 1890. (18.) This section shall apply to a county borough with the neces- sary modifications, and in particular with the modification that the order shall be both made and confirmed by the Local Government Board and shall be carried into effect by the council of the county borough. (19.) The expenses of a county council incurred under this section shall be defrayed in like manner as in the case of a local inquiry by a county council under this act. THE PUBLIC HEALTH ACTS AMENDMENT ACT, 1907. 7 Edw. 7, c. 53. Compensa- tion, how determined. 2. — (1.) This Act shall be construed as one with the Public Health Acts. 10. Where any compensation, costs, damages or expenses is: or are by this Act directed to be paid, and the method for determining the amount thereof is not otherwise provided for, such amount shall in case of dispute be ascertained in the manner provided by the Public Health Acts. Part II. Power to vary position or direction and to fix beginning and end of new streets. 17. — (1.) The local authority may, on the deposit of a plan and sections of a new street in pursuance of a byelaw in force in the district, by order vary the intended position, direction or termination, or level of the new street so far as is necessary for the purpose of securing more direct, easier, or more convenient means of communica- tion with any other street or intended street or for the purpose of securing an adequate opening at either end of the new street, or of securing compliance with any enactment or byelaw in force in the district for the regulation of 'streets and buildings. The local authority may also by their order fix the points at which the new street shall be deemed to begin or end, and the limits of the new street as determined by the points so fixed shall have effect for the purposes of the Public Health Acts, 1875 to 1907, and of any byelaws made under those Acts and in force within the district. (2.) The powers of the local authority under this section shall not be exerciseable in any case in which it is shown, to their satisfaction, that compliance with their order will entail the purchase of additional lands by the owner of the lands on which the new street is intended to be laid out, or the execution of works elsewhere than on those lands. THE PUBLIC HEALTH ACTS AMENDMENT ACT, 1907. 519 (3.) Where the local authority make an order under this section a person shall not lay out or construct a new street otherwise than in compliance with the order. If any person acts in contravention of this provision, he shall be liable to a penalty not exceeding- five pounds, and to a daily penalty not exceeding forty shillings. (4.) The local authority shall pay compensation to any person injuriously affected by the exercise by the local authority of their powers under this section. ***** 22. The local authority may require the corner of any building Buildings at intended to be erected at the corner of two streets to be rounded off corner of or splayed off to the height of the first storey or to the full height streets - of the building, and to such extent otherwise as they may determine and for any loss which may be sustained through the exercise of the powers by this section conferred upon the local authority they shall pay compensation. ***** 28. The local authority may remove, appropriate, use, and dispose Removal of of all old materials existing in any street at the time of the execution materials in by the local authority of any works in such street unless the owner street8 - of buildings and lands in such street within forty-eight hours after notice so to do served on them by the surveyor remove such materials or their respective proportions thereof, and the local authority shall allow such sum as may be the reasonable value thereof to such owners for any materials which have been used or removed by the local authority, and in case of dispute the amount to be allowed shall be settled in the manner provided by the Public Health Act, 1875, with respect to compensation for damage sustained by reason of the exer- cise of any powers of that Act. ***** 33. Nothing in this Part or in any byelaws to be made under any Ex . e]npt i on enactment extended by this Part shall apply to a building (other than f buildings a dwelling-house ) belonging to a railway company, or to any company of railway or other public body authorised to construct, maintain, or improve a °n™otliers. harbour, pier or dock, or to the owners of any canal or inland navi- gation, and used by the company, public body, or owners as a part of or in connection with their railway, harbour, pier, dock, canal or inland navigation. ***** 95. The powers of a local authority under sections one hundred Extension and seventy-five and one hundred and seventy-six of the Public and amend- Health Act, 1875, shall extend to highway purposes, and notwith- ™ e 1 n * 6 t ^ nd standing anything in section one hundred and seventy-five of the s ' 176 oi Public Health Act, 1875, or any general provision in any local Act, 38 & 39;v T ict. any lands acquired by a local authority and not required for the «• 55. purposes for which those lands have been acquired may be appro- priated for any purpose approved by the Local Government Board, subject, nevertheless, to any special covenant or condition affecting the use of the lands attached thereto at the time of the purchase by the local authority, or to any special provision affecting the use oi the lands contained in any local Act: Provided that the local authority 520 APPENDIX OF STATUTES BOOK II. shall not, on any lands so appropriated, create or permit any nuisance; and that the local authority shall not, on any such lands, sink any well for the public supply »f water, or construct any cemetery, burial ground, destructor, station for generating electricity, sewage farm, or hospital for infectious disease, unless after local inquiry and consideration of any objections made by persons affected, the Local G-overnment Board, subject to such conditions as they think fit, authorise the work or construction. Nothing in this section shall affect any rights acquired before the commencement of this section under any judgment or order of a court of competent jurisdiction, or under any agreement in writing, but if a dispute, one of the parties to which is a local authority, arises under such an agreement as to any such right, the dispute shall, if cither party so require, be settled by the Local Government Board as if it were a doubt or difference within the meaning of section three hundred and four of the Public Health Act, 1875, and the Local Government Board may for that purpose deal by Order with any matters which may be dealt with by an Order or Provisional Order under the said section. THE METROPOLITAN PAVING ACT, 1817 (y). 57 Geo. 3, c. xxix. An Act for better paving, improving, and regulating the Streets of the Metropolis, and removing and preventing Nuisances and Obstructions therein. [16th June, 1817. Streets may be widened and improved with consent of owners. 80. And be it further enacted, that for the improvement of the streets and public places in the parochial or other districts within the jurisdiction of this act, and for the public advantage, it shall and may be lawful to and for the commissioners (z) or trustees, or other persons having the control of the pavements of any parochial or other district, from time to time, and at all times hereafter, to alter, widen, turn, or extend any of the streets or other public places within any such parochial or other district (except turnpike roads), and to lengthen and continue or open the same from the sides or ends of any streets or public places within any parochial or other district, into any other street or public place within such or any other parochial or other district, and to raise, level, lower, drain, ballast, gravel, or pave such new part or parts of any such streets or public places so altered, widened, extended, opened, or lengthened as aforesaid; and that if (y) Commonly known as Michael Angelo Taylor's Act. Vide ante, p. 350. As to how far impliedly repealed by subsequent Metropolitan Acts, see Fortescue v. Vestry of St. Matthew's, Bethnal Green, [1891] 2 Q. B. 170; Summers v. Holbor.i Board of Works, [1893] 1 Q. B. 612; JVyatt v. Gems, [1893] 2 Q. B. 225; Keep v. Vestry of St. Mary's, Neioinaton, [1894] 2 Q. B. 524. («) The powers under this Act in the City of London, formerly vested in the Commissioners of Sewers, have been transferred to the Corporation (acting through the Common Council) by the City of London Sewers Act, 1897. THE METROPOLITAN PAVING ACT, 1817. 5*1 any houses, walls, buildings, lands, tenements, and hereditaments, or any part thereof, shall be adjudged by the said commissioners' or trustees, or other persons as aforesaid, to project into, obstruct, or prevent them from so altering, turning, widening, extending, length- ening, continuing, or opening the said streets or public places within the said parochial or other district, and that the possession, occupation, and purchase of such houses, walls, buildings, lands, tenements, or hereditaments will be necessary for that purpose, -it shall and may be lawful to and for the said commissioners or trustees, or other persons as aforesaid, and they shall have full power and authority to treat, contract, and agree, or to employ any person, or persons to treat, contract, and agree with the several owner or owners, occupier or occupiers of all such houses, walls, buildings, lands, and heredita- ments, of whatsoever nature, tenure, kind, or quality, for the purposes aforesaid, and to pay for the same such sum and sums of money as. shall be agreed upon by the said commissioners or trustees, or other persons as aforesaid, and the owner or owners, occupier or occupiers thereof, out of the money to arise and be raised and to be received by them, either by virtue of any local act or acts of parliament relat- ing to such parochial or other districts, or of this act, and to pull down, use, sell, or dispose of such houses, walls, and buildings, and the materials thereof, and lay the sites thereof, and also such other lands, tenements, or hereditaments, or so much thereof as they the said commissioners or trustees, or other persons as aforesaid, shall think proper, into the said streets or other public places; and all such new parts of such streets or public places, and the owners and occupiers of houses and buildings, messuages, and other hereditaments therein and adjoining thereto, shall be subject and liable to all the rates, assessments, powers, provisions, orders, clauses, and things to be made by virtue of or contained in any local act or acts of parliament relating to such parochial or other district, or by virtue of or con- tained in this act, in the same manner as the present streets and public places included in any such local act or acts, or within the jurisdiction of this act, and the owners and occupiers of houses or buildings and messuages or other hereditaments therein and adjoin- ing thereto. 81. And be it further enacted, that it shall and may be lawful for Corporate or all bodies politic, corporate, or collegiate, corporations aggregate or ^di^and sole, tenants for life or in tail, or others having a partial or qualified incapacitated interest or estate in any houses, lands, tenements, or hereditaments, persons husbands, feme? covert, guardians, trustees, and feoffees in trust for ™* bled to charities or other purposes, committees, executors, or administrators, and all other persons whomsoever, not only on behalf of themselves, and their respective heirs, executors, administrators, and successors, hut also on behalf of all persons entitled in reversion or remainder expectant on an estate tail, and on behalf of all persons entitled in reversion or remainder expectant on an estate for life, or other less estate, or by way of executory devise, in case such persons shall tie incapacitated or decline to treat, and on behalf of their respective wives and cestuique trusts, whether infants, issue unborn, lunatics, 522 A I PENDIX OF STATUTES BOOK II. When parties refuse or are unable to treat, &c, a precept to he issued for impannelling a jury, who are to be drawn as 3 Geo. 2, c. 2c directs. idiots, femes covert, or others, and for all and every other person or persons whomsoever who are and shall be seised, possessed of, or interested in any such houses, lands, tenements, or hereditaments, to treat and agree with the said commissioners or trustees, or other persons having the control of the pavements in the streets or public places in any parochial or other district within the jurisdiction of this act as aforesaid, for the absolute sale thereof, and to sell and convey to the said commissioners or trustees, or other persons as aforesaid by feoffment, lease and release, or bargain and -sale, by deed indented and enrolled in any of his Majesty's Courts of Eecord at Westminster, for such valuable consideration as shall be bond fide agreed upon for such houses, lands, tenements, or hereditaments as shall be adjudged necessary and convenient for the purposes aforesaid; and that all contracts, agreements, sales, or conveyances which shall be bond fide made for the purpose aforesaid shall be good and effectual in the law to all intents and purposes; anything to the contrary thereof in anywise notwithstanding. 82. And be it further enacted, that if any body or bodies politic, corporate, or collegiate, or any other person or persons eeised or possessed of or interested in any such houses, buildings, lands, tene- ments, or hereditaments as aforesaid, shall refuse to treat or agree, or shall not agree, or by reason of absence or disability cannot agree with the said commissioners or trustees or other persons having the control of the pavements of any streets or public places in any parochial or other district within the jurisdiction of this act, or with any person or persons authorised by them, for the sale and conveyance of their respective estates and interest therein, or cannot be found or known, or shall not produce and evince a clear title to the premises they are in possession of, or to the interest they claim therein, to the satisfaction of the said commissioners or trustees or other persons as aforesaid, or of the person or persons so authorised by them, then and in every such case it shall be lawful for the said commissioners or trustees or other persons as aforesaid, and they are hereby required to issue a warrant or warrants, precept or precepts, directed to the sheriff or sheriffs, or bailiff or other jwoper officer of the city, borough, or county wherein the premises shall respectively lie or be, who is hereby authorised, directed, and required accordingly to impannel, summon, and return a competent number of substantial and dis- interested persons qualified to serve on juries, not less than forty-eight nor more than seventy-two; and out of such persons so to be impannelled, summoned, and returned, a jury of twelve men shall be drawn by some indifferent person to be by the said commissioners or trustees or other persons as aforesaid appointed, in such manner as juries for the trial of issues joined in his Majesty's courts at West- minster are by an act made in the third year of the reign of his late Majesty King- George the Second, intituled " An Act for the better Eegulation of Juries," are directed to be drawn; which persons so to be impannelled, summoned, and returned as aforesaid are hereby required to come and appear before the justices of the peace for the city, borough, or county wherein the premises shall lie or be, at some THE METROPOLITAN PAVING ACT, 1817. 523 court of general or quarter sessions of the peace to be holden in and for the same city, borough, or county, or at some adjournment thereof, as in such warrant or warrants, precept or precepts, shall be directed and appointed, and to attend such court of general or quarter sessions from day to day until discharged by the said court; and all parties Jurymen may concerned shall and may have their lawful challenges against any of be challenged, the said jurymen, but shall not be at liberty to challenge the array; and the said justices are hereby authorised and empowered, by precept or precepts, from time to time as occasion shall require, to call before them all and every person and persons whomsoever who shall be thought proper and necessary to be examined as a witness or witnesses on his, her, or their oath or oaths, touching or concerning the premises; and the said justices, if they think fit, shall and may, Justices, on on the application of either party, likewise authorise the said jury the appli- to view the place or places or premises in question, in such manner "^J? 0110 * as they shall direct; and the said justices shall have power to adjourn may direct a such court from day to day as occasion shall require, and to command view of the such jury, witnesses, and parties to attend until all such affairs for P renuses - which they were summoned shall be concluded; and the said jury Jury to assess upon their oaths (which oaths, as also the oaths of such person or the value on persons as shall be called upon to give evidence, the said justices oa ' are hereby empowered and required to administer) shall inquire of the value of such houses, buildings, lands, tenements, or heredita- ments, and of the proportionable value of the respective estates and interest of all and every person and persons seised or possessed thereof, or interested therein, or of or in any part or parts thereof, and shall assess and award the sum or sums of money to be paid to such person or persons, party or parties respectively, for the purchase of such houses, buildings, lands, tenements, or hereditaments, and of such respective estates and interest therein, and also for goodwill, improvements, or any injury or damage whatsoever that may affect any such person or persons, party or parties, either as leaseholders or tenants at will, provided that such goodwill shall be estimated by what, in the opinion of such jury, the same would have been worth in case the improvements intended by this act had not been in con- templation; and the said justices shall and may give judgment for such sum or sums of money so to he assessed; which verdict or Verdict of the verdicts, and the judgment and judgments, determination and deter- i ur y> *°-> to minations thereupon (notice in writing being given to the person or vious n o t ; ce persons interested or claiming so to be, at least fourteen days before being given to the time of the meeting of the said justices as aforesaid and jury, by *he parties leaving such notice at the dwelling house of such person and persons, or at his, her, or their last usual place or places of abode, or with some tenant or occupier of the premises respectively intended to be valued), shall be binding and conclusive to all intents and purposes whatsoever against all bodies politic, corporate, and collegiate, and all and every person and persons claiming any estate, right, title, trust, use, or interest in, to, or out of such houses, buildings, lands, tenements, or hereditaments and premises in possession, reversion, remainder, or expectancy, as well infants and issue unborn, lunatics, idiots, and femes covert, and persons under any other legal incapacity 524 APPENDIX OF STATUTES BOOK II. If the sum assessed shall not exceed the sum offered, the costs of such assess- ment, &c. to be paid by such body- politic, &c. and the com- missioners, &c. may retain the same out of the sum so assessed. Justices em- powered to impose fines for non- attendance. or disability, as all other oestuique trasts, their, his, and her heirs, successors, executors, and administrators, and against all other persons whomsoever; and the said verdicts, judgments, and determinations, and all other proceedings of the said justices and juries, so to be made, given, and pronounced as aforesaid, shall be fairly written on parchment, and signed by the clerk of the peace for the time being of the city, borough, or county wherein the premises shall respectively lie or be; and in case it shall so happen that the -sum or sums .of money so to be assessed and awarded in consequence of such refusal to treat and agree as aforesaid, as the value of such houses, buildings, lauds, tenements, or hereditaments, or as such proportional value as aforesaid, and as the recompense and satisfaction to be made for the injury or damage sustained as before mentioned respectively, shall not exceed the sum or sums of monej' which the said commissioners: or trustees, or other persons as aforesaid, or any person or persons authorized by them, shall have previously offered to pay as and for such value, recompense, and satisfaction, then and in every such case all the reasonable costs, charges, and expenses of causing and pro- curing such value and recompense to be assessed and awarded as. aforesaid, and also assessing and awarding the same, shall Le borne and paid by the body or bodies politic, corporate, or collegiate, or other person or persons so seised or possessed of or interested in such houses, buildings, lands, tenements, or hereditaments, and so refusing to treat and agree as before mentioned respectively; and the said commissioners or trustees, or other persons as aforesaid, are hereby authorized and empowered to deduct and retain the said costs, charges, and expenses out of the sum or sums of money so to be as-~e> sed or awarded as aforesaid, or out of any rjart thereof: provided always, that in all cases where any person or persons shall by, reason of absence have been prevented from treating about such recompense or satis- faction as aforesaid, such costs and charges shall be borne and paid by the said commissioners or trustees, or other persons as aforesaid, in manner aforesaid. 83. And be it further enacted, that the said justices shall have power from time to time to impose any reasonable fine, not exceeding the sum of twenty pounds, on such sheriff or bailiff, or his deputy or deputies, bailiffs or agents respectively, making default in the premises, and on any of the persons who shall be summoned and returned on any such jury or juries, and shall not appear, without sufficient excuse, or appearing shall refuse to be sworn on the said jury or juries, or being so sworn shall not give his or their verdict; and also on any person or persons who shall be summoned to give evidence touching any of the matters aforesaid, and shall not attend, or attending shall refuse to be sworn, or to affirm, or who shall refuse to give his, her, or their evidence, and on any person or persons who shall in any other manner wilfully neglect his, her, or their duty in the premises, contrary to the true intent and meaning of this act; and from time to time to levy such fine or fines, by order of the said .justices, by distress and sale of the offender's goods and chattels, together with the reasonable charges of every such distress and Bale, returning the overplus (if any) to the owner or owners; and that a THE METROPOLITAN PAVING ACT, 1817. 525 copy of the order of the said justices, signed by the clerk of the peace for the time being of the city, borough, or county wherein the pre- mises shall lie or be, as the case shall require, shall respectively be sufficient authority to the person or persons therein to be appointed, and to eYexy other person acting or aiding and assisting therein, to make such distress and sale; and all such fines shall be paid to the treasurer or treasurers of the commissioners or trustees, or other persons as aforesaid having the control of the pavements in the parochial or other district wherein such premises shall lie or be, or to such other person or persons as they may respectively from time to time appoint. 84. And be it further enacted, that if any money shall be agreed Application or awarded to be paid for any lands, buildings, tenements, or here- °- oom P ensa_ ditaments, or for airy other matter, right, or interest, of what nature exceeding or kind soever, purchased, taken, or used by virtue o'f the powers of 200?. this act for the purpose thereof, which shall belong to any corpora- tion, feme covert, infant, lunatic, or person or persons under any other disability or incapacity, such money shall, in case the same shall amount to the sum of two hundred pounds, with all convenient speed be paid into the Bank of England in the name and with the privity of the Accountant General of the High Court of Chancery, to be placed to his account there ex parte the said commissioners or trustees, or other persons having the control of the pavements of the streets or public places in the parochial or other districts within the jurisdiction of this act, wherein such lands, buildings, tenements, or hereditaments, shall be or lie as aforesaid, together with the name or names of such person or persons as the said commissioners or trustee- or other persons as aforesaid, by -writing signed by them, shall direct and appoint, to the intent that such money shall be applied, under the direction and with the approbation of the said court, to be signified by an order made upon a petition to be preferred in a summary way by the person or persons who would have been entitled to the rents and profits of the said lands, buildings, tenements, or hereditaments, in the purchase of land tax, or discharge of any debt or debts, or such other incumbrance or part thereof as the said court shall authorize to be paid, affecting the same lands, buildings, tenements, or heredita- ments, or affecting other lands, buildings, tenements, or hereditaments standing settled therewith to the same or the like uses, intents, or purposes; or where such money shall not be so applied, then the same shall be laid out and invested, under the like direction and approba- tion of the said court, in the purchase of other messuages, lands, buildings, tenements, or hereditaments, which shall be conveyed and settled to, for, and upon such and the like uses, trusts, intents', and purposes, and in the same manner, as the messuages, lands, buildings, tenements, and hereditaments which shall be so purchased, taken, or used as aforesaid stood settled or limited, or such of them as at the time of making such conveyance and settlement shall be existing undetermined and capable of taking effect ; and in the meantime and until such purchase shall be made, the said money shall, by order of the Court of Chancery, upon application thereto, be invested by the 526 APPENDIX OF STATUTES — BOOK IJ. Application where the compensation does not exceed 200?. nor less than 20?. Application where the money is leas than 20?. On payment of the pur- chase money premises to vest in com- missioners, &c. said Accountant General, in his name, in the purchase of three pounds per centum consolidated or three pounds per centum reduced bank annuities; and in the meantime and until the said bank annuities shall be ordered by the said court to be sold for the purposes afore- said, the dividends and annual produce of the said consolidated or reduced bank annuities shall from time to time be paid, by order of the said court, to the person or persons who would for the time being have been entitled to the rents and profits of the said lands, build- ings, tenements, and hereditaments so hereby directed to be pur- chased, in case such purchase or settlement were made. 85. Provided always, and be it further enacted, that if any money so agreed or awarded to be paid for any lands, buildings, tenements, or hereditaments, or for any other matter, right, or interest, of what nature or kind soever, purchased, taken, or used for the purposes aforesaid, and belonging to any corporation, or to any person or persons under disability or incapacity as aforesaid, shall be less than the sum of two hundred pounds, and shall exceed the sum of twenty pounds, then and in all such cases the same shall, at the option of the person or persons for the time being entitled to the rents and profits of the hereditaments so purchased, taken, or used, or of his, her, or their guardian or guardians, committee or committees, in case of infancy or lunacy, to be signified in writing under their respective hands, be paid into the bank in the name and with the privity of the said Accountant General of the High Court of Chancery, and be placed to his account as aforesaid, in order to be applied in maimer herein-before directed; or otherwise the same shall be paid, at the like option, to two trustees, to be nominated by the person or persons making such option, and approved of by the said commissioners or trustees or other persons as aforesaid (such nomination and approba- tion to be signified in writing under the hands of the nominating and approving parties), in order that such principal money, and the dividends arising thereon, may be applied in any manner herein- before directed, so far as the case may be applicable, without obtain- ing or being required to obtain the direction or approbation of the Court of Chancery. 86. Provided also, and be it further enacted, that where such money so agreed or awarded to be paid as next before mentioned shall be less than twenty pounds, then and in all such cases the same shall be applied to the use of the person or persons who would for the time being have been entitled to the rents and profits of the heredita- ments and premises so purchased, taken, or used for the purposes of this act, in such manner as the said commissioners or trustees, or other persons as aforesaid, shall think fit; or in case of infancy or lunacy, then to his, her, or their guardian or guardians, committee or committees, to and for the use and benefit of such person or persons so entitled respectively. 87. And be it further enacted, that upon payment of any sum or sums so agreed or awarded to the party or parties to whom the same shall be so awarded, or upon the deposit of the same in the Bank of England in manner by this act directed (as the case may be), the THE METROPOLITAN PAVING ACT, 1817. 527 said lands, tenements, and hereditaments, in respect whereof the same shall have been so paid or deposited as aforesaid, shall vest in the commissioners or trustees, or other persons as aforesaid for the time being, in manner and for the purposes aforesaid, who shall be deemed in law to be in the actual possession thereof, to all intents and purposes whatsoever, freed and discharged from all former and other estates, rights, titles, interests, claims, and demandb whatsoever. 88. Provided always, and be it further enacted, that where any Where any question shall arise touching the title of any person to any money to the or of any estate, right, or interest in any lands, tenements, or here- SffjniJ^ ° ditaments to be purchased in pursuance of this act, or to any bank possession of annuities to be purchased with any such money, or the dividends or the lands, &o. interest of any such bank annuities, the person or persons who shall at *r e tlme of have been in possession of such lands, tenements, or hereditaments, chase shall at the time of such purchase, and all persons claiming under such be deemed person or persons, or under the possession of such person or persons, entitled shall be deemed and taken to have been lawfully entitled to such aocor din ff lands, tenements, or hereditaments according ;to such possession, to such until the contrary shall be shown to the satisfaction of the said Court possession of Chancery; and the dividends or interest of the bank annuities to be purchased with such money, and also the capital of such bank annuities, shall be paid, applied, and disposed of accordingly, unless it shall be made appear to the said court that such possession was a wrongful possession, and that some other person or persons was or were lawfully entitled to such lands, tenements, or hereditaments, or to some estate or interest therein. 89. Provided also, and be it further enacted, that where by reason The Court of any disability or incapacity of the person or persons or corporation ^^^^ y entitled to any lands, tenements, or hereditaments, to be purchased, reasonable or purchased under the authority of this act, the purchase money for expenses of the same shall be required to be paid into the Court of Chancery, g^V^f to and to be applied in the purchase of other lands, tenements, or here- the commis- ditaments, to be settled to the like uses in pursuance of this act, it sioners, &c. shall be lawful for the said Court of Chancery to order the expenses of all purchases from time to time to be made in pursuance of this act, or so much of such expenses as the said court shall deem reasonable, to be paid by the said commissioners or trustees or other persons as aforesaid, who shall from time to time pay such sums of money for such purposes as the said court shall direct (a). 90. And be it further enacted, that every tenant at will or lessee Tenants at for a year, or any other person or persons in possession of any such ^u;* pra- houses, buildings, lands, tenements, and hereditaments, or any part 8es8 j 0n0I1 thereof, which shall be purchased by virtue and for the purposes of six months' this act, and who shall have no greater interest in the premises than notlce - as tenant at will or lessee for a year, or from year to year, shall deliver («) In re Fisher, [1894] 1 Ch. 450. Vide ante, p. 262. 528 APPENDIX OF STATUTES — BOOK II. Sic. Mortgagees, on tender of principal and interest, to convey ; up the possession of such premises, to the said commissioners or trustees, or other persons as aforesaid having the control of the pavements in the streets or public places in the parochial or other division within the jurisdiction of this act, wherein such houses, buildings, lands, tenements, and hereditaments,* or to such person or persons as the said commissioners or trustees or other persons as aforesaid shall appoint to take possession of the same, upon having six calendar months' notice to quit such possession from the said commissioners or trustees or other persons as aforesaid, or from the person or persons so authorized by them ; and such person or persons in possession shall at the end of the said six calendar months, whether such notice be given with reference to the time or times of such tenants holding or not, or so soon as he, she, or they shall be required, peace- ably and quietly deliver up the possession of the said premises to the said commissioners or trustees, or other persons as aforesaid or the person or persons authorized by the said commissioners, or trustees or other persons as aforesaid to take possession thereof; and in case any such tenant should be compelled to quit before the expiration of his or her term in any such premises, then and in such case the said commissioners or trustees, or other persons as aforesaid, shall and they are hereby required to make satisfaction and compensation for the loss or damage which he or she shall or may sustain thereby ; and in case any difference or dispute shall arise as to the amount of such satisfaction or compensation, the same shall or may be determined, settled, and ascertained by a jury, in such and the like manner as- the sum or sums of money to be paid for the purchase of any lands, tenements, or hereditaments, is herein directed to be determined, settled, and ascertained; and that in case any such person or persons so in possession as aforesaid shall refuse to give such possession as aforesaid, it shall and may be lawful to and for the said commissioners or trustees, or other persons as aforesaid, to issue their precept or precepts to the sheriff or sheriffs, or bailiff, or other proper officer of the city, borough, or county wherein such parochial or other district shall be situate, to deliver possession of the said premises to such person or persons as shall in such precept or precepts be nominated to receive the same; and the said sheriff or sheriffs or bailiff, and every other proper officer, is hereby authorized and required to deliver such possession accordingly of the said premises, and to levy such costs as shall accrue from the issuing and execution of such precept or precepts on the person or persons so refusing to give possession as aforesaid, by distress and sale of his, her, or their goods'. 91. And be it further enacted, that all and every person and persons who shall have any mortgage or mortgages on such houses, buildings, lands, tenements, and hereditaments, not being in possession thereof by virtue of such mortgage or mortgages, shall on the tender of the principal money and interest due thereon, together with the amount of six calendar months' interest on the said principal, by the said commissioners or trustees, or other persons having the control of the pavements in the streets or public places in such parochial or other district within the jurisdiction of this act, wherein the said houses, THE METROPOLITAN PAVING ACT, 1817. 529 buildings, lands, tenements, and hereditaments shall lie or be as aforesaid, or by such person or persons as they shall appoint, imme- diately convey, assign, and transfer such mortgage or mortgages to the said commissioners or trustees or other persons as aforesaid, or to such person or persons as they shall appoint; or in case such mort- gagee or mortgagees shall have notice in writing from the said com- missioners or trustees or other persons as aforesaid, or from such person or persons as they shall appoint, that they will pay off and discharge the principal money and interest which shall be due on the said mortgage or mortgages at the end or expiration of six calendar months, to be computed from the day of giving such notice, that then at the end of the said six calendar months, on payment of the principal and interest so due, such mortgagee or mortgagees shall convey, assign, and transfer his, her, or their interest in the premises, to the said commissioners or trustees or other persons as aforesaid, or to such person or persons as shall be appointed in trust for them; and in case the mortgagee or mortgagees shall refuse to convey and on refusal, assign as aforesaid on such tender or payment, that then all interest mtereflt to on every such mortgage shall from thenceforth cease and determine. 92. Provided always, and be it further enacted, that in case the Themort- sum due upon any such mortgage or mortgages, with all interest due gr a g e e8 not thereon, shall amount to more than the real value of the premises, to ° K" ■ t iii- -i • more than be ascertained as directed by this act, then the said commissioners or the real trustees or other persons as aforesaid shall not be liable to pay to the value of mortgagee or mortgagees more than such real value of such premises, P renu8es - so ascertained as aforesaid. 93. And be it further enacted, that the conveyance of any such Bargains and estate or interest of any feme covert to the said commissioners or ^ e * to ha £ e trustees or other persons as aforesaid for the time being, or any five g ne8 an( j or more of them, or any person or persons in trust for them, by recoveries, indenture or indentures of bargain and sale, sealed and delivered by such feme covert in the presence of and attested by two credible witnesses, and duly acknowledged, and to be enrolled in the High Court of Chancery within six calendar months after the making thereof, shall as effectually and absolutely convey the estate and interest of such feme covert in the premises as any fine or fines, recovery or recoveries, would or could do, if levied or suffered thereof in due form of law; and further, that all bargains and sales what- soever to be made of any such houses, buildings, lands, tenements, and hereditaments, as shall be purchased by the commissioners or trustees or other persons as aforesaid for the time being, by virtue and for the purposes of this act, and enrolled as aforesaid, shall have the like foroe, effect, and operation in law, to all intents and purposes, as any fine or fines, recovery or recoveries whatsoever would have had if levied or suffered by the bargainer or bargainers, or any person or persons seised of or entitled to any estate or interest in the premises in trust for such bargainer or bargainers, in any manner or form whatsoever. 94. And be it further enacted, that upon payment of the principal Upon pay- money and interest due on any mortgage as aforesaid into the Bank mentof prin- 34 ° ipa an 530 APPENDIX OF STATUTES — BOOK II. interest into the bank, premises to vest in the commis- sioners, &c. Monies to be paid or tendered before any use made of the premises. Estates may be sold, the persons of whom they ■were bought having the first offer. of England, at the end of six calendar months from the day of giving such notice as aforesaid, for the use of the mortgagee or mortgagees, the cashier or cashiers of the bank shall give a receipt or receipts for the said money, in like manner as is hereinbefore directed in cases of other payments into the bank; and thereupon all the estate, right, title, interest, use, trust, property, claim, and demand of the said mortgagee or mortgagees, and of all and every person or persons in trust for him, her, or them, shall vest in the said commissioners or trustees or other persons as aforesaid, and they shall be deemed to be in the actual possession of the premises comprised in such mortgage or mortgages, to all intents and purposes whatsoever. 95. And be it further enacted, that all sums of money, or other consideration, recompense or satisfaction, to be paid or made pursuant to any such agreement or verdict as aforesaid, or in discharge of any such mortgage, shall be paid or tendered to the party or parties entitled to the same, or paid into the Bank of England as aforesaid, before the said commissioners or trustees or other persons as aforesaid, or any person or persons authorized by them, shall proceed to pull down any house or houses, or other erections or buildings comprised in or affected by such agreement, verdict, or mortgage respectively, or to use the ground for any of the purposes before mentioned in this act. 96. And be it further enacted, that it shall and may be lawful to and for the said commissioners or trustees or other persons as aforesaid, from time to time absolutely to sell and dispose of all or any of the freehold or leasehold estates, lands, houses, heredita- ments, and premises, which shall hereafter be conveyed to them in pursuance of this act or otherwise, provided the said freehold or leasehold estates, lands, houses, hereditaments, and premises so purchased are first offered (b) for sale to the respective person or persons of or from whom the premises respectively were purchased by or on behalf of the said commissioners or trustees or other persons as aforesaid; and if such person or persons respectively shall not then and thereupon agree (except with respect to and on account of the price thereof as herein-after mentioned), or shall refuse (except with respect to and on account of the price thereof) to purchase the same respectively, an affidavit shall be made and sworn before a master in the High Court of Chancery, or before one of his Majesty's justices of the peace for the city, borough, or county wherein such parochial or other district shall be situate (who are hereby respectively empowered and directed to take the same), by some person or persons uninterested in the said freehold or leasehold estates, lands, houses, hereditaments, or premises, stating that such offer was made by or on the behalf of the said commissioners or trustees or other persons as aforesaid, and that such offer was not then and thereupon agreed to, or was refused by the person or persons to whom the same was so offered; and that any such affidavit shall in all courts whatsoever be sufficient evidence and proof that such offer was made and was not (b) Gard v. Commissioners of Seivers (1884), 28 Ch. D. 486; Fernley v. Lvmehouse Board of Works (1899), 80 L. T. 351. THE HOUSING OF THE WORKING CLASSES ACT, 1890. 531 agreed to, or was refused by the person or persons to whom such offer was made, as the case may be; and in case such person or persons: shall be desirous of repurchasing the same, and he, she, or they, and the said commissioners or trustees, or other persons as aforesaid, shall differ and not agree with respect to the price thereof, then the price or prices thereof shall be ascertained by a jury, in the manner herein- before directed with respect to the disputed value of premises to be purchased by the said commissioners or trustees or other persons as aforesaid in pursuance of this act; and the expense of hearing and determining such differences shall be borne and paid in like manner as is herein-before directed with respect to such purchase made by the said commissioners or trustees or other persons as aforesaid (mutatis mutandis); and the money to arise by the sale or sales which may be made by the said commissioners or trustees or other persons as aforesaid, of such freehold or leasehold estates, lands, houses, hereditaments, and premises shall be applied by the said commissioners or trustees or other persons as aforesaid to the purposes of the local act or acts of parliament relating to the parochial or other division over the pavements whereof they shall possess a control, or to the purposes of this act, but the purchaser or purchasers thereof shall not be answerable or accountable for any misapplication or non-application of the money paid by him or them for such freehold or leasehold estates, lands, houses, hereditaments, and premises. Section IV. (c). — Housing and Town Planning. THE HOUSING OF THE WORKING CLASSES ACT, 1890. 53 & 54 Vict. c. 70. An Act to consolidate and amend the Acts relating to Artizans and Labourers Dwellings and the Rousing of the Working Classes. [18th August, 1890. Part I. Unhealthy Areas. [Sects. 4—19 provide for the making, confirmation and execution of a scheme for improving unhealthy areas.] Acquisition of Land. 20. The clauses of the Lands Clauses Acts, with respect to the pur- Acquisition chase and taking of lands, otherwise than by agreement, shall not, except to the extent set forth in the second schedule to this act, apply (o) See Book II., c. V., ante, p. 354. 