ndertaking may require such owner to sell to such piece of land, and any dispute as to the of such piece of land or as to what would be xpense of making such communication shall be ained as therein provided for cases of disputed ensation, and on the occasion of ascertaining alue of the land required to be taken for the ses of the works, the jury or arbitrators, as se may be, shall, if required by either party, ain by their verdict or award the value of any severed piece of land, and also what would e expense of making such communication. the part of the land of said James O'Neill divided by the said embankment as in said gentioned, and which part lies between said kment and the sea, or Lough of Belfast, was of much less value than the expense of makbridge, culvert, or other communication bethe land so divided as the promoters of the ndertaking are compellable to make by virtue statutes in such case made and provided, or of them, and the said James O'Neill Falls > other lands adjoining said piece of land, ated and divided as aforesaid, and lying besaid embankment and the sea or Lough of st; and the said James O'Neill Falls having ed the promoters of the said undertaking to such communication, we, the said company such promoters by means of the premises y force of the statutes in such case made and ded, became entitled to require the said James ill Falls to sell to us, the said company, the piece of land lying between the embankment id railway and the sea or lough of Belfast, and ated by said embankment from the other of said James O'Neill Falls; and thereupon he said company, did cause another notice to rved on said James O'Neill Falls, bearing the 22nd day of November, 1847, and which uly served on the said James O'Neill Falls, e 25th day of November, 1847, and we, the company, by said last mentioned notice did re the said James O'Neill Falls to treat with he said company, for the purchase of the said slob, or ground, covered with water at ordinides, and lying between the said embankment said railway and the sea or lough of Belfast. the said James O'Neill Falls again for more 21 days failing to treat with us, we, the said any, by another notice, bearing date on or the 27th day of December, 1847, and served e said James O'Neill Falls on the 27th day cember, 1847, offered the said James O'Neill the sum of £5 for the interest which he was to sell, and that we were willing to purchase e said land, slob, or ground of said James ill Falls, lying between said embankment and ea or lough of Belfast, and as compensation l damages to be sustained by the execution of aid works; and said notice further informed aid James O'Neill Falls, that if within ten days the service thereof, the said offer was not ted, we the said company would, at the expi1 of said last mentioned term, issue our warto the sheriff to cause a jury to be summoned quire into and assess the sums of money to be for the purchase of the said land, slob, or

ground, covered with water at ordinary tides, and lying between the embankment of said railway and the sea or lough of Belfast, and also the sum to be paid by way of compensation for all damages to be sustained by him by reason of the execution of the said works. That James O'Neill Falls still disregarded said notice, and not having given any answer thereto, we, the said company, in pursuance of the provisions contained in the said Lands Clauses Consolidation Act, 1845, and more than 10 days after the service of said last-mentioned notice that is to say, on the 1st day of March, in the year of our Lord, 1848, did by our warrant under our common seal, issued to the sheriff of the county of Antrim, require him to summon a jury, in compliance with the directions of the said lastmentioned Act, to ascertain and determine the sum or sums of money to be paid by us, the said company, for the purchase of the estate and in terest of the said James O'Neill Falls, of, in, and to the respective pieces or parcels of land referred to in the said notice of 13th December, 1845, and 22nd day of November, 1847, and also the sum or sums of money to be paid by us for the damage, if any, to be sustained by the said James O'Neill Falls in respect of the purchase thereof, and also to ascertain by their verdict the value of said slob referred to in the said notice of the 27th day of December, 1847, and also to ascertain by their verdict what would be the expense of making a communication by an arch under said railway, or such other communication as we, the said Company, were by law required to make between the said slob ground and the other lands of the said James O'Neill Falls, from which same was severed by the said railway embankment. That in pursuance of the several Acts before referred to, we, on the 4th day of March, 1848, being more than 10 days before the time appointed by said sheriff for holding said inquiry, served a notice, bearing date the 4th day of March, 1848, on the said James O'Neill Falls, informing him that the sheriff of the county of Antrim, in obedience to said warrant, had appointed that he would, at 11 o'clock in the forenoon, on Thursday, the 16th day of March then instant, at the Court-house in Howard-street, in the town of Belfast, in the said county of Antrim, empannel a jury, pursuant to the statutory provisions in that behalf, to inquire of, and assess, and give a verdict for the sum or sums of money to be paid by us, the said Company, for the purchase of the parcels of land required for part of our said works, by the said acts authorized, and also the sum or sums of money to be paid by way of compensation for damages by reason of the execution of the works of the said undertaking, and to ascertain by their verdict the value of the slob ground outside the embankment of the said railway, in the said notice to treat of the 22nd of November, 1847, served on said James O'Neill Falls mentioned, and to ascertain by their verdict what would be the expense of making a communication by an arch under said railway, such as we, the said company, were by law required to make between the said slob ground and the other lands of the said James O'Neill Falls, from which same was severed by said railway embankment; and said notice required the

