1852.

COURT OF QUEEN'S BENCH.

Hilary Term, 1852.

April 27th. SIR T. R. GAGE v. THE NEWMARKET RAILWAY COMPANY.

A Railway

about to con

plaintiff's land,

and having a

bill before Parliament for that

COVENANT.-The declaration, which was upon articles Company, being of agreement between the defendants and the plaintiff, statstruct a railway ed-after reciting, that it was proposed by the defendants through the to construct a Railway from Newmarket to Bury St. Edmund's, and that for that purpose a bill had been introduced into Parliament and read a second time, and that the line would pass through the land of the plaintiff; and that the plaintiff, being apprehensive that injury would be done to his property, had caused intimation of his intention to oppose the bill to be given to the promoters; and that the Company shall, Company were desirous of coming to an agreement with the plaintiff: The said Company, for the consideration there

purpose, covenanted with him, “that, in

the event of the

bill being pass

ed in the pre

sent session of

Parliament, the

before they

shall enter up

on any part of the land, pay the sum of 4900l. purchase-money,

in mentioned, did covenant and agree with the plaintiff, that, in the event of the said bill therein recited as thereinbefore mentioned, and then before Parliament, being passed in the then present session of Parliament, the said Comexceeding forty pany should and would, within a reasonable time in that which the Com- behalf after the passing of the said bill, and before the pany may un said Company should enter upon any part of the land of

for any portion

of his land not

three acres,

der the powers

quire and take

of their Act re- the plaintiff, pay to the plaintiff, his heirs or assigns, the for the purposes sum of 4900l. purchase money for any portion of his taking; that, in land, not exceeding forty-three acres, which the said addition to pur- Company might, under the powers of their Act, require

of their under

chase-money,

the Company

shall pay to the plaintiff, before they shall enter upon any part of the said land, the snm of 71007., as a landlord's compensation for the damage arising to his estate by the severance thereof, in respect of the lands, not exceeding forty-three acres, to be taken by them:"-Held, First, that the Company never having entered upon any part of the plaintiff's land, he was not entitled to sue for either of those sums; Secondly, that an absolute covenant to pay the above sums within a reasona ble time after the passing of the Act would have been ultra vires, and void.

and take for the purposes of their undertaking; and further, that, in addition to such purchase money as aforesaid, the said Company should and would, within a reasonable time in that behalf after the passing of the said bill, and before they should enter upon any part of the said land, pay to the plaintiff, his heirs or assigns, the sum of 7100l. as landlord's compensation for the damage arising to his estate by the severance thereof, in respect of the land, not exceeding forty-three acres, to be taken by them; and that the Company should, at their own expense, settle all claims and demands which the plaintiff's tenants might be entitled to make or demand in consequence of their said undertaking-That the said bill, in the said articles of agreement mentioned, did pass and become law in the said session of Parliament; and that the plaintiff always was ready and willing to accept the said sum of 4900l. as the purchase money for any portion of his the plaintiff's said lands, not exceeding forty-three acres, which the defendants might, under the powers of their last-mentioned Act, require and take; and that the plaintiff was always ready and willing to accept and receive, in addition to the said purchase money, the said sum of 7100%., in the said articles of agreement in that behalf mentioned as aforesaid, as landlord's compensation for the damage arising and to arise to the plaintiff's estate, in the said articles of agreement in that behalf mentioned, by the severance thereof, in respect of the said lands, not exceeding forty-three acres, to be taken by them; and that a reasonable time after the passing of the last-mentioned Act, for the defendants to pay to the plaintiff the said two sums of money above mentioned respectively, had elapsed; and that the plaintiff was always ready and willing and able to convey all such portions of his said lands in the said articles of agreement mentioned, as the defendants might require and take for the purposes of their said undertaking; of all which premises the defendants

1852.

GAGE

V.

THE

had notice; and that the defendants, after the passing of the last-mentioned Act, were requested by the plaintiff to pay to him the said two sums of money respectively; and NEWMARKET that the plaintiff did give notice to the said defendants, that he, the plaintiff, was ready and willing to convey, &c.; and that a reasonable time for the said Company to select and take such portions of the plaintiff's said lands, for the purposes in that behalf aforesaid, had elapsed. Breach, non-payment.

RAILWAY CO.

