PART II. Sewer compensation. Compensation to be given for necessary and probable damage. In estimating the compensation to be awarded in consequence of a local board making a sewer across the claimant's land, the arbitrator may properly take into account the possibility that the board will, under the powers of the act, refuse him permission to build over the sewer, also that the sewer has been made in an inconvenient course, and at an inconvenient depth, and also that stenches may occasionally arise from the sewer (q). Much consideration has been given to the question what matters the arbitrator should take into consideration in assessing the compensation by severance, or otherwise, occasioned by the railway, or other works constructed under the special acts. In a case in the Queen's Bench, it was laid down that compensation "relates only to all damage known or contingent by reason of the construction of the railway on the lands purchased, and to other damage arising from the construction of the railway at other places, which was apparent and capable of being ascertained and estimated at the time when the compensation was awarded;" and that it did not "also embrace all contingent and possible damages which might arise afterwards by the works of the company at other places, and which could neither be foreseen nor even guessed at by the arbitrator" ("). Relying on this decision, it was said, in the Exchequer, that if any injuries should hereafter arise, compensation might be obtained under section 68 of the act (s). In the House of Lords, under the Scotch Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 19), where the arbitrator had awarded compensation for damage likely to be sustained in future from the water in the Clyde being penned back by the works of the company, and thereby damaging the land of the complainant, Lord Chancellor Campbell said, "It was contended that such prospective damage could not properly be included in the award; and that if any such damage should arise, the proper remedy would be an action against the company. But I am of opinion that the arbi (1) Uttley v. Todmorden Local Board, 44 L. J. C. P. 19. 2. The Great (r) Lawrence (8) In re Ware, Ex. 395. See Ware v. The Regent's Canal Co., 3 De G. & J. 222. trator was bound to take into his consideration the damage to the land of the claimant likely to be produced by the works which the company were authorised to construct by virtue of an act of parliament, and that no future action could be brought against the company, except for negligence in the original construction of these works, or in the manner in which these works were kept in repair." Lord Wensleydale also, with reference to the objection that the arbitrator had awarded prospective and contingent damages, said, "The answer is, that he really has not done so. The compensation given is for the necessary damages by the construction of the railway, and for the highly probable damages which would be occasioned in the ordinary course of events. It becomes, therefore, unnecessary to consider what would be the effect of awarding a sum for purely speculative damages not reasonably foreseen." PART II. CH. IX. able if unfore He further stated that, except in cases where by the No future special acts compensation might be given from time to claim sustaintime (t), the price should be a full compensation once for all seen damage for the injury to the landowner's rights; and that if after- arise. wards unforeseen damage accrued to the landowner by the reasonable exercise by the company of the rights given to them by the statutes, no action would lie, and no fresh claim for compensation could be sustained; and he doubted the soundness of the observation cited from Ware, In re, 9 Ex. 395, that compensation might be obtained under section 68 for such future injuries, saying that it was a mere extrajudicial dictum (u). And in a case (a) in the Exchequer Chamber, Erle, C.J., said, that "it is well known in law that a party must make one claim for damages, once for all, for all damages that can be reasonably foreseen, and have one inquiry, and one compensation." Even if damage subsequently accruing be such as it was not possible to have anticipated, there seems very great doubt whether a fresh compensation can be obtained (y). (t) The King v. Leeds and Selby Rail. Co., 3 A. & E. 683; Lee v. Milner, 2 M. & W. 839. (u) The Caledonian Rail. Co. v. Lockhart, 3 Mac. 808. R. (x) Chamberlain v. The West End of London and Crystal Palace Rail. Co., 32 L. J. Q. B. 173, S. C. 2 B. & S. 605. (y) Croft v. London and North H H PART II. Compensation from time to time. Severance rifle range. Reservoir If injury arises afterwards from the neglect of the company to do what the act directs them to do, or from the negligent or improper manner in which the company's works are made or maintained, an action will lie (z), but no compensation can be claimed as for lands injuriously affected (a). The lessee of a mine about to make a pit for its necessary working, being stopped by a railway company taking a slip out of the middle of his land, showed that to work the mine after the severance, more expensive works would be necessary. It was held that, as the expenses were imminent, and capable of being ascertained, the arbitrator might award compensation for them at once, though by section 81 of the Railways Clauses Act, 1845, the railway company are from time to time to pay the lessee all such additional expenses as shall be incurred by him by reason of the severance (b). A volunteer corps had hired two separate pieces of land for a rifle range, and had a license from the occupier of the intermediate close to shoot across his land. This license was paid for annually, and was determinable on notice. A company, under statutable authority, took part of the hired land, and so used it as to render it impossible to shoot any longer at the range. The corps was held entitled to compensation for the loss of