justification for such obstruction, or any sufficient reason for their refusal to comply with the provisions of the Railway Clauses Consolidation Act, 1845, with respect to the making of the accommodation works.

The arguments in this case are so fully treated in the judgment of the court, it is not necessary to

state them.

Mr. A. Vance, with Mr. Tombe, Q. C., and Mr. Thomas O'Hagan, Q.C., for plaintiff in error.

Mr. Falloon, with Mr. Gilmore, Q.C., and Mr. Napier, Q.C., for the defendant.

The following sections and cases were cited and commented upon :-6th, 16th, 68th, & 69th sects. Railway Clauses Consolidation Act, 8 & 9 Vic. c. 20; the 49th, 74th, 93rd, and 94th sects. Lands Consolidation Clauses Act, 8 & 9 Vic. c. 18; Reg. v. Hull and Selby, (6 M. & W. 699); Vavasour v. Ormrod, (6 B. & C. 432); Grand Junction Railway Company v. White, (2 Rail. Cas. 559 S.C. 8 M. & W. 214); King v. Pease, (4 B. & Ad. 30); North Briton Railway Company v. Tod, (4 Rail. C. 449, S. C. 12 Cl. & Fin. 722); Manning v. E. of (12 M. & W. 237.)

JACKSON, J.-This is a writ of error brought to reverse the judgment of the Court of Queen's Bench. A mandamus issued against the company, at the suit of Mr. Falls; to that there was a return by the company, and the Queen's Bench overruled the demurrer to that return. I cannot but feel that this is a question of considerable importance, calculated to effect the interests of railway companies, and of proprietors and occupiers of land through which railways may run. It is also a question of much difficulty, and I am willing to confess my opinion has fluctuated a good deal. I have, however, come to the conclusion, that the judgment of the Court of Queen's Bench ought to be reversed. The question depends upon the construction of two acts of parliament, the Lands Clauses Consolidation act, and the Railway Clauses Consolidation act. It is impossible to look at those acts of parliament as independent statutes; it is manifest on the face of them, that they are incorporated; and reading them together, we have to consider whether the injuries, of which the prosecutor complains, are properly the subject of pecuniary compensation under the Lands Clauses Consolidation Act, or whether he is not entitled to have accommodation works executed for him under the Railway Clauses Consolida- | tion Act. Let us first see what is the complaint made by the prosecutor; he states that he lately erected a dwelling-house at considerable expense, on the said piece of land, and that his chief inducement in so doing was, that he might enjoy the sea, this right having been enjoyed by the occupiers of the same premises for fifty years. He then states that the company raised an embankment upon a portion of the lands in his occupation, twenty feet high, which completly excluded him from all access to the sea. The words, "use of the lauds," in the mandamus, have been the subject of some criticism, but I think the fair meaning of those words is, the “ enjoyment of the lands"; this is plain from the context. What he complains of is, that by reason of the severance of his lands, he is cut off from communication with the sea-that is the grievance