34 (2) 532 APPENDIX OF STATUTES — BOOK II. to any lands taken, in pursuance of this part of this act, but save as aforesaid the said Lands Clauses Acts, as amended by the provisions contained in the said schedule, shall regrdate and apply to the pur- chase and taking of lands, and shall for that purpose be deemed to form part of this act in the same manner as if they were enacted in the body thereof; subject to the provisions of this part of this aot and to the provisions following; that is to say, (i) This part of this act shall authorise the taking by agreement of any lands which the local authority may require for the purpose of carrying into effect the scheme authorised by any confirming act, but it shall authorise the taking by the exercise of any compulsory powers of such lands only as are proposed by the scheme in the confirming act to be taken compulsorily: (ii) In the construction of the Lands Clauses Acts, and the provi- sions in the second schedule to this act, this part of this act shall be deemed to be the special act, and the local authority shall be deemed to be the promoters of the undertaking; and the period after which the powers for the compulsory purchase or taking of lands shall not be exercised shall be three years after the passing of the confirming act. Special pro- 21(d). — (1.) Whenever the compensation payable in respect of any coimT aS t° l an( ls or of any interests in any lands proposed to be taken compul- sorily in pursuance of this part of this act requires to be assessed — (a) The estimate of the value of such lands or interests shall be based upon the fair market value, as estimated at the time of the valuation being' made of such lands, and of the several interests in such lands, due regard being had to the nature and then condition of the property, and the probable dura- tion of the buildings in their existing state, and to the state of repair thereof, without any additional allowance in respect of the compulsory purchase of an area or of any part of an area in respect of which an official representation has been made, or of any lands included in a scheme which, in the opinion of the arbitrator, have been so included as fall- ing under the description of the property which may be constituted an unhealthy area under this part of this act; and (b) In such estimate any addition to or improvement of the pro- perty made after the date of the publication in pursuance of this part of this act of an advertisement stating the fact of the improvement scheme having been made shall not (unless such addition or improvement was necessary for the maintenance of the property in a proper state of repair) be included, nor in the case of any interest acquired after the said date shall any separate estimate of the value thereof be made so as to increase the amount of compensation to be paid for the lands; and (d) In certain cases these provisions no longer apply; 9 & 10 Geo. 5, c. 35, s. 9 (2), post. p. 560. THE HOUSING OF THE WORKING CLASSES ACT, 1890. 5'Yd (2.) On the occasion of assessing the compensation payable under any improvement scheme in respect of any house or premises situate within an unhealthy area evidence shall be receivable by the arbi- trator to prove (e) — (1st) That the rental of the house or premises was enhanced by reason of the same being used for illegal purposes or being so overcrowded as to be dangerous or injurious to the health of the inmates; or (2ndly) That the house or premises are in such a condition as to be a nuisance within the meaning of the acts relating to nuisances, or are in a state of defective sanitation, or are not in reasonably good repair; or (3rdly) That the house or premises are unfit, and not reasonably capable of being made fit, for human habitation; and, if the arbitrator is satisfied by such evidence, then the com- pensation — (a) Shall in the first case so far as it is based on rental be based on the rental which would have been obtainable if the houses or premises were occupied for legal purposes and only by the number of persons whom the house or premises were, under all the circumstances of the case, fitted to accommodate without such overcrowding as is dangerous or injurious to the health of the inmates; and (b) Shall in the second case be the amount estimated as the value of the house or premises if the nuisance had been abated, or if they had been put into a sanitary condition, or into reasonably good repair, after deducting th.e estimated ex- pense of abating the nuisance, or putting them into such condition or repair, as the case may be; and (c) Shall in the third case be the value of the land, and of the materials of the buildings thereon. 22. Upon the purchase by the local authority of any lands required Extinction of for the purpose of carrying into effect any scheme, all rights of way, ri ?kts of way rights of laying down or of continuing any pipes, sewers, or drains ™ e ° m ^ on, through, or under such lands, or part thereof, and all other rights or easements in or relating to such lands, or any part thereof, shall be extinguished, and all the soil of such ways, and the property in the pipes, sewers, or drains, shall vest in the local authority, subject to this provision, that compensation shall be paid by the local authority to any persons or bodies of persons proved to have sustained loss by this section, and such compensation shall be determined in the manner in which compensation for lands is determinable under this part of this act, or as near thereto as circumstances admit. 23. A local authority may for the purpose of providing accommoda- Application tion for persons of the working classes displaced in consequence of (f) °* c ^ o f °*_ any improvement scheme, appropriate any lands for the time being tionof work . belonging to them which are suitable for the purpose, or may purchase j ng dasseB. hy agreement any such further lands as may be convenient. * * * * * (e) Cf. s. 41, pest, p. 536, and 9 Edw. 7, c. 44, s. 29, post, p. 549. (/) 9 Edw. 7, o. 44, Sehed. 2. 534 APPENDIX OF STATUTES BOOK II. Part II. Unhealthy Dwelling-Houses. Preliminary. Deanitions : 29. In this part of this act, unless the context otherwise requires— ***** "Owner." The expression "owner," in addition to the definition given by the Lands Clauses Acts, includes all lessees or mortgagees of any premises required to be dealt with under this part of this act, except persons holding or entitled to the rents and profits of such premises under a lease the original term whereof is less than twenty-one years (g). Power to local autho- rity to pur- chase houses for opening alleys, &c. Obstructive Buildings. 38 (h). — (1.) If a medical officer of health finds that any building- within his district, although not in itself unfit for human habitation, is so situate that by reason of its proximity to or contact with any other buildings it causes one of the following effects, that is to say, — (a) It stops or impedes (i) ventilation, or otherwise makes or conduces to make such other buildings to be in a condition unfit for human habitation or dangerous or injurious to health ; or (b) It prevents proper measures from being carried into effect for remedying any nuisance injurious to health or other evils complained of in respect of such other buildings; in any such case, the medical officer of health shall represent to the local authority the particulars relating to such first-mentioned build- ing (in this act referred to as "an obstructive building") stating- that in his opinion it is expedient that the obstructive building should be pulled down. (2.) Any justice of the peace acting for a district or (k) any four or more inhabitant householders of a district may make to the local authority of the district a representation as respects any build- ing to the like effect as that of the medical officer under this section. (3.) The local authority on receiving any such representation as above in this section mentioned shall cause a report to be made to them respecting the circumstances of the building and the cost of pulling down the building and acquiring the land, and on receiving such report shall take into consideration the representation and report, and if they decide to proceed, shall cause a copy of both the represen- tation and report to be given to the owner of the lands on which the obstructive building stands, with notice of the time and place appointed by the local authority for the consideration thereof; and, such owner shall be at liberty to attend and state his objections, and. (ff) 9 Edw. 7, c. 44, s. 49 (2). O) See 9 Edw. 7, u. 44, ». 28, post, p. (i) 9 Edw. 7, c. 44, Sched. 2. (7c) 9 & 10 Geo. 5, o. 35, Sched. 2. 548. THE HOUSING OF THE WORKING CLASSES ACT, 1890. 535 after hearing such objections the local authority shall make an order either allowing the objection or directing that such obstructive build- ing shall be pulled down, and such order shall be subject to appeal in like manner as an order of demolition of the local authority under the foregoing provisions of this part of this act. (4.) Where an order of the local authority for pulling down an obstructive building is made under this section and either no appeal is made against the order, or an appeal is made and either fails or is abandoned, the local authority shall be authorised to purchase the lands on which the obstructive building is erected in like manner as if they had been authorised by a special act to purchase the same ; and for the purpose of such purchase the provisions of the Lands Clauses Acts, with respect to the purchase and taking of lands otherwise than by agreement shall be deemed to be incorporated in this part of this act (subject nevertheless to the provisions of this part of this act), and for the purpose of the provisions of the Lands Clauses Acts this part of this act shall be deemed to be the special act, and the local authority to be the promoters of the undertaking, and such lands mav be purchased at any time within one year after the date of the order, or if it was appealed against after the date of the confirmation. (5.) The owner of the lands may within one month after notice to purchase the same is served upon him declare that he desires to retain the site of the obstructive building and undertake either to pull down or to permit the local authority to pull down the obstructive building, and in such case the owner shall retain the site and shall receive compensation from the local authority for the pulling down of the obstructive building. (6.) The amount of such compensation, and also the amount of any compensation to be paid on the purchase of any lands under this section, shall in case of difference be settled by arbitration in manner provided in this part of this act. (7.) Where the local authority is empowered to purchase land com- pulsorily, it shall not be competent for the owner of a house or other building (I) or manufactory to insist on his entire holding being taken, where part only is proposed to be taken as obstructive, and where such part proposed to be taken can, in the opinion of the arbitrator to whom the question of disputed compensation is sub- mitted, be severed from the remainder of the house or other build- ing (I) or manufactory without material detriment thereto, provided that compensation may be awarded in respect of the severance of the part so proposed to be taken in addition to the value of that part. (8.) Where in the opinion of the arbitrator the demolition of an obstructive building adds to the value of such other buildings as are in that behalf mentioned in this section, the arbitrator shall apportion so much of the compensation to be paid for the demolition of the obstructive building as may be equal to the increase in value of the other buildings amongst such other buildings respectively, and the amount apportioned to each such other building in respect of its increase in value by reason of the demolition of such obstructive (I) 9 Edw. 7, o. 44, Sohed. 2. 536 APPKNDIX OF STATUTES BOOK II. building shall be deemed to be private improvement expenses incurred by the local authority in respect of such building, and such local authority may, for the purpose of defraying such expenses, make and levy improvement rates on the occupier of such premises accordingly; and the provisions of the Public Health Acts relating to private improvement expenses and to private improvement rates, shall so far as circumstances admit, apply accordingly in the same manner as if such provisions were incorporated in this act. (9.) If any dispute arises between the owner or occupier of any building (to which any amount may be apportioned in respect of private improvement expenses) and the arbitrator by whom such apportionment is made, such dispute shall be settled by two. justices in manner provided by the Lands Clauses Acts, in cases where the compensation claimed in respect of lands does not exceed fifty pounds. (10. ) Where the owner retains the site or any part thereof, no house or other building or erection which will be dangerous or injurious to health, or which will be an obstructive building within the meaning of this section, shall be erected upon such site or any part thereof; and if any house, building, or erection is erected on the site contrary to the provisions of this section the local authority may at any time order the owner to abate or alter the said house, building, or erection; and in the event of non-compliance with such order may, at the expense of the owner thereof, abate or alter the same. (11.) Where the lands are purchased by the local authority the local authority shall pull down the obstructive building, or such part thereof as may be obstructive within the meaning of this section, and keep as an open space the whole site:, or such part thereof as may be required to be kept open for the purpose of remedying the nuisance or other evils caused by such obstructive building, and may, with the assent of the Local Government Board, and upon such terms as that Board think expedient, sell such portion of the site as is not required for the purpose of carrying this section into effect. (12.) A local authority may, where they so think fit, dedicate any land acquired by them under the authority of this section as a highway or other public place. Settlement of Compensation. Provisions as 41 (m) . In all cases in which the amount of any compensation is, to arbitration. i a pursuance of this part of this act, to be settled by arbitration, the following provisions shall have effect; (namely,) (1.) The amount of compensation shall be settled by an arbitrator to be appointed and removable by the Local Government Board. (2.) In settling the amount of any compensation — (a) The estimate of the value of the dwelling-house shall be based on the fair market value as estimated at the time (/») In certain ca?es these provisions no longer apply: 9 & 10 Geo. 5, c. 35, 3. 9 (2), post, p. 560. THE HOUSING OF THE WORKING CLASSES ACT, 1890. 537 of the valuation being made of such dwelling-house, and of the several interests in such dwelling-house, due regard being had to the nature and then condition of the pro- perty and the probable duration of the buildings in their existing state, and to the state of repair thereof, and without any additional allowance in respect of compul- sory purchase; and (b) The arbitrator shall have regard to and make an allowance in respect of any increased value which, in his opinion, will be given to other dwelling-houses of the same owner by the alteration or demolition by the local authority of any buildings. -(3.) Evidence shall be receivable by the arbitrator to prove («)— (1st) That the rental of the dwelling-house was enhanced by reason of the same being used for illegal purposes or being so overcrowded as to be dangerous or injurious to the health of the inmates; or (2ndly) That the dwelling-house is in a state of defective sani- tation, or is not in reasonably good repair; or -(3rdly) That the dwelling-house is unfit, and not reasonably capable of being made fit, for human habitation; and, if the arbitrator is satisfied by such evidence, then the compensation — {a) Shall in the first case so far as it is based on rental be based on the rental which would have been obtainable if the dwelling-house was occupied for legal purposes and only by the number of persons whom the dwelling-house was under all the circumstances of the case fitted to accommo- date without such overcrowding as is dangerous or in- jurious to the health of the inmates; and (b) Shall in the second case be the amount estimated as the value of the dwelling-house if it had been put into a sanitary condition, or into reasonably good repair, after deducting the estimated expense of putting it into such condition or repair; and (e) Shall in the third case be the value of the land, and of the materials of the buildings thereon. •(4.) On payment or tender to the person entitled to receive the same of the amount of compensation agreed or awarded to be paid in respect of the dwelling-house, or on payment thereof in manner prescribed by the Lands Clauses Acts, the owner shall, when required by the local authority, convey his interest in such dwelling-house to them, or as they may direct; and in default thereof, or if the owner fails to adduce a good title to such dwelling-house to the satisfaction of the local authority, it shall be lawful for the local authority, if they think fit, to execute a deed poll, in such manner and with such consequences as are mentioned in the Lands Clauses Acts. .(») Cf. a . 21 (2), ante, p. 533, and 9 Edw. 7, k. U, s. 29, post, p. 549. 538 APPENDIX OF STATUTES — BOOK II. 8 & 9 Vict. (5.) Sections thirty- two, thirty -three, thirty-five, thirty-six and °- 18 - • thirty-seven of the Lands Clauses Consolidation Act, 1845, shall apply, with any necessary modifications, to an arbitra- tion and to an arbitrator appointed under this part of this- act. (6.) The arbitrator may, by one award, settle the amount or amounts of compensation payable in respect of all or any of the dwelling-houses included in one or more order or orders made by the local authority; but he may, and, if the local authority request him so to do shall, from time to time make an award respecting a portion only of the disputed. cases brought before him. (7.) In the event of the death, removal, resignation or incapacity,, refusal or neglect to act of any arbitrator before he shall have made his award, the Local Government Board may appoint another arbitrator, to whom all documents relating to the matter of the arbitration which were in the possession of the former arbitrator shall be delivered. (8.) The arbitrator may, where he thinks fit, on the request of any party by whom any claim has been made before him, certify the amount of the costs properly incurred by such party in relation to the arbitration, and the amount of the costs so certified shall be paid by the local authority. (9.) The arbitrator shall not give such certificate where the arbi- trator has awarded the same or a less sum than has been offered by the local authority in respect of such claim before the appointment of the arbitrator, and need not give such certificate to any party where he considers that such party neglected, after due notice from the local authority, to deliver to that authority a statement in writing within such time, and containing such particulars respecting the- compensation claimed, as would have enabled the local authority to make a proper offer of compensation to such party before the appointment of the arbitrator. (10.) If within seven days after demand the amount so certified be not paid to the party entitled to receive the same, such amount shall be recoverable as a debt from the local authority with interest at the rate of five per cent, per annum for any time during which the same remains unpaid after such seven days as aforesaid. (11.) The award of the arbitrator shall be final and binding on all parties. ***** Part III. Working Cl^ss Lodging Houses. Definition of 53.— (1.) The expression " lodging houses for the working classes " Labouring whea used in this P art of this aot shall include separate houses or Classes cottages for the working classes, whether containing one or several'. THE HOUSING OF THE WORKING CLASSES ACT, 1890. 539 tenements, and the purposes of this part of this act shall include the Lodging provision of such houses and cottages. Houses Acts. (2.) The expression " cottage " in this part of this act may in- clude a garden of not more than one acre (o). ***** Execution of Part III. by Local Authority. 56. Where this part of this act has been adopted in any district, Powers of the local authority shall have power to carry it into execution (subject lo0 * 1 . to the provisions of this part of this act with respect to rural sanitary aut ontr ' authorities), and for that purpose may exercise the same powers whether of contract or otherwise as in the execution of their duties in the case of the London County Council under the Metropolis 18 & 19 Vict. Management Act, 1855, and the acts amending the same, or in the °- 12 °- case of sanitary authorities under the Public Health Acts, or in the 38 & 39 viot - case of the' Commissioners of Sewers under the acts conferring powers c ' on such Commissioners. 57. — (1.) Land for the purposes of this part of this act (p) may Acquisition of be acquired by a local authority in like manner as if those purposes land, were purposes of the Public Health Act, 1875, and sections one 38 & 39 Vict. hundred and seventy-five to one hundred and seventy-eight, both u - 55 - inclusive, of that act (relating to the purchase of lands), shall apply accordingly (q), and shall for the purposes of this part of this act extend to London in like manner as if the Commissioners of Sewers and London County Council respectively were a local authority in the said sections mentioned, and a Secretary of State were substituted for the Local Government Board. SECOND SCHEDULE (»•)• Provisions with respect to the purchase and taking of lands Sect. 20. in England otherwise than by agreement, and otherwise amending the Lands Clauses Acts. Deposit of Maps and Plans. (1.) The local authority shall before making an application for Deposit of the appointment of an arbitrator as hereinafter mentioned (s) cause maps and to be made out, and to be signed by their clerk or some other principal p ana - (o) Substituted for the original definition by 9 Edw. 7, c. 44, a. 50. O) The powers of the local authority and the purposes for which land may be acquired have been extended by 9 & 10 Geo. 5, c. 35, 3. 12. (?) The provisions of the Public Health Act, 1875, are no-w superseded by the provisions of the Housing, Town Planning, ice. Act, 1909 (9 Edw. 7, c. 14). a. 2 (2). See post, p. 547. (r) As to the effect of the Acquisition of Land (Assessment of Compensation) Act, 1919, see ante, p. 354. («) 9 & 10 Geo. 5, o. 35, Sched. 2. 540 APPENDIX OF STATUTES — BOOK II. officer appointed by them, maps and schedules of all lands pro- posed to be taken compulsorily (which lands are hereinafter referred to as the scheduled lands), together with the names, so far as the same can be reasonably ascertained, of all persons interested in such land^ as owners or reputed owners, lessees or reputed lessees, or occupiers, except tenants for a month or a less period than a month (r) . (2.) The maps made by the local authority shall be upon such scale and be framed in such manner as may be prescribed by the confirm- ing authority. (3.) The local authority shall deposit such maps and schedules at the office of the confirming authority, and shall deposit and keep copies of such maps and schedules at the office of the local authority. Appointment of arbitrator. on arbitra- tion. Appointment of Arbitrator (s). (4.) After such deposit at the office of the confirming authority as aforesaid, it shall be lawful for the confirming authority, upon the application of the local authority, to appoint an arbitrator between the local authority and the persons interested in such of the scheduled lands, or lands injuriously affected by the execution of such scheme, so far as compensation for the same has not been made the subject of agreement. Proceedings on Arbitration (s) . (5.) Before any arbitrator enters upon any inquiry he shall, in the presence of a justice of the peace, make and subscribe the following declaration; that is to say, " I A.Si. do solemnly and sincerely declare, that I will faithfully and honestly, and to the best of my skill and ability, hear and determine the matters referred to me under the provisions of the Housing of the Working Classes Act, 1890. A.B. " Made and subscribed in the presence of ." And such declaration shall be annexed to the award when made; and if any arbitrator, having made such declaration, wilfully act contrary thereto, he shall be guilty of a misdemeanor. (6.) As soon as an arbitrator has been appointed as aforesaid, the confirming authority shall deliver to him the maps and schedules deposited at their office. Before applying to the arbitrator to determine the compensation in respect of any particular lands or interest therein, the local authority shall send a notice by, post of their intention to the owners or reputed owners, lessees or reputed lessees, so far as they can be reasonably ascertained (t). (7.) In every case in which compensation is payable under Part I. of this act, by the local authority to any claimant, and which com- pensation has not been made the subject of agreement (in this act O) 9 & 10 Geo. 5, c. 35, Sched. 2. (s) As to the effect of the Acquisition of Land (Assessment of Compensation) Act, 1919, see ante, p. 354. (0 9 & 10 Geo. 5, c. 35, Sched. 2. THE HOUSING OF THE WORKING CLASSES ACT, 1890. 541 referred to as " a disputed case ") the arbitrator (u), and after hearing all such parties interested in each disputed case as may appear before him at a time and place of which notice has been given as in Part I. of this act mentioned, shall proceed to decide on the amount of com- pensation to which he may consider the claimant to be entitled in each case. (8.) The arbitrator shall give notice to the claimants in disputed cases (u) of a time and place at which the difference between the claimants and the local authority (m) will be decided by the arbitrator. (9.) After the arbitrator has arrived at a decision on all the dis- puted cases brought before him he shall make an award under his hand and seal, and such award shall be final, and be binding and conclusive (u) upon all persons whomsoever, and no such wellru/,s Act, Ex parte Jones (1880), 14 Ch. D. 624. (/) The whole of paragraphs 26 and 27 were repealed by 9 & 10 Geo. 5, c. 35, Sched. 2. C. 35 546 APPENDIX OF STATUTES— BOOK II. (29.)— (1.) It shall be lawful for the arbitrator, where he thinks fit, upon the request of any party by whom any claim has been made before him, to certify the amount of the costs properly incurred by such party in relation to the arbitration, and the amount of the costs so certified shall be paid by the local authority: Provided that — (a) The arbitrator shall not be required to certify the amount of costs in any case where he considers such costs are not properly payable by the local authority. (b) The arbitrator shall not be required to certify the amount of costs incurred by any party in relation to the arbitration, in any case where he considers that such party neglected, after due notice from the local authority, to deliver to that authority a statement in writing within such time, and containing such particulars respecting the compensation claimed, as would have enabled the local authority to make a proper offer of compensation to such party before the appointment of the arbitrator. (c) No certificate shall be given where the arbitrator has awarded the same or a less sum than has been offered by the local authority in respect of the claim not less than fourteen days before the date of arbitration in that particular case (g). (2.) If within seven days after demand the amount certified be not paid to the party entitled to receive the same, such amount shall be recoverable as a debt from the local authority, with interest at the rate of five per cent, per annum for any time during which the same remains unpaid after such seven days as aforesaid. Miscellaneous. M . ,, (30.) The arbitrator may call for the production of any documents, neous. other than any formal offer made by the local authority (g), in the possession or power of the local authority, or of any party making any claim under Part I. of this act, which such arbitrator may think necessary for determining any question or matter to be determined by him under Part I. of this act, and may examine any such party and his witnesses, and the witnesses for the local authority, on oath, and administer the oaths necessary for that purpose. (31.) If any arbitrator appointed in pursuance of Part I. of this act die, or refuse, decline, or become incapable to act, the confirming authority may appoint an arbitrator in his place, who shall have the same powers and authorities as the arbitrator first appointed: and upon the appointment of any arbitrator in the place of an arbitrator dying, or refusing, declining, or becoming incapable to act, all the documents relating to the matter of the arbitration which were in the possession of such arbitrator shall be delivered to the arbitrator appointed in his place, and the local authority shall publish notice of such appointment in the London Gazette. (32.) All notices required by this schedule to be published shall be published in a (g) newspaper circulating within the jurisdiction O) 9 & 10 Geo. 5, o. 35, Sehed. 2. THE HOUSING, TOWN PLANNING, ETC. ACT, 1909. 54; of the local authority, and where no other form of service is prescribed all notices required to be served or given by the local authority under this schedule or otherwise upon any persons interested in or entitled to sell lands, shall be served in manner in which notices of lands proposed to be taken compulsorily for the purpose of an improvement scheme are directed by Part I. of this act to be served upon owners or reputed owners, lessees or reputed lessees, and occupiers. [The remaining articles (Arts. 33—35) contained provisions for the application of the schedule to Scotland and Ireland.] THE HOUSING, TOWN PLANNING, &c. ACT, 1909. 9 Edw. 7, c. 44. Part I. Housing or the Working Classes. Facilities for Acquisition of Lands and other Purposes of the Housing Acts. 1. Part III. of the Housing of the Working Classes Act, 1890 (in Part III. of this Part of this Act referred to as the principal Act), shall, after the th - e principal commencement of this Act, extend to and take effect in every urban ^o't'with or rural district, or other place for which it has not been adopted, adoption, as if it had been so adopted. 53 & 54 y iot 2.— (1) A local authority may be authorised to purchase land c. 70. compulsorily for the purposes of Part III. of the principal Act, by Provisions as means of an order submitted to the Local Government Board and *° acquisition confirmed by the Board in accordance with the First Schedule to Part'lll'rf P this Act. the principal (2) The procedure under this section for the compulsory purchase Act. of land shall be substituted for the procedure for the same purpose 38 & 39 Vict, under section one hundred and seventy-six of the Public Health Act, u ' • 1875, as applied by subsection (1) of section fifty-seven of the prin- cipal Act. (3) A local authority may, with the consent of and subject to any conditions imposed by the Local Government Board, acquire land by agreement for the purposes of Part III. of the principal Act, not- withstanding that the land is not immediately required for those purposes. ***** 5.— (1) Any purchase money or compensation payable in pur- Payment of suance of the Housing Acts by a local authority in respect of any P ul 'chase or lands, estate, or interest of another local authority which would, XeWwhich but for this section, be paid into court in manner provided by the would other- Lands Clauses Acts or by paragraph (20) of the Second Schedule to wisehepaid the principal Act may, if the Local Government Board consent, ^rect^o/" 1 instead of being paid into court, be paid and applied as the Board Local Govem- determine. ment Board. 35 (2) 548 APPENDIX OF STATUTES — BOOK II. (2) Any such decision of the Board as to the payment and appli- cation of any such purchase money or compensation shalJ be final and conclusive. ***** Powers of 12. Where a complaint is made to the council of a county by the county-council pa^h council or parish meeting of any parish comprised in any fauu'of^al rural district in the county, or by any four inhabitant householders district coun- of that district, the county council may cause a public local inquiry oil under Part ^ t, e held, and if, after holding such an inquiry, the county council I rinci f al 1 lct are satisneu tnat the rural district council have failed to exercise pnncipa c . ^.^ p 0werg un( j er p ar t ni. of the principal Act in cases where those powers ought to have been exercised, the county council may resolve that the powers of the district council for the purposes of that Part be transferred to the county council with respect either to the whole district or to any parish in the district, and those powers shah be transferred accordingly, and, subject to the provisions of this Act, section sixty-three of the Local Government Act, 1894, shall apply as if the powers had been transferred under that Act. Power of 13.— (1) Where the council of a county are of opinion that for any county council reason ft \ a expedient that the council should exercise, as respects powers"/ an y rur al district in the county, any of the powers of a local authority rural district under Part III. of the principal Act, the council, after giving notice council under t the council of the district of their intention to do so, may apply to aTeprincipal ^ e Local Government Board for an order conferring such powers on Act. them. (2) Upon such an application being made, the Board may make an order conferring on the county council as respects the rural district all or any of the powers of a local authority under Part III. of the principal Act, and thereupon the provisions of the Housing' Acts relating to those powers (including those enabling the Public Works Loan Commissioners to lend, and fixing the terms for which money may be lent and borrowed) shall apply as if the council were a local authority under Part III. of the principal Act: Provided that the expenses incurred by the county council under any such order shall be defrayed as expenses for general county purposes. (3) Where, under any such order, the county council have executed any works in a rural district they may transfer the works to the council of that district on such terms and subject to such conditions as may be agreed between them. * * * * * Amendment 28.— (1) The amount of any compensation payable under section of s. 38 of thirty-eight of the principal Act (h) (which relates to obstructive the principal buildings) shall, when settled by arbitration in manner provided distribution of ^y tnat sect i° n > be apportioned by the arbitrator between any persons compensation having an interest in the compensation in such manner as the arbi- moneyandas trator determines. charges. ^ ^ ae P ower or " * ne arbitrator to apportion compensation under the foregoing provision and to apportion any part of the compensa- (h) Ante, p. 534. THE HOUSING, TOWN PLANNING, ETC. ACT, 1909. 549 tioa to be paid for the demolition of an obstructive building amongst other buildings under subsection (8) of the said section thirty-eight may be exercised in cases where the amount to be paid for compensa- tion has been settled, otherwise than by arbitration under the prin- cipal Act, by an arbitrator appointed for the special purpose, on the application of the local authority, by the Local Government Board, and the provisions of that Act shall apply as if the arbitrator so appointed had been appointed as arbitrator to settle the amount to be paid for compensation. 29. For removing doubts it is hereby declared that a local authority Eplanation may tender evidence before an arbitrator to prove the facts under of ss. 21 (2) the headings (first) (secondly) (thirdly) mentioned in sub- f? d 41 . ( 3 ) °* ' section (2) (i) of section twenty-one and subsection (3) (k) of section Act forty-one of the principal Act, notwithstanding that the local authority have not taken any steps with a view to remedying the defects or evils disclosed by the evidence. * * * * fc 34. Section one hundred and thirty-three of the Lands Clauses Exemption Consolidation Act, 1845 (relating to Land Tax and poor rate), shall from s. 133 not apply in the case of any lands of which a local authority becomes ° .„ possessed by virtue of the Housing Acts. * * * * * 40. Notwithstanding anything contained in the principal Act it Sale and shall not be obligatory upon a local authority to sell and dispose of disposal of any lands or dwellings acquired or constructed by them for any of e ™ 8S- the purposes of the Housing Acts. 41.— (1) The Local Government Board may by order prescribe Power to the form of any notice, advertisement, or other document to be used prescribe in connection with the powers and duties of a local authority or of ^p^e with the Board under the Housing Acts, and the forms so prescribed, or a dvertise- forms as near thereto as circumstances admit, shall be used in all ments and cases to which those forms are applicable. notices. (2) The Local Government Board may dispense with the publica- tion of advertisements or the service of notices required to be pub- lished or served by a local authority under the Housing Acts, if they are satisfied that there is reasonable cause for dispensing with the publication or service. (3) Any such dispensation may be given by the Local Government Board either before or after the time at which the advertisement is required to be published or the notice is required to be served, and either unconditionally or upon such conditions as to the publication of other advertisements or the service of other notices or otherwise as the Board think fit, due care being taken by the Board to prevent the interests of any person being prejudiced by the dispensation. ***** 45. Nothing in the Housing Acts shall authorise the acquisition Saving of for the purposes of those Acts of any land which isthe site of an ^ e °* monu . ancient monument or other object of archaeological interest, or the mentS) &c _ (»') Ante. p. 532. (&) Ante, p. 536. 550 APPENDIX OF STATUTES — BOOK II. 53 & 54 Vict. o. 70. Provisions of this Part to be deemed to be part of the appro- priate Part of the prin - cipal Act. Definition of Housing Acts. compulsory acquisition for the purposes of Part III. of the Housing of the Working Classes Act, 1890, of any land which is the property of any local authority or has been acquired by any corporation or company for the purposes of a railway, dock, canal, water, or other public undertaking, or which at the date of the order forms part of any park, garden, or pleasure ground, or is otherwise required for the amenity or convenience of any dwelling-house. ***** 47,_(1) Any provisions of this Act which supersede or amend any provisions of the principal Act shall be deemed to be part of that Part of the principal Act in which the provisions superseded or amended are contained. ***** 51. In this Part of this Act the expression " Housing Acts " means- the principal Act, and any Act amending that Act, including this Act. Preparation and approval of town plan- ning scheme. Paet II. Town Planning. 54. — (1) A town planning scheme may be made in accordance with the provisions of this Part of this Act as respects any land which is in course of development or appears likely to be used for building purposes, with the general object of securing proper sani- tary conditions, amenity, and convenience in connexion with the laying out and use of the land, and of any neighbouring lands. Provided that where a piece of land already built upon or a piece of land not likely, to be used for building purposes is so situate with respect to any land likely to be used for building pur- poses that the general object of the scheme would be better secured by its inclusion in any town planning scheme made with respect to the last-mentioned land, the scheme may include such piece of land as aforesaid, and may provide for the demolition or alteration of any buildings thereon so far as may be necessary for carrying the scheme into effect (I). Contents of town planning schemes. (7) The expression " land likely to be used for building purposes "" shall include any land likely to be used as, or for the purpose of providing, open spaces, roads, streets, parks, pleasure or recreation grounds, or for the purpose of executing any work upon or under the land incidental to a town planning scheme, whether in the nature of a building work or not, and the decision of the Local Government Board, whether land is likely to be used for building purposes or not, shall be final. 55. — (1) The Local Government Board may prescribe a set of general provisions (or separate sets of general provisions adapted for areas of any special character) for carrying out the general objects (7) This proviso is added by 9 & 10 Geo. 5, c. 35, Soiled. 3. THE HOUSING, TOWN PLANNING, ETC. ACT, 1909. 551 of town planning schemes, and in particular for dealing with the matters set out in the Fourth Schedule to this Act, and the general provisions, or set of general provisions appropriate to the area for which a town planning scheme is made, shall take effect as part of every scheme, except so far as provision is made by the scheme as approved by the Board for the variation or exclusion of any of those provisions. (2) Special provisions shall in addition be inserted in every town planning scheme defining in such manner as may be prescribed by regulations under this Part of this Act the area to which the scheme is to apply, and the authority who are to be responsible for enforcing the observance of the scheme, and for the execution of any works which under the scheme or this Part of this Act are to be executed by a local authority (in this Part of this Act referred to as the respon- sible authority), and providing for any matters which may be dealt with by general provisions, and otherwise supplementing, excluding, or varying the general provisions, and also for dealing with any special circumstances or contingencies for which adequate provision is not made by the general provisions, and for suspending, so far as necessary for the proper carrying out of the scheme, any statutory enactments, byelaws, regulations, or other provisions, under whatever authority made, which are in operation in the area included in the scheme (m). 56. — (1) The Local Government Board may make regulations for Procedure regulating generally the procedure to be adopted with respect to the regulations preparation or adoption of a town planning scheme (n), obtaining Government the approval of the Board to a scheme so prepared or adopted, the Board. variation or revocation of a scheme (w), and any inquiries, reports, notices, or other matters required in connection with the preparation or adoption or the approval of the scheme or preliminary thereto, or in relation to the carrying out of the scheme or enforcing the observ- ance of the provisions thereof, or the variation or revocation of the scheme (n). (2) Provision shall be made by those regulations— (a) for securing co-operation on the part of the local authority with the owners and other persons interested in the land proposed to be included in the scheme by such means (n) as may be provided by the regulations; (b) for securing that notice of the proposal to prepare or adopt the scheme should be given at the earliest stage possible to any council interested in the land; (c) for dealing with the other matters mentioned in the Fifth Schedule to this Act. For securing that the council of the county in which any land proposed to be included in a town planning scheme is situated (1) shall be furnished with a notice of any pro- posal to prepare or adopt such a scheme and with a copy Cm) The proviso to this sub-section is repealed by 9 & 10 Geo. 5, c. 35, s. 44. 00 9 & 10 Geo. 5, c. 35, Sched. 3. 552 APPENDIX OF STATUTES — BOOK II. of the draft scheme before the scheme is made, and (2) shall be entitled to be heard at any -public local inquiry held by the Local Government Board in regard to the scheme (o). Power to 57.— (1) The responsible authority may at any time, after giving enforce sucn notice as may be provided by a town planning scheme and in scheme. accordance with the provisions of the scheme— (a) remove, pull down, or alter any building or other work in the area included in the scheme which is such as to contravene the scheme, or in the erection or carrying out of which any provision of the scheme has not been complied with; or (b) execute any work which it is the duty of any person to execute under the scheme in any case where it appears to the authority that delay in the execution of the work would prejudice the efficient operation of the scheme. (2) Any expenses incurred by a responsible authority under this section may be recovered from the persons in default in such manner and subject to such conditions as may be provided by the scheme. (3) If any question arises whether any building or work contra- venes a town planning scheme, or whether any provision of a town planning scheme is not complied with in the erection or carrying out of any such building or work, that question shall be referred to the Local Government Board, and shall, unless the parties otherwise agree, be determined by the Board as arbitrators, and the decision of the Board shall be final and conclusive and binding on all persons, Compensation 58.— (1) Any person whose property is injuriously affected by m respect ot ^ ma ki n „. f a town planning- scheme shall, if he makes a claim for property in- . . . juriously ^he purpose within the time (if any) limited by the scheme, not being affected by less than three months after the date when notice of the approval of scheme, &c. ^ ne so heme is published in the manner prescribed by regulations made by the Local Government Board, be entitled to obtain compen- sation in respect thereof from the responsible authority. (2) A person shall not be entitled to obtain compensation under this section on account of any building erected on, or contract made or other thing done with respect to, land included in a scheme, after the date of the resolution of the local authority to prepare or adopt the scheme or after the date ivhen such resolution takes effect as the case may be(p), or after such other time as the Local Govern- ment Board may fix for the purpose: Provided that this provision shall not apply as respects any work done before the date of the approval of the scheme for the purpose of finishing a building begun or of carrying out a contract entered into before such date or other time as aforesaid (p). (3) Where, by the making of any town planning scheme, any property is increased in value, the responsible authority, if they make a claim for the purpose within the time (if any) limited by the scheme (not being less than three months after the date when notice of the (o) Added by 9 & 10 Geo. 5, u. 35, s. 43. (p) 9 & 10 Geo. 5, c. 35, Sched. 