paid for any lands to be purchased or taken from any tion in case of parties party under any disability or incapacity, and not under dishaving power to sell or convey such lands except ability to be under the provisions of this or the special act, and the ascertained by valuacompensation to be paid for any permanent damage tion, and or injury to any such lands, shall not, except where paid into the same shall have been determined by the verdict of the bank. a jury, or by arbitration, or by the valuation of a surveyor appointed by two justices under the provision hereinafter contained, be less than shall be determined by the valuation of two able practical 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 surveyor 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 nominated by the said justice, 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 hereinafter mentioned.

X. It shall be lawful for any person seised in fee Where of, or entitled to dispose of absolutely for his own vendor abbenefit, any lands authorized to be purchased for the solutely entitled, lands purposes of the special act to sell and convey such may be sold lands, or any part thereof, unto the promoters of the on chief 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.

rents.

rents to be charged on

XI. The yearly rents reserved by any such con- Payment of veyance shall be charged on the tolls or rates, if any, payable under the special act, and shall be otherwise tolls. secured in such manner as shall be agreed between

Power to purchase lands required for

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 rents shall be payable may either recover the same from the promoters of the undertaking, with cost 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.

XII. In case the promoters of the undertaking shall be empowered by the special act to purchase lands for extraordinary purposes, it shall be lawful additional for all parties who, under the provisions herein before contained, would be enabled to sell and convey lands, to sell and convey the lands so authorized to be pur chased for extraordinary purposes.

accommo

dation.

Authority

to sell and

XIII. It shall be lawful for the promoters of the re-purchase undertaking to sell the lands which they shall have such lands. so acquired for extraordinary purposes, or any part thereof, in such manner, and for such considerations, 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.

Restraint

on pur

XIV. The promoters of the undertaking shall not chase from by virtue of the power to purchase land for extraincapacita ordinary purposes, purchase more than the prescribed ted persons. quantity from any party under legal disability, or whe

would not be able to sell and convey such lands ex cept under the powers of this and the special act; and if the promoters of the undertaking 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.

tions not to

the Trea

XV. Nothing in this or the special act contained Municipal shall enable any municipal corporation to sell for the corporapurposes of the special act, without the approbation sell without of the commissioners of her Majesty's treasury of the the approUnited Kingdom of Great Britain and Ireland or any bation of three of them, 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.

And with respect to the purchase and taking of lands otherwise than by agreement, be it enacted as follows:

sury.

Purchase of Lands

otherwise than by

XVI. Where the undertaking is intended to be Agreement. carried into effect by means of a capital to be sub- Capital to scribed by the promoters of the undertaking, the be subwhole of the capital or estimated sum for defraying scribed the expenses of the undertaking shall be subscribed pulsory

before com.

under contract binding the parties thereto, their heirs, powers of executors, and administrators, for the payment of the purchase several sums by them respectively subscribed, before put in force. 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 (a).

(a) Compulsory powers of taking lands must be expressly granted, and will not be implied by construction. See note to section 6 of Railway Clauses Act.

A section of a railway act contained a clause which enacted that "in every case in which the said railway should cross any other railway, the communication shall, if the company and the owners of such other railway do not agree about the same, be made in such manner as shall be directed by two engineers act

ing as arbitrators; and that the company shall make satisfaction (to be ascertained in the manner before pointed out) for temporary, permanent, or recurring damages, to be occasioned by such crossing."

Powers had been given to the company to take lands, but "not without the consent of the owner or occupier." It was held that the section first quoted did not confer the power of crossing another railway without the consent of the proprietors of it, although such crossing was absolutely necessary to carry the railway to the point specified in the act. Clarence Railway Company v. the Great North of England Clarence and Hartlepool Junction Railway Company, 4 Q. B. 26; 3 Railway Cases, 426.

Where a company gives notice of its intention to take certain lands, according to the directions of this section, the relation of vendor and purchaser, as to the whole of the lands specified i the notice, is from that time established between the company and the parties to whom notice is given, and it is not competent for the company afterwards, in the event of an agreement not being come to, to refer only a portion of such lands to a jury or arbitration. Lord Cottenham observes, that if this were allowed the great object and advantage of notices would be frustrated. A company might give notice of their intention to take a large tract of country, and afterwards fix on some small portion of it to which the attention of the owner could not have been called, and respecting which he might not be furnished with proofs. Stone v. Commercial Railway Company, 4 Myl. & Cr. 122. See infra, p. 207.

In some cases, however, the duty of giving notice does not lie upon the company. Where a proprietor of certain lands or premises not obviously affected by the railway, thinks them likely to be damnified by its proximity, it is his duty to give notice to the company that he will require compensation. Walker v. London and Blackwall Railway Company, 3 Q. B. 744; Law J. 1843; Q. B. 88; 3 Railway Cases, 396. "To all persons interested," &c.

In the case of a tenancy from year to year it seems that, between landlord and tenant, the tenancy does not necessarily expire on the day specified in the notice to quit, but continues up to the latest day on which the tenant might, if he chose, remain upon the premises. Where a tenant from year to year paid his rent half-yearly, viz., on the 1st of April and 1st of October, and the Railway Company, pursuant to their act, gave him notice to quit at six months, which time expired on the 28th of July, it was held that he was liable for rent up to the 1st of October following, as for anything that appeared he might have remained until then. Semble, that if he had been obliged to quit before, the rent must have been apportioned up to the day on which he left. The tenant did not, but might

have, claimed compensation from the company. 5 M. & W.603.

As to whether or not it may be competent for a landowner to resist the compulsory purchase of his lands on the ground that the capital of the company has not been subscribed, and cannot probably be raised, see note to section 16 of the Railway Clauses Consolidation Act. Section 17 seems to obviate the principal objection to a landowner possessing that power, viz., the inconvenience the company would be put to in proving the subscription of their capital in a court of justice.

be evidence

XVII. A certificate under the hands of two jus- A certifitices, certifying that the whole of the prescribed sum cate of two has been subscribed, shall be sufficient evidence justices to thereof, and on the application of the promoters of that the the undertaking, and the production of such evidence capital has as such justices think proper and sufficient, such scribed. justices shall grant such certificate accordingly.

been sub

take lands.

XVIII. When the promoters of the undertaking Notice of shall require to purchase or take any of the lands intention to which by this or the special act, or any 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 (a), 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.

(a) Every such notice shall state the particulars of the land 80 required, &c.] As to the sufficiency of a notice, see Sims v. the Commercial Railway Company, 1 Railway Cases, 431, where a notice to take part of a rope-walk, accompanied by a diagram of the entire rope-walk, indicating by coloured lines the manner in which the railway would intersect it, and the