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66 owner of the tithe rent-charge . . . . and so much of any Act as "authorises any rate on tithe rent-charge to be assessed on or re"covered from the occupier of any lands out of which the tithe rent"charge issues is hereby repealed."

At the date of the passing of the said Act, certain rates upon a tithe rent-charge, of which the appellant was the owner, were due and in arrear, owing to the neglect of the overseers to demand payment thereof from the occupiers of the lands out of which the tithe rentcharge issued. The tithe rent-charge for the period in respect of which the said rates were due had been paid to the appellant in full. After the passing of the Act the overseers, purporting to act under s. 8 of the Tithe Act, 1837, demanded payment of the said arrears of rates from the occupiers of the land, who paid them and were allowed the amount thereof by their landlord, the respondent, out of the half-year's rent becoming due next after such payment. Subsequently thereto a halfyear's tithe rent-charge became payable by the respondent, as owner of the land, to the appellant. The respondent claimed to deduct therefrom the amount which he had allowed to the occupiers out of their rent in respect of the said arrears of rates so paid by them :

Held, that, having regard to the provisions of s. 6 of the Tithe Act, 1891, the payment of the arrears of rates by the occupiers was a voluntary payment which they were not entitled to deduct from their rent, and that the respondent was consequently not entitled to make the deduction claimed from the tithe rent-charge due to the appellant. --(L. R. [1893] 2 Q. B., p. 33.)

(504.)

HALL AND OTHERS v. THOMAS.

[MAY 3RD, 1893.]

Highway-Extraordinary Traffic-Recovery of Expenses-Locomotive Act, 1878 (41 and 42 Vict., c. 77), sec. 23.

This was an appeal against an order by magistrates for payment of a sum of money in respect of "extraordinary traffic" on a road under the Locomotive Act, 1878. The appellants, Messrs. Hall & Co., are contractors at Angle Bay, Pembrokeshire, and they undertook to erect a battery for the Government there, and in executing the work-of shingle and cement, brought there in barges and carried over the road in carts-they carried 8,050 tons in 9,000 loads, which, the justices found, was a great addition to the usual total of the traffic, and it caused the road to be so cut up as to require extra repairs to the amount of about £100, for which the justices, under section 23 of the Act, made their order against the contractors, who appealed, upon a case stated by the magistrates, upon the question whether it was "extra traffic" within the Act. In the case thus stated they stated that none of the carts carried greater weights than were carried by

carts engaged in agricultural work, and that there was no proof of excessive weights carried over the roads otherwise than by the great increase of carting and the unusual work of building a Government fort, which they deemed to be "extraordinary traffic" within the Act, and they submitted the question whether they were justified in so finding. The building of the fort extended over two years and a half.

The Court came to the conclusion that the magistrates were wrong. The enactment referred to "excessive weights and extraordinary traffic," and the magistrates had not found excessive weights in the traffic; on the contrary they found that the carts did not carry greater weights than carts employed in agricultural work, and they found that there was no proof of excessive weights being carried otherwise than by the great increase of cartage caused by the nature of the work, and which they deemed to be "unusual "-that is, they had found the traffic "extraordinary" by reason not of excessive weights, but merely by reason of the work being "unusual," which of itself was not a sufficient ground for an order under this Act. No doubt there might be an excess in quantity and weight carried; and if the purpose were such that the aggregate amount of material carried could be deemed excessive, that might be a case of "extraordinary traffic" within the Act as compared with the ordinary business of the neighbourhood. In this case, however, the magistrates had not found that the aggregate amount of material carried was excessive. It was stated that there were above 8,000 tons carried; but then the building of the fort extended over two and a half years. In effect, therefore, the order appeared to have been made merely because the work in its nature was "unusual." But that did not appear to be sufficient ground for such an order. The enactment was one which must be of frequent application in the country, and therefore it was important to point out distinctly the grounds on which it ought to be applied. The magistrates were wrong in the present case because, there not being an excessive weight carried, they had proceeded merely on the ground that the building of a fort was unusual.