3. See also as to sub-sect. (2), 9 i 10 Geo. 5, c. 35, s. 45. THE HOUSING, TOWN PLANNING, ETC. ACT, 1909. 553 • approval of the scheme is first published ia the manner prescribed by regulations made by the Local Government Board), shall be entitled to recover from any person whose property is so increased in value one-half of the amount of that increase. (4) Any question as to whether any property is injuriously affected or increased in value within the meaning of this section, and as to the amount and manner of payment (whether by instalments or otherwise) of the sum which is to be paid as compensation under this section or which the responsible authority are entitled to recover from a person whose property is increased in value, shall be determined by the arbitration of a single arbitrator appointed by the Local Government Board, unless the parties agree on some other method of determina- tion. (5) Any amount due under this section as compensation to a person aggrieved from a responsible authority, or to a responsible authority from a person whose property is increased in value, may be recovered summarily as a civil debt. (6) Where a town planning scheme is revoked by an order of the Local Government Board under this Act, any person who has incurred expenditure for the purpose of complying with the scheme shall be entitled to compensation in accordance with this section in so far as any such expenditure is rendered abortive by reason of the revocation of the scheme. 59.— (1) Where property is alleged to be injuriously affected by Exclusion or reason of any provisions contained in a town planning scheme, no limitation of compensation shall be paid in respect thereof if or so far as the [™2 provisions are such as would have been enforceable if they had been cases, contained in byelaws made by the local authority. (2) Property shall not be deemed to be injuriously affected by reason of the making of any provisions inserted in a town planning scheme, which (q), prescribe the space about buildings or limit the number of buildings to be erected, or prescribe the height or character of buildings, and which the Local Government Board, having regard to the nature and situation of the land affected by the provisions, consider reasonable for the purpose. (3) Where a person is entitled to compensation under this Part of this Act in respect of any matter or thing, and he would be entitled to compensation in respect of the same matter or thing under any other enactment, he shall not be entitled to compensation in respect of that matter or thing both under this Act and under that other enactment, and shall not be entitled to any greater compensation under this Act than he would be entitled to under the other enactment. 60.— (1) The responsible authority may, for the purpose of a town Acquisition planning scheme, purchase any land comprised in such scheme by ^ t ^° r a itie8 of agreement, or be authorised to purchase any such land compulsorily land com . in the same manner and subject to the same provisions (including any prised in a provision authorising the Local Government Board to give directions scheme, as to the payment and application of any purchase money or com- (q) Certain words here repealed by 9 & 10 Geo. 5, c. 35, Sched. 3. 554 APPENDIX OF STATUTES BOOK II. Powers of Local Government Board in case of de- fault of local authority to make or exe- cute town planning scheme. pensation) as a local authority may purchase or be authorised to purchase land situate in an urban district for the purposes of Part HI. of the Housing- of the Working Glasses Act, 1890, as amended by sections two and forty-five of this Act. (2) Where land included within the area of a local authority is comprised in a town planning scheme, and the local authority are not the responsible authority, the local authority may purchase or be authorised to purchase that land in the same manner as the responsible authority. 61.— (1) If the Local Government Board are satisfied on any re- presentation, after holding a public local inquiry, that a local authority — (a) have failed to take the requisite steps for having a satisfactory- town planning scheme prepared and approved in a case where a town planning scheme ought to be made ; or (b) have failed to adopt any scheme proposed by owners of any land in a case where the scheme ought to be adopted; or (c) have unreasonably refused to consent to any modifications or conditions imposed by the Board; the Board may, as the ease requires, order the local authority to prepare and submit for the approval of the Board such a town plan- ning scheme, or to adopt the scheme, or to consent to the modifications or conditions so inserted: Provided that, where the representation is that a local authority have failed to adopt a scheme, the Local Government Board, in lieu of making such an order as aforesaid, may approve the proposed scheme, subject to such modifications or conditions, if any, as the Board think fit, and thereupon the scheme shall have effect as if it had been adopted by the local authority and approved by the Board. (2) If the Local Government Board are satisfied on any represen- tation, after holding a local inquiry, that a responsible authority have failed to enforce effectively the observance of a scheme which has been confirmed, or any provisions thereof, or to execute any works which under the scheme or this Part of this Act the authority is required to execute, the Board may order that authority to do all things necessary for enforcing the observance of the scheme or any provisions thereof effectively, or for executing any works which under the scheme or this Part of this Act the authority is required to execute. (3) Any order under this section may be enforced by mandamus. Application to London. 66.— (1) This Part of this Act shall apply to the administrative county of London, and, as respects that county, the London County Council shall be the local authority. (2) Any expenses incurred by the London County Council shall be defrayed out of the general county rate and any money may be borrowed by the Council in the same manner as money may be borrowed for general county purposes. THE HOUSING, TOWN PLANNING, ETC. ACT, 1909. 555 Part IV. Supplemental. 73.— (1) Where any scheme or order under the Housing Acts or Part II. of this Act authorises the acquisition or appropriation to any other purpose of any land forming part of any common, open space, or allotment, the scheme or order, so far as it relates to the acquisition or appropriation of such land, shall be provisional only, and shall not have effect unless and until It is confirmed by Parliament, except where the scheme or order provides for giving in exchange for such land other land, not being less in area, certified by the Local Government Board after consultation with the Board of Agriculture and Fisheries to be equally advantageous to the persons, if any, entitled to commonable or other rights and to the public. (2) Before giving any such certificate the Board shall give public notice of the proposed exchange, and shall afford opportunities to all persons interested to make representations and objections in relation thereto, and shall, if necessary, hold a local inquiry on the subject. (3) Where any such scheme or order authorises such an exchange, the scheme or order shall provide for vesting the land given in exchange in the persons in whom the common or open space was vested, subject to the same rights, trusts, and incidents as attached to the common or open space, and for discharging the part of the common, open space, or allotment acquired or appropriated from all rights, trusts, and incidents to which it was previously subject. (4) For the purposes of this Act the expression " common " shall include any land subject to be enclosed under the Inclosure Acts, 1845 to 1882, and any town or village green; the expression " open space " means any land laid out as a public garden or used for the purposes of public recreation, and any disused burial ground; and the expression " allotment " means any allotment set out as a fuel allotment or a field garden allotment under an Inclosure Act. 74.— (1) Where any land proposed to be included in any scheme or order to be made under the Housing Acts or Part II. of this Act, or any land proposed to be acquired under the Housing Acts or Part II. of this Act, is situate within the prescribed distance from any of the royal palaces or parks, the local authority shall, before preparing the scheme or order or acquiring the land, communicate with the Commissioners of Works, and the Local Government Board shall, before confirming the scheme or order or authorising the acquisition of the land or the raising of any loan for the purpose, take into consideration any recommendations they may have received from the Commissioners of Works with reference to the proposal. (2) For the purposes of this section "prescribed" means pre- scribed by regulations made by the Local Government Board after consultation with the Commissioners of Works. Provisions as to commons and open spaces. Provisions as to land in neighbour- hood of royal palaces or parks. 556 APPENDIX OF STATUTES BOOK II. S. 2. FIRST SCHEDULE. Provisions as to the Compulsory Acquisition of Land by a Local Authority for the purposes of Part III. of the Housing of the Working Classes Act, 1890. (1) Where a local authority propose to purchase land eompulsorily under this Act, the local authority may submit to the Board an order putting in force as respects the land specified in the order the provi- sions of the Lands Clauses Acts with respect to the purchase and taking of land otherwise than by agreement. (2) An order under this schedule shall be of no force unless and until it is confirmed by the Board, and the Board may confirm the order either without modification or subject to such modifications as they think fit, and an order when so confirmed shall, save as otherwise expressly provided by this schedule, become final and have effect as if enacted in this Act; and the confirmation by the Board shall be conclusive evidence that the requirements of this Act have been complied with, and that the order has been duly made and is within the powers of this Act. (3) In determining the amount of any disputed compensation under any such order, no additional allowance shall be made on account of the purchase being compulsory. (4) The order shall be in the prescribed form, and shall contain such provisions as the Board may prescribe for the purpose of carry- ing the order into effect, and of protecting the local authority and the persons interested in the land, and shall incorporate, subject to the necessary adaptations, the Lands Clauses Acts (except section one hundred and twenty-seven of the Lands Clauses Consolidation Act, 8 & 9 Viot. 1845) and sections seventy-seven to eighty-five of the Railways o- 18. Clauses Consolidation Act, 1845, but subject to this modification, that 8 & 9 Vict. any question of disputed compensation shall be determined by a o. 20. single arbitrator appointed by the Board, who shall be deemed to be an arbitrator within the meaning of the Lands Clauses Acts, and the provisions of those Acts with respect to arbitration shall, subject to the provisions of this schedule, apply accordingly. (5) The order shall be published by the local authority in the prescribed manner, and such notice shall be given both in the locality in which the land is proposed to be acquired, and to the owners, lessees, and occupiers of that land as may be prescribed. (6) If within the prescribed period no objection to the order has been presented to the Board by a person interested in the land, or if every such objection has been withdrawn, the Board shall, without further inquiry, confirm the order, but, if such an objection has been presented and has not been withdrawn, the Board shall forthwith cause a public inquiry to be held in the locality in which the land is proposed to be acquired, and the local authority and all persons interested in (he land and such other persons as the person holding the inquiry in his discretion thinks fit to allow shall be permitted to appear and be heard at the inquiry. THE HOUSING, TOWN PLANNING, ETC. ACT, 1909. 557 (7) (r). (8) The arbitrator shall, so far as practicable, in assessing com- pensation act on his own knowledge and experience, but, subject as aforesaid, at any inquiry or arbitration held under this schedule the person holding the inquiry or arbitration shall hear, by themselves or their agents, any authorities or parties authorised to appear, and shall hear witnesses, but shall not, except in such cases as the Board otherwise direct, hear council (sic) or expert witnesses ( s) . (9) The Board may, with the concurrence of the Lord Chancellor, make rules fixing a scale of costs to be applicable on an arbitration under this schedule, and an arbitrator under this schedule may, notwithstanding anything in the Lands Clauses Acts, determine the amount of costs, and shall have power to disallow as costs in the arbitration the costs of any witness whom he considers to have been called unnecessarily and any other costs which he considers to have been caused or incurred unnecessarily. (10) The remuneration of an arbitrator appointed under this schedule shall be fixed by the Board. (11) In construing for the purposes of this schedule or any order made thereunder, any enactment incorporated with the order, this Act together with the order shall be deemed to be the special Act, and the local authority shall be deemed to be the promoters of the undertaking. (12) Where the land is glebe land or other land belonging to an ecclesiastical benefice, the order shall provide that sums agreed upon or awarded for the purchase of the land, or to be paid by way of compensation for the damage to be sustained by the owner by reason of severance or other injury affecting the land, shall not be paid as directed by the Lands Clauses Acts, but shall be paid to the Ecclesi- astical Commissioners to be applied by them as money paid to them upon a sale, under the provisions of the Ecclesiastical Leasing Acts, of land belonging to a benefice. (13) In this schedule the expression " Board " means the Local Government Board, and the expression " prescribed " means pre- scribed by the Board. (14) deals with the application to Scotland. FOURTH SCHEDULE. S. 55. Matters to be dealt with by General Provisions prescribed by the Local Government Board. 1. Streets, roads, and other ways, and stopping up, or diversion of existing highways. 2. Buildings, structures, and erections. 3. Open spaces, private and public. (c) Kepealed: 9 & 10 Geo. 5, c. 35, s. 11 (1). (s) As to the effect of Acquisition of Land (Assessment of Compensation) Act, 1919, see ante, p. 354. 558 APPENDIX OP STATUTES BOOK II. .42. 4. The preservation of objects of historical interest or natural beauty . 5. Sewerage, drainage, and sewage disposal. 6. Lighting. 7. Water supply. 8. Ancillary or consequential works. 9. Extinction or variation of private rights of way and other easements. 10. Dealing with or disposal of land acquired by the responsible authority or by a local authority. 11. Power of entry and inspection. 12. Power of the responsible authority to remove, alter, or demolish any obstructive work. 13. Power of the responsible authority to make agreements with owners, and of owners to make agreements with one another. 14. Power of the responsible authority or a local authority to accept any money or property for the furtherance of the objects of any town planning scheme, and provision for regulating the adminis- tration of any such money or property and for the exemption of any assurance with respect to money or property so accepted from enrol- 51 ,& 62Vict - ment under the Mortmain and Charitable Uses Act, 1888. 15. Application with the necessary modifications and adaptations of statutory enactments. 16. Carrying out and supplementing the provisions of this Act for enforcing schemes. 17. Limitation of time for operation of scheme. 18. Co-operation of the responsible authority with the owners of land included in the scheme or other persons interested (t). 19. Charging on the inheritance of any land the value of which is increased by the operation of a town planning scheme the sura lequired to be paid in respect of that increase, and for that purpose applying, with the necessary adaptations, the provisions of any enact- ments dealing with charges for improvements of land. s - 56 - FIFTH SCHEDULE. 1 . Procedure anterior to the preparation or adoption of (u) a scheme:— (a) Preparation and deposit of plans (u). (b) Publication of notices. 2. Procedure during, on, and after the preparation or adoption and before the approval of the scheme: — (a) Submission to the Local Government Board of the proposed scheme, with plans and estimates. (b) Notice of submission of proposed scheme to the Local Govern- ment Board. (i) Certain words here repealed: 9 & 10 Geo. 5, u. 35, Sehed. 3. («) 9 & 10 Geo. 5, c. 35, Sehed. 3. THE HOUSING, TOWN PLANNING, ETC. ACT, 1919. 559 (e) Hearing of objections and representations by persons affected, including persons representing architectural or archaeologi- cal societies or otherwise interested in the amenity of the proposed scheme. (d) Publication of notice of intention to approve scheme and the lodging of objections thereto. 3. Procedure after the approval of the scheme:— (a) Notice to be given of approval of scheme. (b) Inquiries and reports as to the beginning and the progress and completion of works, and other action under the scheme. 4. Duty, at any stage, of the local authority to publish or deposit for inspection any scheme or proposed scheme, and the plans relating thereto, and to give information to persons affected with reference to any such scheme or proposed scheme'. 5. The details to be specified in plans, including, wherever the circumstances so require, the restrictions on the number of buildings which may be erected on each acre, and the height and character of those buildings. THE HOUSING, TOWN PLANNING, &c. ACT, 1919. 9 & 10 Geo. 5, c. 35. 1 * * * * * Provided that local authorities in preparing, and the Local Govern- ment Board in approving, any scheme shall take into account, and so far as possible preserve, existing erections of architectural, historic, or artistic interest, and shall have regard to the natural amenities of the locality, and, in order to secure that the houses proposed to be built under the scheme shall be of a suitable architecture and that the natural amenities of the locality shall not be unnecessarily injured, the Local Government Board may, in any case where it appears to them that the character of the locality renders such a course expedient, require as a condition of th n ir approval the employment by the local authority of an architect to be selected from a panel of architects nominated for the purpose by the Royal Institute of British Architects. 3—6 (give powers to county councils and Local Government Board to act in place of local authorities). Provisions as to the Acquisition and Disposal of Land, Sc. (x). 9.— (1) Where land included in any scheme made or to be made Provisions as under Part I. or Part II. of the principal Act f other than land * «^«ment included in such a scheme only for the purpose of making the scheme tion . (») See also the Acquisition of Land (Assessment of Compensation) Act, 1919, ante, p. 478. 560 APPENDIX OF STATUTES BOOK II. Power of entry on land acquired. 8 & 9 Vict. c. 18. efficient and not on account of the sanitary condition of the premises thereon or of those premises being dangerous or prejudicial to health) is acquired compulsorily, the compensation to be paid for the land, including any buildings thereon, shall be the value at the time the valuation is made of the land as a site cleared of buildings and available for development in accordance with the requirements of the building byelaws for the time being in force in the district:: Provided that, if in the opinion of the Local Government Board it is necessary that provision should be made by the scheme for the re-housing of persons of the working classes on the land or part thereof when cleared, or that the land or a part thereof when cleared should be laid out as an open space, the compensation payable to all persons interested in any land included in the scheme (other than as aforesaid) for their respective interests therein shall be reduced by an amount ascertained in accordance with the rules set forth in the First Schedule to this Act. (2) The provisions of sections twenty-one and forty-one of the principal Act shall cease to apply as respects lands to which the provisions of this section apply, in so far as such first-mentioned provisions are inconsistent or in conflict with the provisions of this section. 10. — (1) Where an order authorising a local authority to purchase land compulsorily for the purposes of Part III. of the principal Act has been made and confirmed under the provisions of Part I. of the Housing, Town Planning, &o. Act, 1909 (y), then, at any time after notice to treat has been served, the local authority may, after giving not less than fourteen days' notice to the owner and occupier of the land, enter on and take possession of the land or such part thereof as is specified in the notice without previous consent or compliance with sections eighty-four to ninety of the Lands Clauses (Consolidation) Act, 1845, but subject to the payment of the like compensation for the land of which possession is taken and interest on the compensation awarded as would have been payable if those provisions had been complied with. (2) Where a local authority have agreed to purchase land for the purposes of Part III. of the principal Act, or have determined to appropriate land for those purposes, subject to the interest of the person in possession thereof, and that interest is not greater than that of a tenant for a year or from year to year, then, at any time after such agreement has been made, or such appropriation has been approved by the Local Government Board, the local authority may, after giving not Ie«s than fourteen days' notice to the person so in possession, enter on and take possession of the land or such part thereof as is specified in the notice without previous consent but subject to the payment to the person so in possession of the like compensation with such interest thereon as aforesaid as if the local authority had been authorised to purchase the land compulsorily and such person had in pursuance of such power been required to quit (y) Ante, p. 547. THE HOUSING, TOWN PLANNING, ETC. ACT, 1919. 561 possession before the expiration of his term or interest in the land, but without the necessity of compliance with sections eighty-four to ninety of the Lands Clauses (Consolidation) Act, 1845 (z). U. ***** Amendment (2) Where the confirming of an order made under that schedule (a) fo/Jom^ul™ is opposed, the Local Government Board shall, before confirming the sor y acquisi- order, duly consider the report of the person by whom, under para- tion of land, graph (6) of the said schedule, a public inquiry is held, and the Local Government Board shall not confirm any order for the compulsory acquisition of land under that schedule, even when the order is unopposed, if they are of opinion that the land is unsuited for the purpose for which it is proposed to be acquired. (3) Notwithstanding the provisions of paragraph (6) of the First Schedule to the Housing, Town Planning, &c. Act, 1909, any order for the compulsory acquisition of land which is duly submitted after the date of the passing of this Act, and before the expiration of two> years from that date, by a local authority under the provisions of Part I. of the Housing, Town Planning, &c. Act, 1909, may be con- firmed by the Local Government Board without a public inquiry. (4) The amendments to the said schedule effected by this Act shall apply to that schedule as originally enacted but not as applied by any other enactment. 12.— (1) The powers of a local authority to acquire land for the Additional purposes of Part III. of the principal Act (6) shall be deemed to P^?tto n *° include power— of land and (a) to acquire any houses or other buildings on the land proposed houses. to be acquired as a site for the erection of houses for the working classes; and (b) to acquire any estate or interest in any houses which might be made suitable as houses for the working classes, together with any lands occupied with such houses; and the local authority shall have power to alter, enlarge, repair and improve any such houses or buildings so as to render them in all respects fit for habitation as houses for the working classes. (2) The purposes for which land may be acquired under Part III. of the principal Act shall be deemed to include— (a") the lease or sale of the land, under the powers conferred by this Act, with a view to the erection thereon of houses for the working classes by persons other than the local authority; and (b) the lease or sale under the powers conferred by this Act of any part of the land acquired with a view to the use thereof for purposes which in the opinion of the local authority are necessary or desirable for or incidental to the development of the land as a building estate, including the provision, maintenance, and improvement of houses and gardens, 0) Ante, p. 412. 0) 9 Edw. 7, u, 44, Sched. 1. (b) Ante, p. 539. C. 36 562 APPENDIX OF STATUTES — BOOK II. Power to acquire in advance lands in areas pro- posed for inclusion in improvement schemes under Parts I. and II. of princi- pal Act. Power to acquire water rights. 38 & 39 Vict, e. b5. Powers of dealing with land ac- quired. factories, workshops, places of worship, places of recreation, and other works or buildings for or for the convenience of persons belonging to the working classes and other persons. (3) Subject to the consent of the Local Government Board and to such conditions as the Board may prescribe, a local authority may, for the purposes of Part III. of the principal Act, contract for the purchase by or lease to them of houses suitable for the working classes, whether built at the date of the contract or intended to be built there- after. 13. Where a local authority have under section four of the prin- cipal Act passed a resolution that an area is an unhealthy area and that an improvement scheme ought to be made in respect of such area, or have under section thirty-nine of the principal Act passed a resolution directing a scheme to be prepared for the improvement of an area, the local authority may, with the consent of and subject to any conditions imposed by the Local Government Board, acquire by agreement any lands included within the area notwithstanding that the scheme may not at the time of acquisition have been made by the local authority or confirmed or sanctioned by the Local Government Board; and the acquisition of such lands shall be deemed to be a purpose for which the local authority may borrow money under and subject to the provisions of Part I. or, as the case may be, Part II. of the principal Act. 14. A local authority or a county council may, notwithstanding anything in section three hundred and twenty-seven or section three hundred and thirty-two of the Public Health Act, 1875 (c), but subject to the provisions of section fifty-two (d) of that Act, be authorised to abstract water from any river, stream, or lake, or the feeders thereof, whether within or without the district of the local authority or the county, for the purpose of affording a water supply for houses provided or to be provided under a scheme made under the Housing Acts, and to do all such acts as may be necessary for affording a water supply to such houses, subject to a prior obligation of affording a sufficient supply of water to any houses or agricultural holdings or other premises that may be deprived thereof by reason of such abstraction, in like manner and subject to the like restrictions as they may be authorised to acquire land for the purposes of the scheme: Provided that no local authority or county council shall be autho- rised under this section to abstract any water which any local authority, corporation, company, or person are empowered by Act of Parliament to impound, take or use for the purpose of supply within any area, or any water the abstraction of which would, in the opinion of the Local Government Board, injuriously affect the work- ing or management of any canal or inland navigation. 15-— (1) Where a local authority have acquired or appropriated any land for the purposes of Part III. of the principal Act, then, 0) Ante, p. 512. (d) Ante, p. 342. THE HOUSING, TOWN PLANNING, ETC. ACT, 1919. 563 without prejudice to any of their other powers under that Act, the authority may — (a) lay out and construct public streets or roads and open spaces on the land; (b) with the consent of the Local Government Board sell or lease the land or part thereof to any person for the purpose and under the condition that that person will erect and maintain thereon such number of houses suitable for the working classes as may be fixed by the local authority in accordance with plans approved by them, and when necessary will lay out and construct public streets or roads and open spaces on the land, or will use the land for purposes which, in the opinion of the local authority, are necessary or desirable for or incidental to the development of the land as a build- ing estate in accordance with plans approved by the local authority, including the provision, maintenance, and im- provement of houses and gardens, factories, workshops, places of worship, places of recreation and other works or buildings for, or for the convenience of, persons belonging to the working classes and other persons; (c) with the consent of the Local Government Board sell the land or exchange it for land better adapted for those purposes, either with or without paying or receiving any money for equality of exchange; (d) with the consent of the Local Government Board sell or lease any houses on the land or erected by them on the land, subject to such covenants and conditions as they may think fit to impose either in regard to the maintenance of the houses as houses for the working classes or otherwise in regard to the use of the houses, and upon any such sale they may, if they think fit, agree to the price being paid by instalments or to payment of part thereof being secured by a mortgage of the premises: Provided that it shall be a condition of such sale or lease that the houses shall not be used by any person for the time being having any interest therein for the purpose of housing persons in his employment. (2) Where a local authority under this section sell or lease land subject to any condition as to the erection thereon of houses, or the laying out and construction of streets or the development of the land, there shall be included in the conveyance or lease all such covenants and conditions as may be necessary to secure compliance with the condition aforesaid within a reasonable period, and to limit the amount of the rent which may be charged in respect of the land or any part thereof or in respect of the houses erected thereon; and the local authority may contribute or agree to contribute towards the expenses of the development of the land and the laying out and con- struction of streets thereon, subject to the condition that the streets are dedicated to the public. 36 (2) 564 APPENDIX OF STATUTES — BOOK II. Power of Iiocal Gov- ernment Board to assist in pre- paration of schemes. (3) Land and houses sold or leased under the provisions of this! section shall be sold or leased at the best price or for the best rent that can reasonably be obtained, having regard to any condition imposed, and any capital money received in respect of any transaction under this section shall be applied in or towards the purchase of other land for the purposes of Part III. of the principal Act, or with the consent of the Local Government Board to any purpose, including the repayment of borrowed money, to which capital money may be properly applied. 16. For the purpose of assisting in the preparation and carrying out of schemes under this Act, or for the purpose of securing the immediate provision of dwelling- accommodation in the area of any local authority pending the preparation of a scheme by such authority, the Local Government Board may, with the consent of the Treasury, acquire and hold lands and buildings, erect buildings, alter, enlarge, repair, and improve buildings, and dispose of any lands or buildings so acquired or erected, and for such purposes the Board may exercise any of the powers of a local authority under the Housing Acts in regard to the acquisition and disposal of land and buildings. Powers of promoting" and assisting public utility- societies. Provisions for the assistance of public utility societies, housing trusts, and other persons. 18. — (1) A local authority within the meaning of Part III. of the principal Act, or a county council, may promote the formation or extension of or, subject to the provisions of this section, assist a public utility society whose objects include the erection, improvement or management of houses for the working classes, and where such a society is desirous of erecting houses for the working classes which, in the opinion of the Local Government Board, are required, and the local authority of the area in which the houses are proposed to be. built are unwilling to acquire land with a view to selling or leasing the same to the society, the county council, on the application of the society, may for this purpose acquire land and exercise all the powers of a local authority under the Housing Acts in regard to the acquisi- tion and disposal of land, and the provisions of those Acts as to the acquisition of land by local authorities within the meaning of Part III. of the principal Act shall apply accordingly. Power to authorise conversion of a house into several tenements. 27. Where it is proved to the satisfaction of the county court on an application by the local authority or any person interested in a house that, owing to changes in the character of the neighbourhood in which such house is situate, the house cannot readily be let as a single tenement but could readily be let for occupation if converted into two or more tenements, and that, by reason of the provisions of the lease or of any restrictive covenant affecting the house or other- wise, such conversion is prohibited or restricted, the court, after giving any person interested an opportunity of being heard, may vary the terms of the lease or other instrument imposing the pro- THE HOUSING, TOWN PLANNING, ETC. ACT, 1919. 565 hibition or restriction so as to enable the house to be so converted subject to such conditions and upon such terms as the court may think jnst(e). *t* T* -7* T* -I* 36. Notwithstanding anything in section fifty of the Brine Pump- Compensation ing (Compensation for Subsidence) Act, 189l'(/), a local authority ™ b c 8 a ^ e e 8 n °g or county council shall be entitled to compensation in accordance with ' the provisions of that Act in respect of any injury or damage to any c i0 houses belonging to such local authority or council, and provided under a housing scheme towards the losses on which the Local Government Board is liable to contribute under this Act. ***** 41.— (1) For the purposes of the application of Part III. of the Application principal Act to the county of London— certa^pro"* (a) the London County Council shall be the local authority for visions of the county, to the exclusion of any other authority, so far ^ e Housing as regards the provision of any houses outside the adminis- c 8- trative county of London; (b) the council of a metropolitan borough shall be the local authority for the metropolitan borough, to the exclusion of any other authority, so far as regards the provision of houses within the metropolitan borough: Provided— (i) that nothing in this section shall prejudice or affect the rights, powers and privileges of the London County Council in regard to any lands, buildings or works acquired, provided or carried out by the County Council before the date of the passing of this Act; and (ii) that where the London County Council are satisfied that there is situate within the area of a metropolitan borough land suitable for development for housing, the county council may submit -a scheme for the approval of the Local Government Board .for the development of such land to meet the needs of districts situate outside the area of such borough, and the county council may carry into effect any scheme which is so approved, and such approval shall have the like effect as if it had been given under section one of this Act; u knd ing desires to use the holding for purposes other than agriculture, agricSt^ 01 " he shall before so doing, whether the holding is situate within a town or built upon or not, offer the holding for sale, first to the county ■council from whom the holding was purchased, and secondly to the person or persons (if any) then entitled to the lands from which the holding was originally severed, and sections one hundred and twenty- seven to one hundred and thirty of the Lands Clauses Consolidation 8 & 9 Vict. Act, 1845, shall apply as if the owner, of the small holding were the o. 18. promoter of the undertaking, and the holding were superfluous lands within the meaning of those sections. 16 (I). Powers of Board of Agriculture and Fisheries. 20. The Board may, if after inquiry they think it advisable to do p OW er of so with a view to demonstrating the feasibility of the establishment Board to of small holdings in any locality, exercise the powers conferred on P r iT de sma11 ■county councils by the provisions of this Act relating to small holdings (except the powers of acquiring land compulsorily and of borrowing), and those provisions shall apply as if references to the Board were substituted for references to a county council; but the expenses of the Board shall be defrayed out of, and their reoeipts paid into, the Small Holdings Account, and no part thereof shall be paid out of any rate. Part II. Allotments. Provision of Allotments. 23.— (1) If the council of any borough, urban district, or parish Duty of cer- are of opinion that there is a demand for allotments in the borough, ^ m r °^g lls urban district, or parish, the council shall provide a sufficient number ^o^entl of allotments, and shall let such allotments to persons in the borough, district, or parish, and desiring to take the same (to) . 24 * * * * * <2) The county council, if satisfied that the circumstances are such ■that land for allotments should be acquired by them under this section, shall pass a resolution to that effect, and thereupon the powers and duties of the district or parish council under the provisions of this Act relating to allotments shall be transferred from that council to the county council, and the county council, in substitution for that (0 Repealed: 9 & 10 Geo. 5, o. 59, s. 12 (2). (m) Certain words repealed in this section: 9 & 10 Geo. 5, c. 59, Sched. 3. 570 APPENDIX OF STATUTES — BOOK II. council, shall proceed to acquire laud in accordance with this Act, and otherwise execute this Act in the district or parish: 5p *P *t* *P T* (4) If the Board are, in relation to any urban district or rural parish, satisfied, after holding a local inquiry at which the county council and the council of the district or parish, and such other persons- as the person holding the inquiry may in his discretion think fit to allow, shall be permitted to appear and be heard, that the county; council have failed to fulfil their obligations under this section, the Board may by order transfer to the Commissioners all or any of the powers of the county council under this section in relation to the district or parish, and this section shall apply as if references to the Commissioners were substituted for references to the county council and with such other adaptations as may be made by the order. Powers of Councils in relation to the provision of Allotments. Acquisition of 25. — (1) The council of a borough, urban district, or parish may, land for pur- f or the purpose of providing allotments, by agreement purchase or pose o Act. j.^g Qn | 6ase i ari( j ) whether situate within or without their borough, district, or parish. (2) If a council are unable to acquire by agreement, and on rea- sonable terms, suitable land for the purpose of allotments, they may acquire land compulsorily in accordance with the provisions of this Act relating to compulsory acquisition of land. # * * # # Sale of super- 32. — (1) Where the council of any borough, urban district, or flu ° u £ or un " parish are of opinion that any land acquired by them for allotments or any part thereof is not needed for the purpose of allotments, or that some more suitable land is available, they may, with the sanction of the county council, sell or let such land otherwise than under the provisious of this Act, or exchange the land for other land more- suitable for allotments, and may pay or receive money for equality of exchange. (2) The proceeds of a sale under this Act of land acquired for allotments, and any money received by the council on any such exchange as aforesaid by way of equality of exchange, shall be applied in discharging, either by way of a sinking fund or otherwise, the debts and liabilities of the council in respect of the land acquired by the council for allotments, or in acquiring, adapting, and improv- ing other land for allotments, and any surplus remaining may be applied for any purpose for which capital money may be applied, and which is approved by the Local Government Board; and the interest thereon (if any) and any money received from the letting of the land may be applied in acquiring other land for allotments, or shall be applied in like manner as receipts from allotments under this Act are applicable. (3) (n). ***** O) Repealed: 9 & 10 Geo. 5, c. 59, Sehed. 3. THE SMALL HOLDINGS AND ALLOTMENTS ACT, 1908. 571 Supplemental. 34.— (1) Where it appears to the council of any borough, urban Power to district, or parish that, as regards their borough, district, or parish, make so ^me land can be acquired for affording common pasture at such price or i ^^^ a rent that all expenses incurred by the council in acquiring the land pasture, and otherwise in relation to the land when acquired may reasonably be expected to be recouped out of the charges paid in respect thereof, and that the acquisition of such land is desirable in view of the wants and circumstances of the population, the council may submit to the council of the county in which the borough, district, or parish is wholly or partly situate a scheme for providing such common pasture. (2) The county council, if satisfied of the expediency of such scheme, may by order authorise the council which submitted it to carry it into effect, and, upon such an order being made, the provi- sions of this Act relating to allotments shall, with the necessary modifications, apply in like manner as if " allotments " in those provisions included common pasture, and " rent " included a charge for turning out an animal: Provided that the rules made under those provisions may extend to regulating the turning out of animals on the common pasture, to defining the persons entitled to turn them out, the number to be turned out, and the conditions under which animals may be turned out, and fixing the charges to be made for each animal, and otherwise to regulating the common pasture. ^c % :fc ijp :Jc 36. The powers as to allotments conferred on borough, urban Application district, and parish councils by this Act may in London be exercised t0 Lon Provided that a grant or inclosure of common purporting to be made under any such order shall not be valid unless it is made with the consent of the Board, given under and in accordance with the provisions of section twenty-two of the Commons Act, 1899. 62 & 63 Vict. (2) Notice of the making of an order to which this section applies °- 30 - shall be given in the prescribed form and manner by the council as. soon as practicable to each owner, lessee and occupier of the land authorised to be acquired, and a copy of the order and of any plan annexed or referred to in the order shall be furnished by the council to any person interested in the land, on application by such person. 