The defendants set out the deed on oyer, which was made the 2nd day of March, A.D. 1847. After reciting as in the declaration is alleged, it proceeded: Now, these presents witness, and it is hereby agreed, that in the event of the bill herein before mentioned being passed in the present session of Parliament, the said Company shall, before they shall enter upon any part of the lands of the said Sir T. R. Gage, in the said county of Suffolk, pay to the said Sir T. R. Gage, his heirs or assigns, the sum of 4900l. purchase money for any portion of his lands, not exceeding forty-three acres, which the said Company may, under the powers of their Act, require and take for the purposes of their undertaking; that, in addition to the purchase money as aforesaid, the said Company shall pay to the said Sir Thomas Rokewode Gage, his heirs or assigns, before they shall enter upon any part of the said lands, the sum of 71007. as landlord's compensation for the damage arising to his estate by the severance thereof in respect of the lands, not exceeding forty-three acres, to be taken by them; that, in addition to the purchase money and compensation for severance, the said Company shall, if required by the said Sir Thomas Rokewode Gage, take at a valuation the timber and timber-like trees and other wood that it shall be necessary to remove; that the Company shall, at their own expense, settle all claims and demands which the tenants of Sir Thomas Rokewode Gage may be entitled to make or demand in consequence of the said undertaking. [Then followed, amongst others, cove

1852.

GAGE

v.

THE

RAILWAY Co.

nants that Sir T. R. Gage and his tenants should have access to and from the lands severed by the Railway, by crossings; that if, during the progress of the Railway, any buildings on the lands of Sir T. R. Gage should be pulled NEWMARKET down or severed by or in the making of the Railway, the Company should rebuild the same, or pay compensation for the same, at the option of Sir. T. R. Gage; that the Company, in the event of the Railway being formed through the estates of Sir T. R. Gage, would erect a station on his lands, and cause all trains to stop at such station, excepting express and mail-trains; that the Company should not make any spoil banks on the property of Sir T. R. Gage, except under certain conditions, nor exercise on his lands the powers given by the Railways Clauses Consolidation Act, 1845, or the Lands Clauses Consolidation Act, 1845, except in certain cases, without the special license and consent of Sir T. R. Gage in writing; that Sir T. R. Gage should be entitled to the top soil of the land taken by the Company.] And the defendants then pleaded that the extended line of railway and works mentioned in the said articles of agreement and in the said Railway Act, authorised to be made, hath not, nor hath any part thereof, been made or constructed, or begun to be made or constructed; and that the defendants have not required or taken, for the purposes of their said undertaking or otherwise, any part of the plaintiff's said lands in the said agreement mentioned, or any lands or tenements of the plaintiff whatsoever; nor have the defendants ever given any notice of requiring or taking any of the said lands in the said articles of agreement mentioned, or any lands or tenements of the plaintiff; nor have they ever agreed with the plaintiff, or any person or persons, for the purchase or taking of any such lands or tenements as aforesaid, otherwise than by the said articles of agreement.-Verification. General demurrer and joinder.

1852.

GAGE

V.

THE

RAILWAY CO.

J. Addison, in support of the demurrer (a). —The taking of the land was not a condition precedent to the payment of the money: Pordage v. Cole (b). There are here two conNEWMARKET siderations for the defendants' covenant: one the passing of the bill, and the other the giving up of the land when required. The one has been received, and the other may be when the Company please. The expiration of the compulsory powers does not affect the defendants' obligation: Webb v. The Direct London and Portsmouth Railway Company (c), Pilbrow v. Pilbrow's Atmospheric Railway Company (d), Bland v. Cowley (e). The case of Preston v. The Liverpool and Manchester &c. Junction Railway Company (ƒ), strictly applies, and is conclusive.

Bramwell (J. Brown with him) contrà.—The land must be taken before the Company can be called upon to pay. The plaintiff clearly intended to guard against his land being taken until payment, and he is not entitled to his money until entry. The purchase money is for land actually taken, and the damage that is to be paid for is severance. Webb v. The London and Portsmouth Direct Railway Company has been doubted on appeal (g), and much shaken by Lord J. Stuart v. The London and North Western Railway Company (h). Secondly, the covenant is unlawful, and ultra vires: The East Anglian Railway Company v. The Eastern Counties Railway Company (i), Lord Howden v. Simpson (k).