Judgment accordingly in favour of the appellants, but leave to appeal given.-(T.L.R., Q.B.D., vol. ix., p. 443.)

(505.)

ATTORNEY-GENERAL AND HARE v. THE METROPOLITAN RAILWAY COMPANY.

[MAY 4TH, 1893.]

Lands Clauses Act-Compensation for Tenant of House-Alteration of Railway Premises-Depreciation of Property.

This was a claim for further compensation brought by the tenant of a house for depreciation of property owing to some alterations of the

defendants' premises, and raised a new question under the Lands Clauses and Railways Clauses Consolidated Acts.

Mr. Justice WRIGHT delivered the following written judgment. By an agreement in 1860 the Commissioners of Woods and Forests covenanted to convey to the defendants a piece of land, and the defendants covenanted not to make or set up any erection or building on that land, and covenanted that "the company shall make to the lessees "and occupiers of the Crown property situate within 50 ft. from any "part of the line of railway full compensation for all damage which "they may sustain by reason of the works of the company or the "working of the railway, such compensation, in case of difference, to "be settled in the manner provided by the Lands Clauses Consolidated "Acts; and for the purposes aforesaid the said lessees and occupiers "shall be deemed to be persons injuriously affected by the railway "within the meaning of the same Act." The agreement further contained a covenant that a proper conveyance should be made to the company of the lands, and covenants should be inserted that the company should observe the stipulations with reference to the buildings prohibited from being erected. The defendants seemed to have been let into possession and to have made their railway about 1861 wholly in tunnel. In 1864 they compensated the then lessee of the house which the plaintiff now occupies, the compensation being made as required by the agreement in respect of the working as well as of the construction of the railway. In December, 1864, the Crown conveyed the land to the defendants. The conveyance contains the covenants for the insertion of which the agreement provided, but it contained no reference to further compensation. It concluded with a proviso that, in case default should be made in the performance of any of the covenants contained therein, it should be lawful for the Queen's Majesty, her heirs, &c., or the Commissioners on her behalf, to enter upon the land conveyed, and thenceforth the conveyance should be absolutely void. In 1883 the defendants made an opening of about 150 square feet area in the land, as a ventilator for an adjoining underground station, and surrounded it with a wall about 3 ft. high. No objection was made at that time by the Crown or any one else. In 1884 the plaintiff, Mr. Hare, became the occupier of the house in question, which is within 50 ft. of the railway. In 1889 the defendants enlarged the opening to about 1,500 ft. area, and enclosed it with a wall 8 ft. high. Before doing so they applied to the Commissioners for their sanction, and at an interview between the defendants' engineer and the Commissioners' representative the plan was discussed and approved, no objection being taken to the wall, which was shown on a plan; and on June 15, 1889, the Commissioners formally signified their approval by letter, but stating that any works carried out must be so executed as not to infringe any covenants and conditions contained in the conveyance. The effect of the enlargement of the opening was to collect the foul air and smoke of the adjoining underground station which had previously diffused themselves through the station and escaped by the stairways and along the tunnels at both ends of