2. — (1) Where an order for the compulsory purchase of land has Power of been made, and where necessary confirmed, under the principal Act, entry on land, whether such order was made before or after the passing of this Act, the council entitled to purchase the land under the order may, at any time after a notice to treat has been served, and on giving not less than fourteen days' notice to each owner, lessee and occupier of the land, enter on and take possession of the land or such part thereof as is specified in the notice without previous consent or compliance with sections eighty-four to ninety of the Lands Clauses (Consolidation) 8 & 9 Vict. Act, 1845, but subject to the payment of the like compensation for «• 18 - the land of which possession is taken and interest thereon as would have been payable if the provisions of those sections had been complied with: Provided that, where a council have so entered on land, the council shall not be entitled to exercise the powers conferred by subsec- tion (8) of section thirty-nine of the principal Act. (2) Where a council have agreed, for the purposes of the principal Act, to purchase land subject to the interest of the person in posses- sion thereof, and that interest is not greater than that of a tenant for a year, or from year to year, then at any time after such agreement has been made the council may, after giving not less than fourteen days' notice to the person so in possession, enter on and take posses- sion of the land or of such part thereof as is specified in the notice without previous consent, but subject to the payment to the person so in possession of the like compensation for the land of which possession is taken, with such interest thereon as aforesaid, as if 592 APPENDIX OF STATUTES BOOK II. Power of Board of Agriculture and Fish- eries to provide land for settlement. the council had been authorised to purchase the land compulsorily and such person had, in pursuance of such power, been required to- quit possession before the expiration of his term or interest in the land, but without the necessity of compliance with sections eighty- four to ninety of the Lands Clauses (Consolidation) Act, 1845. (3) Where a notice of entry under this section relates to land on which there is a dwelling-house and the length of notice is less than three calendar months, the occupier of the dwelling-house may, by notice served on the council within ten days after the service on him of the notice of entry, appeal against such notice, and in any such case the appeal shall be determined by an arbitrator under and in accordance with the provisions of the Second Schedule of the Agricultural Holdings Act, 1908 (except that the arbitrator shall, in default of agreement, be appointed by the President of the Sur- veyors' Institution), and the council shall not be entitled to enter on the land under this section except on such date and on such con- ditions as the arbitrator may award. (4) This section shall with such necessary adaptations as may be prescribed apply in the case of an order authorising the compulsory hiring of land, or of an agreement to hire land. 3 (y). — (1) If the Board of Agriculture and Fisheries are satisfied that in any county the council are not providing small holdings, or land to be leased to a parish council for the provision of allotments, to such extent as in the opinion of the Board is desirable, the Board shall, in that county, during a period of three years after the passing of this Act, acquire land to such extent as they think desirable for small holdings or to be leased to a parish council for the provision of allotments, and, for such purpose and for the use or disposal of the land when acquired, the Board shall have the same powers as may be exercised by a county council under the principal Act, and the provisions of the principal Act relating to the acquisition use pr disposal of land by a county council and to small holdings provided by a county council shall apply with the necessary adaptations to the acquisition, use and disposal of land by the Board and to small holdings provided by the Board under this section. (2) Where the Board determine to exercise in any county the powers conferred by this section, they shall give notice of such deter- mination to the council of the county. (3) A county council shall furnish the Board with all such infor- mation as the Board may require for the purposes of this section. (4) The Board may at any time transfer land acquired under this section to the council of the county in which it is situate if the Board are satisfied that the council are willing to exercise and perform their powers and duties in relation thereto, but the terms of any transfer shall be subject to the approval of the Treasury. (5) The expenses of the Board under this section to such extent as may be sanctioned by the Treasury shall be defrayed out of the Small Holdings Account, and the receipts of the Board under this section shall be paid into that account. (y) Continued in force by the Expiring Laws Continuance Aot, 1921 (11 & 12 Geo. 5, u. 53). THE LAND SETTLEMENT (FACILITIES) ACT, 1919. 593 4.0)— (1) During a period of two years after the passing of this Power of Act the Board of Agriculture and Fisheries may, with the consent of ? oa ^! the Treasury, purchase or hire land for reclamation or drainage, and anil Fisheries for such purpose shall have the same powers as may be exercised by to acquire a county council under the principal Act, for the acquisition of land land for . for small holdings or allotments, and the provisions of the principal ™° lamatlon ' Act relating to such acquisition shall apply with the necessary adaptations. (2) The powers of management conferred on the Board by section four of the Small Holding Colonies Act, 1916, shall apply with the 6 & 7 Geo. 5, necessary modifications in relation to land acquired by the Board c - 38 ' under this section or any other enactment. 5.(2) — (1) Subject to the limitations contained in the Small Holding Power of Colonies Acts, 1916 and 1918, on the amount of land which may be acquiring acquired for the purposes of those Acts, and to the provisions of 8n ^ a ri hold- section one of the Small Holdings Colonies (Amendment) Act, 1918, iug colonies, as to consultation with the chairman or a committee of the council of 8 & 9 Geo. 5, the county in which the land proposed to be acquired is situate, land c. 26. may, during the period of two years after the passing of this Act, be acquired by the Board of Agriculture and Fisheries compulsorily for the purposes of those Acts in like manner, and subject to the like provisions as for the purposes mentioned in the last foregoing section, and that section shall apply accordingly, and the powers of acquiring land by agreement under those Acts shall be exercisable during the like period. ***** 8. For the purpose of a sale of land under the Ecclesiastical Sales of Leasing Acts to a council or to the Board of Agriculture and Fisheries glebe, for the purposes of the principal Act or the Small Holding Colonies Acts, 1916 and 1918, the consent of the patron to the sale shall not be necessary. Part II. Amendment of the Small Holdings and Allotments Act, 1908. ***** 10.— (1) The power of a council to acquire land for small holdings Amendment under the principal Act shall not be exercised during the period ^P™ 1 ^ 1 ending on the thirty -first day of March, nineteen hundred and twenty- spects power six, except with the previous consent of the Board of Agriculture and to acquire Fisheries, or after the thirty-first day of March, nineteen hundred ^j^^. and twenty-six, except at such a price or rent or for such an annuity ?™ as in the opinion of the council will allow all expenses incurred by the council in relation to the land to be recouped out of the purchase money or rent to be obtained by the council for the land. ***** 12.-(1) Subject to the consent of the Board of Agriculture and E o ^™ si ° f n of Fisheries in cases where their consent is required under this section ^^^in 0) Continued in force by the Expiring Laws Continuance Act, 1921 (11 & 12 Geo. 5, c. 53). C. 38 594 APPENDIX OF STATUTES BOOK II. relation to land ac- quired under principal Act. 8 & 9 Vict, c. 18. Removal of necessity for consent of Board after a certain period. or under regulations made by the Board, a county council shall have power in any case where in the opinion of the council it is necessary or expedient so to do for the better carrying into effect of the principal Act — * * * * * (b) to sell, mortgage, exchange, or let any such land or any interest therein, subject, in the case of any sale, mortgage, or exchange, to the consent of the Board, and in the case of a mortgage subject also to the consent of the Local Govern- ment Board: (c) in a case where no power of appropriation is otherwise provided, with the consent of the Board and the Local Government Board and subject to such conditions as to the repayment of any loan made for the purpose of the acquisition of the land or otherwise as the last-mentioned Board may impose— (i) to appropriate for any purpose for which the council is authorised to acquire land under the principal Act any land held by the council for other purposes of the council; or (ii) to appropriate for other purposes of the cou£cil land acquired by the council under the principal Act: ***** (3) The provisions of the Lands Clauses (Consolidation) Act, 1845, with respect to the sale of superfluous land, shall not apply to land acquired by a council under the principal Act. 13. Notwithstanding any provision in the principal Act, the consent of the Board of Agriculture and Fisheries shall not, after the thirty- first day of March, nineteen hundred and twenty-six, be required for the acquisition, sale, mortgage, exchange, letting, improvement, or management of land by a county council under the principal Act, except in cases where such consent is required by some enactment other than the principal Act. Amendment of s. 41 of principal Act. 16.— (1) An order under the principal Act may, notwithstanding anything in section forty-one thereof, authorise the compulsory acquisition — (a) of any land which at the date of the order forms part of any park or of any home farm attached to and usually occupied with a, mansion house, if the land is not required for the amenity or convenience of the mansion house; or (b) of a holding of fifty acres or less in extent or any part of such a holding. (2) Where it is proposed to acquire any land forming part of a park or any such home farm, or, except where required for purposes of allotments, a holding of fifty acres or less in extent or of an annual value not exceeding fifty pounds for the purposes of income tax, or any part of such a holding, the order authorising the acquisition of the land shall not be valid unless confirmed or made by the Board of Agriculture and Fisheries. (3) A holding to which the preceding subsection applies shall not in whole or in part be compulsorily acquired under the principal THE LAND SETTLEMENT (FACILITIES) ACT, 1919. 595 Act by the Board or a council where it is shown to the satisfaction of the Board or the council, as the case may be, that the holding is the principal means of livelihood of the occupier thereof, exoept where the occupier is a tenant and consents to the acquisition. 17. A county council may acquire land for the purpose of leasing Power of it to the council of a parish within the county for the provision of county council allotments, and the provisions of the principal Act relating to the J^afo^t- acquisition, and to proceedings in relation to the acquisition, of land ting to parish for the purpose of providing small holdings shall apply to such council for acquisition as if the land were to be acquired for the provision of aUotments - small holdings. 19. A council, with a view to ascertaining whether any land is Power of suitable for any purpose for which the council has power to acquire entry to in- land under the principal Act, may by writing in that behalf authorise spect lan any person (upon production, if so required, of his authority), to enter and inspect the land specified in the authority, and anyone who obstructs or impedes any person acting under and in accordanoe with any such authority shall be liable on summary conviction to a fine not exceeding twenty pounds. # * * * # 22.— (1) A council of a borough, urban district, or parish may, Power of in a case where no power of appropriation is otherwise provided, appropriation with the consent of the Board of Agriculture and Fisheries and the of land - Local Government Board, and subject to such conditions as to the repayment of any loan obtained for the purpose of the acquisition of land or otherwise as the last-mentioned Board may impose, — (a) appropriate for the purpose of allotments any land held by the council for other purposes of the council; or (b) appropriate for other purposes of the council land acquired by the council for allotments. (2) This section shall apply, in the county of London, to the council of the county and to any metropolitan borough council. 23. Where land is let for the provision of allotments either to a Agreements council under the principal Act or to an association formed for the a ^ a ™ ™" purpose of creating or promoting the creation of allotments, the whereland right of the council or association to claim compensation from the islet for landlord on the determination of the tenancy shall be subject to the P{£™^ t ° f terms of the contract of tenancy, notwithstanding the provision of any Act to the contrary: Provided that this section shall not prejudice or affect any right on the part of a person holding under a tenancy granted by the council or association to claim compensation from the council or association on the determination of his tenancy. 24. The powers as to allotments conferred on borough councils Power of by the principal Act may be exercised by a metropolitan borough ££j£|™ council, and the expenses so incurred by a council shall be defrayed, to aUotments . and money for such purpose may be borrowed, under and in accord- 38 (2) 596 APPENDIX OF STATUTES — BOOK II. 54 & 55 Vict. o. 76. anoe with the provisions of the Public Health (London) Act, 1891, as if such expenses were incurred by the council under that Act. 5flC 5fS 5|C ^ 3JC Provisions aa to commons and open spaces. 29 & 30 Vict, c. 122. 39 & 40 Vict, c. 56. 7 Edw. 7, c. cxxxvi. Local and private. Part IV. Geneeal. 28.— (1) Any land which is, or forms part of, a metropolitan common within the meaning of the Metropolitan Commons Act, 1866, or which is subject to regulation under an order or scheme made in pursuance of the Inclosure Acts, 1845 to 1899, or under any local Act or otherwise, or which is or forms part of any town or village green, or of any area dedicated or appropriated as a public park, garden, or pleasure ground, or for use for the purposes of public recreation, shall not be appropriated under this Act by a council for small holdings or allotments, and shall not be acquired by a council or by the Board of Agriculture and Fisheries under the principal Act except under the authority of an order for compulsory purchase made under the principal Act, which so far as it relates to such land shall be provisional only, and shall not have effect unless it is con- firmed by Parliament. (2) The Board of Agriculture and Fisheries, in giving or with- holding their consent under this Act to the appropriation and in confirming an order for compulsory acquisition by a council for the purpose of small holdings or allotments of any land which forms part of any common, and in the exercise by the Board of their powers of acquiring land under this Act, shall have regard to the same con- siderations and shall hold the same inquiries as are directed by the Commons Act, 1876, to be taken into consideration and held by the Board before forming an opinion whether an application under the Inclosure Acts shall be acceded to or not. Any consent by the Board of Agriculture and Fisheries for the appropriation of land forming part of any common for the purpose of small holdings or allotments shall be laid before Parliament while Parliament is sitting, and, if within twenty-one days in either House of Parliament a motion is carried dissenting from such appropriation, the order of the Board shall be cancelled. (3) Where an order for compulsory purchase to which this section applies or a consent by the Board to the appropriation of land pro- vides for giving other land in exchange for the common or open space to be purchased or appropriated, the order for compulsory purchase or an order made by the Board in relation to the consent for appropriation may vest the land given in exchange in the persons in whom the common or open space purchased or appropriated was vested subject to the same rights, trusts, and incidents as attached to the common or open space and discharges the land purchased or appropriated from all rights, trusts, and incidents to which it was previously subject. (4) Nothing in the principal Act shall be deemed to authorise the acquisition of any land which forms part of the trust property to which the National Trust Act, 1907, applies. THE SMALL HOLDING COLONIES ACT, 1916. 597 29. The powers conferred upon a tenant for life by the Settled Amendment Land Acts, 1882 to 1890, shall include the following further power:— 2 f s 5 tt } ed . . of Land Acts, A power at any time, or times, to make a grant or grants of any 1882 to 1890. part or parts of the settled land in fee simple or absolutely, or a lease or leases for any term of years without any consideration, or at a nominal price, annuity or rent, or at less than the best price, annuity or rent that can reasonably be obtained for the purpose of the Small Holdings and Allotments Acts, 1908 to 1919, and any such grant as aforesaid shall be deemed to be a sale within the meaning of the said Settled Land Acts: Pro- vided that, except under an order of the court, no more than two acres in the case of land situate in an urban district or ten acres in the case of land situate in a rural district in any one parish shall be granted or leased under this power for the purpose of the said Small Holdings and Allotments Acts or under the similar power conferred by the Housing, Town Planning, &c. 9 & 10 Geo. 5, Act, 1919, for the purpose of the erection of dwellings for the c - 3Sl working classes or the provision of gardens to be held in con- nexion therewith or for all of such purposes together without payment of the full-price annuity or rent for any land granted or leased in excess of such quantity. 3f* ?p ^C tfy 3p 32.— (1) This Act, so far as it amends the principal Act, shall Construction, be construed as one with that Act, and references in this Act to the principal Act, or to any provision of the principal Act, shall, where the context permits, be construed as references to the principal Act, or the provisions of the principal Act as amended by this Act. (2) References to small holdings provided, and to land acquired, under the principal Act shall be construed as including references to small holdings provided and land acquired under any enactment repealed by the principal Act. THE SMALL HOLDING COLONIES ACT, 1916 (y). 6 & 7 Geo. 5, c. 38. * * * * * 1.— (1) The Board of Agriculture and Fisheries (in this Act Power of referred to as " the Board ") for the purpose ;of providing experimental ^j^ small holding colonies may, with the consent of the Treasury, acquire fo ^ 8mall by agreement any land which, in the opinion of the Board, is suitable holding for that purpose. colonies - (2) Where the Board, or a landlord at the request of the Board, terminates a tenancy of land by notice to quit, whether given before •or after the passing of this Act, with a view to the use of the land or O) This Act, which was temporary, was made perpetual by 9 & 10 Geo. 5, •c. 59, Sohed. 3. 598 APPENDIX OF STATUTES BOOK II. 8 Edw. 7, u. 28. 4 & 5 Geo. 5, 0.7. Power of Board to promote co- operation in connection with small holdings colonies. any part thereof by the Board for the provision of small holdings under this Act, the tenant upon quitting shall be entitled to recover from the Board compensation for the loss or expense directly attri- butable to the quitting which the tenant may unavoidably incur upon or in connection with the sale or removal of his household goods or his implements of husbandry, produce, or farm stock on or used in connection with the land: Provided that no compensation shall be payable under this sub- section: (a) unless the tenant has given to the Board a reasonable oppor- tunity of making a valuation of such goods, implements, produce, and stock as aforesaid; or (b) if the claim for compensation is not made within three months after the time at which the tenant quits; and in the event of any difference arising as to any matter under this subsection the difference shall, in default of agreement, be settled by a single arbitrator in accordance with the Agricultural Holdings Act, 1908: Provided also that compensation under the Agricultural Holdings Act, 1914, shall not be payable in any case to which this subsection applies. (3) The total area of the land for the time being acquired by the Board for the purposes of this section shall not at any time exceed forty-five thousand (2) acres in England (excluding Monmouthshire),, or twenty thousand (z) in Wales and Monmouthshire, or sixty thou- ■ sand (z) in all, and in the selection of persons to be settled on the land so acquired the Board shall give preference to persons who have served in the naval or military forces of the Crown in the present war. (4) For the purpose of the acquisition of land by agreement under this Act, the Lands Clauses Acts shall be incorporated with this Act except the provisions of those Acts with respect to the purchase and taking of land otherwise than by agreement and the provisions- relating to the sale of superfluous land and the provisions with respect to any lands being common or waste land. (5) Where a labourer, who has been regularly employed on any land acquired by the Board for the purposes of this Act, proves to the satisfaction of the Board that the effect of the acquisition was to deprive him of his employment, and that there was no employment of an equally beneficial character available to him in the same locality, the Board shall pay to him such compensation as they think just for his loss of employment or for his expenses in moving to another locality, and any sum so paid shall be treated as part of the expenses of the acquisition of the land. 2. With the consent of, and subject to regulations made by, the- Treasury, the Board may promote the formation or extension of societies on a co-operative or co-partnership basis, having for their object, or one of their objects, the establishment or profitable work- ing of holdings provided under this Act, whether in relation to the (z) 8 & 9 Geo. 5, 26. THE SMALL HOLDING COLONIES ACT, 1916. 599 purchase of requisites, the sale of produce, credit banking, or insur- ance, or otherwise, and may assist any such society by making grants: or advances to the society, or guaranteeing advances made to the society, upon such terms and conditions as to rate of interest and repayment or otherwise, and on such security, as the Board think fit, and the Board where they think fit may transfer to any such society the whole or any portion of any colony of small holdings provided under this Act upon such terms and conditions as the Board may think fit: Provided that the Board shall not make any such transference except upon such terms as provide for the payment of the full value of the land transferred, as determined by the Board with the consent of the Treasury. 3. The power of acquiring land conferred on the Board by this Powers in Act or the Development and Road Improvement Funds Act, 1909, relation to shall include power by agreement to take land on lease or acquire J^and 10n an option of purchasing land or taking land on lease. ***** 7.— (1) Any person having power (whether subject to any consent Power to or conditions or not) to sell land authorised to be acquired by the ff ran * or Board may, subject to the like consent and conditions, grant or t0 Board for demise the land in perpetuity or for any term of years to the Board perpetual at such fee farm or other rent, secured by such condition of re-entry rent - or otherwise as may be agreed upon, and with or without a right of renewal, or grant to the Board an option to acquire the land: Provided that, where the power to sell arises under the Settled Land Acts, 1882 to 1890, the powers conferred by this section shall be exercised only with the consent of the trustees of the settlement for the purposes of those Acts, or with the sanction of the court. (2) This section shall extend and apply to land belonging to His Majesty in right of the Crown or of the Duchy of Lancaster, and to land belonging to the Duchy of Cornwall. 8.— (1) For the purposes of this Act and the Lands Clauses Acts Interpreta- as incorporated with this Act the expression "land" includes any ^°" C euf neous right or easement in or over land, and the expression " small hold- ing " has the same meaning as in the Small Holdings and Allotments Act, 1908. (2) The powers conferred by this Act are in addition to and not in substitution for any powers otherwise exerciseable by the Board. (3) Any person who sells land to the Board or purchases land from the Board or exchanges land with the Board shall not be entitled to require proof of compliance with any conditions prescribed by regulations made by the Treasury, or of the consent of the Treasury, or be affected by any omission to comply with those conditions, or to obtain such consent. ***** 600 APPENDIX OF STATUTES BOOK II. THE COMMONS ACT, 1899. 62 & 63 Vict. c. 30. * * * * * 6. No estate, interest, or right of a profitable or beneficial nature in, over, or affecting any common shall, except with the consent of the person entitled thereto, be taken away or injuriously affected by any scheme under this Part of this Act without compensation being made or provided for the same by the council making the scheme, and such compensation shall, in case of difference, be ascer- tained and provided in the same manner as if it were for the com- pulsory purchase and taking, or the injurious affecting, of lands under the Lands Clauses Acts. Section VI. (a) . — Provision of Public Services by State or Local Authorities. THE TELEGBAPH ACT, 1878. 41 & 42 Vict. c. 76. Amendment 3. Where any body or person (within the meaning of the Tele- of 26 & 27 graph Act, 1863,) having power under the said Act to give or with- Vict. c. 112, hold their consent to the Postmaster General placing telegraphs and sents posts (within the meaning of the said Act) in, under, upon, along, over, or across a street or public road, or any estuary or branch of the sea, or the shore or bed of any tidal water, or where any pro- prietors, lessees, directors, or persons having the control of any railway or canal (within the meaning of the said Act), and having power under the said Act to give or withhold a consent to the Postmaster General placing telegraphs and posts under, in, upon, along, or across such railway or canal, fail within twenty-one days after being required to do so by the Postmaster General to give their consent, or attach to their consent any terms, conditions, or stipula- tions to which the Postmaster General objects, or withdraw a consent, a difference shall be deemed to have arisen between the Postmaster General and such body or person, proprietors, lessees, directors', or persons (as the case may be), and that difference shall be determined in manner herein-after provided, and the authority by whom the dif- ference is to be determined may, if after hearing all parties concerned they think it just, give their consent either unconditionally or subject to such pecuniary or other terms, conditions, and stipulations as they (a) See Book II., Chap. VII., ante, p. 378. The more important statutes only are set out in the Appendix. THE TELEGRAPH ACT, 1878. 601 may think just; and that consent shall for all purposes be of the same effect as if it were a consent given under the Telegraph Aot, 1863, to the Postmaster General by such body or person, proprietors, lessees, directors, or persons. 4. Where any difference arises under this Act or the Telegraph Differences Act, 1863, between the Postmaster General and any body or person relating to a having any power, jurisdiction, or control over or relating to a street ™y* C road or public road, or having power under the last-mentioned Act to tobedeter- give or withhold a consent to the placing of telegraphs and posts in, mined by sti- under, upon, along, or across a street or public road, such difference pen( ^at shall in England or Wales and Ireland be referred to the police or county court stipendiary magistrate having jurisdiction within the district in which judge, or the difference has arisen, or if there be no such magistrate, then to sneriff - the judge of the county court having jurisdiction within such district, and in Scotland to the sheriff, and such magistrate, judge, and sheriff .are respectively empowered and required to hear and determine such difference, and sections thirty to thirty-three, both inclusive, of the Regulation of Eailways Act, 1868, shall apply to every difference 31 & 32 Vict. so referred to such magistrate, judge, or sheriff (as the case may be) c - 119 - in like manner as if he were an arbitrator appointed pursuant to those sections, and as if the Postmaster General, body, or person between whom the difference has arisen were companies within the meaning ■of those sections. Provided always, that in case either the Postmaster General ,or the body or person between whom the difference has arisen shall be dissatisfied with the award or decision of such magistrate, judge, or sheriff, the party so dissatisfied may within twenty-one days after such award or decision require, by a notice in writing given to the other party, that the difference shall be referred to the Eailway Commissioners. 5. The differences so required to be referred by the last preceding General pro- section to the Railway Commissioners and all other differences under ^brtration. this Act, except a difference between the Postmaster General and any body or person having any right, power, jurisdiction, or control in, over, or relating to any estuary or branch of the sea or the shore or bed of any tidal water, shall be referred to and shall be determined by the Railway Commissioners for the time being; and every differ- ence referred to them under this Act shall be conducted by the Railway Commissioners in the same manner as any other proceeding is conducted by them under the Acts relating to those Commissioners; and it shall be the duty of the Railway Commissioners, and they are hereby empowered, to undertake and determine any difference referred to them under this Act; and any difference between the Postmaster General and any body or person having any right 'of property or other right, or any power, jurisdiction, or authority in, over, or relating to any estuary, branch of the sea, or the shore or bed of any tidal water shall be referred 'to and determined by the Board of Trade. In the event of the Railway Commissioners ceasing to hold office, all differences directed under this Act to be determined by them 602 APPENDIX OF STATUTES BOOK II. 31 & 32 Vict. o. 119. Power of Postmaster General to establish telegraphic lines on certain un- dertakings authorised by special Act of Par- liament. shall be determined by the Board of Trade, and sections thirty toi thirty-three, both inclusive, of the Regulation of Railways Act, 1868 f shall apply to every difference to be determined under this Act by the Board of Trade, in like maimer as if the Postmaster General,, undertakers, body, or person between whom that difference has arisen were companies within the meaning of those sections. 6. Where an Act of Parliament passed after the first day of January one thousand eight hundred and seventy-eight authorises the construction of any of the following undertakings, namely, any railway, canal, tramway other than street tramways, highway, bridge, railway or river embankment, subway, aqueduct over or across a river, dock, harbour, or pier, it shall be lawful for the Postmaster General, by himself or his agents, to place and maintain telegraphic- lines in, under, upon, along, over, or across such undertaking, and from time to time to alter the same, and he may from time to time, by himself or his agents, enter upon any land or works of the under- takers for the purpose of placing, maintaining, or altering any tele- graphic line in pursuance of this section, or of examining or repair- ing any line so placed, and may there remain for such reasonable time, and execute and do all such works and things, as may be necessary or convenient for the purposes aforesaid, but shall not interfere with the traffic along or user of the undertaking, subject to the following conditions: (1.) In placing, maintaining, or altering such telegraphic lines no obstruction shall be caused to the traffic along or the user of such undertaking: (2.) The Postmaster General shall, not less than one month before he places any telegraphic line, give to the undertakers a notice specifying the course and position of the proposed telegraphic lines, and if within one month after such notice the undertakers object to the course or position specified in the notice, and do not agree with the Postmaster General on some other course or position, a difference shall be deemed to have arisen between the Postmaster General and the undertakers: (3.) If any damage or injury be caused or any stoppage or delay be occasioned to the works of the undertaking by the plac- ing, repair, or maintenance of such telegraphic lines, the Postmaster General shall at his own expense make good, such damage or injury, and shall indemnify the under- takers .against any expense to which they may be put by reason of any such damage, injury, stoppage, or delay: (4.) If the undertakers shall incur any additional expense by or in consequence of the repair or maintenance of such tele- graphic lines, the Postmaster General shall from time to' time pay to the undertakers the amount of such additional expense. This section shall apply to the several railways over which powers were conferred upon the Postmaster General by the Local Acts- THE TELEGRAPH ACT, 1878. 603 mentioned in the schedule to this Act, and to the undertakers empowered by such Local Acts respectively. Provided that so far as relates to any railways belonging to or leased or worked by any of the railway companies mentioned in section nine, or in the schedule of the Telegraph Act, 1868, the powers of constructing, altering, or maintaining telegraphic lines by the Postmaster General shall not be exercised if and so long as the said companies respectively are able and willing themselves to con- struct, alter, and maintain such telegraphic lines, and such construc- tion, maintenance, and repair shall be upon the terms and conditions in the said Act or the agreements thereunder declared: Provided also, that this section shall not affect any agreement between (any undertakers and the Postmaster General. * If any difference arises between the Postmaster General and any undertakers in relation to the exercise of any power under this section, that difference shall be determined in manner provided by this Act. ***** 12. A notice under this Act may be in writing or print, or partly Printing, in writing and partly in print. authenti- ° r J r cation, and Any notice, appointment, direction, or document given, issued, or service of made |or the purposes of this Act by the Postmaster General shall notices and be sufficiently authenticated if purporting to be signed by a secretary e f ocu " or assistant secretary of the Post Office, or by a superintending engineer of the Postmaster General, or by an officer appointed for the purpose by the Postmaster General, and when so authenticated shall be deemed to be given, issued, or made by the Postmaster General. Where a notice is given by any undertakers, body, or person, the notice shall be sufficiently authenticated if purporting to be signed by the chairman, secretary, clerk, or other officer of such undertakers, body, or person. A notice required to be given under this Act to the Postmaster General may be given by leaving the same at or by forwarding the same by post to the General Post Office in a letter addressed to the Postmaster General or to the Secretary of the Post Office, or to an assistant secretary of the Post Office, or by delivering the same to or forwarding the same by post in a letter addressed to the superintend- ing engineer of the Postmaster General for the district in which is the work, telegraphic line, or other matter referred to in the notice and addressed to him at his office or usual place of abode. A notice required to be given under this Act to any undertakers or body may be given by leaving the same at or by forwarding the same by post to the office, or where there is more than one office the principal office of such undertakers or body in a letter addressed to such undertakers or body, or to their chairman, secretary, clerk, or other officer. A notice required to be given under this Act to any person may be given by delivering the same to such person or by leaving the same 604 APPENDIX OF STATUTES BOOK II. at or forwarding the same by post in a letter addressed to such person, at his usual or last known place of abode. Where a notice is forwarded by post it shall be deemed to hare been given at the time when the letter containing the same would be delivered in the ordinary course of post, and in proving the giving thereof it shall be sufficient to prove that the same was properly addressed and put into the post. The expression "notice " in this section shall be deemed to include a counter-notice. THE TELEGEAPH (CONSTRUCTION) ACT, 1908. 8 Edw. 7, c. 33. ***** 3. Notwithstanding the provisions of this Act no telegraphic line shall be constructed on, over, along, or across any land dedicated to the recreation of the public, or any hedge or bank adjoining such land, without the consent of the person under whose control and management such land for the time being remains: Provided that if such consent is withheld or any condition is attached thereto to which the Postmaster-General objects, a difference shall be deemed to have arisen between the Postmaster-General and that person, and sections three, four, and five of the Telegraph Act, 1878, shall apply accordingly as if it were a difference arising under that Act. 6. Notwithstanding anything in the Railway and Canal Traffic Act, 1888, any difference directed to be determined by the Kailway and Canal Commission under the Telegraph Acts, 1863 to 1907, or this Act, may in the discretion of the Commission be heard and deter- mined by the two appointed Commissioners whose order shall be deemed to be the order of the Commission. THE TELEGRAPH (CONSTRUCTION) ACT, 1916. 6 & 7 Geo. 5, c. 40. User of land 1- ^ the owner, lessee, or occupier of any land or building refuses and buildings or fails to give his consent to the placing of a telegraphic line under, for tele- i n> U p n, over, along or across the land or building within two months me . gjj^gj, k e i n g required to do so by notice from the Postmaster-General, a difference shall be deemed to have arisen between the Postmaster- General and that owner, lessee, or occupier, and sections three, four, 41 & 42 Vict. an( i nve of the Telegraph Act, 1878, shall apply accordingly as if it «• 76. were a difference arising under that Act: > Provided that the tribunal to which the difference is referred under these sections shall not give its consent to the placing of the THE TELEGRAPH (CONSTRUCTION) ACT, 1916. 605 line unless satisfied that such refusal or failure, is contrary to the public interest; and in deciding whether to give its consent or to impose any terms, conditions, or stipulations, including the carrying of any portion of the line underground, the tribunal shall, among other considerations, have regard to the effect, if any, on the amenities or value of the land of the placing of the line in the manner proposed: Provided also that, subject as aforesaid, all the provisions of the Telegraph Act, 1863, shall apply in the case of the exercise of any 26 & 27 Vict, powers authorised to be exercised under this section, and such owner, °- 112 - lessee, or occupier, shall have and enjoy all the benefits of such provisions. 2. The proviso to subsection (1) of section four of the Telegraph Amendment Act, 1892 (which relates to telegraphic lines constructed irregularly ™ *■* ' Jr or by persons other than the Postmaster-General), shall extend and apply to a telegraphic line placed under, in, upon, over, along or across any land or building, as well as to a telegraphic line con- structed under or along a street or public road. 3. Section three and section six of the Telegraph '(Construction) Application Act, 1908 (which relate to public recreation grounds and the deter- of ? Edw - 7 > mination of differences), shall apply as if they were herein re-enacted a ' n ^ g and in terms made applicable to this Act. 4. Before entering on land or buildings for the purpose of the Restriction construction or maintenance of any telegraphic line the Postmaster- on power of General shall, except in case of emergency, endeavour to make an contraction arrangement with the occupier of the land as to the times of entry and main- for such purpose, and if any difference arises between the Postmaster- tenance. General and the occupier it shall be determined in manner aforesaid. 5.— (1) In this Act any expressions to which a special meaning Interpreta- is attached under the Telegraph Acts, 1863 to 1915, or any of them, ^ n e ' al ^ otloes ' shall have the same respective meanings in this Act. extent, and (2) Section twelve of the Telegraph Act, 1878 (which relates to short title, the printing, authentication and service of notices and other docu- ments), shall apply, for the purposes of this Act, as it applies for the purposes of that Act. (3) The enactments mentioned in the Schedule to this Act are hereby repealed to the extent speoified in the third column of that Schedule. (4) This Act and the Telegraph (Construction) Act, 1908, shall extend to the Isle of Man as if they were Telegraph Acts to which the Telegraph (Isle of Man) Act, 1889, applies. (5) This Act may be cited as the Telegraph (Construction) Act, 52 & 53 Vict. 1916, and may be cited with the Telegraph Acts, 1863 to 1915. "■ 34 - 606 APPENDIX OF STATUTES BOOK II. THE POST OFFICE ACT, 1908. 8 Edw. 7, c. 48. * * * Holding of lands by Postmaster- General. Power of Postmaster- General for purchase of land. 8 & 9 Viet. o. 18. 8 & 9 Vict. u. 19. Land. 45.— (1) For the purpose of acquiring and holding- land the Post- master-General for the time being shall continue to be a corporation sole by the name of His Majesty's Postmaster-General, and b}' that name shall have perpetual succession and an. official seal. (2) All land vested in the Postmaster-General shall be held in trust for His Majesty for the purpose of the Post Office. 46.— (1) The Postmaster-General, with the consent of the Trea- sury, may purchase land for the purpose of the Post Office. (2) With respect to any such purchase of land in the United King- dom the following provisions shall have effect (that is to say): — (a) The Lands Glauses Acts shall be incorporated with this Act, except the provisions relating to access to the special Act, and in construing- those Acts for the purposes of this section " the special Act " shall be construed to mean this Act, and " the promoters of the undertaking " shall be construed to mean the Postmaster-General, and " land " shall be con- strued to have the meaning given to it by this Act: (b) The bond required by section eighty-five of the Lands Clauses Consolidation Act, 1845, and by section eighty-four of the Lands Clauses Consolidation (Scotland) Act, 1845, shall be under the seal of the Postmaster-General, and shall be sufficient without sureties: (c) The provisions of the incorporated Acts with respect to the purchase of land compulsorily shall not be put in force until the sanction of Parliament has been obtained in manner in this Act mentioned: (d) Three months at the least before an application is made to Parliament for sanction to the compulsory purchase of land under this Act, the Postmaster-General, with the consent of the Treasury, shall serve a notice on every owner or reputed owner, lessee or reputed lessee, and occupier of any land intended to be so purchased, describing the land intended to be taken, and in general terms the 'purposes to which it is to be applied, and stating the intention of the Treasury to obtain the sanction of Parliament to the pur- chase thereof, and inquiring whether the person so 'served assents or dissents to the taking of his land, and request- ing him to forward to the Treasury any objections he may have to his land being taken: (e) The Treasury shall, at some time after the service of the notice, make a local inquiry by a competent officer into the objections made by any persons whose land is required to be taken, and by other persons, if any, interested in the subject matter of the inquiry: THE POST OFFICE ACT, 1908. 607 {f ) The Treasury, if satisfied after the inquiry has been made that the land ought to be taken, may submit a Bill to Parlia- ment containing provisions authorising the Postmaster- General to take the land, and any such Bill shall be deemed to be a Public Bill, and, if passed into an Act, to have conveyed the sanction of Parliament to the purchase com- pulsorily of the land therein mentioned or referred to, and the period for the compulsory purchase shall be three years after the passing of the Act: Provided that, if while the Bill is pending in either House of Parliament a petition is presented against anything comprised therein, the Bill may be referred to a Select Committee and the petitioner shall be allowed to appear and oppose as in the case of Private Bills. (3) The Chancellor and Council of the Duchy of Lancaster may, if they think fit, agree with the Postmaster-General for the sale of, and absolutely make sale of, for such sum of money as to the said Chancellor and Council appear sufficient consideration for the same, any land belonging to His Majesty in right of the said duchy, which, for the purpose of the Post Office, the Postmaster-General may deem it expedient, with the consent of the Treasury, to purchase, and the land may be assured to the Postmaster-General, and the money shall be paid and dealt with as if the land had been sold under the authority is & 19 yi c t of the Duchy of Lancaster Lands Act, 1855. 0. 58. (4) For the purposes of this section and the section of this Act the marginal note whereof is " Holding of lands by Postmaster- General " the expression "land" shall include any right or ease- ment in, over, or in respect of land. 47.— (1) The Postmaster-General may, with the consent of the Power of Treasury, sell, exchange, lease, or surrender on any terms, any land Postmaster- for the time being vested in him, and on any such exchange may ^f^ex*- give or receive any money for equality of exchange; and may sell change lands, either by public auction or by private contract, and may make any stipulations, as to title or otherwise, in any conditions' of sale or contract for sale or exchange, and may buy in at any auction, and may rescind or vary any contract for sale or exchange, and may re-sell or re-exchange any such land. (2) On any sale, exchange, lease, or surrender, the Postmaster- General may stipulate for, create, or reserve all such rights or ease- ments as may be deemed proper. (3) A person dealing with the Postmaster-General in respect of land or rights in or over land, whether as vendor, lessor, purchaser, lessee, or otherwise, shall not be bound or entitled to inquire whether the consent of the Treasury has been given to that dealing, or whether the dealing is in fact authorised by any Act relating to the Post Office. ***** 608 APPENDIX OF STATUTES — BOOK II. THE EDUCATION ACT, 1921. 