the range, as for damage by severance or otherwise injuriously affecting the land left (c). A landowner had made a reservoir for the purpose of depreciated. supplying with water cotton mills, intended to be erected on his own land. A railway company took a portion of the land, so that the mills could not be built. The umpire was held to have acted rightly in receiving evidence of the profits that could have been made from the supplying the water to these mills, as a step to the ascertaining how much the value of the reservoir had been depreciated by the taking of the land (d). Western Rail. Co., 32 L. J. Q. B. (z) Lawrence v. The Great (a) Byles v. Ipswich Dock Commissioners, 4 Ex. 464, S. C. 25 L. J. Ex. 53. (b) Whitehouse v. Wolverhampton, &c. Rail. Co., 39 L. J. Ex. 1. (c) Holt v. Gaslight and Coke Co., L. R. 7 Q. B. 728. (d) Ripley v. Great Northern Rail. Co., L. R. 10 Ch. 435. PART II. CH. IX. Damages modation In estimating the amount of damages arising from severance and other injuries, from the execution of the works, it is presumed that the arbitrator should not generally, in the case from severof a railway, treat it as one of total severance, but should ance, accomremember that by the Railways Clauses Consolidation Act, works. 1845, the company are bound to make such means of communication between the severed lands, and to provide such drains, and watering places for cattle, to remedy the inconvenience caused by the railway, as, in case of dispute, two justices shall appoint (e). tion works But where the land severed is agricultural land, having Accommodaa prospective value as building ground, the arbitrator may useless. treat the case as one of total severance, for the justices have no power to direct accommodation works except for the present use of the land, and accommodation works for agricultural purposes would be useless when the land was built upon (f). approaches. It has been decided that the arbitrator has no right to set No right to out approaches to the severed land, though the claimant call set out on him to do so, or to apportion the rent of the premises affected (g). Directing done, and work to be month till Arbitrators appointed under the Canadian Railway Act, 1868, to assess the amount to be paid by a railway company for a piece of land taken by it, and for damages resulting penalty per from the taking, should simply assess a gross sum. They have done. no right to say that the company shall pay a fixed sum per month till a certain watercourse is set free or that a particular culvert should be made (h). contingent on A railway company were empowered to abandon, if they Damages thought fit, certain tramways which led to the applicant's exercise of works. The latter claimed compensation for the injury option by the that would result to him if the company exercised their company. option, and stopped up the tramways. The umpire awarded compensation "for damage sustained, and which may be sustained," by execution of the railway works. The court intimated the inclination of their opinion that the award would not have been bad, if it had clearly given compen (e) Stat. 8 & 9 Vict. c. 20, ss. 68 -75; Manning v. Eastern Counties Rail. Co., 12 M. & W. 237. (f) Reg. v. Brown, L. R. 2 Q. B. 630. (g) Ware, In re, 9 Ex. 395. PART II. CH. IX. Stream to be taken from sation for the damage contingent on the tramways being stopped up (i). Where a company authorised to take a whole stream, time to time. diverts part and gives notice of an intention to divert the Awarding one sum for purchase price and damage by severance. Arbitrator may not direct payment. Arbitrator awarding no compensation due. When no damage by severance. remainder, an arbitrator appointed to assess damages for the injuriously affecting the land may, it seems, give compensation at once for the injury to be sustained by reason of the loss of the whole stream, though the company was empowered to take portions of the stream from time to time (k). It is not necessary for the arbitrator appointed to fix the purchase price of lands, taken by the promoters, and also the compensation for damage by severance, or by the injurious effects of the promoter's works on the claimant's other lands, to make separate assessments for the purchase price and the damage. One joint assessment for both is sufficient (7). But the award should clearly show that the arbitrator has included both items, or it may be considered uncertain (m). The arbitrator has no right to order payment of money: only to assess what is the proper amount of compensation (n). The duty of the arbitrator in relation to the compensation is confined to a mere assessment of money (o). If, assuming the interest of the claimant to be such as he states, and that he has the right to compensation which he asserts, the arbitrator find, as a question of amount, that no damage at all has been done to the claimant by the promoters, he is at liberty to award that the claimant's land or interests therein have not been injuriously affected, and need not assess him any compensation (p). If the arbitrator be of opinion that the landowner has suffered no damage by severance, it is better that he should (i) Brogden v. Llynvi Valley Rail. Co., 9 C. B. N. S. 299, S. C. 30 L. J. C. P. 61. (k) Stone v. Yeovil Corporation, 1 C. P. D. 691, S. C. 45 L. J. C. L. 657; on appeal, 46 L. J. C. L. 137, S. C. 2 C. P. D. 99; Bush v. Trowbridge Water Co., L. R. 19 Eq. 291, S. C. 44 L. J. Chanc. 235, on appeal, L. R. 20 Ch. 459, S. C. 44 L. J. Ch. 645. (1) Bradshaw's Arbitration, 12 Q. B. 562. (m) Wakefield v. Llanelly Rail. and Dock Co., 34 Beav. 245, in error, 3 De G. F. & S. 11. (n) Bidder v. North Staffordshire Rail. Co., 4 Q. B. D. 424, per Bramwell, L.J. (0) Ware, In re, 9 Ex. 395. (p) Reg. v. Lancaster and Preston Rail. Co., 6 Q. B. 659; Reg. v. Metropolitan Commissioners of Sewers, 1 E. & B. 694; Reg. v. London and North Western Rail. Co., 23 L. J. Q. B. 185; Reg. v. Biram, 17 Q. B. 969. |