the station, and to cause them to issue in increased quantity, together with an increased amount of noise from the enlarged opening, and to bring the place of issue materially nearer to the plaintiff's windows. His Lordship was satisfied that there was a serious nuisance which would be actionable but for the statutory powers, and he thought it was plain that the enlarged ventilator was designed and constructed for the purpose of producing the effects which he had described. The Commissioners say they are entitled to re-enter upon the land for breach of the covenant not to make any erection or building upon it, and also because the defendants had not compensated the plaintiff under the agreement of 1860. He thought they were not entitled to re-enter on the latter ground, for the agreement to compensate was not inserted in the conveyance, and it was only for the breach of covenants in the conveyance that the power purports to be reserved; nor on the former ground, because he thought that the Commissioners must be taken to have waived any such right. There was nothing in the letter of June 15, 1889, which gave notice that the enclosing wall, as shown on the plans, would be considered as a building or erection contrary to the covenant. Also, he doubted whether the statement of claim could be properly read as claiming a forfeiture on that ground. Further, as it appeared to him, there was grave doubt whether such a right could be reserved by the Crown. No doubt they could have refused altogether to sell the land, and then the defendants would have had to alter the line of their railway or to apply for Parliamentary powers to take the land by compulsion. But he thought it would be a straining of the Act to hold that it enabled the Crown to give a conditional assent by reserving a power to re-enter and stop the working of a public undertaking because of a matter of this kind. Mr. Hare's claim remained. In so far as it was founded on the agreement of 1860, the learned Judge thought it was bad. That agreement meant to provide for the then existing tenants and occupiers only, and it was exhausted before the conveyance and was so treated by the parties, for the conveyance contained no similar provision, although it does repeat the other provisions, which were intended to be continuing. It appeared to him that on the execution of the conveyance it was meant to, and did, supersede the agreement altogether. Then was Mr. Hare entitled as if under an award duly made under the Lands and Railways Clauses Acts? No formal objections were taken, and it was agreed by the defendants that they would be liable for the whole sum awarded if there was any injury or damage for which the plaintiff would be entitled to compensation in an ordinary case under the Acts, notwithstanding that the arbitrators made their award under the agreement and not under those Acts, and admittedly awarded on the basis of damage by the working of the railway. When a railway is first constructed under Parliamentary powers, compensation is given in case land is injuriously affected in a manner which, in the absence of statutory powers, would have given a right of action by the construction or execution of the works, but not (unless some of the land is taken) in respect of injury by the use or working of the railway. When a rail

way already opened is altered under the powers of section 16 of the Railways Clauses Act, he apprehended that the same liability arises and the same rules apply, and he thought the question now to be determined was the same, and must be decided in the same way as that which would have arisen if the plaintiff had been tenant when the railway was made and if the ventilator in its present form had then been made or contemplated. Ought the injury to the land to be regarded as the effect of the construction or execution of the works, or as the effect of the working or user of the railway? With much doubt he had come to the conclusion that it ought not to be regarded merely as the effect of the working of the railway and that the plaintiff was entitled to some compensation; and if that was so, it was agreed the award should stand. It must be taken for settled law (speaking always of a person no part of whose land is taken) that no compensation can be got in respect of effects of the working of the railway which are ordinary and which affect indifferently all adjoining lands, even though the complainant's land might happen from its situation or otherwise to be affected in a greater degree than others. But it seemed to him that there might be works which, although not injurious to particular land if the railway was worked at all, whether much or little that the construction of them, under powers which enable them to be used in conjunction with the working of the railway, might of itself be regarded as injurious to the land, with the use of which it unquestionably interferes. There was in this case not a mere difference of amount of noise, smoke, and foul air, but a work specifically designed for the purpose of concentrating the vapours of an underground station, which would otherwise have diffused themselves in various directions, and of discharging the collected volume under the plaintiff's windows, in such a way that the house was made materially less fit for habitation. Even if the railway were not being worked, the construction of such a work for such a purpose with such powers would diminish the value of the house. Under those circumstances this land seemed to him to have been injuriously affected by the construction of the ventilator, and there must be judgment for the plaintiff, Mr. Hare, for the amount of the award and the costs of the award; but, inasmuch as he could not have succeeded but for the waiver by the defendants of the technical objections to his claim in this action, there would be no costs. The Crown's case would be dismissed, with costs.-(T.L.R., Q.B.D., vol. ix.,. p. 447.)

(506.)

COOLE, APPELLANT; LOVEGROVE, RESPONDENT.

[MAY 8TH, 1893.]

Metropolis-Buildings Acts - Erection of New Buildings-NoticeExemption-Canal Company-Buildings "used for the purposes of" a Canal-Metropolitan Building Act, 1855 (18 & 19 Vict. c. 122), ss. 6, 38.

By the Metropolitan Building Act, 1855, s. 38, two days before any building is commenced, a notice in writing containing specified par

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