11 & 12 Geo. 5, c. 51. Power to acquire land. Purchase of land by- agreement. Purchase of land com- pulsorily. Application of the School Sites Acts. Appropria- tion of land for educa- tional purposes. Part IX. General. Acquisition, appropriation and alienation of Land. 109. A local education authority may for the purposes of their powers and duties under this Act purchase or take on lease any land or any right over land. 110. For the purpose of the purchase of land under this Act by agreement the Lands Clauses Acts (except the provisions thereof with respect to affording access to the special Act) shall be incor- porated with this Act, and in construing those Acts for the purposes- of this section the special Act shall be construed to mean this Act, and the promoters of the undertaking shall be construed to mean the local education authority, and land shall be construed to include any right over land. 111. A local education authority may be authorised to purchase land compulsorily for the purpose of any of their powers or duties under this Act by means of an order submitted to the Board of Education and confirmed by the Board in accordance with the provi- sions contained in the Fifth Schedule to this Act. 112. For the purpose of the purchase of land under this Act by a local education authority, the School Sites Acts shall apply as if the local education authority were trustees or managers of a school within the meaning of those Acts, and land may be acquired either under the foregoing provisions of this Act or under the School Sites Acts(&), or partly under the said provisions and partly under the School Sites Acts. 113. — (1) A local education authority may — (i) appropriate, with the consent of the Board of Education, for the purpose of higher education, any land acquired by them for the purposes of elementary education, or taken over by them as successors of a school board; and (ii) appropriate, with the consent of the Board of Education, for the purposes of elementary education, any land acquired by them for the purpose of higher education, either under this Act or the Education Act, 1902, or for similar pur- poses under any Act repealed by the last mentioned Act (c); and (J) These Acts give certain persons, including owners under disability and limited owners, powers to convey or grant lands for the purposes of school sites, (c) But not, apparently, land acquired under the Education Act, 1918. THE EDUCATION ACT, 1921. 609 (iii) appropriate, with the consent of, and after inquiry by, the Minister of Health, for any of the purposes of this Act, any land acquired by them otherwise than in their capacity as local education authority. (2) The council of a non-county borough or urban district may appropriate, with the consent of, and after inquiry by, the Minister of Health, for the purpose of their power to supply or aid the supply of higher education, any land acquired by them under any other power. (3) The appropriation of land by a local education authority or a council under this section shall be subject in any case to any special covenants or agreements affecting the use of the land in their hands. (4) Where the capital expenditure in connexion with any land appropriated under this section or any loan for the purpose of repaying that expenditure or any part of that expenditure or loan has been or is charged on, or raised within, any special part of the area of the local education authority or council, and the Board of Education, or in the case of land appropriated under this section and acquired by an authority otherwise than in their capacity as local education aulhority, the Minister of Health, are or is of opinion that the use of the land for the purposes for which it is appropriated will alter the area benefited by the expenditure, the Board of Education, or the Minister of Health, as the case requires, shall order such equitable adjustment in respect thereof to be made as they or he may think right in the circumstances, and the local educa- tion authority or council shall comply with any order so made. 114. The council of any county, borough, or urban district may, Appropria- with the consent of the Board of Education, appropriate any land tion to other held by them in their capacity as local education authority for any of purposes of the purposes of the council, otherwise than in their capacity as local fop e( j U ea- re education authority approved by the Minister of Health: tional Provided that the council shall not on any lands so appropriated — P ur poscs. (a) create or permit any nuisance; or (b) sink any well for the public supply of water or construct any cemetery, burial ground, destructor, station for generating electricity, sewage farm, or hospital for infectious disease, unless, after local inquiry and consideration of any objec- tions made by persons affected, the Minister of Health, subject to such conditions as he may think fit and subject in the case of a generating station to the provisions of section eleven of the Electricity (Supply) Act, 1919, authorises 9 & i<> Geo. 5, the work or construction. °- 10 °- 115. — (1) The provisions of the Charitable Trusts Acts, 1853 to Alienation 1894, which relate to the sale, leasing, and exchange of lands belong- of ^d. ing to any charity, shall extend to the sale, leasing, and exchange of the whole or any part of any land or schoolhouse belonging to a local education authority for the purposes of elementary education which may not be required by that authority, with this modification, that c. 39 610 APPENDIX OF STATUTES — BOOK II. Purchase of land for purposes of elementary school by managers. Exemption of assurance of property for educational purposes from restrictions under the Mortmain Acts. 51 & 52 Vict. u . 42. 54 & 55 Vict. u. 73. 55 & 56 Vict. c. 11. the Board of Education shall for the purposes; of this section be deemed to bo substituted in those Acts for the Charity Commissioners. (2) A council shall have power, with the consent of and after inquiry by the Board of Education, to alienate any land acquired or held by them for the purposes of higher education under this Act or any enactment repealed by this Act, and, in the case of the sale of any such land, the proceeds of sale shall be applied in such manner as the Minister of Health may sanction towards the discharge of any loan of the council under this Act or any enactment repealed by this Act, or otherwise for any purpose for which capital may be applied by the council under this Act. 116. — (1) The managers of a public elementary school not provided by a local education authority, and, if they obtain the approval of the Board of Education to the establishment of the school, any persons desirous of establishing a public elementary school, may purchase a schoolhouse for the school or a site for the same, and for that purpose the Lands Clauses Acts (except so much as relates to the purchase of land otherwise than by agreement) shall be incorporated with this Act; and in construing those Acts for the purposes of this section the special Act shall be construed to mean this Act and the promoters of the undertaking shall be construed to mean the managers, and land shall be construed to include any right over land. (2) The conveyance of any land so purchased may be in the form prescribed by the School Sites Acts, or any of them, with this modi- fication, that the conveyance shall express that the land shall be held upon trust for the purposes of a public elementary school within the meaning of this Act, or some one of those purposes which may be specified, and for no other purpose whatever. (3) Land may be acquired in pursuance of this section either under the Lands Clauses Acts or under the School Sites Acts, or any of them, or partly under one such Act and partly under another such Act. 117. — (1) Any assurance, as defined by section ten of the Mort- main and Charitable Uses Act, 1888, of land or personal estate to be laid out in the purchase of land for educational purposes, whether made before or after the passing of .this Act, shall be exempt from any restrictions of the law relating to mortmain and charitable uses, and the Mortmain and Charitable Uses Acts, 1888 and 1891, and the Mortmain and Charitable Uses Amendment Act, 1892, shall not apply with respect to any such assurance. (2) Every assurance of land or personal estate to be laid out in the purchase of land for educational purposes, including every assur- ance of land to any local authority for any educational purpose or purposes for which such authority is empowered by any Act of Parliament to acquire land, shall be sent to the offices of the Board of Education in London for the purpose of being recorded in the books of the Board as soon as may be after the execution of the deed or other instrument of assurance, or in the case of a will after the death of the testator. THE EDUCATION ACT, 1921. 611 FIFTH SCHEDULE. Section 111. Provisions as to the Compulsory Acquisition of Land. (1) Where a local education authority propose to purchase land compulsorily under this Act, the local education authority may submit to the Board of Education an order putting in force as respects the land specified in the order the provisions of the Lands Clauses Acts with respect to the purchase and taking of land otherwise than by agreement. (2) An order under this Schedule shall be of no force unless and until it is confirmed by the Board, and the Board may confirm the order either without modification or subject to such modifications as they think fit, and an order when so confirmed shall, save as otherwise expressly provided by this Schedule, become final and have effect as if enacted in this Act; and the confirmation by the Board shall be conclusive evidence that the requirements of this Act have been complied with, and that the order has been duly made and is within the powers of this Act. (3) The order shall be in the prescribed form, and shall contain such provisions as the Board may prescribe for the purpose of carry- ing the order into effect, and of protecting the local education authority and the persons interested in the land, and shall incorporate, subject to the necessary adaptations — (a) the Lands Clauses Acts (except section one hundred and twenty-seven of the Lands Clauses Consolidation Act, 1845) 8 & 9 Vict, as modified by the Acquisition of Land (Assessment of c - 18 - Compensation) Act, 1919; and 9&WGeo. 5, (b) sections seventy -seven to eighty-five of the Bailways Clauses 8 & 9 Vict. Consolidation Act, 1845. c. 20. (4) The order shall be published by the local education authority in the prescribed manner, and such notice shall be given both in the locality in which the land is proposed to be acquired, and to the owners, lessees, and occupiers of that land as may be prescribed. (o) If within the prescribed period no objection to the order has been presented to the Board by a person interested in the land, or if every such objection has been withdrawn, the Board shall without further inquiry confirm the order unless they are of opinion that the land is unsuited for the purpose for which it is proposed to be acquired; but, if such an objection has been presented and has not been withdrawn, the Board shall forthwith cause a public inquiry to be held in the locality in which Hie land is proposed to be acquired, and the local education authority and all persons interested in the land and such other persons, as the person holding the inquiry in his discretion thinks fit to allow, shall be permitted to appear and be heard at the inquiry. (6) Where the land proposed to be acquired under the order con- sists of or comprises land situate in London, or a borough, or urban district, the Board shall appoint an impartial person, not in the employment of any Government Department, to hold the inquiry as 39 (2) 612 APPENDIX OF STATUTES BOOK II. to whether the laud proposed to be acquired is suitable for the purposes for which it is sought to be acquired, and whether, having regard to the extent or situation of the laud and the purposes for which it is used, the land can be acquired without undue detriment to the persons interested therein or the owners of adjoining land, and such person shall have for the purpose of the inquiry all the powers of an inspector of the Ministry of Health, and, if he reports that the land, or any part thereof, is not suitable for the purposes for which it is sought to be acquired, or that, owing to its extent or situation or the purpose for which it is used, it cannot be acquired without such detriment as aforesaid, or that it ought not to be acquired except subject to the conditions specified in his report, then, if the Board confirm the order in respect of that land, or part thereof, or, as the case may require, confirm it otherwise than subject to such modifications as are required to give effect to the specified conditions, the order shall be provisional only, and shall not have effect unless confirmed by Parliament. Where no part of the land is so situated as aforesaid, before confirming the order, the Board shall consider the report of the person who held the inquiry, and all objections made thereat. (7) Where the land proposed to be acquired is the site of an ancient monument or other object of archaeological interest or is the property of &nj local authority or has been acquired by any corpora- tion or company for the purposes of a railway, dock, canal, water or other public undertaking or at the date of the order forms part of any park, garden or pleasure ground or is otherwise required for the amenity or convenience of any dwelling house, the order shall be provisional only and shall not have effect unless confirmed by Parliament. (8) In construing for the purposes of this Schedule or any order made thereunder any enactment incorporated with the order, this Act together with the order shall be deemed to be the special Act, and the local education authority shall be deemed to be the pro- moters of the undertaking. (9) Where the land is glebe land or other land belonging to an ecclesiastical benefice, the order shall provide that sums agreed upon or awarded for the purchase of the land, or to be paid by way of compensation for the damage to be sustained by the owner by reason of severance or other injury affecting the land, shall not be paid as directed by the Lands Clauses Acts, but shall be paid to the Ecclesi- astical Commissioners to be applied by them as money paid to them upon a sale, under the provisions of the Ecclesiastical Leasing Acts, of land belonging to a benefice. (10) In this Schedule the expression ."prescribed" means pre- scribed by the Board of Education. THE PARLIAMENTARY DEPOSITS AND BONDS ACT, 1892. *»13. Section VII. (£)• — Provision of Public Services by Semi-Public or Private Authorities. THE PAELIAMENTARY DEPOSITS AND BONDS ACT, 1892. 55 & 56 Vict. c. 27. An Act to authorise the release of certain Deposits, and the can- cellation of certain Bonds, made or given to secure the per- formance of undertakings authorised by Parliament. [27th June, 1892. Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows: 1.— (1.) Where in pursuance of any general or special act of par- Power to liament, or of any rules made thereunder, moneys or securities have release been deposited with, or are standing in the name of, the Paymaster- eposl s ' General to secure the completion by any company of any undertak- ing authorised by parliament, or by any certificate issued under the authority of an act of parliament, and the undertaking has not been completed within the time limited in that behalf, the High Court may, notwithstanding anything in any such general or special act or rules, order that the moneys or securities (in this act called the deposit fund), or any part thereof, be applied towards compensating any landowners and other persons whose property has been interfered with or otherwise rendered less valuable by ^the commencement, construction, or abandonment of the undertaking, or any portion thereof, or who have been subjected to injury or loss in consequence of any compulsory powers of taking property given in connexion with the undertaking, and have received no compensation or inadequate compensation for such injury or loss; and also, in the case of a tramway company, towards compensating the road authorities for the expenses incurred by them in taking up any tramway or materials connected therewith placed by the tramway company in or on any road vested in or maintainable by the road authorities, and in making good all damage caused to such roads by the construction or abandon- ment of the tramway. (2.) Subject to payment of any such compensation, and notwith- standing any provision as to forfeiture to the Crown, the High Court may, if a receiver has been appointed, or the company is insolvent and has been ordered to be wound up, or the undertaking has been abandoned, order that the deposit fund or any part thereof be paid ■or transferred to the receive.- or to the liquidator of the company, or be applied as part of the assets of the company for the benefit of the •creditors thereof. (i) See Book II., Chap. VIII., ante, p. 382. 614 APPENDIX OF STATUTES BOOK II. Power to cancel bonds. (3.) Subject to such application as aforesaid the High Court may, after such public notice as to the Court seems reasonable, order that the deposit fund or any part thereof be paid or transferred to the depositors or the persons claiming through or under them. (4.) If any money or securities deposited with or standing in the name of the Paymaster-General for the purposes of this section on or before the thirty-first of March, one thousand eight hundred And ninety are not claimed by or on behalf of the depositors thereof within ten years after the passing of this Act, the Treasury may pay or transfer the same to the National Debt Commissioners to be applied by them towards the reduction of the National Debt. (5.) This section shall apply to any person or body of persons authorised by parliament or by any such certificate as aforesaid to carry out an undertaking as if he or they were a company. 2. Where in pursuance of any general or special act of parliament any bond has been given to secure the completion of any undertaking authorised by parliament, or by any certificate issued under the aiithority of an act of parliament, and the undertaking has not been completed within the time limited in that behalf, the money thereby secured shall be applicable to the same purposes as the deposit fund hereinbefore mentioned, and the Treasury may, if they think fit, cancel the bond on proof to their satisfaction that the money thereby secured has been applied or is not required for those purposes. THE LIGHT BAIL WAYS ACT, 1896(c). • 59 & 60 Vict. c. 48. An Act to facilitate the Construction of Light Rail ways in Great Britain. [14th August, 1896. Application for orders authorising light rail- ways. Powers of local autho- rities under order. 2. An application for an order authorising a light railway under this act shall be made to the Light Railway Commissioners, and may be made — (a) hj the council of any county, borough, or district, through any part of which the proposed railway is to pass; or (b) by any individual, corporation, or company; or (c) jointly by any such councils, individuals, corporations, or com- panies. 3. — (1.) The council of any county, borough, or district, may if authorised by an order under this act — (a) undertake themselves to construct and work, or to contract for the construction or working of, the light railway authorised; (b) advance to a light railway company, either by way of loan or as part of the share capital of the company, or partly in one (c) Vide nntc, p. 385. THE LIGHT RAILWAYS ACT, 1896. 615 way and partly in the other, any amount authorised by the order ; (c) join any other council or any person or body of persons in doing any of the things above mentioned; and (d) do any such other act incidental to any of the things above mentioned as may be authorised by the order. (2.) Provided that— (a) an order authorising a council to undertake to construct and work or to contract for the construction or working of a light railway, or to advance money to a light railway com- pany, shall not be made except on an application by the council made in pursuance of a special resolution passed in manner directed by the first schedule to this act; and (b) a council shall not construct or work or contract for the con- struction or working of any light railway wholly or partly outside their area, or advance any money for the purpose of any such railway, except jointly with the council of the outside area, or on proof to the satisfaction of the Board of Trade that such construction, working, or advance is ex- pedient in the interests of the area of the first-mentioned council, and in the event of their being authorised so to do their expenditure shall be so limited by the order as not to exceed such amount as the Board of Trade think fit under the circumstances (d) . * * * 7. — (1.) Where an application for authorising a light railway under Considera- this act is made to the Light Railway Commissioners, those Comniis- tion of appli- sioners shall, in the first instance, satisfy themselves that all reason- ^'ht r7'l able steps have been taken for consulting the local authorities, includ- way Com- ing road authorities, through whose areas the railway is intended to missionere. pass, and the owners and occupiers of the land it is proposed to take, and for giving public notice of the application, and shall also them- selves by local inquiry and such other means as they think necessary possess themselves of all such information as they may consider material or useful for determining the expediency of granting the application. (2.) The applicants shall satisfy the Commissioners that they have — (a) published once at least in each of two consecutive weeks, in some newspaper circulating in the area or some part of the area through which the light railway is to pass, an adver- tisement describing shortly the land proposed to be taken and the purpose for which it is proposed to be taken, naming a place where a plan of the proposed works and the lands to be taken, and a book of reference to the plan, may be seen at all reasonable hours, and stating the quantity of land required; and (d) The words in italics are an amendment introduced by the Light Railways Act, 1912, s. 5 (1). 616 APPENDIX OF STATUTES BOOK II. Provisions which may be made by the order. (b) served notice in the prescribed manner on every reputed owner, lessee, and occupier of any land intended to be taken, de- scribing in each case the land intended io be taken, and inquiring whether the person so served assents to or dissents from the taking of his land, and requesting him to state any objections he may have to his land being taken. The plan and book of reference shall be in the prescribed form, and for the purposes of this section the expression " prescribed " shall mean prescribed by rules made under this act. (3.) The Commissioners shall before deciding on an application give full opportunity for any objections to the application to be laid before them, and shall consider all such objections, whether made formally or informally. (4.) If after consideration the Commissioners think that the appli- cation should be granted, they shall settle any draft order submitted to them by the applicants for authorising the railway, and see that all such matters (including provisions for the safety of the public and particulars of the land proposed to be taken) are inserted therein, as they think necessary for the proper construction and working of the railway. (5), (6)(e). 11. An order under this act may contain provisions consistent with this act for all or any of the following purposes — (a) the incorporation, subject to such exceptions and variations as may be mentioned in the order, of all or any of the provi- sions of the Clauses Acts as defined by this act. Provided that where it appears to the Board of Trade that variations of the Lands Clauses Acts are required by the special cir- cumstances of the case, the Board of Trade shall make a special report to .parliament on the subject, and that nothing in this section shall authorise any variation of the provisions of the Lands Clauses Acts with respect to the purchase and taking of land otherwise than by agreement; Application of general Railway Acts. 12.— (1.) The Clauses Acts, as defined by this act, and the enact- ments mentioned in the second schedule to this act, shall not apply to a light railway authorised under this act except so far as they are incorporated or applied by the order authorising the railway. (2.) Subject to the foregoing provisions of this act and to any special provisions contained in the order authorising the railway, the general enactments relating to railways shall apply to a light railway under this act in like manner as they apply to any other railway; and for the purposes of those enactments, and of the Clauses Acts so far as they are incorporated or applied by the order authoris- ing the railway, the light railway company shall be deemed a railway company, and the order under this act a special act, and any provision (e) -Repealed, Railways Act, 1921 (11 & 12 Geo. 5, c. 55), Sched. 9. THE LIGHT RAILWAYS ACT, 1896. 617 ithereof a special enactment. Provided that a light railway shall not be deemed to be a railway within the meaning of the Eailway Passen- 5 & 6 Vict. ger Duty Act, 1842, and that no duties shall hereafter be levied in 0. 79. respect of passengers conveyed on a light railway constructed under this act in respect of the conveyance of such passengers upon such railway. 13.— (1.) Where any order under this act incorporates the Lands Mode of Clauses Acts, any matter which under those acts may be determined settling by the verdict of a jury, by arbitration, or by two justices, shall for ^^y^d the purposes of the order be referred to and determined by a single compensation arbitrator appointed by the parties, or if the parties do not concur for taking in the appointment of a single arbitrator then by the Board of Trade, of land - and the provisions of this act shall apply with respect to the deter- mination of any such matter in lieu of those of the Lands Clauses Acts relating thereto. Provided that in determining the amount of compensation, the arbitrator shall have regard to the extent to which the remaining and contiguous lands and hereditaments belonging to the same proprietor may be benefited by the proposed light railway. (2.) The Board of Trade may, with the concurrence of the Lord Chancellor, make rules fixing a scale of costs to be applicable on any such arbitration, and may, by such rules, limit the cases in which the ■ costs of counsel are to be allowed (f). (3.) The Arbitration Act, 1889, .shall apply to any arbitration 52 & 53 Vict. 'Under this section. c - 49 - 14. Any order under this act may, notwithstanding anything in Payment of the Lands Clauses Acts, authorise the payment to trustees of any purchase- purchase -money or compensation not exceeding five hundred pounds, compensation. ***** 28. In this act, unless the context otherwise requires,— Definitions. The expression " light railway company " includes any person or body of persons, whether incorporated or not, who are authorised to construct, or are owners or lessees of, any light railway autho- rised by this act, or who are working the same under any work- ing agreement: The expression " Clauses Acts " means the Lands Clauses Acts, the Eailways Clauses Consolidation Act, 1845, and the Railways Clauses Act, 1863, and the Companies Clauses Acts, 1845 to 1889. The expression " share capital " includes any capital, whether con- sisting of shares or of stock, which is not raised by means of borrowing. (/) See the Light Railways (Costs) Rules, 1898, S. R. & 0. 1898, No. 496, X. 13. 618 APPENDIX OF STATUTES — BOOK II. THE LIGHT RAILWAYS ACT, 1912. 2 & 3 Geo. 5, c. 19. Power to modify s. 92 of 8 &9 Viet. o. 18. 4. Notwithstanding anything contained in section eleven of the principal Act, provision may be made by an order under the principal Act for varying section ninety-two of the Lands Clauses Consolidation Act, 1845, as incorporated in the order in such a manner as to provide for the taking of part only of a house, building, or manufactory, except where it is shown to the authority to whom the question of disputed compensation is submitted that that part cannot be severed from the remainder of the property without material detriment thereto, but no such provision shall be made unless the Light Railway Com- missioners are satisfied that special notice of the proposal to acquire part only of the house, building, or manufactory has been given under paragraph (b) of subsection (2) of section seven of the prin- cipal Act to the owner, lessee, and occupier of the house, building, or manufactory. 8 Q7). Arbitration. 9. — (1) Any matter which under any light railway order, made after the passing of this Act, is to be determined by arbitration shall, subject to any special provisions of the order, be determined by the Board of Trade, or, if the Board of Trade think fit, by a single arbi- trator appointed by them (h) . (2) The Board of Trade Arbitrations, &c, Act, 1874, shall apply with reference to the determination by the Board of any matter referred to them, and to the appointment of an arbitrator, as if this Act or the light railway order were a special Act within the meaning of section four of the said Board of Trade Arbitrations, &c, Act, 1874. (3) The Arbitration Act, 1889, shall apply for the purpose of the determination of any matter by an arbitrator appointed by the Board of Trade as if the arbitration were pursuant to a submission. ^F 3j£ ^ !f» *f» Short title. 11. This Act may be cited as the Light Railways Act, 1912, and shall be read as one with the principal Act, and the principal Act and this Act may be cited together as the Light Railways Acts, 1896 and 1912. (,?) Repealed, Railways Act, 1921 (11 k 12 Geo. 5, . (h) As amended by Railways Act, 1921, Sehod. 9. 55), Sclied. 9. RAILWAYS ACT, 1921. 619 RAILWAYS ACT, 1921. 11 & 12 Geo. 5, c. 55. ***** Part V. 68.-U) Orders under the Light Railways Act, 1896, as amended Amendment by any subsequent enactment (which Act as so amended is in this of procedure Fart of this Act referred to as "the principal Act") shall, instead of J? making being-made by the Light Railway Commissioners and confirmed by Ll S h **l ail - the Minister of Transport as successor to the Board of Trade in manner Way S " provided by the principal Act, be made by the Minister, and accord- ingly:— (a) The powers of the Light Railway Commissioners shall be trans- ferred to the Minister; (b) The Minister on considering an application for an order shall take all such matters into consideration and do all such things as he, as successor of the Board of Trade, is under the principal Act required to take into consideration and do on submission of an order to him for confirmation; and the principal Act shall have effect as if for references to the Light Railway Commissioners there were substituted references to the Minister, and for references to the confirmation of orders by the Minister, as successor to the Board of Trade, there was (substituted references to the making of orders by the Minister: Provided that any limitation on the duration of the powers of the Light Railway Commissioners contained in the principal Act or in any Act extending the duration of those powers shall not apply to the Minister. (2) If the Minister is of opinion for any of the reasons mentioned in sub-section (3) of section nine of the principal Act that the proposals of the promoters ought to be submitted to Parliament he may, if he thinks fit, make an order as a provisional order and submit the proposals to Parliament by bringing in a Bill for the confirmation of the order, and subsections (2) and (3) of section one of the Light Railways Act, 1912, shall apply with respect to such Bill. (3) Where an application for an order under the principal Act has been made to the Light Railway Commissioners before the passing of this Act, those Commissioners may, within six months next after the passing of this Act, proceed with the application and submit to the Minister for confirmation any order made by them before the expiration of those six months, and in any such case the j>rincipal Act shall apply with respect to the order as if this section had not been passed, but at the end of the said six months the Light Railway Commissioners shall cease to hold office. Save as aforesaid, any application for an order under the principal Act shall be proceeded with as if it had been made under the principal Act as amended by this section. 69. Where an order made under the principal Act incorporates Provisions aa. the Lands Clauses Acts, it may incorporate those Acts subject to any to purchase modifications contained in the order, being modifications of those of land - Acts made or authorised to be made by the Development and Road Improvement Funds Act, 1909 (£).. («') Ss. 5 and 11, and Schedule, ante, p. 582. 620, PRECEDENTS UNDER THE LANDS CLAUSES ACTS. No. I. AG-BEEMENT for Sale between an Owner and a Company. An Agreement made the day of between A., of &c. (hereinafter called the vendor), of the one part, and B., agent for the Company (hereinafter called the purchasers) of the other part. 1 . The vendor agrees to sell and the purchasers agree to purchase, at the price of £ all that, &c, which premises are more particularly described in the schedule hereto, and are delineated on the plan annexed hereto, and are thereon coloured red, and the fee simple and inheritance thereof free from incumbrances [together with all mines and minerals situate thereunder (a)]. 2. The said price includes full compensation to the vendor for all injury done to his lands by the purchasers in the execution of their statutory powers, and is in full satisfaction of all accommoda- tion works which the purchasers are compellable to construct for the convenient occupation of the vendor's lands. 3 . The purchasers undertake to pay the said sum of £ on the day of at , at which time and place the purchase shall be completed, and on payment of the purchase-money the purchasers are to be let into possession or into receipt of rents and profits, and if from any cause, other than the wilful default of the vendor, the completion of the purchase is delayed, interest at the rate of £5 per cent, until the date of payment shall be paid on the said sum of £ , (a) The Rail. CI. Act, 1845, and the Waterworks CI. Act. 1847, are incor- porated into a large number of private Acts; these Acts exclude mines and minerals from a purchase unless they are specially included. Hence these words must be inserted in a contract which is intended to include mine3 and minerals. AGREEMENTS FOR SALE. 621 4. The purchasers may at any time hereafter, on depositing m the Bank the said sum of £ in the joint names of the vendor and some person nominated on their behalf, take possession of the said lands and premises. 5 . The vendor shall within after being requested so to do, send an abstract of his title to the said lands and premises to the solicitor of the purchasers, and shall produce such deeds, or other muniments of title, for inspection, as the solicitor of the purchasers shall require (6). 6. All costs of the vendor's solicitor of and incident to this agreement, and the conveyance of the said lands and premises [and the fee of £ to the vendor's surveyor], shall be paid by the purchasers. Signed by A. (the vendor). B. (on behalf of the Company, the purchasers). Schedule. Note. — When it is intended that the amount of compensation should he assessed in any of the methods contained in the Lands 01ause3 Act, 1845, it is unnecessary to make an agreement, since a notice to treat, followed by the assessment of purchase-money, forms a binding contract, on which specific per- formance will be decreed. {Harding v. Metropolitan Rail. Co. (1872), L. R. 7 Ch. 154; 41 L. J. Ch. 371; and vide ante, p. 228.) If an agreement is preferred, the form given above can be easily altered by inserting instead of the words " at the price of £ " the words " at such price as shall be fixed by an arbitrator or a jury, Ace." No. II. AGREEMENT for Sale in consideration of a Bent- charge . An Agreement made the day of between A., of &c. (hereinafter called the vendor), of the one part, and B., agent for the Company (hereinafter called the purchasers), of the other part. 1. The vendor agrees to sell, and the purchasers agree to pur- (5) Sects. 75—80 of L. CI. Act, 1845, contain special provisions to meet the case of an insufficient title or refusal to convey, and no agreement as to these points is required. '622 PRECEDENTS. ' chase, in consideration of a rent-charge of £ , clear of all taxes and deductions, to be paid to the vendor, his heirs and assigns, all that, &c, which premises are more particularly described in the schedule hereto, and are delineated on the plan annexed thereto, and are thereon coloured red, and the fee simple and inheritance thereof free from incumbrances, [together with all mines and minerals situate thereunder (c)]. 2 . The said rent-charge includes full compensation to the vendor for all injury done to his lands by the purchasers in the execution of their statutory powers, and is in full satisfaction of all accommo- dation works which the purchasers are compellable to construct for the convenient occupation of the vendor's lands. 3. The purchase shall be completed on the day of , at , and the said rent-charge shall be paid to the vendor, his heirs and assigns, by equal quarterly \or half-yearly] portions, the first of such payments to be made on the day of , clear of all taxes and deductions, and on completion of the purchase the purchasers are to be let into possession, or into receipts of rents and profits, and up to that day all outgoings (if necessary) are to be apportioned, and if from any cause other than the wilful default of the vendor the completion of purchase is delayed, the said rent- charge shall nevertheless be paid. 4. The vendor shall, within after being required so to do, send an abstract of his title to the said lands and premises to the solicitor of the purchasers, and shall produce such deeds or other muniments of title for inspection as the solicitor for the purchasers shall require (d). 5. All costs of the vendor's solicitor of and incident to this agreement, and the conveyance of the said lands and premises [and the fee of £ to the vendor's surveyor], shall be paid by the purchasers. Signed by A. (the vendor). B. (on behalf of the Company, the purchasers) . Schedule. (c) See note (a), ante, p. 620. (d) See note (6), ante, p. 621. NOTICE TO TREAT. 623 No. III. AGREEMENT fixing Amount of Compensation when Lands have been injuriously affected. Memorandum of Agreement between A. B., of the one part, and C. D ., on behalf of the Company, of the other part. The said company agree to pay and the said A. B. agrees to accept the sum of £ in full satisfaction of all damages sus- tained or to be sustained by him by reason of the execution by the said company of the works authorized by the [special] Act and the Acts incorporated therewith. The said company agree to pay the said sum on the day of , or in default to pay interest on the same from such day at the rate of per cent. Dated the day of (Signed) A. B. C. D. on behalf of the Company. No. IV. NOTICE to Treat. ToA.B.of &c. The Company, in pursuance of the [special] Act and the Acts incorporated therewith, give you notice that they require to purchase and take for the purposes of their undertaking the lands and hereditaments of which particulars are contained in the schedule hereto, and which said lands and hereditaments, so required, are delineated on the plan attached hereto, and thereon coloured red. And the said company hereby demand of you the particulars of your estate and interest in the said lands and hereditaments and of the claims made by you in respect thereof, and the said company hereby give you notice that they are willing to treat for the pur- chase thereof, and as to the compensation to be made to you for the damage that may be sustained by you by reason of the execution of the works of the said undertaking, and the said company also 624 PRECEDENTS. give you notice that if for twenty-one days after the service hereof you fail to state such particulars or to treat with the said company in respect of the said lands and hereditaments, or if you and the said company shall differ as to the amount of compensation to be paid, they will, in pursuance of the provisions of sect. 21 of the Lands Clauses Consolidation Act, 1845, proceed to procure the amount of compensation to be settled in the manner prescribed by the said Acts, and the said company, in case you claim compensa- tion, as having a greater interest than as tenant at will, in respect of an unexpired term or interest under any lease or grant of the said lands and hereditaments, do hereby require you, by virtue of sect. 122 of the Lands Clauses Consolidation Act, 1845, to produce such lease or grant or the best evidence thereof in your power. Dated this day of (Signed) Secretary to the said Company. Schedule. Parish and County or Place. No. on Plan and Book of Reference deposited with the Clerk of the Peace for the County of Oxford. Description of Lands and Hereditaments. Henley, Oxfordshire. 50 House, shop and yard. Note. — Herewith is sent a form of claim [Precedent No. 5], which you are requested to fill up and return to the solicitor of the said company at within twenty-one days from the date of the service hereof. FORM OF CLAIM BY AN OWNER. 625 CD r»V T3 3 o PI CD rC| CD o 3 CD _d X -4J -+5 PS d o CD a c3 m CD H-3 fc a ^3 & CD O o r* CD rd s CD id t> an > H CD 03 CO CO S -4J CD H a o3 . — 1 O -H CD -a V O +2 Isj CD o • rH P3 ■4J go o o PI ^ 03 a o U ^ (T) CD c3 -H CD -r3 03 CD t3 -S fin CD 8 ™ .a CD CD >>* CT 1 CD a. 2 S-l OH 2 a •r-( ° a a ►, 03 03 _0 i 1 r— J ^ o => CD Orrt OH -0 03 O a a a U O . ■ O- go fr® a Ph tL^ 1 of the Lands Clauses Consolidation Act, 1845. Signed by order of the Board of Trade, this day of No. XVIII. DECLARATION of Impartiality by a Surveyor appointed under Sect. 59 or Sect. 85 of the Lands Clauses Act, 1845. I, A. B., do solemnly and sincerely declare that I will faithfully,, impartially, and honestly, according to the best of my skill and ability, execute the duty of making the valuation hereby referred to me (a) . A. B. Made and subscribed in the presence of , Justice of the Peace for (a) Vide ante, p. 174. No. XIX. DECLARATION of Correctness of Valuation by a Surveyor appointed under Sect. 9, Sect. 59 or Sect. 85 of the Lands Clauses Act, 1845. I, the undersigned A. B., do hereby declare the foregoing valuation to be correct. (Signed) A. B. Dated this day of VALUATION BY A SURVEYOR. 63& No. XX. VALUATION by a Surveyor. Whereas I, the undersigned A. B., was, on the day of , duly appointed under the nomination annexed hereto to make a valuation of the amount of purchase-money or compensation to be paid to C . D . for his interest or the interest which he. is enabled to sell under the [special] Act and the Acts incorporated therewith, in the lands and hereditaments described in the schedule thereto, and coloured red on the plan attached thereto, and of the amount of compensation to be paid for the damage (if any) to be sustained by the said 0. D. by reason of the severing of the lands taken from his other lands, or otherwise injuriously affecting such other lands by the exercise of the powers of the [special] Act and the Acts incorporated therewith; and whereas before entering- upon the duty of making such valuation I made the declaration of impartiality annexed hereto; Now I hereby determine the value of the interest which the said C. D. is enabled to sell under the said Acts in the said lands and hereditaments, and the amount of the said compensation, at the sum of £ Dated this day of (Signed) A. B. [Annex — (1.) Nomination of Surveyor (Precedents XIII., XIV., XV., XVII.). (2.) Declaration of Impartiality (Precedent XVIII.). (3.) Declaration of Correctness (Precedent XIX.).] No. XXI. CEETIFICATE of Two Justices that Capital has been subscribed. In pursuance of the [special] Act and sect. 17 of the Lands Clauses Consolidation Act' 1845, we, the undersigned A. B. and C. D., being two of his Majesty's justices assembled and acting together at , do certify, on the application of the Company, that the sum of £ , being the whole of the capital prescribed by the said [special] Act, has been subscribed under contract binding the parties thereto, their heirs, executors and t>36 PRECEDENTS. administrators, for the payment of the several sums by them respectively subscribed. Given under our hands this day of (Signed) A. B. C. D. Note. — Police magistrates in the metropolis, and stipendiary magistrates in other parts of England and Wales, have, when sitting in Court, the same powers as two justices: vide p. 181. No. XXII. SUMMONS to appear before Two Justices for Assess- ment of Compensation payable to a Yearly Tenant. Whereas information hath this day been laid before me, one of his Majesty's justices of the 'peace for the county of , by A. B., that you, the Company, did, on the day of , serve a notice upon him requiring him to give up possession of certain lands and hereditaments [insert description from notice^ and occupied by him as a yearly tenant, and that no agreement has been made as to the amount of compensation payable to him for the value of his unexpired term or interest in the said lands and hereditaments, and for any just allowance which ought to be made to him by an incoming tenant, and for any loss or injury he may sustain [and for the damage done to him in his tenancy by severing the lands held by him, or otherwise injuriously affecting the same]; These are therefore to command you, in his Majesty's name, to be and appear on the day of , at o'clock in the forenoon, at , before such two of his Majesty's justices of the peace as may then be there, in order that the amount of the said compensation may then and there be determined-. Given under my hand this day of (Signed) CD. No. XXIII. ASSESSMENT of Compensation by Two Justices. Whereas the Company did, on the day of , in pursuance of the provisions of the [special] Act, and the Acts NOTICE TO COMPANY REQUIRING APPORTIONMENT OF RENT. 637 incorporated therewith, serve upon A. B. a notice requiring him to give up possession of certain lands and hereditaments [insert description from notice] and occupied by the said A. B. as a weekly- tenant, and whereas no agreement has been made as to the amount of compensation for the value of the unexpired term or interest of the said A. B. in the said lands and hereditaments, and for any just allowance which ought to be made to him by an incoming tenant, and for any loss or injury he may sustain, and for the damage done to him in his tenancy by severing the lands held by him, or otherwise injuriously affecting the same, and whereas on the information of the said A. B. the said company were sum- moned to appear before us at the time and place therein mentioned; Now therefore we, the undersigned, being two of his Majesty's justices of the peace for the county of , assembled and acting together, having heard the evidence adduced by the said A. B. and the said company, do determine the sum of £ to be the amount of the said compensation due to the said A. B. Given under our hands .this day of (Signed) CD. E. F. No. XXIV NOTICE to Company requiring Apportionment of Rent. Whereas certain lands [copy parcels from lease] are comprised in a lease dated the day of , granted to me, the under- signed A. B., for a term of twenty-one years, whereof about seven years are still unexpired, at the rent of 1001. per annum, all which lands and hereditaments are delineated on the plan attached hereto, and thereon coloured red and black ; and whereas you the Com- pany under the [special] Act and the Acts incorporated therewith, by a notice to treat dated the day of , and duly served on me, require to purchase and take so much only of the said lands and hereditaments as are coloured red. Now therefore I give you the said company notice that I require an apportionment to be made of the said rent in accordance with the provisions of the said Acts. Dated this day of To the Company. (Signed) A. B. 638 PRECEDENTS. No. XXV. SUMMONS to apportion Bent. To the Company and CD. the lessor. Whereas information hath this day been laid before me, one of his Majesty's justices of the peace for the county of , by A. B. that the Company in pursuance of the [special] Act and the Acts incorporated therewith by a notice to treat, dated the day of and duly served on him, required to purchase and take a part only of certain lands [copy parcels from lease] included in a lease dated the day of , granted to him by C. D . of for a term of twenty-one years, whereof about ten years are still unexpired, at the rent of 100Z. per annum, and that the apportionment of rent between the lands comprised in the said notice and the residue of the lands included in the said lease has not been settled by agreement; These are therefore to command you and each of you in his Majesty's name to be and appear on the day of at o'clock in the forenoon at before such two of his Majesty's justices of the peace as may then be there for the purpose of determining such apportionment in accordance with the provisions of the said Acts, and to give you and each of you notice that if you do not appear such apportion- ment will be made in your absence . Given under my hand and seal this day of at the Court. (Signed) (l.S. 1 ) No. XXVI. APPORTIONMENT of Rent by Two Justices. At the Petty Sessions for \ Whereas certain lands [copy par- the county of , holden > eels from lease] are comprised in on the day of ) a lease dated the day of , granted to A. B. for a term of twenty-one years, whereof about eleven years are still unexpired, at the rent of 901. per annum, all which lands and hereditaments are delineated on the plan attached hereto, and thereon coloured red and black; and whereas the Company under the [special] Act and the Acts incorporated there- NOTICE TO HAVE COMPENSATION SETTLED BY ARBITRATION. 639 with are authorized and require to purchase so much only of the said lands and hereditaments as are coloured red on the annexed plan, and in respect thereof have served a notice to treat upon the said A. B.; and whereas it is necessary that an apportionment should be made of the said rent of 90?. between the part of the said lands and hereditaments required to be purchased by the said company and the residue of such lands and hereditaments, but no agreement has been come to; Now therefore we, the under- signed, being two of his Majesty's justices of the peace for the •county of , assembled and acting together at , do in pursuance of sect. 119 of the Lands Clauses Consolidation Act, 1845, hereby apportion the said yearly rent of 901. as follows, namely, the sum of 10L shall be the yearly rent payable for that part of the said lands and hereditaments which are required by the said company and coloured red on the annexed plan, and the sum of 80Z. shall be the yearly rent for the residue of the said lands and hereditaments. Given under our hands and seals this day of (Signed) C. D. (l.s.) E. P. (l.s.) No. XXVII. CLAIMANT'S Notice of Desire to have Compensation settled by Arbitration under Sect. 23 of the Lands Clauses Act, 1845. To the Company. I, the undersigned A. B., having received from you a certain -notice, dated the day of , demanding from me the particulars of my estate and interest in certain lands and heredita- ments therein mentioned, and of the claims made by me in respect thereof, do hereby send you the said particulars [Precedent V.], and give you notice that unless you are willing to agree to pay to me the said sum of £ ,1 desire to have the amount of purchase- money or compensation to be paid by you for my interest in the said lands and hereditaments and the amount of compensation for damage to be sustained by me by reason of the severing of the lands taken from my other lands, or otherwise injuriously affecting such other lands by the exercise of the powers of the [special] Act, 640 PRECEDENTS. or the Acts incorporated therewith, settled by arbitration in the manner prescribed by the Lands Clauses Consolidation Act, 1845. Dated this day of (Signed) A. B. No. XXVIII. DEMAND for Arbitration when lands have been in- juriously affected. To the Company. Whereas I, A. B., of , have a leasehold interest [or am owner in fee simple] in certain lands and hereditaments described in the schedule hereto, and the said interest does not expire until [Michaelmas, 1933], having a term of [eleven] years yet unex- pired; and whereas the said lands and hereditaments have been injuriously affected by the execution of your works in the manner following [shortly describe the nature of the injury], and I claim as compensation in respect of the said injury the sum of £ [some sunn exceeding £50] . Now, therefore, I give you notice that, unless you are willing to pay the said sum of £ , and enter into a written agreement for that purpose within twenty-one days after the receipt of this notice, I desire to have the amount of the said compensation settled by arbitration in the manner provided in the Lands Clauses Consolidation Act, 1845. (Signed) A. B. Schedule. No. XXIX. APPOINTMENT of an Arbitrator by an Owner. Whereas, under the provisions of the [special] Act, and of the Acts incorporated therewith, the Company have given notice to me, the undersigned [here insert description of owner], that they require for the purposes of their undertaking certain lands and hereditaments described in the said notice and in the schedule hereto; and whereas, before the said company had issued their warrant to summon a jury in respect of the said lands and here- NOTICE BY OWNER OF APPOINTMENT OF ARBITRATOR. 641 ditaments, I signified to them by notice in writing my desire to have the amount of compensation settled by arbitration: Now, therefore, I appoint A . B . , of , to be arbitrator on my behalf, to determine the amount of purchase-money and compensation to be paid by the said company for my interest in the said lands and hereditaments, or the interest therein which I am enabled to sell and convey under the said Acts, and also the amount of damage (if any) to be sustained by me by reason of the severing of the lands taken from my other lands, or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts. Dated this day of (Signed) Schedule. No. XXX. NOTICE by Owner of Appointment of Arbitrator, and Bequest to Company to appoint an Arbitrator. To the Company. I, the undersigned A. B., hereby give you notice that I have by writing under my hand, on the day of , appointed E. F., of , to be arbitrator on my behalf to determine the amount of purchase-money and compensation to be paid by you for my interest in the lands and hereditaments described in the schedule hereto, or the interest therein which I am enabled to sell and convey under the [special] Act and the Acts incorporated therewith, and also the amount of damage (if any) to be sustained by me by reason of the severing of the lands taken from my other lands, or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts. And I hereby require you, within fourteen days from the date hereof, to appoint an arbitrator to act on your behalf in the said matters . Dated this day of (Signed) A. B. Schedule. c. 41 642 PRECEDENTS. No. XXXI. APPOINTMENT of an Arbitrator by- a Company. In pursuance of the [special] Act and of the Acts incorporated therewith, the Company do appoint G. H.,of , to be arbitrator on their behalf to determine the amount of purchase- money and compensation to be paid by them for the interest which A. B. claims to be entitled to, or which he is enabled to sell under the said Acts, in the lands and hereditaments described in the schedule hereto, and also the amount of damage (if any) to be sustained by the said A . B . by reason of the severing of the lands taken from the other lands of the said A. B., or otherwise in- juriously affecting such other lands by the exercise of the powers of the said Acts. Dated this day of (Signed) CD., Secretary to the Company. Schedule. No. XXXII. APPOINTMENT of an Arbitrator by a Company after receiving Notice of Appointment by an Owner. Whereas, we, the Company, did on the day of receive a notice in writing signed by A, B„ informing us that the said A. B. had appointed E. P., of , to be arbitrator on his behalf, to determine the amount of purchase-money and compensation to be paid by us for the interest of the said A. B. in certain lands and hereditaments described in the schedule thereto or the interest therein which the said A . B . is enabled to sell under the [special] Act and the Acts incorporated therewith, and also the amount of damage (if any) to be sustained by the said A. B. by reason of the severing of the lands taken from the other lands of the said A. B., or otherwise injuriously affecting such other lands, by the exercise of the powers of the said Acts, and requiring us within fourteen days from the date thereof to appoint an arbitrator to act on our behalf in the said matters: Now therefore we the NOTICE BY COMPANY OF APPOINTMENT OF AN AEBITBATOE. 643 said Company do hereby appoint G. H ., of , to be the arbitrator on our behalf concerning the said matters. Dated this day of (Signed) Secretary to the Company. No. XXXIII. NOTICE by Company of Appointment of cm Arbitrator, and request to Owner to appoint an Arbitrator. To A. B., the owner. We the Company hereby give you notice that we have, by writing, on the day of , appointed E. P., of , to be arbitrator on our behalf to determine the amount of purchase- money and compensation to be paid by us for the interest which you claim to be entitled to or which you are enabled to sell by the [special] Act and the Acts incorporated therewith, in the lands and hereditaments described in the schedule hereto, and also the amount of damage (if any) to be sustained by you by reason of the severing of the lands taken from your other lands, or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts. And we hereby require you, within fourteen days from the date hereof, to appoint an arbitrator to act on your behalf in the said matters. Dated this day of (Signed) Secretary to the said Company. Schedule. No. XXXIV. APPOINTMENT of Arbitrator to act for both Parties under Sect. 25 of the Lands Clauses Act, 1845. Whereas under the provisions of the [special] Act, and of the Acts incorporated therewith, the Company on the day «f gave notice to me the undersigned [here insert description 41 (2) 644 .■"_.-■•;■'.. '7* ■ ■■:•-■> PRECEDENTS. ' ' '' ' • .-•.•.•■ r vf otwier] that they required for the purposes of their undertaking certain lands and hereditaments described in the said notice and in the schedule hereto; and whereas before the said company had issued their warrant to a sheriff to summon a jury in respect of the said lands and hereditaments, I signified to them, by notice in writing, my desire to have the amount of compensation payable to me for my interest in the said lands and hereditaments settled by arbitration; and whereas by writing under my hand on the day of I appointed A. B., of , to be arbitrator on my behalf to determine the amount of purchase-money and compiensation to be paid by the said company for my interest in the said lands and hereditaments, or the interest therein which I am enabled to sell and convey under the said Acts, and also the amount of damage (if any) to be sustained by me by reason of the severing of the land taken from my other lands, or otherwise injuriously affecting such other lands, by the exercise of the powers of the said Acts; and whereas on the day of' I gave notice in writing to the said company of the said appointment, and requested them within fourteen days from the date thereof to appoint an arbitrator to act on their behalf in the said matters; and whereas fourteen days have elapsed since the time of the aforesaid request, and the said company have failed to appoint an arbitrator to act on their behalf. Now, therefore, in pursuance of the said Acts, I appoint the said A. B. to act both on my behalf and on behalf of the said company in the matters aforesaid. Dated the day of (Signed) Schedule. No. XXXV. APPOINTMENT of a Single Arbitrator by Agree- ment. Whereas under the provisions of the [special] Act, and of the Acts incorporated therewith, the Company, of the one part, and A. B., of , of the other part, have agreed to concur in the appointment of a single arbitrator to determine the amount of NOTICE REQUIRING ARBITRATION BY OWNER. 64$ ptochase-money and compensation to be paid by the said company to the, said A. B. for his interest in certain lands and heredita- ments required by the said company for the purposes of their undertaking, and described in the schedule hereto; Now, there- fore, we the said, company, and I, the said A. B., do concur in appointing E . F . , of , to be a single arbitrator to determine the amount of purchase-money and compensation to be paid by the said company for the interest of the said A. B. in the said lands and hereditaments, or the interest therein which the said A. B. is enabled to sell under the said Acts, and also the amount of damage (if any) to be sustained by the said A. B. by reason of the severing of the lands taken from the other lands of the said A. B., or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts. Dated this day of (Signed) CD., Secretary of the said Company. A. B. Schedule . No. XXXVI. NOTICE requiring Arbitration by Owner dissatisfied with Valuation of a Surveyor under Sect. 58 of the Lands Clauses Act, 1845. Whereas you the Company, in consequence of your being unable to find me after diligent inquiry [or in consequence of my absence from the kingdom], caused the amount of purchase-money or compensation in respect of my interest, or the interest which under the [special] Act and the Acts incorporated therewith I was enabled to sell in certain lands and hereditaments required by you for the purposes of your undertaking, and described in the schedule hereto, and the' amount of damage (if any) to be sustained by me by reason of the severing of the said lands from my other lands, or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts, to be determined by the valuation of a surveyor, and have deposited the amount of such valuation in 646 PRECEDENTS. the Bank of England; and whereas I am dissatisfied with suchi valuation, I hereby give you notice that I require the question of such compensation to be submitted to arbitration. Dated this day of (Signed) A. B. • Schedule. No. XXXVII. APPOINTMENT of Arbitrator by Owner dissatis- fied with Valuation of a Surveyor under Sect. 58 of the Lands Clauses Act, 1845. Whereas the Company, in consequence of their being unable to find me after diligent inquiry [or in consequence of my absence from the kingdom], caused the amount of purchase-money or compensation in respect of my interest, or the interest which under the [special] Act and the Acts incorporated therewith I was enabled to sell in certain lands and hereditaments required by them for the purposes of their undertaking, and described in the schedule hereto, and the amount of damage (if any) to be sustained by me by reason of the severing of the said lands from my other lands, or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts, to be determined by the valuation Of a surveyor, and have deposited the amount of such valuation in the Bank of England; and whereas I am dissatisfied with such valuation, and have given due notice in writing to the said com- pany requiring the question of such compensation to be submitted to arbitration; Now, therefore, I hereby appoint C. D. of as arbitrator on my behalf to determine whether the said amount so deposited as aforesaid by the said company is a sufficient sum, or whether any and what further sum ought to be paid or deposited by them. Dated this day of (Signed) A. B. Schedule . APPOINTMENT OF UMPIRE BT ARBITRATORS. 647 No. XXXVIII. NOTICE to Arbitrator to proceed under Sect. 30 of the Lands Clauses Act, 1845. In the matter of an Arbitration between A. B., claimant, and the Company. To C, D., the arbitrator appointed to act on behalf of the said company Take notice that I, the undersigned A. B., require you to pro- ceed in the matter of the said arbitration, and that if you for seven days from the receipt of this notice neglect to act, E. F., the arbitrator appointed on my behalf, will proceed ex parte, and that his decision will be as effectual as if he had been the single arbi- trator appointed by me and the said company. Dated this day of (Signed) A. B. No. XXXIX. APPOINTMENT of Umpire by Arbitrators. Whereas the undersigned A. B. was on the day of appointed arbitrator on behalf of C . D . , and the undersigned E . F . was on the day of appointed arbitrator on behalf of the Company, to determine the amount of purchase-money and compensation to be paid by the said company for the interest to which the said C. D. is entitled or which he is enabled to sell under the [special] Act and the Acts incorporated therewith, in the lands and hereditaments described in the said appointments, and also the amount of damage (if any) to be sustained by the said C . D . by reason of the severing of the lands taken from the other lands of the said C. D., or otherwise injuriously affecting such other lands by the exercise of the powers of the s,aid Acts; Now, therefore, we, before entering upon the matters referred to us r nominate and appoint G . H . to be umpire to decide on any matters on which we shall differ or which shall be referred to him under the said Acts. Witness our hands this day of (Signed) A. B. E. F. 648) PRECEDENTS. - . :< No. XL. NOTICE by Arbitrators to Umpire of Failure to agree. To A. B. We, the undersigned CD. and E. F., give you notice that we are unable to agree in respect of the matters referred to us by G.H. of and the Company, and that the determination of the said matters has devolved upon you as umpire under your appointment of the day of Dated this day of (Signed) C, D. E. F. No. XLI. APPOINTMENT of an Umpire by Board of Trade {a). [The same form is applicable to the appointment of an umpire by two justices.] Whereas application has been made to the Board of Trade by the Company under the [special] Act, and the Acts incor- porated therewith, to appoint an umpire; and whereas it has been made to appear to the said Board that the arbitrators appointed by the said company and A. B. to determine the amount of purchase- money and compensation to be paid by the said company for the interest to which the said A. B. is entitled, or which he is, enabled to sell under the said Acts, in the lands and hereditaments described in the schedule hereto, and also the amount of damage (if any) to be sustained by the said A. B. by reason of the severing of the lands taken from the other lands of the said A. B., or otherwise injuriously affecting such lands by the exercise of the powers of the said Acts, have refused [or have for seven days after request from the said company neglected] to appoint an umpire; Now, there- fore, the said Board do hereby appoint C. D. to be the umpire to decide on any matters on which the said arbitrators shall differ, or which shall be referred to him under the provisions of the said Acts. (Signed) Secretary to the Board of Trade. Schedule. (a) See ante, p. 192; Lands Clauses (Umpire) Act, 1883, a. 1 (ante, p. 439). AWARD BY TWO: ARBITRATORS. 649 No. XLII. ENLARGEMENT of Time for making an Award. We, the undersigned A. B. and C. D. hereby enlarge the time for making an award respecting the matters referred to us by G. H. of and the Company until the day of Witness our hands this day of (Signed) A. B. G. D. No. XLIII. FORM of Oath for a Witness in an Arbitration under the Lands Clauses Act, 184-5. The evidence you shall give touching the matters in question in this inquiry shall be the truth, the whole truth, and nothing but the truth. So help you God. No. XLIV AWARD by Two Arbitrators. To all to whoSm these presents shall come we, A . B . of , and C. D. of , send greeting: Whereas on the day of the Company gave notice to E. F. that, in pursuance of the powers of the [special] Act and the Acts incorporated therewith, they required to purchase and take certain lands and hereditaments [insert description from notice]; and whereas the said E. F claimed to be interested in the said lands and hereditaments under a lease for years dated the day of , of which a term of about eleven years was then unexpired; and whereas the said company and the said E. F failed to agree as to the amount of purchase-money and compensation to be paid by the said company for the interest ■claimed by the said E. F. in the said lands and hereditaments; and also the amount of damage (if any) to be sustained by him by reason of. the severing of the lands taken from his other lands, or 660 PKECEDENTS. otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts; and whereas the said company on the day of appointed by writing under the hand of their secretary the said A . B . as arbitrator to act on their behalf in the determination of the amount of the said purchase-money and compensation; and whereas the said E. F. on the day of appointed by writing under his hand the said C. D. as arbitrator to act on his behalf in the determination of the amount of the said purchase-money and compensation; and whereas we the said arbitrators before entering upon the consideration of the matters referred to us duly appointed an umpire and made and subscribed the declaration required by the said Acts. Now know ye that we, the said arbitrators, having viewed the said lands and hereditaments, and having considered the evidence adduced by the respective parties, do award and deter min e that the sum of £ is the amount of purchase-money and compensation to be paid by the said company for the interest claimed by the said E. F. in the said land and hereditaments, and that the said sum includes an amount for all damage sustained or to be sustained by the said E . F . by reason of the severing of the lands taken from his other lands or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts. Witness our hands this day of (Signed) A. B. C. D. Schedule. No. XLV AWARD of Compensation {including Mines) by an Umpire. To all to whom these presents shall come I, A. B., send greeting: Whereas on the day of the Company gave notice to E. F. that in pursuance of the powers of the [special] Act and the Acts incorporated therewith, they required to purchase and take for the purposes of their undertaking certain lands and hereditaments, and the mines and minerals situate thereunder [insert description from ?iotice~\; and whereas under the said Acts the said E. F claims to be enabled to sell the said lands and AWARD OF COMPENSATION BY AN UMPIRE. 651 hereditaments and mines and minerals and the fee simple and inheritance thereof in possession; and whereas the said company and the said E. F. have failed to agree as to the amount of pur- chase-money and compensation to be paid to the said E. F. by the said company for the interest in the said lands and hereditaments, and mines and minerals which he claims to be enabled to sell under the ;said Acts, and also the amount of damage (if any) to be sustained by him by reason of the severing of the lands, mines and minerals taken from his other lands, mines and minerals, or other- wise injuriously affecting such other lands, mines and minerals by the exercise of the powers of the said Acts; and whereas the said company on the day of appointed by writing under the hand of their secretary C. D. of as arbitrator to act on their behalf in the determination of the amount of the said pur- chase-money and compensation; and whereas the said E. F. on the day of appointed by writing under his hand G . H . of as arbitrator to act on his behalf in the determina- tion of the amount of the said purchase-money and compensation; and whereas the said CD. and G. H., before entering upon the consideration of the matters referred to them, did, on the day of , by writing under their hands, duly nominate and appoint me to be the umpire to decide on any matters referred to them as to which they should differ; and whereas the said arbitrators differed respecting the matters referred to them: Now know ye that I, having made the declaration required by the said Acts, and having viewed the said lands and hereditaments, and having con- sidered the evidence adduced by the respective parties, do award and determine that the sum of £ is the amount of purchase- money and compensation to be paid by the said company for the interest in the said lands and hereditaments and mines and minerals which the said E. F. claims to be enabled to sell under the said Acts, and that the said sum includes an amount for all damages sustained by the said E. F. by reason of the severing of the lands, mines and minerals taken from his other lands, mines and minerals, or otherwise injuriously affecting such other lands, mines and minerals by the exercise of the powers of the said Acts . Witness my hand this day of (Signed) A. B. Schedule. 6S2 PKECEDENTS. . ; No. XLVL AWARD of Umpire in the Form of a Special Case. : [The same recitals should be inserted as in the last Precedent, and then as follows : — ] Now know ye, that I, having made the declaration required by the said Acts, and having viewed the said lands and hereditaments, and having considered the evidence brought before riie by the respective parties, hereby state my award of and concerning the matters so referred to me in the form of a special case for the opinion of the King's Bench Division of the High Court of Justice. [Here state case according to facts. Conclude :] If the court shall be of opinion that the said E. F. is entitled to compensation in respect of the matters stated in paragraphs , I award and determine that the sum of £ is the amount to be, paid by the said company in respect of the matters referred to me; but if the court shall be of opinion that the said E. P. is not entitled to compensation in respect of the said matters, then I award and determine that the sum of £ is the amount to be paid by the said company in respect of the matters referred to me. Witness my hand this day of (Signed) A. B. Schedule. No. XLVII. NOTICE of Intention to issue Warrant for summoning a ( Jury, and Offer of Compensation. To A. B., of&c. „■ In pursuance of the provisions of the [special] Act and the Acts incorporated therewith, the Company give you notice that they' intend, . after the. expiration of ten days, from -the service- of this notice, to issue their warrant to the sheriff or other the proper officer of the ; county of to summon a [special] jury to determine the value of the interest claimed by you or which you are under the said Acts enabled to sell or convey in certain lands and hereditaments required by the said company for the purposes WARRANT TO SHERIFF TO SUMMON JURY. of their undertaking, and described in a certain notice served upon you by the said company on the day of and also the amount of compensation for the damage (if any) sustained or to be sustained by you by reason of the severing of the said lands and hereditaments from your other lands, or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts, and the said company hereby further give you notice that they offer you the sum of £ as full compensation for the value of the interest claimed by you, or which you are under the said Acts enabled to convey in the said lands and hereditaments, and for all damage to be sustained by you by reason of the severing of the said lands and hereditaments from your other lands, or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts. Dated this day of (Signed) CD., Secretary of the said company. 663 No. XL VIII. WARRANT to Sheriff to Summon Jury to determine the Value of Lands required to be purchased or taken. [Special Act.] To , Sheriff of [the county of ]. Whereas, in pursuance of the provisions contained in the [special! Act and the Acts incorporated therewith, the Com- pany on the day of duly served notice on A. B. of , that they required to purchase and take for the purposes of their undertaking certain lands and hereditaments [insert descrip- tion from notice to treat]; and whereas the said A. B. claims to be interested in the said lands and hereditaments under a lease thereof for a term of years commencing from the day of ; and whereas the said A. B. and the said company have been unable to agree as to the amount of purchase-money and compensation to be paid by the said company to the said A. B_ for his estate and interest in the said lands and hereditaments, and as to the amount of compensation for the damage, if any, sustained or to be sustained by the said A. B. by reason of the severing of 654 PRECEDENTS. the said lands and hereditaments from the other lands of the said A. B., or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts; and whereas the said company on the day of , being more than ten days before the date hereof, did serve on the said A. B. a notice of their intention to issue their warrant for summoning a [special] jury to determine the amount of such purchase-money and com- pensation as aforesaid; Now, therefore, the said company do by this warrant issued under their common seal to you, the sheriff of the said county, require you to summon a jury [or to nominate and strike a special jury] in accordance with the pro- visions of the said Acts, to determine by their verdict the amount of purchase-money and compensation to be paid to the said A. B. by the said company for the purchase of his estate and interest in the said lands and hereditaments, and also the amount of money to be paid by way of compensation for the damage, if any, sus- tained or to be sustained by the said A. B. by reason of the severing of the said lands and hereditaments from the other lands of the said A. B., or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts. Given under the common seal of the Company this day of (Seal.) Note. — This form of warrant is shorter than that usually employed. It contains all that is essential, and omits controversial points, such as a statement of the fact of an offer having been made or its amount: vide ante, p. 215. No. XLIX. OWNER'S Notice under Sect. 68 of the Lands Clauses Act, 1845, requiring the Company to issue their Warrant to summon a Jury. To the Company. Whereas I, A. B., of , am owner in fee simple of the lands and hereditaments described in the schedule hereto, and hold the same in possession, and whereas in the execution of the works authorized by the [special] Act and the Acts incorporated there- with you have injuriously affected the said lands and heredita- ments in the manner following [shortly describe the nature of the WARRANT TO SHERIFF WHERE OWNER HAS GIVEN NOTICE, ETC. 655 injury-]: Now I, the said A. B., claim as compensation in respect of the said injury the sum of £ , and I further give you notice that unless you are willing to pay the amount of com- pensation claimed, and enter into a written agreement for that purpose within twenty -one days after the receipt hereof, I require the question of compensation to be settled by a jury, and that you shall within the time aforesaid issue your warrant to the sheriff of to summon a jury to settle the amount of the said com- pensation in the manner provided in the Lands Clauses Consolida- tion Act, 1845. Witness my hand this day of (Signed) Schedule. No. L. WARRANT to Sheriff where an Owner has given Notice that his Interest in Lands has been in- juriously affected. [Special Act.] Whereas A. B., of , did on the day of serve on the Company a notice alleging that his interest in certain lands and hereditaments [insert description from notice] had been injuriously affected by the execution of the works authorized under the [special] Act and the Acts incorporated therewith, and claiming that the amount of compensation should be settled by a jury; and whereas we are willing to issue our warrant for summoning a jury under protest, and not admitting that the said A. B. has any claim for compensation under the said Acts; Now, therefore, the said company do, by this warrant issued under their common seal to you the sheriff of the county of , require you to nominate and strike a special jury in accordance with the provisions of the said Acts for the purpose of settling the amount of compensation (if any) to be paid to the said A. B. for the damage (if any) sustained by him by reason of his interest in the said lands and heredita- ments having been injuriously affected by the execution of the works authorized by the said Acts. Given under the common seal of the Company this day of (Seal.) 656 PRECEDENTS. No. LI. NOTICE from Sheriff of Time and Place for Nomi- nation of a 'Special Jury. In the matter of the claim of A. B. against the Company. I hereby give you notice that I have appointed o'clock in the forenoon of the day of , at my office at , situated in the county of , as the time and place of nomi- nating and striking a special jury in the above matter, and that I summon you to appear before me at the time and place above mentioned by yourself or your agent. Dated this day of (Signature) Note. — This notice must be sent both to the owner and to the company. No. LIT. NOTICE from Sheriff of Time and Place for Reduc- tion of a Special Jury. In the matter of the claim of A. B. against the Company. I hereby give you notice that I have appointed o'clock in the forenoon of the day of , at my office at , situated in the county of , as the time and place for you or your agent to appear before me, to reduce the number of the special jury in the above matter. Dated this day of (Signature) Note. — This notice must be sent both to the owner and to the company. NOTICE BY COMPANY TO OWNER OF TIME, ETC. FOR INQUIRY. 657 No. LIU. NOTICE from the Sheriff to the Company of Time and Place of holding Inquiry. Whereas by a warrant directed to me under your seal on the day of , I was required to nominate and strike a special jury [or to summon a jury] for the purpose of determining the amount of purchase-money and compensation to be paid by you in respect of the estate and interest of A. B. in the lands and hereditaments therein described. Now, therefore, I give you notice that the inquiry in pursuance of the said warrant will be held at o'clock in the forenoon of the day of at Dated this day of (Signed) Sheriff. No. LIV. NOTICE by Company to Owner of Time and Place for holding an Inquiry before a Jury. To A. B., of &c. Whereas the Company on the day of gave you notice of their intention to issue their warrant to the sheriff of the county of , to summon a jury to determine the value of the estate and interest to which you claimed to be entitled, or which you are enabled under the [special] Act and the Acts incorporated therewith, to sell and convey in the lands and hereditaments therein described, and also the amount of compensation for the damage (if any) sustained or to be sustained by you by reason of the severing of the said lands and hereditaments from your other lands, or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts: Now, therefore, the said company hereby give you notice that the inquiry before a jury for the determination of the amount of the said purchase-money and compensation will be held at o'clock in the forenoon of the day of at Dated this day of (Signed) CD., Secretary to the said company. 42 658 PRECEDENTS. No. LV. INQUISITION, Verdict and Judgment. . , , , . / An inquisition, verdict and [The name of the county], to wit. > . , , , , , L ' aj ) judgment had and taken pursuant to the [special] Act, and the Acts incorporated therewith, at , not being more than eight miles distant from the lands and hereditaments hereinafter mentioned, on the day of , before me , sheriff of the said county, by virtue of a warrant issued under the seal of the Company, and received by me on the day of on the oaths of [insert names of jury'], indifferent persons duly qualified to act as special jurymen in the High Court of Justice, and sworn to inquire of and con- cerning the matters mentioned in the said warrant hereunto annexed; A. B. in the said warrant named, and the said company, having appeared before me and the jurors aforesaid at the time and place above mentioned by their respective counsel, solicitors, and agents, the said jurors, on their oaths, say that they do assess and give a verdict for the sum of £ , for the purchase by the said company of the estate and interest of the said A. B. in the lands and hereditaments described in the said warrant hereunto annexed [and the said jurors do further, on their oaths, say that they do assess and give a verdict for the sum of £ , by way of compensation to the said A . B . for the damage to be sustained by him by reason of the severing of the lands taken from the other lands of the said A. B., or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts]. And I, the said sheriff, do order the said sum[s of £ and] of £ to be paid by the said company In witness whereof I have hereunto set my hand and seal, and the said jurors have hereunto set their hands and seals, the day and year first above written. Note. — In practice it is often agreed that the jury shall give a verdict in one sum, to include both purchase-money and compensation, or there may be no question of injuriously affecting, in which case the words in brackets should be omitted. DEED POLL VESTING LANDS IN COMPANY. 659 No. LVI. DEED POLL under Sect. 77 of the Lands Clauses Act, 1845, vesting Lands in Company on failure of Owner to make a good Title. To all to whom these presents shall come we, the Company, send greeting: Whereas under and by virtue of the [special] Act, and the Acts incorporated therewith, the Company were empowered and authorised to purchase and take for the purposes of their under- taking among others the lands mentioned in the schedule hereto; and whereas A . B . of , was or claimed to be seised of the said lands in fee simple in possession or to be otherwise entitled to or enabled to sell the same to the company under the powers contained in the said Acts; and whereas by a notice in writing, dated the day of , and addressed to the said A. B., the company duly gave him notice that in pursuance of the powers contained in the said Acts they required to purchase and take the said lands for the purposes of their undertaking; and whereas failing agreement the sum of £ has been found and determined as between the company and the said A. B. by the verdict of a jury, pursuant to the provisions of the said Acts, as the amount of purchase-money and compensation to be paid by the company to the said A . B . for the fee simple in possession of the said lands and for the damage sustained by the said A . B . by the severing of the lands taken from his other lands, or otherwise injuriously affecting such other lands by the exercise of the powers of the said Acts; and whereas the company duly applied to the said A . B . to make out a title to the said lands to the satisfaction of the company, but the said A. B. has wholly neglected and failed to make out such title or any title whatever to the said lands, and has wholly refused to convey the same to the company; and whereas the company thereupon, pur- suant to the provisions of the said Acts, have paid the said sum of £ into the Bank of England in the name and with the privity of his Majesty's Paymaster-General to his account there to the credit of the said A. B., as appears by the receipt in writing, dated the day of , of the cashier of the said bank; Now these presents witness that in pursuance of the powers conferred by the said Acts they, the said Company, to the intent to vest in themselves and their successors and assigns absolutely the fee simple and inheritance of and in the said lands free from incum- 42 (2) 660 PRECEDENTS. brances, Do by this Deed Poll executed by and under their common seal, and stamped with the stamp duty which would have been payable upon a convej^ance to them of the said lands, declare that the said Company have purchased and taken the said lands; and that A . B . is the person from whom the same have been pur- chased and taken; and that the sum of £ has been deposited in the Bank of England in respect thereof to the credit of the said A. B. In witness whereof the said company have hereunto attached their common seal the day of (L. S.) Schedule . Note. — A similar form may be used under sects. 97, 100, 107, 109, 111, 113, 117. No. LVII. BOND entered into with Sureties under Sect. 85 of the Lands Clauses Act, 1845. Know all men by these presents that we the Company, and A. B. and C. D., being sureties duly approved in accordance with the provisions of sect. 85 of the Lands Clauses Consolidation Act, 1845 [and of the Railway Companies Act, 1867, s. 36], are jointly and severally held and firmly bound to E. P. in the sum of £ to be paid to the said E. F., or his certain attorney, executors, administrators or assigns, for which payment to be well and truly made we the said company bind ourselves and our suc- cessors, and we the said A . B . and CD. bind ourselves and each of us and our respective heirs, executors and administrators by these presents. Sealed with the common seal of us the said company, and with the respective seals of us the said A. B. and CD. Dated this day of Whereas the said company in pursuance of the powers of the [special] Act, and the Acts incorporated therewith, on the day of gave notice to the said E. F. that they required to purchase and take certain lands and hereditaments particularly described in the schedule hereto; and whereas no agreement has been come to or award made or verdict given for the jmrchase- money or compensation to be paid to the said E. F. in respect BOND ENTERED INTO WITH SURETIES. 661 of his estate and interest in the said lands and hereditaments, and the said company are desirous of entering upon and using the said lands and hereditaments before the purchase-money or compensation payable by them has been agreed upon or settled, but the said E. F. refuses to consent thereto; and whereas a surveyor duly appointed by two justices under sect. 85 of the Lands Clauses Consolidation Act, 1845 [or by the Board of Trade under sect. 36 of the Railway Companies Act, 1867], has deter- mined the amount of purchase-money or compensation to be paid to the said E. F. in respect of the estate and interest which he claims to be enabled to sell under the said Acts at the sum of £ ; and whereas, in compliance with the said Acts and sect. 85 of the Lands Clauses Consolidation Act, 1845, the said company have deposited in the Bank of England by way of security the said sum of £ in the name and with the privity of the Paymaster-General, to be placed to his account there for and on behalf of the Supreme Court of Judicature in England to the credit of the said E. F.; Now, therefore, the condition of the above-written bond is such that if the said company or the said A. B. or CD. shall pay to the said E. F., or deposit in the Bank of England for the benefit of the parties interested in the said lands and hereditaments, as the case may require, under the pro- visions contained in the Lands Clauses Consolidation Act, 1845, all such purchase-money or compensation as may in manner in the same Act provided be determined to be payable by the said com- pany in respect of the said lands and hereditaments, together with interest thereon at the rate of £5 per cent, per annum from the time of entering on the said lands and hereditaments until such purchase-money or compensation shall be paid to the said E . F . or deposited in the Bank of England for the benefit of the parties interested in the said lands and hereditaments under the provisions contained in the Lands Clauses Consolidation Act, 1845; then the above-written bond to be void, otherwise the same to remain in full force. Sealed with the common seal \ of the said company, and ( / \ by the said A. B. and CD., t in the presence of / Schedule. 6t»2 PRECEDENTS. No. LVIII. OFFER of the Right of Pre-emption of Superfluous. Lands. To A. B., of &o. The Company having acquired the lands delineated on the plan attached hereto and thereon coloured red under the powers of the [special] Act and the Acts incorporated therewith, and not requiring the same for the purposes thereof, hereby offer to sell the same to you as being the person entitled to the lands from which the same were originally severed, and further give you notice that unless within six weeks of this offer you signify to the said company your desire to purchase the same, the right of pre- emption hereby offered to you will cease and determine. Dated this day of (Signed) CD., Secretary to the Company. No. LIX. NOTICE to produce. To A. B., of &c. Take notice- that you are hereby required to produce at the inquiry which has been appointed to be held on the day of at , all and every of your grants, leases, agreements for leases, valuations, receipts for rent, rates and taxes, books, books of account, and accounts of rents received, and other evidence, papers, and writings whatsoever relating to the lands and heredita- ments, the subject of your claim, together with all letters and copies of letters (except such as have been received without pre- judice) relating to your claim, and particularly all banker's pass books, statements and invoices, ledgers, wages books, day books and stock books, and all other books, documents, or writings in any way connected with the business carried on by you upon the said lands and hereditaments. Dated this day of (Signed) G. H., Solicitor to the said Company. NOTICE TO ADMIT. 663 No. LX. NOTICE to admit. To the Company and to C. D., their solicitor. Take notice that A. B. proposes to adduce in evidence at the inquiry which has been appointed to be held on the day of , at , the several documents hereunder specified, and that the same may be inspected by the Company, their solicitor or agent, at , on , between the hours of , and the Company are hereby required, within hours from the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed as they purport respectively to have been; that such as are specified as copies are true copies, and that such documents as are stated to have been served, sent, or delivered were so served, sent, or delivered respectively, saving all just exceptions to the admissibility of all such documents in evidence. Dated this day of (Signed) G. H., Solicitor to A. B. OEIGINAL8. Description of Document. Dates. Copies. Description of Document. Dates. Original or Duplicate served, sent, or delivered, when, how, and by whom. ( 665 ) INDEX. ABANDONMENT, of notice to treat, when owner serves counter-notice, 42, 80. by commissioners acting for executive, 80. of undertaking, rights of landowners on, 63, 383. how operation of superfluous lands clauses affected by, 304. of proposed reinvestment of deposit, costs on, 279. of railways, 383. ABSENT OWNER, assessment of compensation to, by a surveyor, 70, 174. by jury if title is doubtful, 175. deposit of amount, 70, 175. execution of deed-poll by and vesting of lands in promoters, 176, 269. sufficiency of valuation by surveyor may be submitted to arbi- tration, 175, 186, 237. costs in such a case, 175, 187. further sum awarded to be deposited within 14 days, 175, 187. enforced by attachment or recovered by action, 175, 187. in case of superfluous lands, 313. ABSOLUTELY ENTITLED, conveyance by owner, 244. See Conveyance. payment out of deposit to party, 256. ' means '' entitled to his own use," 256. trustees with absolute power of sale are, 256. of a charity are in some cases, 257. local authority, 257. public company is, 258. dowress is, 258. married woman may be, 258. tenant for life to some extent is, 258. tenant in tail, how far, is, 259. party, may elect to have deposit reinvested at cost of promoters, 259. AOOESS, to works, land for, may be taken, 29. accommodation works only include access necessary to lands for their present user, 127. additional access is a question for compensation, 127. compensation for interference with private right of access, 152. with right of access to public highway, 155. 666 INDEX. ACCOMMODATION WORKS, when promoters may take lands for, 29. specific performance in case of, 58. where lands severed, may be ordered by justices, 127. cannot be ordered by assessing tribunal, 224. under Metropolis Management Acts, 349. ACQUISITION OF LAND (ASSESSMENT OF COMPENSA- TION) ACT, 1919. See Appendix, 478. scope of, 319, 330. acquisition must be compulsory, 319. official arbitrators under, 320. reference committee, 320. rules for assessment of compensation, 321. no allowance for compulsory acquisition, 322. value in open market, 322. limitation as to this rule, 325. special adaptability, 322. when to be taken into account, i323. where no general market, 324. increased value by use of premises, 324. reinstatement, 325 . procedure before official arbitrator, 325. consolidation of proceedings, 326. costs, 326, 327. notice of claim, 326, 328. unconditional offer of acceptance, 327, 328. withdrawal of notice to treat, 328. finality of award, 329. statement of special case, 329. effect of, on existing enactments, 329, 354, 370. reference to Commissioners of Inland Revenue, 331. agreed arbitrator under, 331. certificate of value by official arbitrator, 332. ACQUISITION OF LAND (ASSESSMENT OF COMPENSA- TION) RULES, 1919. See Appendix, 484. ACQUISITION OF LAND BY THE CROWN, 334. See Emer- gency. ACTION. See Injunction— Mandamus — Recovery of Land — Specific Performance. for payment of amount awarded by arbitrator after surveyor's valuation, 175, 187. for payment of amount claimed on default in issuing warrant for jury after entry, 208, 231. defences to such action, 231 . for payment of compensation for injury to lands, 233, 234. defences to such action, 234. to determine amount of compensation, by railway companies, 219. against owner for working mines, 129. for payment of costs, 203, 218. maintainable before taxation, 203, 218. for damage caused by acts in excess or wanton use of statutory- powers, 151, 162. to enforce right of pre-emption, 311. for disturbance of commonable rights, 293. INDEX. 667 ADAPTABILITY, SPECIAL, 111, 322. ADJOINING LANDS. See Intersected Lands. entry on, by railway company for temporary purpose, 33. to superfluous lands, what are, 310. ADJOINING OWNEES, vesting of superfluous lands in, 309. is absolute and automatic, 310. definition of, 310. include lessees and owners of limited interests, 310. division of lands among, 311. right of pre-emption in, 311. time at which it arises, 311. time within which it must be claimed, 311. none of lands in a town or built upon or used for building; purposes, 312, 313. form of decree on claim of pre-emption by, 312. ADMINISTRATORS, powers of, to convey, 50. restricted meaning of, 51. ADMIRALTY, acquisition of land for, 380. ADVERSE POSSESSION, 138, 306. AFFIDAVIT, sufficiency of statement in, that lands are required, 30. on application for certiorari, 240. on application for payment of corpus or income of deposit, 252. one of several applicants may make, 253. AGENT, form for appointment of, by company, 54. AGREEMENT, incorporation of, in a special Act, 25, 319. purchase of lands by, 53. form of, 53. under sect. 97 of Companies Clauses Act, 1845... 53. under seal, 54. by urban authority, 54. adoption or part performance of a contract, 54. appointment of agent, 54. ratification by company of contract by promoters, 55. notice to treat as a preliminary to, 55. contract complete, when price fixed after notice to treat, 56. protection of owners under disability selling by agreement, 57. valuation to be made by two surveyors, 58, 173. See Sur- veyors . provisions of sect. 9 may not be waived, 58. when municipal corporations must get consent of Ministry of Health, 59. . trustees of a charity may require consent of Charity Com- missioners, 59. 668 INDEX. AGREEMENT— continued. how, enforced, specific performance, 59. in case of accommodation works, 59. after entry, owner has remedies of unpaid vendor, 61, 231. injunction against use of land not granted, 61. unless land unsaleable, 62. for sale of land in consideration of annual rent-charge, 62. such rents are a charge on the tolls and rates, 62. form of declaration of charge, 63. for lease may be equivalent to lease, 178. AGRICULTURE, acquisition of land for, 370. Small Holdings and Allotments Act, 1908... 370. effect of Acquisition of Land Act, 1919, upon, 330, 370. valuer, 330. power to acquire land, 371. compulsory hiring, 372. matters for arbitrator's determination, 373. how rent fixed, 373. easements, 374. withdrawal of notice to treat, 374. limited owners, 374. exempted lands, 374. resumption by owner, 374. compensation for improvements, 375. superfluous lands, 375. ALIENATION OE LANDS, promoters cannot alienate except for purposes of special act, 304. except in case of lands purchased for extraordinary pur- poses, 305. or superfluous lands, 305. See Superfluous Lands. ALLOTMENTS. See Agriculture. ALLOWANCE EOR COMPULSORY ACQUISITION, under L. 01. Acts, 141. not under Acquisition of Land Act, 1919. ..322. AMBIGUITY, construction of acts in case of, 24, 25. ANCIENT LIGHTS, compensation for interference with, 12, 153. no injunction for interference with, 12, 92. notice to treat not required, 12. ANCIENT MONUMENTS, protection of, from acquisition under Housing Acts, 366. Small Holdings, &c. Act, 374. ANNUITANT, with charge on surface buildings is entitled to notice to treat, 75. cannot petition for application of deposit under sects. 69 — 71... 252. secured on leaseholds is entitled to his annuity in full, 269. APPLICATION OF PURCHASE MONEY. See Deposit. INDEX. 669 APPOETIONMENT, of rent of copyholds, 288. of compensation among commoners, 291. of rent-charges, 297. of rent of lands subject to lease, 298. costs of, 299. not payable by promoters on conveyance under sect. 82... 246. payable by promoters under sect. 80... 277, 298. of betterment charges, 362. APPEOVAL OF STTBETIES, by two justices, 100. in case of railways by Board of Trade, 100, 383. AQUEDUCT, power to make, does not give power to obtain supply of water, 29. AEBITEATION, 185. See Arbitrator— Award, &c. as to intersected lands, 34. in case of entry upon lands before purchase, 103. now under Arbitration Act, 1889. ..187. when claims assessed by, 185. if claim exceeds 50?. and lands taken are held on tenancy greater than from year to year, 185. notice for arbitration, time for, 185. contents of, 185. if absent owner dissatisfied with valuation of surveyor, 175, 186, 237. sum awarded must be deposited within fourteen days, 175, 187. in case of injuriously affecting, 187. in case of pre-emption of superfluous lands, 188, 313. not an arbitration within sects. 25 — 37, L. 01. Act, 1845 ...188, 313. by consent, 187. who may be appointed arbitrator, 188. how arbitrators appointed, 189. appointment to be delivered to arbitrator, 190. is not revocable, 191. is a submission to arbitration, 190, 191. when revocable, 190. declaration of impartiality by arbitrator or umpire, 189, 323. to be annexed to award, 189. death or incapacity of arbitrator or refusal to act, 191. appointment of umpire, 192. time for, 192. power of arbitrators and umpire over proceedings, 193. jurisdiction of arbitrators or umpire. See Assessing Tribunal. award. See Award. in case of failure compensation must be assessed by a jury, 200. costs of arbitration under L. 01. Acts, 200. See Offer— Costs. after valuation by surveyor, 175, 187. in case of pre-emption, 188, 313. rules as to, 200. if claims separable, costs may be dealt with separately, 202. need not be included in the award, 202. may be settled subsequently, 202 . taxation of, 202. ■670 INDEX. ARBITRATION— continued. costs of arbitration under L. 01. Acts — continued. action to enforce payment of, 203. order for taxation in, 203. claim to, does not depend on validity of title, 203. secus, in case of lands injuriously affected, 204. owner has no lien for costs, 204. under Public Health Acts, 344 Acquisition of Land Act, 1919... 320, 331. Metropolis Local Manag-ement Acts, 348. Metropolis Management Amendment Act, 1879... 353. Housing Acts, Part I., 360. Telegraph Acts, 379. ARBITRATION ACT, 1889. See Appendix, 472. ARBITRATOR. See Arbitration — Award — Official Arbitrator — Special Case. who may be appointed, 188. misconduct of, 189. jurisdiction of. See Assessing Tribunal. when restrained by injunction, 188. control of, over proceedings, 193. power to state a special case, 194, 235, 243. declaration of impartiality by, 189. misdemeanor to act contrary to, 189. if arbitrator is interested or misconducts himself, award maybe set aside, 189, 241. or arbitrator removed, 189. not liable for negligence, 199. should not consult solicitor of one of the parties, 196. how far evidence of, admissible, 199, 236. payment of, 198. has a lien for remuneration, 198. if owner takes up award, he cannot recover from promoters sums paid to, 198. costs of, should be dealt with in award, 198. mistake of, no defence to action to enforce award, 235. agreed, under Acquisition of Land Act, 1919... 331. under Public Health Acts, 344. under Metropolis Local Management Acts, 348. standing, under Metropolis Management Act, 1879. ..353. under Housing Acts, Part I., 358. Ministry of Health acting as, 368. under Small Holdings, &c. Act, 1908... 373. stipendiary magistrate acting as, under Telegraph Acts, 379. County Court judge acting as, under Telegraph Acts, 379. ARRANGEMENT, J scheme of, under Railway Companies Act, 1867... 63. ARRAY, no challenge to, allowed, 212. ASSESSING TRIBUNAL. See Surveyors— Justices— Arbitra- A tion — Jury. if improperly constituted, prohibition or injunction, 172, 188. jurisdiction of, 221. to assess amount of purchase-money or compensation, 221. for all lands included in same notice to treat, 206. i or in counter notice, 206. INDEX. 671 -ASSESSING TRIBUNAL-corafeued. jurisdiction of — continued. where part only of house taken, 221. assessment of amount final, if right principle adopted, 225, 226, 232, 234, 237. separate _ assessment of purchase- money and compensation, at option of either party, 227. in submission to arbitration, 222. in application to justices, 222. in warrant to sheriff, 223. in claims for injury to lands, 223. not to determine title, 172, 222. nor right to compensation, 172, 222. nor any collateral matters, 224. nor to award interest, 194, 226. setting aside assessment, 237. See Assessment. ASSESSMENT, of price following notice to treat constitutes a contract, 56. claimant can compel, 87, 102. in case of lands injuriously affected, 142, 167. a second, 169. separate, 236. finality of, 225, 226, 232, 234, 237. enforcement of, 228. by specific performance, 228. owner has rights of unpaid vendor, 230. in case of bonds, 2,31. on default of promoters to summon jury, 231. defences to action for, 231, 234. by justices, 182, 233. of award, 197, 233. setting aside, 237. by certiorari, 210, 214, 237. time for, 240. for want or excess of jurisdiction, 237. where tribunal improperly constituted, 239. affidavit stating grounds for, 240. where part only bad, 240. an award, 189, 241. remitting on application for, 243. Rules as to, under Acquisition of Land Act, 1919... 321. admissibility of former, as evidence, 322. by Commissioners of Inland Revenue, 381. evidence as to, before official arbitrator, 332. ASSIGNMENT OE COMPENSATION, 170. ASYLUM, acquisition of land for, 380. ATTACHMENT, to enforce award of arbitrator after valuation of surveyor, 175, 187 in case of refusal to obey arbitrator or umpire, 193. ATTORNEY-GENERAL, application for injunction by, where pro- moters take lands ultra vires, 45. 672 INDEX. AWAED, form of, 194. to be delivered to promoters, 194. should include arbitrators' costs, 198. need not include costs of the arbitration, 202. may be stated as a, special case, 195, 235, 243. formal defects and errors in, may be corrected, 199, 237, 240. within what time to be made, 196. court has power to enlarge time, 196. taking up, 197. mandamus to compel promoters to take up, 197. what is an answer to, 199. if owner takes up, he cannot reoover the amount paid to arbitrators, 198. evidence not admissible to explain, 199, 236. enforcing award, 197, 228, 233. See Assessment. if lands taken, not summarily if any question of right or title involved, 198, 233. by specific performance, 228. cannot be enforced if title bad, 229. setting aside, 189, 241. grounds for, 241. procedure, 242. time for, 242. remitting the, 197, 235, 243. costs of, 198. under Acquisition of Land Act, 1919... 329. finality of, 329. B. BENEFICIAL OWNEE. See Owner. necessary to treat with, 51. BETTEEMENT OHAEGE, none under L. 01. Acts, 115, 167. history of principle of, 315. under Housing Acts, Part II., 362. Town Planning schemes, 367. Light Eailways Acts, 385. BILL IN PAELIAMENT, costs of opposing, allowed in some cases to tenant for life, 267. BOAED OF AGEIOULTUEE. See Ministry or Agriculture. BOAED OF TEADE, in case of railways, approval of surety to bond by, 100, 383. appointment of surveyor by, 96, 176, 383. authorisation of construction by certificate of, 383. appointment of umpire by, 192. BOND, in case of entry on lands before payment of compensation, 97. Q to be given by promoters, 99. form of, 99. INDEX. 67S BOND — continued. sureties to, 100, 383. interest on, 100. money deposited is security for fulfilment of, 97. power of court to deal with deposit if condition is fulfilled, 97, 384. if condition is not fulfilled, 98, 384. owner's rights in case of, 231, 384. applications as to, 385. BOOKS OF BEFEBENCE, 17. See Plans. BOBOTTGH COUNCIL, acquisition of land for small holdings, &c. r 371. BEINE PUMPING (COMPENSATION FOE SUBSIDENCE) ACT, 1891... 387. BUILDING PUEPOSES, no right of pre-emption of superfluous lands used for, 312. meaning of the words, 312. BUILDINGS. See Other Building. re-investment of money deposited, in new, 254. in additions to and improvements of, 255. not in repairs, 255. removing and replacing, when inter- fered with, 256. BUILT UPON, no right of pre-emption of superfluous lands built upon, 313. meaning of the words, 44, 313. BUEIAL GEOUND, principles on which compensation to be assessed for closed, 113. application of money deposited in respect of, 252. 0. CAPITAL, „ must be subscribed before exercise of compulsory powers, 05. certificate of two justices conclusive evidence of subscription, 65. when required, 65. is a protection to owners, not to promoters, 65. want of certificate is no answer if owner desires value of lands to be assessed, 65. entry on lands cannot be prevented on ground of non-subscrip- tion of, 90. CEMETEEIES CLAUSES ACT, 1847... 387. CENTEE LINE OF UNDEET AXING, 20. See Deviation— De- lineated. c. (574 INDEX. CERTIFICATE, of justices as to correction of plans, 22. of justices that capital has been subscribed, 65. of value under Acquisition of Land Act, 1919. ..332. CERTIORARI, to quash inquisition, 210, 226. assessment of justices or jury quashed by, 210, 214, 237. not granted for irregularities in form, 214, 237, 241. where owner can have no claim, 237. mistake in subject-matter, 238. for want of jurisdiction, 210, 214, 226, 237. where assessment is on a basis bad in law, 239. if tribunal improperly constituted, 239. this may be waived, 239. if part bad, whole bad unless separable, 240. time within which application should be made, 240. affidavit on application for, 240. CESTUI QUE TRUST. See Trustee. CHALLENGE, extent of rights of, 212. CHAPELS, enfranchisement of sites of, lxxxi. CHARGE, 297. See Rent-charge. CHARITY, trustees of, powers of sale of, 50, 59, 257. may be absolutely entitled to payment out of deposit, 257. payment of dividends to secretary of, 263. on what parties summons for application of deposit should be served in case of, 264. CHARITY COMMISSIONERS, consent of, required in some cases, 59, 257. CHIEF-RENT, release of lands from, 297. CHOSE IN ACTION, compensation is, 170. CLAIM, when owners must send in, 74. quality and quantity of owner's interest should be fully stated in, 186. assumed to be correctly stated before assessing tribunal, 222. fixes amount in default of promoters issuing warrant under sect. 68. ..208, 231. amount of, does not bind tribunal, 186. notice of, under Acquisition of Land Act, 1919... 326, 328. CLAIMANT. See Owner— Parties. CLAY, when a mineral, 137. CLOSED BURIAL GROUND. See Burial Geound. COASTGUARD PURPOSES, acquisition of land for, 380. INDEX. 675 COLLATERAL PURPOSES, lands cannot be taken for, 27. what are, 27. COLLEGES, investment in buildings by, 255, 259. COMMISSIONERS acting for executive may withdraw a notice to treat, 80. COMMISSIONERS OF INLAND REVENUE, reference to, under Acquisition of Land Act, 1919. ..331. procedure as to, 332. evidence of assessments by, 332. COMMISSIONERS, FORESTRY, 377. COMMITTEE. Sec Lunatic-Common L^nds. COMMON OR WASTE LANDS, 289. compensation for rights in soil, 289. conveyance to promoters, 289. in default of conveyance, deed-poll by promoters, 289. compensation for commonable rights, 289. appointment of a committee, 290. powers of committee, 290. application and apportionment of compensation, 291. committee may apply to Ministry of Agriculture, 291. if no committee, compensation fixed by a surveyor, 176, 292. upon payment or deposit of compensation, commonable rights vest in promoters, 292. if commoners not compensated, action for disturbance of com- monable rights, 293. costs of commoners, 293. reinstatement, under Housing Acts, 366. compensation for extinction of rights of, under Commons Act, 1899. ..377. COMMONABLE RIGHTS COMPENSATION ACT, 1882. ..292, 469. See Appendix, 469. COMMONS ACT, 1899... 377. See Appendix, 600. COMMUNICATIONS. See Intersected Lands. in case of intersected lands, 34. cost to be determined at request of either party, 34. COMPENSATION FOR LANDS TAKEN, 107._ for mesne profits, if omission to purchase an interest, 69. for owner's interest at time of notice to treat, 81. date as at which assessed, 82. mode of estimating, 107. payment enforced by remedies of an unpaid vendor, 61, 230. or under sect. 87. ..230. payment enforced by action, 231. assessment of, only fixes amount, 221. not title or right to compensation, 222, 234. basis of, is value of lands to owner, 108. 43 (2) 676 INDEX. COMPENSATION FOE LANDS TAKEN— cont what matters must be considered, 109. present and future advantages, 109. special market value, 109. special adaptability, 111. restrictions attaching to land, 112. reinstatement, 114. betterment, 115. See Betterment Charge. damage through removal, 116. fixtures, 116. goodwill, 117. remoteness of, 118. to whom payable, 119. method of calculating, in case of owner in possession, 119.. tenant, 121. See Lessee. reversioner, 119. copyholds, 120, 286. See Copyholds. interest payable on purchase-money for lands, 139. for mines, 140. allowance for compulsory purchase, 141. accommodation works, 127. only for a legal or equitable interest in land, 124. in case of mines and minerals, 127. See Mines and Minerals .- of common or waste lands, 289. See Common Lands. of mortgages, 293. See Mortgage. of rent-charges, 297. See Bent-Charge. of leases, 298. See Lease. assignability of, 170. COMPENSATION FOE LANDS INJUETOTTSLY AFFECTED,. 142. See Injuriously affecting. 0OMPULSOEY HIEING, 372. See Agriculture. COMPULSOEY POWEES, time within which to be exercised, 78. capital must be subscribed before exercise of, 65. certificate of justices conclusive, 65. notice to treat is not necessarily an exercise of, 66. service of notice to treat within prescribed time enables pro- moters to exercise, 78. effect of delay on exercise of, 78, 85. entry under sect. 85 is not an exercise of, 100. COMPULSOEY PUEOHASE, allowance for, 141. none under Acquisition of Land Act, 1919... 322. CONSENT, entry on lands by, 89. cannot be revoked, 90. if no consent, promoters are trespassers, 60, 90. and liable to injunction or action, 60, 90. CONSTRUCTION, evidence of experts not admissible to construe deposited plans,. 20. of special act, ordinary and literal meaning, 24. in cases of ambiguity, 24. in case of special clauses incorporating agreements, 25, 319.. INDEX. 077 CONSTBUCnON-conimBed. of word " undertaking," 4, 25. does not include collateral purposes, 27. what are 'purposes of the undertaking," 27. CONTEACT. See Agreement. forms in which contract for purchase of lands can be made, 53. under Companies Clauses Act, 1845 53 under seal, 53, 54. under L. CI. Act, after notice to treat and fixing of price, notice to treat is not a, 55, 56. ratification by company of promoters', 55. CONTEAOTING PAETY, meaning of, in sect. 73... 266. CONVEYANCE, 244. See also Owner. parties, 47. sect. 7 does not alter parties to be joined in a conveyance, 51. no action for payment of price until after, 230. by owner absolutely entitled, 244. trustees with absolute power of sale, 244. owner must accept purehaso-money when tendered, 244. costs of, 245. taxation of, 246. if owner refuses to convey, 247. of copyhold lands, 285. of common lands, 289. of superfluous lands, 313. COPYHOLD ACT, 1894, assessment of compensation under, 289. COPYHOLDS, 285. compensation for, 120. enfranchisement of, 120, 286. re-investment of deposit in, 254. conveyance of copyhold lands, 285. steward entitled to fees of surrender, 285. enfranchisement of, 286. application of money paid into court for, 286. compensation for enfranchisement, 286. basis of, 287. must he invested if lord of the manor is tenant for life, 287. until enfranchisement lands subject to fines, &c, 287. lord of manor to enfranchise, 288. in default, promoters may execute deed poll, 288. apportionment of rents if part only taken, 288. COEONEE, to summon jury, if sheriff interested, 209. if interested, ex-coroner, 209. what constitutes interest, 210. has all powers of sheriff, 210. COEPOEATIONS, power of, to sell lands, 48. approbation of Ministry of Health in certain cases, 59. must contract under seal, 54. service of notice to treat on, 77. 6 78 INDEX. COSTS, in case of small portions of intersected land, 34. in case of lands omitted to be purchased through, mistake, 70. of declaration by surveyor, 175. of proceedings in High Court are in discretion of Court, 275. of valuation by surveyor, 177, 187. of inquiry before justices, 183. of arbitrators should be dealt with in award, 198. of arbitration, borne by promoters unless award same or less than previous offer, 200. award need not include costs, 202. taxation of, by a master, at request of either party, 202. not open to review before court, 203. mandamus to master to tax, 203. action for costs maintainable before taxation, 203. owner's right to, not dependent on validity of his title to lands taken, 203, 217. secus in case of lands injuriously affected, 203. owner has no lien for, 204. of arbitration after valuation of a surveyor, 175, 187. of arbitration as to value of superfluous lands, 188, 313. of inquiry before jury borne by promoters unless verdict same or less than previous offer, 215. See Offer. when verdict set aside, 217. taxation of, by a master, 217. not open to review before court, 218. mandamus to master to tax, 218. action for, maintainable before taxation, 218. recoverable by distress warrant, 218. of conveyance, borne by promoters, 245. taxation of such costs, 246. in case of money deposited, 274. See Deposit. of commoners, 293. of apportioning rent, 246, 277, 299. under Light Railways Acts, 386. of arbitration under Acquisition of Land Act, 326. rules as to, 326. taxation of, 327. payment of, 327. recovery of, 327. of arbitration as to omitted interest under Housing Acts, Part I., 360. COUNTEE-NOTICE, under Lands Clauses Act, 1845,' s. 92, by owner of a house, &c, 40. after, owner can apply for injunction, 41. on application, question what is part of a house, &c. decided, 41. form of, 41. contents of, 41. time for, 42. effect of, 42. on notice to treat, 80. owner to have opportunity for agreement, 42. election of promoters to take whole house, &c, 42. limitations of sect. 92 in special acts, 43, 351, 362. deposit on entry before purchase must include value of lands in, 94. assessment by jury includes value of lands in, 206. by company in case of mines and minerals, 133. INDEX. q 79 C0UN 1888 0O 345 NCIL ' P ° WerS ° f ' Und<2r L ° 0al Gov6rnme nt ^t, COUNTY COURT JUDGE, powers of, under Telegraph Acte, 379. COVENANTS, effect of, 124. See Special Covenants restrichve, compensation for breach of, 156. CROWN. See Emekqency. not included in definition of owner, 48 procedure in case of adverse claim by, to money deposited, 273. acquisition of land by, m time of emergency, 334. CURTILAGE, house includes, 38. CUSTOMS OFFICES, acquisition of land for, 380. D. DAMAGE, ordinary rules as tor emotenjess of, apply in assessing com- pensation, 118. prospective damage to mines not assessable, 135. permanency of, not material in cases of injuriously affecting, 157. all damage capable of being foreseen to be considered, 167. can there be a second assessment of unforeseen damages? 169. DEATH, of arbitrator, 191. See Arbitration. of applicant during carriage of an order, 252 . DECLARATION, by arbitrators or umpire of impartiality, 189. to be annexed to award, 189. may be waived by consent, 189. not required under Acquisition of Land Act, 1919. ..325. by surveyors, 173. cost of, 175. DEED-POLL, execution of, after deposit of purchase-money, if owners refuse to convey, or do not show title, or cannot be found, 176, 247, 269. vesting of lands in promoters on execution of, 176, 269. in default of enfranchisement by lord of a manor, 288. in default of conveyance of rights in soil of a common, 289. after payment or deposit of compensation for commonable rights, 176, 292. in default of conveyance of his interest by a mortgagee, 295. in default of release of a rent-charge, 297. DEFENCE ACT, 1842. ..335. See Appendix, 489. DEFENCE ACT, 1854. See Appendix, 499. DEFENCE ACT, 1860. See Appendix, 500. 680 IXDEX. DEFENCE OF THE EEALM (ACQUISITION OE LAND) ACT, 1916, application of Acquisition of Land Act, 1919, to, 330. DEFENCE OF THE EEALM CONSOLIDATION ACT, 1914.. .336. DELAY, effect of, on notice to treat, 83, 85. DELINEATED. See Deviation. lands are, if so shown on plans that owner has notice of power to take, 18. not limited to lands surrounded by lines, 19. lands within limits of deviation are " delineated," 22. DEPOSIT OF MONEY IN COUET, 248. by way of security before entry under sect. 85... 94. what to be included, 94. amount fixed by a surveyor, 96. appointment of surveyor, 96. how deposit is to be made, 96. is security for fulfilment of bond, 97. „ power of court to deal with deposit, 97. in case of absent owners, 70, 175. after arbitration following valuation by surveyor, 187. in case of persons under disability, or where there are interests in reversion or remainder, 248. sums over 200?.... 248. sums between 2001. and 20.!.... 248. appointment of trustees, 248. sums not exceeding 20Z....249. payment out of surplus not exceeding 20L...249. promoters compellable to deposit the money, 249. title not conditional on deposit, 249. dispensed with where immediate transfer to another account is necessary, 249. interest ceases to run from time of, 249. unless by special agreement, 249. deposit considered as realty, 250. application of money deposited, 250. summons on petition for, 250. procedure as to, 250. in case of interim or permanent investments, 251. who can apply, 252. affidavit in, 252. (1) in redemption of land fax, 253. costs, 253. in discharging incumbrances, 253. (2) in purchase of other lands, 254. when erection of new buildings equivalent to re- investment in lands, 254. additions to and improvements of buildings, 255. but not, as a rule, money spent in repairs, 255. permanent improvements, 255. (3) in removing and replacing buildings interfered with, 256. (4) in payment to party absolutely entitled, 256. who are parties absolutely entitled, 256. party absolutely entitled may have money re- invested in land at cost of promoters, 259. INDEX. 681 DEPOSIT OF MONEY IN COURT— continued. application of money deposited — continued. (5) under Universities and College Estates Acts, 259. (6) under Settled Land Acts, 1882 (sect. 32) and 1890... 259. under Housing of the Working Classes Act, 1890... 261. (7) in interim investment, 261. dividends, interest, &c, application for, 263. service of petition or summons, 263. on remainderman or reversioner, 263. on incumbrancer, 264. on other parties, 264. appearance of parties served, 265. costs of, 265. if party not absolutely entitled, any sum exceeding 20?. to be paid into bank or to trustees, 266. court or trustees may allot a portion of deposit to owner of limited estate as compensation for any injury, &c, 267. what included in " injury, &c," 267. application of money deposited in respect of leases or rever- sions, 267. when lands are let on lease by a life owner, 268. life interest in leaseholds, 268. adjustment of rights between tenant for life and remainderman, 268. annuity secured on leaseholds to be paid in full, 269. procedure if after deposit owner refuses to convey, does not show title, or cannot be found, 269. mandamus to promoters to deposit, 271. summons or petition for application of deposit, 271. if question of title arise, court to decide, 272. adverse claim by the Crown, 273. party in possession deemed owner till contrary shown, 273. who is a party in possession, 273. sect. 79 only applies to an application to deal with money in court, 274. costs where money deposited in bank, 274. dealt with by sect. 80 of L. CI. Act, 274 ; discretion as to costs of proceedings in court given by Judicature Act, 1890, s. 5... 274. promoters not liable to pay unnecessary cents, 275. what are unnecessary, 275. costs payable by promoters, 276. (1) of purchase and taking of lands, 276. (2) of investment in government or real securities, 277. (3) of re-investment in lands, 278. under Settled Land Act, 1882... 280. (4) of payment out of court, 280. costs not payable by promoters, 281. subject to overriding discretion of court, 281. (1) if money deposited through wilful refusal of owner, after tender of price, to receive same or to convey lands, 281. (2) if money deposited through wilful neglect to make a good title, 282. (3) of litigation between adverse claimants, 282. (4) if due to delay by persons entitled, 283. 682 INDEX - DEPOSIT OF MONEY IN COURT— continued. costs where fund deposited by several promoters, 283. amalgamation of companies, 284. in case of common lands, 292. mortgages, 295. rent-charges, 297. DEPOSITED PLANS. See Plans. DEPUTY, included under definition of sheriff, 210. DEVELOPMENT COMMISSIONERS, 375. DEVELOPMENT OF LAND, &c, 375. bodies empowered to acquire land for, 375. method of acquisition, 376. compensation, 376. part only of a building may be acquired, 376. Road Board, 376. powers of, 377. land drainage, 377. forestry, 377. DEVELOPMENT AND ROAD IMPROVEMENT FUNDS ACT, 1909. ..375. See Appendix, 581. DEVIATION, limits of, required in certain cases by Standing Orders, 20. centre line of the undertaking must be within limits of, 20. in case of railway, lands outside limits may bo taken for pur- poses other than the line, 20, 21. lands within limits of, are delineated, 22. right of, does not imply a right to dispense with a large portion of the statutory works, 20. promoters must make good poor's rate on lands taken outside limits of, 300. DISABILITY. See Owner. parties under, in what cases authorized to sell and convey, 48. may bind interests in reversion, 51. purchase from, of lands for extraordinary purposes, 33, 52. protection of, in purchase by agreement, 57. price not less than valuation by surveyor, 173. See Surveyors. deposit of purchase-money and compensation in case of, 248. See Deposit. DISENTAILING DEED required in some cases before allowing payment out of deposit to tenant in tail, 259. DISTRESS, payment of award by justices not enforceable by, 182, 233. costs of inquiry before a jury recoverable by, 218. DIVERSION OF PUBLIC FOOTPATH, land may be taken for, 29. INDEX. 683 DIVIDENDS, payment of, on interim investment, 263. application by summons, 263. in case of a lunatic, 263. in case of a charity, 263. payment of, if money deposited under sects. 76, 77... 271. summons for, 272. DOWEESS, power of, to sell and convey, 49. is a person absolutely entitled, 258. DEAINAGE OF LAND, 377. E. EASEMENTS, included in term "lands" in L. 01. Acts, 9. promoters cannot compel owners to grant, unless there are special powers, 11, 15, 17. no notice of intention to take necessary, 12. in case of interference with, compensation to be claimed for injury to dominant tenement, 11, 152, 154. power to appropriate and use the subsoil is not an easement, 10, 72, 92. under Waterworks Clauses Act, 1847... 14, 15. promoters must take lands over which they construct arches, or under which they tunnel, 15. injunction not granted to restrain interference with, 92. after damage sustained, compensation assessed under sect. 68 ...92. not within sects. 84—90 of L. 01. Act, 92. under Education Acts, 12. Public Health Acts, 338. Metropolis Management Acts, 348. Housing Acts, 358. Small Holdings, &c. Act, 1908. ..374. Development and Eoad Improvement Act, 1910. ..375. ECCLESIASTICAL OOMMISSIONEES, consent of, when required, to be obtained out of court, 264. payment to, of compensation for ecclesiastical lands, 365, 376. EDUCATION, acquisition of land for purposes of, 380. EDUCATION ACT, 1921. See Appendix, 608. ELECTEIC LIGHTING CLAUSES ACT, 1899... 387. ELECTRICITY SUPPLY ACT, 1919.. .387. ELECTRIFICATION OF RAILWAYS, 383. ELEMENTARY EDUCATION ACTS, 380. "lands" in, include rights over land, 12. 684 INDEX. EMERGENCY, acquisition of land by Crown in time of, 334. royal prerogative, 334. early statutes, 334. Defence Act, 1842. ..335. later statutes, 335. Emergency Powers Act, 1920... 336. Telegraph Acts, 379. EMEEGENOY POWEBS ACT, 1920... 336. See Appendix, 505. EMINENT DOMAIN, meaning of, 1. BNCLOSUEE ACT, 1854. See Appendix, 467. ENEEANCHISEMENT, 286. See Copyholds. ENFRANCHISEMENT OF THE SITES OF PLACES OF WORSHIP ACT, 1920...1xxxi. ENGINEER OF PROMOTERS, affidavit by, that lands are re- quired, 30. ENHANCED VALUE. See Betterment. ENTRY ON LANDS, for temporary purposes, 33, 34, under agreement, 61, 231. ENTRY ON LANDS BEFORE PURCHASE, 89. if promoters enter on lands without authority, they are tres- passers, and remedy is by action and injunction, 60, 89, 90. for temporary purposes, 33. for surveying without consent, 89. by consent, 89. penalties for wrongful, 90. under sects. 84—90, L. 01. Act, 89. easements not within these sections, 92. only if lands permanently required, 93. entry may take place at any time, 94. procedure under sects. 85 — 90... 94. deposit by way of security, 94. what to be included, 94. amount fixed by surveyor, 96. appointment of surveyor, 96. how deposit is made, 96. is security for fulfilment of bond, 97. power of court over deposit, 97. bond to be given by promoters, 99. form of, 99. sureties to, 100, 383. interest on, 100. effect of entry under sect. 85... 100. entry need not be within time limited for exercise of compul- sory powers, 100. no action can be brought against promoters if they comply with sects. 84— 90.. .101. when lands entered on and value assessed, owner is in position of unpaid vendor, 102, 231. INDEX. 685 ENTRY ON LANDS BEFORE PURCHASE— continued. ■when lands entered on, owner can compel assessment, 102. sect. 68 only applies in case of actual entry, 103. meaning of " taking," 104. wilful entry on lands, 105. fixes nature of tenancy, 180. EQUITABLE MORTGAGEE. See Mortgage. remedies of, 60. service of notice to treat on, 75. ERRORS in plans, how remedied, 22. in award, if formal, may be corrected, 199, 2.37, 240, 241. EVICTION, compensation when lands taken includes all loss con- sequent on, 116. EVIDENCE. See Witness. of experts not admissible to explain deposited plans, 20. of promoters' engineer that lands are required, 30. certificate of two justices conclusive that capital subscribed, 65. amount of offer not admissible in, 115, 200, 216. as to cost of lands may be relevant, 119. as to purpose for which lands taken, 167. improper rejection or admission, no ground for reviewing in- quisition, 226. verdict of jury or award not, of right to compensation, 234. affirmative evidence necessary, 234. of arbitrator, how far admissible, 199, 236. certified copies of verdict and judgment before jury are, 214. on application for certiorari, 240. as to whether lands have or have not become superfluous, 306 . "returns and assessments" admissible as, 322. of bond fide offers, 324. of assessment by Commissioners of Inland Revenue, 332. as to premises in unhealthy area, 357, 360. EXECUTOR OR ADMINISTRATOR, power of, to sell and convey, 50. restricted meaning of term, 51. of applicant can carry through an order dealing with deposit, 252. EXPECTANCY, estates in. See Reversion— Remainder. EXPERTS, evidence of, not admissible to explain deposited plans, 20. expert arbitrators need not hear parties or witnesses, 193. EXTRAORDINARY PURPOSES, how lands may be acquired for, 32. defined, 32. promoters may sell such lands and purchase others, 33. lands acquired for, cannot be treated as superfluous lands, 305. right of promoters to alienate, 305. 686 IXVEX. F. FASCICULI of clauses, incorporation of, in Lands Clauses Acts, 6. PEE SIMPLE, owner of, how. compensation assessed, 119. FERRY, injury to, by reason of opening of railway and footbridge, 160. access to, interference with, 152. PINES, compensation for, 120, 287. FIXTURES, compensation for, 116. trade, included in term " manufactory," 39. POOTPATH, power of promoters to take lands for diversion of, 29. POECED SALE, compensation for, 116. FORESHORE, acquisition of rights over, 377. FORESTRY, acquisition of land for, 377. FORESTRY ACT, 1919. See Appendix, 587. FORESTRY COMMISSIONERS, 377. FRAUDS (STATUTE OF), does not apply to notice to treat, 56. g. GARDEN, when part of a house, 37. GARDEN CITIES, 369. GAS AND WATERWORKS FACILITIES ACT, 1870... 387. GASWORKS CLAUSES ACT, 1871, does not exonerate promoters from proceedings for nuisance, 31. GOODWILL, compensation for, 117. no compensation for, in case of injurious affection, 158. when it passes to mortgagee, 57, 76, 118, 296. GUARDIAN. See Infant. power of, to sell lands, 49. to represent interests in reversion, 51. INDEX. 687 H. HARBOURS, DOCKS AND PIEBS GLAUSES ACT, 1847... 386. HEALTH, MINISTBY OF. See Ministry of Health. HEREDITAMENTS, incorporeal, included in "lands," 8. of any tenure, meaning of, in L. 01. Acts, 8, 9. HIGHWAY, ownership of land under, 71. necessity of notice to treat for land under, 71. obstruction of, may give right to compensation, 155. HIEING, COMPULSORY, 372. See Agriculture. HOSPITAL., is a house within sect. 92... 36. acquisition of land for isolation, 380. HOUSE, no party compellable to sell part of, 35. See Counter-Notice. who is " party," 34. if owner require whole to be taken, promoters may withdraw notice to treat, 42, 80. counter-notice suspends notice to treat, 42. election by promoters to take whole, must be made in a reason- able time, 42. what is a reasonable time, 42. what comprised in term "house," 36, 37. includes garden, &c, 37. includes curtilage, 38. " other building " extends application of "house," 39. whether lands are part of a house to be determined as at time of notice to treat, 40. limitation of sect. 92 in special acts, 43. owner cannot require less than whole to be taken, 41. time for promoters taking whole, 42. what constitutes election to take whole, 42. jurisdiction of assessing tribunal where part only taken, 221. part only may be taken under — Michael Angelo Taylor's Act, 351. Housing Acts, Part II., 362. ■Development and Road Improvement Act, 376. unhealthy, under Housing Acts, Part II., 361. HOUSING, new principles of compensation as to, 354. statutes dealing with, 354. application of Acquisition of Land Act, 1919... 354. Part I., unhealthy areas, 355. compensation in case of, 356, 357, 359. evidence as to, 357, 360. easements, 358 . arbitrator's powers, 358. land included which is not unhealthy, 359. compensation for, 359. omitted interests, 360. costs, 360. 688 INDEX. HOUSING— continued. Part II., unhealthy dwelling-houses, 361. demolition of, 361. right of owner to site, 361. power to take part only, 362. compensation, 362, 363. contribution from premises improved (" better- ment"), 362. reconstruction scheme, 363. Part III., working class lodging-houses, 364. powers of local authority, 364. procedure as to compensation, 364. general provisions, 365. compensation payable to local authority, 365. deficiency of land tax and poor's rate, 366. ancient monuments, 366. commons and open spaces, 366. water rights, acquisition of, 366. HOUSING AND TOWN PLANNING ACTS, 354. See Housing — Town Planning. HOUSING OF THE WORKING CLASSES ACT, 1890. See Appendix, 531. investment of money paid into court under, 261. practice as to applications for, 265. application of Acquisition of Land Act, 1919, to, 330, 354. HOUSING, TOWN PLANNING, &c. ACT, 1909. See Appendix, 547. HOUSING, TOWN PLANNING, &c. ACT, 1919. See Appendix, 559. I. IDIOT. See Lunatic. IMPROVEMENTS, deposit in some cases applied to permanent, 255. under Settled Land Acts, 259. under Housing of Working Classes Act, 1890. ..261. by promoters not taken into account in assessing compensation for lands omitted to be purchased, 70. improvement charge. See Betterment. improvement schemes, making good poor's rate in case of, 300. INCAPACITY. See Disability. of arbitrator, 191. INCLOSURE ACT, 1854. See Appendix, 467. INCORPORATION, L. CI. Acts apply to every undertaking of a public nature, 4. in special acts, 4 — 7. passed before 1845, but subsequently varied, 5. of portions of L. 01. Act, 6. of agreement in special Act, 25, 319. of superfluous lands clauses, 314. INDEX. 689 INCORPOREAL HEREDITAMENTS, 8. INCUMBRANCES, application of deposit in discharge of, 253 what are, 253. release, of lands from, 297. INCUMBRANCER. See Mortgage. service of petition for application of deposit on, 264 appearance of, 265. may apply under sect. 78... 272. INFANT, guardian of, may sell and convey lands, 49. devisee of owner held to be trustee, 51. INJUNCTION, to restrain promoters from enforcing notice to take part of a house, &o., 41. to restrain promoters from taking lands ultra vires, 45. by whom it may be applied for, 45. to restrain promoters from interfering without authority with possession of owner, 60, 89, 90. to restrain promoters from continuing in possession without authority, 91. to restrain promoters from proceeding without complying with conditions precedent, 107, 208. if assessing tribunal not properly constituted, 172, 188. where undertakers refuse compensation, 170. not granted to try right to compensation, 88, 107. to prevent interference with an easement, 12, 92. entry on ground that capital not sub- scribed, 90. use of land in case of purchase by agreement, 61. unless land unsaleable, 62. INJURIOUSLY AFFECTING, 142. of interest created subsequently to notice to treat, 84. I>. CI. Act, 1845, gives compensation for injury to lands, 147. provisions of L>. CI. Acts, 143. Railways Clauses Act, 1845. ..144. Waterworks Clauses Act, 1847... 145, 160. Public Health Act, 1875... 148, 340. different principles if lands held or not held with lands taken, 142. time at which assessment should be made, 142, 167. if no lands taken, damage, to give claim to compensation, must comply with four conditions, 148. (i) must result from act legalized by statute, 149. (ii) must be such as would be actionable but for statute, 150. structural damage, 152. interference with easement or similar private right, 11, 152, 154. sewers, 153. sporting rights, 10, 153. water rights, 153. privacy, 154. obstruction of public right, 155. c. 44 690 INDEX. INJUEIOUSLY AFFECTING— continued. if no lands taken, damage, &o. — continued. (iii) must be an injury to lands, 151, 158. examples, 158. (iv) must arise from construction and not from user of works, 151, 159. examples, 159. in case of Waterworks Clauses Act, 160. if lands taken, compensation for damage to lands held there- with, 161. (i) only for acts legalized by statute, 162. (ii) not material whether injury would have been action- able but for statutory powers, 162. (iii) owner entitled to compensation for all consequential damage, 164. fiv) arising from user as well as from construction of works, 165. what are "lands held with lands taken," 161. purposes for which land required considered, 167. benefit of undertaking to owner not to be considered, 115, 167. compensation where no lands taken should be assessed after injury, 142, 167. all damage capable of being foreseen to be included, 167. can there be a second assessment in respect of unforeseen damage? 169. right to compensation for, is a legal chose in action, 170. no interest can be given on amount awarded, 170. when compensation is refused, an injunction will be granted, 170. by town planning scheme, 367. by making open space, 381. INJURY, INCONVENIENCE, OR ANNOYANCE, what included in, under sect. 73... '267. INLAND REVENUE, COMMISSIONERS OE, reference to, 331. assessment by, 332. INQUISITION. See Jury. form of, 214. should be signed by sheriff, 214. recording of, 214. validity of, should be questioned by certiorari, 210, 226. INTEREST, in case of entry on lands under sects. 84— 90. ..100. on purchase-money, follows ordinary rule of vendor and pur- chaser, 139. if possession taken before assessment, interest runs from date of taking possession, 139. none payable in case of minerals, 140. in case of lands injuriously affected, 170. not within jurisdiction of .assessing tribunal, 134, 141, 170, 194, 226. ceases to run from date of deposit in court under sects. 69, 71. ..249. INDEX. 691 INTEEEST IN ASSESSING TRIBUNAL, surveyor should "be impartial, 58, 176. arbitrators or umpire should be impartial, 189. declaration of impartiality, 189, 325. justices not to be interested, 181. sheriff not to be interested, 210. what constitutes interest in, 210. if sheriff interested, coroner to summon jury, 209. objection may be waived by consent, 188, 210. not if party is ignorant of interest, 210. certiorari where sheriff interested, 210. INTEREST IN LANDS, what is and is not, 9, 10. omitted to purchase by mistake, 68. See Omission. interest of owner in land taken is fixed by notice to treat, 81. and in land injuriously affected, 84. legality of an interest claimed not determined by assessing tribunal, 222. assumed to be correctly stated in claim, 222. quantity and quality of owner's interest should be fully described in claim for arbitration, 186. in case of jury, 208, 231. nature of, acquired by promoters, 23, 138, 303. when a deed poll is executed under sect. 76. ..271. compensation only given for a legal or equitable, 124. what interests must be included in one hearing before a jury, 206. several to be assessed together under Acquisition of Land Act, 1919.. .326. INTERFERENCE WITH EASEMENT. See Easement. INTERSECTED LANDS, when promoters may compel sale of, under sect. 94... 34. if either party desire, value of land and cost of communica- tions to be assessed, 34. costs of the inquiry, 34. when promoters compelled to purchase, 34, 44. meaning of words " town " and " built upon," 44, 313. under R. CI. Act, 1845, ss. 68, 69, justices may order accommo- dation works, 127. but only with reference to present uses of land, 127. INTRODUCTORY HEADINGS, incorporation or exception of por- tions of L. CI. Act, 1845, by, 6. INVESTMENT OE MONEY DEPOSITED IN COURT, 250. See Deposit. ISLE OE MAN, re-investment in lands in, 254. ISOLATION HOSPITAL 380. 44 (2) 692 INDEX. J. JUDGE, application to, by railway company for trial of question of com- pensation, 219. judge's order equivalent to the issue of warrant to sheriff,. 220. JURISDICTION OF ASSESSING TRIBUNAL. See Assessing. Tribunal. JURY, 205. See Assessing Tribunal. when claims to be settled by, 175, 200, 205. summoning, 206. mandamus for, 87, 206. owner of lands entered upon or injuriously affected may give notice of desire for jury, 87, 103, 206. what constitutes entry, 105. promoters must within 21 days agree to pay or issue warrant,, 208. notice of desire for jury to state nature of interest of owner and.' amount claimed, 208, 231. all conditions precedent must be complied with before sum- - moning jury, 208, 231. form of warrant, 208. owner is given 21 days after notice to treat before summoning- of, 209. notice before issuing warrant to summon, 209. how warrant attested, 209. to whom warrant issued, 209. certiorari to quash proceedings if sheriff interested, 210. mandamus to compel sheriff to summon, 211. summoning of, 211. view by, 212. special, 212. notice of time and place of inquiry, 213. failure of parties to appear, 213. procedure at inquiry, 213. form of inquisition, 214. judgment to be given by sheriff and signed and ..'ecorded, 214. validity of inquisition, 210, 214, 226. jurisdiction of sheriff and jury, 206. See Assessing Tribunal. . verdict not limited to amount claimed, 217. enforcing payment of amount assessed by jury, 228. See Assessment. costs of inquiry before jury, 215, 217. See Costs — Offer. trial of question of compensation in case of railways under direction of a judge, 219. verdict of jury to have same effect as in trial before sheriff,.. 220. no new trial, 220. JUSTICES, 177. See Assessing Tribunal. correction of errors in plans on certificate of, 22. certificate of, as to subscription of capital, 65. assessment of compensation by, in case of entry before purchase,.. 102. in case of wilful entry, penalty recoverable before, 105. compensation assessed by, in what cases, 177. under Metropolis Management Acts, 348. INDEX. 693 •JUSTICES— continued, qualification of, 180. one stipendiary magistrate may act as, 181. not to be interested, 181. procedure before, 181. application for assessment may be made at any time, 182. cannot order or enforce payment of their award, 182, 233. jurisdiction, none to inquire into title or legality of interest, 178, 222. none to decide right to compensation, 178, 222. none to consider collateral matters, 224. none to enforce their award by distress warrant, 182, 233. to approve sureties, 100. as to severance, 180. to find that no damage sustained, 225. to assess value of land and damage to lands held therewith, 182. to appoint surveyor, 95, 173. mandamus to compel exercise of, 183. as to costs, 183. to order accommodation works in reference to present user of land only, 127. to apportion rents, 288, 297. See Apportionment. under B. CI. Act, 183. under Waterworks Clauses Act, 183. enforcing assessment by, 233. See Assessment. setting aside assessment by, by certiorari, 237. See Assess- ment. L. LAIRS, acquisition of land for, 380. LAND SETTLEMENT (FACILITIES) ACT, 1919. See Appendix, 591. LAND TAX, money deposited in court may be applied m redeeming, 2o3. costs payable by promoters, 253. compensation for deficiency in, 300, 357, 366. See Poor's Bate. may be redeemed by promoters, 300. LANDS. See Injuriously affecting. subject-matter of law of compensation, 8. definition of word in L. 01. Acts, 8. what included, 8, 9, 127. easements over, 11. See Easement. authorised to be taken, 17. notices and plans only binding if incorporated, 17. ordinary form of clause in special act, 18. limit as to area: delineated, 18. See Deviation— Plans . meaning of " delineated," 19, 22. limits as to purposes of undertaking. See Purposes of Undertaking. meaning of "undertaking," 4, 25. See Construction. cannot be taken for collateral purposes, 27. (594 INDEX. LANDS — continued. can be taken for access to works, 29. for accommodation works, 29. when purpose .authorized, promoters determine whether lands required, 30. ownership of land acquired under compulsory powers, 23, 24, 138, 303. in certain cases limits do not apply, 32. purchase of, by agreement, 53. for extraordinary purposes, 32. See Extraordi- NAEY PUEPOSES. required for temporary purposes under E. CI. Act, 1845. ..33. intersected 34, 44. See Intebsected Lands. whole of house, other building, or manufactory to be taken if owner require, 35. See House — Manufactory. counter-notice by owner, 40. See Counter-notice. company will be restrained from taking lands ultra vires, 45. under a public street or highway, 71, 154. interest in, when purchased by agreement, 53. See Ageeement. or under compulsory powers, 65. See Notice to Treat. fixed by notice to treat, 81. omission to purchase through mistake, 68. See Omission. procedure if owner absent or cannot be found, 70, 174. See Absent Owneb. entry on, before payment or deposit of compensation, 89. See Entey on Lands before Purchase. assessment of purchase-money or compensation for lands taken, 107. See Compensation for Lands Taken. assessment of compensation for lands injuriously affected, 142. See Injuriously affecting. acquired by promoters, nature of interest in, 23, 24, 138, 303. alienation of, 304. when acquired for extraordinary purposes, 305. superfluous, 303. See Superfluous Lands. conveyance of, 244. See Conveyance. release from incumbrances, 287. definition of, in Acquisition of Land Act, 1919. ..319. ecclesiastical lands, 365, 376. LANDS CLAUSES ACT, 1845. See Table of Statutes and Appendix, 389. short title of, 3. why enacted, 3. incorporation of, 4, 5. undertaking to be of a public nature, 4. does not apply if special act is inconsistent, 5. modifications of, 315, 317. effect of Acquisition of Land Act, 1919, upon, 317. LANDS CLAUSES ACT, 1860. See Appendix, 435. LANDS CLAUSES ACT, 1869. See Appendix, 438. LANDS CLAUSES (TAXATION OF COSTS) ACT, 1895. See Appendix, 440. taxation of costs under, 202, 218. LANDS CLAUSES (UMPIEE) ACT, 1883. See Appendix, 439. appointment of umpire by Board of Trade under, 192. INDEX. 695 LEASES. See Lessee. agreement may be equivalent to, 178. effect of non-production of, 180. application of money deposited in respect of, 267. lands of life owner subject to lease, 268. life interest in leaseholds, 268. adjustment of rights as between tenant for life and re- mainderman, 268. annuity secured on, to be paid in full, 269. re-investment in leaseholds of money deposited in court in respect of freeholds, when allowed, 254. apportionment of rent, 298. lessee not bound to obtain lessor's consent, 299. costs of apportionment, 299. lessee, after apportionment, only liable for rent of lands not taken, 299. of lands under Metropolis Management Acts, 348. LEGALITY of interest in lands not within jurisdiction of assessing tribunal, 222. LESSEE. And see Tenant fob, Life. cannot represent interests in reversion, 52. when entitled to service of notice to treat, 71, 77. tenant from year to year, or for less than a year, 68, 77, 177. See Tenant from Year to Year. effect of notice to treat as between, and lessor, 83. if residue of term less than a year assessment by justices, 178. if residue of term more than year assessment by arbitrators or jury, 178. compensation to, 121. for change in nature of tenancy, 121. none for probability of renewal, 123. special covenants in lease, effect of, 124. promoters cannot vary covenants, 126. is a party willing and able to sell within sect. 92... 35. premises forming part of one house may be held under different demises, 37. effect of non-production of lease by, 180. application of deposit between successive owners interested in a leasehold interest, 268. See Deposit. apportionment of rents if lands under lease taken, 298. lessee not bound to obtain lessor's consent, 299. costs of apportionment, 299. after apportionment lessee not liable for rent of lands taken. 299. is an adjoining owner to superfluous lands, 310. LIEN, of owner over lands for unpaid purchase-money, 61, 230. enforced by sale and appointment of receiver, 61, 231. by injunction in some cases, 62. no lien where lands sold in consideration of a rent-charge, 62. owner has no lien for costs, 204. of arbitrator for fees, 198. LIGHTHOUSES, acquisition of land for, 380. LIGHT EAILWAYS ACT, 1896. See Appendix, 614. 696 INDEX. LIGHT RAILWAYS ACT, 1912. See Appendix, 618. LIGHT RAILWAYS ACTS, 385. compensation under, 385. "betterment," 385. Arbitration Act, i889, incorporated, 386. costs, 386. LIGHTS, ANCIENT, 12, 153. See Basement. LIMITATIONS, STATUTES OF, adverse possession under, 138, 306. LIMITS, of area within which promoters may take lands delineated in special act, 18. of purposes defined in special act, 23. of deviation, 20. "LINE OF RAILWAY," 21. LITIGATION, costs of, between adverse claimants not payable by promoters, 282. LLOYD'S SIGNAL STATION ACT, 1888... 387. LOCAL AUTHORITY, form of agreement for purchase by, 54. consent of Ministry of Health, 59. may be party absolutely entitled, 257. application by, for payment out, 265. powers of, under Public Health Acts, 338. under Local Government Acts, 345. under Housing Acts, 356, 361, 364. See Housing — Town Planning. compensation payable to, under Housing Acts, 365. acquisition of land for small holdings, &c. by, 371. LOCAL GOVERNMENT ACT, 1888... 345. See Appendix, 515. LOCAL GOVERNMENT ACT, 1894... 345. See Appendix, 515. LOCAL MANAGEMENT ACTS, 346. LONDON. See Metropolis Management Acts. LORD OF THE MANOR. See Common Lands— Copyholds. compensation to, for enfranchisement, 120, 286. LUNATIC, land of, may be sold by committee, 49. consent necessary, 49. payment into court may be dispensed with in case of, 249. payment of dividends on deposit in case of a lunatic, 263 costs of application as to lands of, 277. INDEX. 697 M. MANDAMUS, to promoters to appoint surveyor under sect. 9... 58, 174. to summon jury, 87, 206. to deposit money in bank under sect. 9. ..174. sects. 69, 71. ..249. sect. 76... 271. to take up award, 197. what is a good answer, 199. to procure enfranchisement, 286. action for, in above cases, 87, 249, 271. to justices to assess compensation, 183. to master to tax costs, 203, 218. to sheriff to summon jury, 211. MANOR. See Common Lands — Copyholds. MANUFACTORY. See House— Counter-notice. owner not compelled to sell part of, under L. 01. Acts, 35. only applicable to place where manufacturing process carried on, 39. what included in, 39. MARKET, special, 109. sale in open, 322. where no general, 324. MARKETS AND FAIRS CLAUSES ACT, 1847... 387. MARRIED WOMAN, power of, to sell and convey, 49. when absolutely entitled to cash in court, 258. MEDIUM FILUM VIAE, 21. MESNE PROFITS, promoters to pay compensation for, where in- terests omitted to be purchased by mistake, 69. MESSUAGE, meaning of, in L, 01. Acts, 8. METROPOLIS MANAGEMENT ACTS, 346. power to take lands for sewers, 346. power to execute works, 347. power to purchase or lease lands or easements, 348. rights acquired on payment of compensation, 347. assessment of compensation, 348. accommodation works, 349. works affecting railways or canals, 349. Michael Angelo Taylor's Act, 350. compensation under Thames River Prevention of Floods Act, 1879... 353. arbitration under, 353. 698 INDEX. METROPOLITAN PAVING ACT, 1817 (MICHAEL ANGELO TAYLOE'S ACT). See Appendix, 520. MICHAEL ANGELO TAYLOE'S ACT, 350. See Appendix, 520. conditions precedent to taking house or land under, 350. principles as to compensation, 350. where part only of a house taken, 351. notice to treat, 352. MILITARY WORKS, acquisition of land for, 379. MINES AND MINERALS, included in definition of lands in L. 01. Act, 8, 127. right to support by, 95, 128. action against owner for working, 129. may bo purchased in ordinary course, 136. in which case their value must be included in deposit under sect. 85. ..95. notice to treat should specify if mines to be taken, 73. value of, must be assessed when purchased, 129. specific law as to sewers, 130. railways, 131. waterworks, 131, 134. compensation for not being able to work, under E. 01. Act, 131. prospective damage to, not assessed, 135. what included in, under E. 01. Act, 1845... 136. notice of intention to work, 133. counter-notice, 133. time for, 135. compensation for extra cost of working, 135. no interest payable on amount awarded, 140. tenant for life may be absolutely entitled to payment out of compensation for, 258. can mines become superfluous lands? 305. under Public Health Acts, 344. MINISTRY OF AGRICULTURE AND FISHERIES, consent of, in case of payment out of court, 255. application to, as to common lands, 291. valuer appointed by, under Small Holdings, &c. Act, 1908... 330. powers under Small Holdings, &c. Act, 1908. ..371. MINISTRY OF HEALTH, consent of, to sale of land by municipal corporations, 59. not necessary party on application by local authority for pay- ment out, 265. approval of schemes by, under Public Health Acts, 339. powers under Housing Acts, Part I., 360. approval of reconstruction scheme by, 363. payment of compensation money to local authority with approval of, 365. powers as to town planning, 366. as arbitrators, 368. MINISTRY OF RECONSTRUCTION, report of Committee on Compensation Law, 317. MISCONDUCT of arbitrator, 189, 241. INDEX. 699 MISTAKE, in deposited plans, how rectified, 22. interests omitted to be purchased by, 68. See Omission. of arbitrator no defence to action on award, 235. certiorari where justices or jury mistake subject-matter, 238. MOETGAGE, 293. interim investment of deposit in, may be allowed, 262. purchase by promoters of interest of mortgagee, 293. when mortgaged lands of less value than money secured, 294. when part only required, 294. deposit and vesting in promoters of interests of mortgagee on execution of deed poll, 295. reservation of mortgagee's rights against mortgagor, 295. compensation if mortgagee paid off, before time limited in deed, 295. if mortgagee not treated with, he can enforce his ordinary remedies, 60, 296. of business, effect on right to compensation for goodwill, 57, 76, 118, 296. MOETGAGEE. See Mortgage. equitable, entitled to notice to treat, 75. remedies, 60. MUNICIPAL CORPOBATIONS, acquisition of land by, 59, 345. MUNICIPAL COBPOEATIONS ACT, 1882... 345. N. "NATURE OE THE INTEREST," meaning of, 185. NAVAL WOEKS, acquisition of land for, 379. NEGLIGENCE, in execution of statutory powers, 149. arbitrator not liable for, 199. NOTICE OE CLAIM, 326. contents of, 326, 328. NOTICE OF INTENTION TO WOEK MINES, 133. NOTICE TO QUIT, no compensation if lands not required till after expiration of, 122, 179. NOTICE TO TEEAT, 65—88. in case of easements, 12. effect of counter-notice on, 42. effect of, 55. not a contract, 56. does not require a stamp, 56, 74. does not constitute an attachable debt, 56. contract is complete when price fixed, 56. Statute of Frauds does not apply, 56. 700 INDEX. NOTICE TO TEEAT— continued, not necessarily an exercise of compulsory powers, 66, 78. necessity for, 67. result of failure to give, 67. what is and is not in special cases equivalent to, 67. not necessary in case of a yearly tenancy, 68, 77, 177. in case of lands under a public street or highway, 71. form of, 70. no special form required, 70. must be for whole interest of owner, 71. contents of, 73. when owner is not bound to give particulars of his estate and claim, 74. signature of, 74. to whom to be given, 75. service of, 77. time within which to be served, 78. if not duly served, cannot be adopted by owner, 79. if served within prescribed time, steps for acquiring lands can be taken subsequently, 79, 84. effect of, on promoters, 79. where counter-notice is given under sect. 92... 80. See OOUNTEB-NOTIOE. where notice is given by commissioners acting for public on behalf of executive, 80. withdrawal of, 42, 80. under Acquisition of Land Act, 1919. ..327, 328. Small Holdings, &c. Act, 1908. ..374. effect of, on owner, 55, 81. power of owner to deal with lands after, 83. how long binding, 84. effect of delay on, 85. second notice to same owner may be given, 71, 85. subsequent steps, 86. promoters compellable to proceed after, 87. owner not entitled to equitable relief, 87. unless there is an equity in his favour, 88. promoters not entitled to an injunction in order to decide owner's right to compensation, 88. under Acquisition of Land Act, 1919. ..328. under Michael Angelo Taylor's Act, 352. NUISANCE, where purpose expressly authorized, promoters not liable for, 31, 151. liability of promoters in other cases, 31, 151. deduction for abating, under Housing Acts, Part I., 357. O. OATH, arbitrators and umpire may administer, 193. evidence on oath is usual but not necessary, 193. OBSTRUCTION, of publichighway, gives no claim to compensation uuless there is particular damage, 155. of private right gives claim to compensation, 152, 154. INDEX. 701 OFFEE, to sell part of a house does not preclude owner from requiring whole to be taken, 36. if arbitrators or jury give same or less sum than final offer, each party pays his own costs, 200, 215. aggregate sum found by jury is the test, 215. final, must be before appointment of last arbitrator, 200. offer under sect. 38 is not abrogated by claim for arbitration, 201. if lands required, final offer must be made in ten days' notice before summoning jury, 215. to be within reasonable time before assessment by jury, 209, 216. what is a reasonable time, 216. up to final offer, amended offers may be made, 201, 209, 216. must be unconditional, 201, 216. contents of, 201. where claims separable, 202. amount of, not admissible in evidence, 115, 200, 216. may be accepted at any time before verdict, 217. bond fide, evidence of, 324. unconditional, of acceptance, 327. time for, 328. of superfluous lands to parties entitled to pre-emption, 311. OFFICIAL AEBITBATOBS, 320. See Acquisition of Land Act, 1919. panel of, 320. qualifications, 320. term of office, 320. rules as to assessment by, 321. procedure before, 325. certificate of value by, 332. hearing by, under Small Holdings, &c. Act, 1908... 372. OMISSION, to purchase interests by mistake, 68. when promoters protected, 68. promoters to pay compensation and mesne profits, 69. when title not disputed, 69. promoters pay all costs if unsuccessful, 70. in assessing compensation, improvements by promoters not taken into account, 70. principles under Part I. of Housing Acts, 360. OPEN SPACES, re-instatement of, under Housing Acts, 366. provision of, compensation for injurious affection, 381. "OTHEE BUILDING," extends application of house in sect. 92... 39. OWNEE. See Absent Owneb. definition of, 47. crown not included, 48. corporations, 48. tenants in tail and for life, 48. married women seised in their own right, 49. guardians, 49. 702 INDEX. OWNEE — continued. committees of lunatics, 49. trustees, 50. of a charity, 50. executors and administrators, 51. all parties in whom estate vested to he joined in a conveyance, 51. power of, to represent interest in reversion, &c, 51, 77. purchase from, of lands hy agreement, 53. See Agreement. under disability, 51, 57. in case of purchase hy agreement from, valuation of two surveyors, 57. See Surveyor. effect on, of notice to treat, 55, 81. lien for unpaid purchase-money, 61, 102, 230. no lien for costs, 204. acquiescence hy, in non-service of or invalid notice to treat, 68. need not send in a claim unless he desires arbitration, 74. if claim sent in, full particulars of interest should be given, 74. counter-notice served by, uuder sect. 92... 40, 80. power of, to deal with lands after notice to treat, 83. tow long notice to treat hinds, 84. more than one notice may be given to same owner, 85. can compel promoters to proceed, 87, 207. not entitled to equitable relief, 87. promoters cannot enter on lands without consent of, 89. See Entry on Lands before Purchase. cannot issue warrant for summoning jury, 206. in possession, amount of compensation for, 119. award taken up hy, 198. arbitrator's fees, 198. claim of, assumed to be correct before assessing tribunal, 222. can enforce claim hy action where promoters fail to summon jury, 208, 231. remedies of, as an unpaid vendor, 61, 230. action hy, for payment of compensation for injury, 233. value of lands to, is test of compensation, 108. who is, absolutely entitled, 244. conveyance by, 244. on failure of, to convey, lands vest in promoters on payment into court and execution of deed poll, 176, 269. parties in possession deemed owners until contrary shown, 273. adjoining, denned, 310. vesting in, of superfluous lands, 309. right of pre-emption of, 311. rights of, in case of abandonment, &c, 231, 384. right of, to site of " unhealthy house," 361. limited, under Small Holdings, &c. Act, 374. P. PANEL OF OFFICIAL AEBITEATOES, 320. PAEISH COUNCIL, acquisition of land by, 345. for agricultural purposes, 371. PAELIAMENTABY DEPOSITS AND BONDS ACT, 1892.. .384. See Appendix, 613. INDEX. 703 PAET OF A HOUSE, provisions as to taking, 35. See House — Oountek-notice. under Michael Angelo Taylor's Act, 351. under Housing Acts, 362. under Development Act, 376. PARTICULARS, of estate and interest, to be demanded in notice to treat, 74. owner not compelled to give, 74. unless he desires arbitration, 74, 185. full particulars should be given, 186. must be given in claim under sect. 68. ..187. PARTIES TO A CONVEYANCE, who should be, 51. PARTIES TO A SUIT, service on, of petition or summons for application of deposit, 264. PAYMASTER-GENERAL,. See Deposit. deposit paid into bank in name of, 96, 248. PAYMENT INTO AND OUT OF COURT. See Deposit. PERJURY before arbitrators, 193. PERMANENT IMPROVEMENTS, when deposit may be invested in, 255. under Settled Land Acts, 250. PERMANENT USE OF LAND, entry under sects. 85—90 must be for, 93. PETITION. See Deposit — Summons — Costs. by promoters for payment out of deposit under sect. 87. ..97. for application of deposit under sect. 87, by party for whose benefit made, 98. for application of deposit under sects. 69, 71 only in special cases, 250, 271. PLACES OF WORSHIP ENFRANCHISEMENT ACT, 1920... Ixxxi. PLANS, required by standing orders of Parliament, 18. only effective so far as incorporated in special act, 17. " lands delineated on deposited plans," meaning of, 19. evidence of experts not admissible to explain, 20. mistakes in plans in case of railways, how rectified, 22. in other oases powers to rectify errors should be inserted in special act, 23. POOR'S RATE, promoters to make good, and land tax, 300. a parochial indemnity created during construction, 300. extends to lands taken outside limits of deviation, 300. effect of sect. 133 on improvement schemes, 300. assessment is on rental value, 301. what rates included in, 302. making good, under Housing Acts, Part I., 357. not otherwise, 366. 704 INDEX. POSSESSION, adverse, 138, 306. where required from owner having no greater interest than from year to year under sect. 121... 177. where owner refuses to give, promoters may issue warrant to sheriff, 247. in case of deposit under sects. 76 — 79, parties in possession deemed to be owners, 273. who are within this provision, 273. before completion, 89. See Entry on Lands befoee Purchase. POSTMASTER-GENERAL, See Telegraphs. provision of telegraphs by, 378. land for use of Post Office purchased by, 379. POST OFFICE, land for purpose of, 379. POST OFFICE ACT, 1908. See Appendix, 606. PRE-EMPTION. See Superfluous Lands. PREROGATIVE, ROYAL, 384. PRICE. See Purchase-Money. PRISONS, acquisition of land for, 380. PRIVACY, no compensation for interference with, 154. PRIVATE ACT. See Special Act. PRIVATE ROAD, compensation for interference with, 152, 154. PROHIBITION where tribunal not properly constituted, 172. PROMOTERS, definition of, 47. decide if lands are required for purposes of undertaking, 30. ratification by company of contracts entered into by, 55. action against, for wrongfully interfering with lands, 60. compellable to proceed after notice to treat, 87. powers of, over lands acquired, 138. cannot exercise powers to vary special covenants, 126. must take up award, 197. compellable to pay money into court, 271. PUBLIC AUTHORITY, what is a, 319. PUBLIC HEALTH ACT, 1875... 338. See Appendix, 506. PUBLIC HEALTH ACT, 1875, AMENDMENT ACT, 1883... 343. See Appendix, 512. PUBLIC HEALTH ACTS AMENDMENT ACT, 1907. See Appendix, 518. INDEX. 705 PUBLIC HEALTH ACTS, acquisition of land under, 338. easements, 338. powers of local authority, 338. incorporation of Lands Clauses Acts, 339. lands purchased under, 339. lands injuriously affected, 148, 340. damage suffered by reason of acts under, 340. what constitutes such damage, 340. principles in assessing damage, 341. water rights, 342. sewers, 130, 342, 344. water mains, 343. mines, 130, 343, 344. jurisdiction of arbitrator, 344. not generally applicable to metropolis, 346. PUBLIC STREET, ownership of land under, 71. compensation for injury to sub-soil of, 154. obstruction of, 155. no compensation, unless owner suffers particular damage, 156. PUBLIC UNDERTAKING . See Undertaking. PURCHASE-MONEY, lien of owner for unpaid, 61, 230. interest on, 139. PURPOSES OP UNDERTAKING. See Undertaking— Extra- ordinary Purposes. are defined by special act, 23. lands cannot be taken unless there is an intention to complete the undertaking, 26. nor for any works beyond those specified, 26. nor for collateral purposes, 27. whether particular works are for, is question of law, 28. case of stations, 29. diversion of a public footpath, 29. accommodation works, 29. making an access to -works, 29. making an aqueduct, 29. if purposes are authorized by act, promoters determine what lands required, 30. they must act bond fide, 30. onus is on party alleging want of bona fides, 31. affidavit of engineer, if sufficient, is evidence that lands are required, 31. Q. QUEEN ANNE'S BOUNTY, service of summons for payment out of Court on, lxxxi. QUEEN'S REMEMBRANCER ACT, 1859. See Appendix, 500. QUITTANCES, compensation for, 121, 286. C. 45 706 INDEX. E. RAILWAY COMPANIES ACT, 1867.., 383. See Appendix, 438. RAILWAYS. And see Light Railways Acts. authorisation by certificate of Board of Trade, 383. appointment of surveyor, 95, 176, 383. electrification, 383. abandonment, 383. Parliamentary Deposits and Bonds Act, 1892.., 384. RAILWAYS (ABANDONMENT) ACTS, 1850 and 1869.. .383. RAILWAYS ACT, 1921. ..385. See Appendix, 619. RAILWAYS CLAUSES CONSOLIDATION ACT, 1845. See Appendix, 440. accommodation works, 127. provisions as to injuriously affecting, 144. introduces no new principles of compensation, 145. compensation for mines and minerals under, 131. jurisdiction of justices, 183. RAILWAYS CLAUSES ACT, 1863. See Appendix, 457. RAILWAYS (ELECTRICAL POWER) ACT, 1903.. .383. RAILWAYS (REGULATION OE) ACT, 1868... 219. See Appen- dix, 459. bearing by judge, 219. RANGES ACT, 1891. See Appendix, 504. RATE, POOR'S, compensation for deficiency in, 299. See Poor's Rate. RATES AND TOLLS, rent-charge is a charge on, 62. REAL SECURITIES. See Deposit. REALTY, money deposited under sects. 69, 71, retains character of, 250. RECEIVER, appointment of, to enforce lien of owner, 61, 231. RECONSTRUCTION SCHEME, under Housing Acts, Part II., 363. RECOVERY OF LANDS, action for, 60, 91, 101. REFERENCE COMMITTEE, under Acquisition of Land Act, 1919 ...319, 320. REFUSAL OF ARBITRATOR TO ACT, 191. RE-INSTATEMENT, principle of, 114, 325. of commons and open spaces under Housing Acts, 366. INDEX. 707 RE-INVESTMENT. See Deposit. REMAINDER OR REVERSION, interest in, purchased by agreement, 51. or under compulsory powers, 77. remainderman, &c. represented by owner under sect. 7. ..51, 77. amount of compensation for interests in, 119. protection of remainderman, &c. by deposit of purchase-money or compensation, 248. See Deposit. remainderman, &c. cannot apply under sects. 69— 71. ..252. service of petition or summons on remainderman, 263, 268. appearance of remainderman, 265. adjustment of interests between owner immediately entitled and remainderman if estate less than fee simple, 268. REMITTING AWARD. See Award. REMOTENESS OF DAMAGE, 118. REMOVAL, costs of, to be included in compensation, 116. RENT. See Apportionment. increased, to be included in compensation, 117. in case of compulsory hiring, 373. RENT-OHARGE, sale of lands in consideration of, 62. charged on tolls and rates, 62. recoverable by action or distress, 62. no lien over lands for arrears of, 62. owner of, entitled to priority over other creditors, 63. form of order, 63. release of lands from, 297. apportionment of, if part only of lands required, 297. on default of release by party entitled, deed-poll, 297. continues over land not taken, 298. REPAIRS, re-investment of deposit in, not generally allowed, 255. RESTRICTIVE COVENANTS, compensation for breach of, 156. RESUMPTION OF LAND by owner under Small Holdings, &c. Act, 1908... 374. RETURNS, as evidence, 322. REVERSION. See Remainder or Reversion. REVOCATION, of notice to treat. See Notice to Treat. of appointment of arbitrator, 190, 191. consent of owner to entry not revocable, 90. RIGHT OF PRE-EMPTION. See Pre-emption. RIGHT TO COMPENSATION, not determined by assessing tribunal, 222. See Assessing Tribunal. injunction not granted to try, 88, 107. 45 (2) 708 INDEX. EOAD. See Private Boad — Public Street — Highway. ROAD BOAED, 376. EOAD IMPEOVEMENT, 375. See Development of Land. ROYAL PEEEOGATIVE, extent of, 334. EULES EOE ASSESSMENT OF COMPENSATION under Acqui- sition of Land Act, 1919... 321. SCHEME OF ARRANGEMENT, under Railway Companies Act, 1867, rights of landowners in, 63. SEAT,, contract of promoters under, for purchase of lands, 53, 54. appointment of agent under, 54. SECUEITY, DEPOSIT BY WAY OF, in case of entry before pur- chase, 94. SERVICE OF NOTICE TO TEEAT. See Notice to Treat. SERVICE OF SUMMONS OE PETITION, on application in respect of money deposited in court, 263, 264, 268. SETTING ASIDE AWARD. See Award. SETTLED LAND ACTS, 1882 to 1890, investments authorized by, 259, 280. costs of, 277, 280. SEVERANCE, compensation for, 162. when assessment by justices, 180. accommodation works, 127. SEWERS, under Public Health Acts, 130, 342, 343. injuriously affecting, 153. provisions of Metropolis Management Acts as to, 346. SHERIFF, 205. See Jury. warrant to summon jury issued by promoters to, 206, 208. if sheriff interested, to a coroner, 209. definition of, 210. includes under-sheriff or deputy, 210. if lands in different places, sheriff of any place where they are situated, 210. what constitutes interest, 210. if interested, proceedings quashed by certiorari, 210. objection on ground of interest may be waived by consent, 210. not if party ignorant of interest, 210. summoning of jury, 211. mandamus to compel, 211. INDEX. 709 SHERIFF— continued. must order view at request of either party, 212. may summon witnesses, 213. penalty for neglect of duty, 214. judgment to be given and signed by, 214. promoters may issue warrant to, when owner refuses to give up possession, 247. SHOOTING, rights of, no compensation for injury to, 10, 153. SITES OF PLACES OF. WORSHIP ENFRANCHISEMENT ACT, 1920...1xxxi. SMALL HOLDINGS. See Agriculture. SMALL HOLDINGS AND ALLOTMENTS ACT, 1908.. .370. See Appendix, 567. application of Acquisition of Land Act, 1919, to, 330, 370. SMALL HOLDING COLONIES ACT, 1916. See Appendix, 597. SPECIAL ACT, incorporation into, of L. CI. Acts, 4. usual clause defining limits of lands, 18. superfluous lands clauses, 314. construction of, 25, 319. See Construction. " SPECIAL ADAPTABILITY," meaning of, 111. under Acquisition of Land Act, 1919. ..322. SPECIAL CASE, stated by parties by agreement, 235. stated by arbitrators during proceedings, 194, 235, 243. court may order, 195, 235. award stated by arbitrators in form of, 195, 235, 243. under Acquisition of Land Act, 1919. ..329. SPECIAL COVENANTS, effect of, 124. when inconsistent with statutory powers, 126. when not inconsistent, 126. promoters cannot vary, 126. SPECIAL JURY, 212. See Jury. SPECIFIC PERFORMANCE, enforced when contract for purchase of lands complete, 59. in case of accommodation works, 58, 59. price must first be fixed, 60, 229. in all cases after notice to treat, if price fixed by agreement or an assessing tribunal, 228. at suit of either party, 228. what is a good defence, 228. of an agreement for compensation for commonable rights may be decreed, 290. SPORTING RIGHTS, compensation for, 10, 153. STAMP, notice to treat does not require, 56, 74. 710 INDEX. STATIONS, lands may be taken for railway, 29. STATUTE, construction of. See Construction. STATUTE OF EEAUDS does not apply to notice to treat, 56. STATUTES OF LIMITATIONS, adverse possession under, 138, 306. " STATUTORY BAEGAIN," 319. STATUTORY POWERS, action for excess or wanton use of, 151, 162. STIPENDIARY MAGISTRATE, lias same powers as two justices, 181. powers under Telegraph Acts, 379. STREAMS, taking of, under Waterworks Glauses Act, 14, 145. STREET. See Public Stbebt— Highway. STRUCTURAL DAMAGE, compensation for, 152. SUBMISSION TO ARBITRATION. See Arbitration. appointment of arbitrator is a submission to arbitration, 190,. 191. has effect of a rule of court, 191. title assumed to be correctly stated in, 222. SUBPCENA to witness'in arbitration, 193. SUBSIDENCE DUE TO BRINE PUMPING, compensation for, 387. SUB-SOIL, ownership of, 71. when notice to treat necessary for, 71. compensation for damage to, of street, 154. SUMMARY JURISDICTION ACTS, procedure of, applicable on inquiry before justices, 182. but justices cannot enforce payment by distress warrant, 182. SUMMONS AT CHAMBERS, to deal with money deposited, 250. in all cases where there has been a judgment or order declaring 1 rights, 250. in all cases of application for interim or permanent investments or payment of dividends, 251. in applications for payment out of court of sums less than 1,000?., 251. who should apply, 252. affidavit on, 252. service of summons, 2.63, 268. appearance of parties served, 265. in case of absent owner, 271 . INDEX. 711 SUPEEPLTTOUS LANDS, 303. lands subject to compulsory powers may become superfluous, 305. although, purchased by agreement, 305. to what lands sects. 127 — 131 apply, 305. mines, 305. definition of, 306. whether particular lands are, is a question of fact, 306. to a great extent a question of bona fides, 308. how lands become superfluous, 308. time at which to decide if lands are superfluous, 308. sale of superfluous lands, 309. rights of purchaser of, 309. if not sold, vest in adjoining owners, 309. vesting is absolute and automatic, 310. adjoining owners, who are, 310. division of lands among, 311. right of pre-emption of superfluous lands, 311. time at which right of pre-emption arises, 311. form of decree on application of an adjoining owner, 312. no right of pre-emption of lands in a town, built upon, or used for building purposes, 312. time within which right of pre-emption to be claimed, 313. if price not agreed, arbitration, 188, 313. this not an arbitration under sects. 25 — 44 of L. CI. Act, 188, 313. conveyance by promoters, 313. incorporation of superfluous lands clauses in special acts, 314. where undertaking abandoned, 304. under Small Holdings, &c. Act, 1908. ..375. SUPPOET, EIGHT TO. See Mines and Minerals— Sewers. SUEETIES, approval of, to bond, 100, 383. SUEVEYLNG-, entry on lands for purpose of, 89. SUEVEYOES, 173. procedure as to and by, on purchase by agreement from party under disability, 58, 173. requirements of sect. 9 must be strictly complied with, 58, 174. mandamus to compel appointment, 58, 174. if owner absent, or cannot be found, or does not appear on inquiry before jury, 70, 174. sufficiency of valuation may be submitted to arbitra- tion, 175, 186, 237. valuation of amount of security under sects. 85, 88... 95, 176. of commonable rights, 176, 292. in case of railways, appointment by Board of Trade on notice, 95, 176, 383. an impartial person to be appointed, 58, 176. declaration of impartiality, 175. declaration of correctness attached to valuation in case of parties under disability, 173. valuation includes value of land and damage, 173. sufficiency of valuation in case of absent party may be submitted to arbitration, 175, 186, 237. costs of, 177, 187. when, may act as arbitrators, 189. 712 INDEX. T. "TAKING/' meaning of, in sect. 68, L. 01. Act, 104. TAXATION OF COSTS. See Costs. by a master in case of arbitrators, 202. not open to review before court, 203. by a master of an inquiry before a jury, 217. not open to review before court, 218. mandamus to a master to tax costs, 203, 218. order for, in action to enforce costs, 203. costs of a conveyance taxed by a taxing-master in Chancery, 246. under Acquisition of Land Act, 1919. ..327. TAXING AUTHORITIES, compensation to, 299. See Poor's Bate. TELEGRAPH ACT, 1878. See Appendix, 600. TELEGRAPH (CONSTRUCTION) ACT, 1908. See Appendix, TELEGRAPH (CONSTRUCTION) ACT, 1916. See Appendix, 604. TELEGRAPHS, 378. compensation for placing, 378. difference as to placing, 378. arbitration as to, 379. right of entry in case of emergency to place, 379. TEMPORARY PURPOSES, lands required for, in case of railways, 33. " TEN PER CENT." allowance for compulsory purchase, under L. 01. Acts, 141. not under Acquisition of Land Act, 1919... 322. TENANT FOR LIFE. See Deposit. power of, to sell and convey, 48. to represent interests in remainder or reversion, 51, 77. repayment to, of money chargeable on inheritance, 256. compensation in respect of personal injury or inconvenience, 267. costs of, in opposing a bill, 267 . rights of, in a terminable estate, 268. compensation for enfranchisement not to be paid to, 287. in some cases is absolutely entitled to payment of compensation- money for minerals, 258. TENANT FOR YEARS. See Lessee. TENANT FROM YEAR TO YEAR, no notice to treat necessary under sect. 121. ..68, 77, 177. no claim if notice to quit duly given, 122, 179. if possession of lands required from, compensation assessed by two justices, 177. to what tenancies sect. 121 applies, 178. INDEX. 713 TENANT FROM TEAR TO YHA1S,— continued. nature of tenancy fixed by notice of intention to take, 179. actual entry, 180. if claim for injury exceeds 50Z., entitled to arbitration or jury, 177, 185. compensation for change in nature of tenancy, 121. no compensation for probability of continuance of tenancy, 123. TENANTS IN COMMON, separate bonds should be given in case of, 100. S TENANT IN TAIL, power of, to sell and convey, 48. although estates inalienably settled by Parliament, 48. to represent interests in reversion, 51, 77. as a party absolutely entitled, 259. TENEMENTS, meaning of, in L. CI. Acts, 8. TENUEE, meaning of words "of any tenure," 8. TERMOR is an owner within sect. 92. ..35. See Lease. TERRITORIAL FORCES, acquisition of land for, 380. TITHE ACT, 1878... 10. TITHES, compensation for interference with, 9, 10. under statute 37 Hen. 8, c. 12... 10. owner of an ordinary tithe rent-charge is not entitled to a notice to treat, 75, 76. TITLE, doubtful, in case of absent owner, 175. in case of dispute as to, award not enforced summarily, 198, 233. not determined by assessing tribunals, 172, 222. assumed to be correctly claimed, 222. question of, not prejudiced by assessment of compensation, 225. no specific performance if title claimed cannot be made good, 229. can be disputed in action for payment of compensation, 231. costs of conveyance include costs of deducing, 245. or of registering, if required, 246. not conditional on payment into court under sects. 69, 71... 249. if not shown, promoters may deposit purchase-money, 269. or 1 petition for application of purchase-money court decides, 272. parties in possession deemed owners until contrary is shown, 273. this does not apply if title really disputed, 274. in case of lands omitted to be purchased by mistake, 69. See Omission. TOLLS AND RATES, rent-charge is a charge on, 62. C. 46 714 INDEX. TOWN, defined, 44. intersected lands under sect. 94 include lands in a town, 34. no right of pre-emption to lands in a town, 312. TOWN PLANNING, 366. schemes, 366. injuriously affected property, 367. betterment, 367. compensation for lands taken, 367. determination of matters by Ministry of Health, 368. garden cities, 369. TOWNS IMPEOVEMENT CLAUSES ACT, 1847... 369. TRADE FIXTURES, included under manufactory, 39. value of, to be assessed, 116. TRUSTEES, power of, to sell and convey, 50, 244. in case of charities, 50, 59, 257. when trustees should be parties to a conveyance, 51. service on, of notice to treat, 76. where trustees have a discretionary power of sale, 50, 76, 244, 256. payment to, of sums deposited between 2001. and 201., 248. appointment of, in such a case, 248. service of petition or summons on, 264. with absolute power of sale, are persons absolutely entitled under L. 01. Acts, 256. of charities may be absolutely entitled, 257. TUNNEL. See Easement. owner cannot be compelled to grant a right of tunnelling, 15, 40. if made under part of house, the whole if required must be taken, 40. notice to treat required for, 15, 71, 93. adverse possession of lands over, 138, 306. U. VLTSA VIRES, taking of land, restrained by injunction, 45. UMPIRE. See Arbitrator — Assessing Tribunal — Award. appointed by arbitrators in writing, 192. in case of neglect, by Board of Trade, 192. may be appointed more than twenty-one days after appointment of last arbitrator, 192. should not be appointed by lot, 192. declaration of impartiality, 189. control over proceedings, 193. UNDER-SHERIEE, included under definition of sheriff, 210. interest of, does not disqualify sheriff, 211. INDEX. 715 UNDERTAKING. See Purposes op Undertaking. meaning of, 4, 25. limited to undertakings of public or quasi-public nature, 4. there must be an intention to complete, before exercise of com- pulsory powers, 26. cannot include works other than specified in special act, 26. abandonment of, 63, 304, 383. UNHEALTHY AREAS. See Housing. under Housing Acts, 355. UNHEALTHY DWELLING-HOUSES. See Housing. under Housing Acts, 361. UNIVERSITIES AND COLLEGE ESTATES ACTS, 255, 259. UNPAID VENDOR, owner of lands taken has remedies of, 61, 102, 230. except where lands sold for rent-charge, 62. rights of, under a scheme of arrangement, 63. in case of an abandonment, 63, 383. URBAN AUTHORITY, agreement to purchase land, form of, 54. URBAN COUNCIL, acquisition of land for small holdings, &c. by, 371. USE OE PREMISES, contrary to law, 324. in manner detrimental to health, 324. V. VALUATION. See Surveyor. VALUER, appointed under Small Holdings, &c. Act, 1908. ..330. VENDOR AND PURCHASER, how far position of, created by notice to treat, 56, 79. VIEW, ordered on request of either party, 212. by official arbitrator, 325. W. WAIVER of notice to treat by acquiescence, 68. WARRANT. See Jury— Sheriff. only promoters can issue, 206. mandamus for issue of, 206. if not issued within twenty-one days owner entitled to claim, 208. if lands required, ten days' notice before issue of, 209. but not if lands entered upon or injuriously affected, 209. 716 INDEX. WARRANT— continued. how to be attested, 209. to whom to be issued, 209. form of, 208. of distress issued by justices for costs, 218. not for amount of compensation, 182, 233. to sheriff to deliver possession when owner refuses, 247. WASTE LANDS, 289. See Common Lands. WATER, taking of, 14, 145. interference with flow of, 152, 153. under Public Health Acts, 342. acquisition of rights of, under Housing Acts, 366. WATER MAINS, under Public Health Acts, 343. WATERWORKS CLAUSES ACT, 1847. See Appendix, 460. taking of streams under, 14, 145. easements, 14. wider principle of compensation under, 145, 147. compensation for mines and minerals under, 131, 134. injurious affection under, 145, 160. jurisdiction of justices, 183. mining clauses, incorporated by Public Health Act, 1883... 130, 343. WELSH COMMISSIONERS, service of summons for payment out of Court on, Ixxxi. WILEUL ENTRY, 105. See Entry. WILFUL NEGLECT to make good title, 282. WILFUL REFUSAL to receive purchase-money or convey lands,. 281. WINDING-UP PETITION, owner cannot file, for non-payment of purchase-money, 230. WITHDRAWAL of notice to treat. See Notice to Treat. WITNESS, power of arbitrators to examine on oath, 193. either party may subpoena, 193. penalties for disobedience or perjury, 193. sheriff to summon, at request of either party, 213. penalty for non-attendance, 213. capacity of arbitrator as, 199, 236. WORKING CLASS LODGING HOUSES, 364. LONDON: PRINTED BY C. F. EOWOETH, 88, FETTER LANE, E.C.4. 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