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for which he seeks redress; and what he requires is, that he my have the use of his lands, so as to get access to the sea. The prosecutor then states, that he served a notice on the company, specifying the accomodation works which he required to be made; and then the mandatory part of the writ is that the company shall make such works as shall be necessary for the purpose of making good the interruption caused by the railway to the use of the said lands-which I consider to mean the enjoyment of the premises. That is the scope of the writ; and the company in their return make this case:-They set forth the 94th sec. of the 8 & 9 Vict. c. 18 (the Lands Clauses Consolidation Act), and then state, that the part of the land cut off by the railway embankment, was of less value than the expense of making a communication between the lands so divided; and that they served a notice on the prosecutor, requiring him to treat for the purchase of the said land; that upon his disregarding their notice, they had the lands valued, and lodged in bank, to the credit of the prosecutor, the amount of the valuation. I think it must be admitted, that if the injuries, of which the prosecutor complains, are properly the subject of pecuniary compensation, within the meanings of the Lands Clauses Consolidation act, the return is good; but if, on the other hand, this proposition cannot be established, the return is bad. If we look to what was the policy of the legislature, when passing these railway acts, we will find, that it was intended that private individuals should not suffer any injury from railways. There are a large class of injuries, which are made the subject of compensation; but there are some which are not. It appears to me, that loss of access to the sea, for the purpose of fishing, bathing and boating, is not, properly, the subject of compensation; to one, these things may be valuable, and not to another. I now proceed to examine the enactments of these statutes. [His Lordship here referred to the 68th section of the Railway Clauses Company's act, upon the true construction of which, he said he felt some difficulty; he also referred to sections 21, 22, 23, 39, 47, 48, 49, of the Lands Clauses Consolidation Act, and proceeded.] Sec. 49 of this latter act, gives compensation for the damage sustained by the severance of the lands, or otherwise injuriously affecting such lands, confining the compensation to the damage done to the land, as land. This shews what the Legislature meant by the words "disputed compensation" in the 39th sec. of this act. The injury complained of by the prosecutor, does not come within the 49th sec: the injury is not an injury to the land, or a cutting off a piece of his land; it is for the non-access to the sea; it is on account of the embankment which cuts him off from the sea, it is because he has lost that which he cannot enjoy unless he has access to the sea. The 49th section was not framed to include the case of personal inquiries, which are independent of land. Sec. 54 of this Act gives a special jury at the request of either party, and sec. 56 provides that any other inquiry than that for the trial of which such special jury may have been struck, may be tried by such jury." That very clause was enacted to enable the special jury to inquire what would be compen

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sation for an injury such as is here complained of. The loss of fishing, bathing, and boating is not an injury to the land. Ss. 69 and 72 of this act are confined altogether to injury to land; s. 73 is a remarkable one; it applies, however, only to cases where the amount is ascertained by agreement. The 93 s. has no reference to the present case. The return is grounded on the 94 s. The Company say they have severed a piece of land from the rest, and that that piece of land, so severed, is of less value than the expense of making a communication between the lands so divided, and that they purchased that piece of land. If the accommodation works were required only to connect the piece of land which has been so severed, I think they are right; but, in my opinion, the 94th sec. does not apply to a case where a party complains of an injury unconnected with land. The question is, had the Company the power to apply the ma. chinery of those acts to a case like the present. It is clear, the Legislature had in contemplation, when penning these enactments, such injuries as the prosecutor here complains of. If the 94th sec. were to receive the construction contended for by the Company, this absurdity would follow, that if there was a small part of the lands cut off, the Company could avoid making the accommodation works, by purchasing that piece of land; whereas, if the railway went along the margin of the sea, they would then be obliged to execute the works. The case put by my brother Moore, in the court below, of a person being deprived of a power to draw manure, does not apply, for that, being an injury to the land, admits of compensation. The prosecutor relies on the 68th section of the Railway Clauses Consolidation Act, and that section is compulsory on the Company; it is for making good any interruption; and it has only two exceptions, one where the party has agreed to take compensation; the other, where the works would prevent or obstruct the working of the railway. There should be another proviso in this section, if the Company be right, to the effect, that where a party had received com. pensation by a verdict of the jury, the Company should not be required to make the accommodation works. Sec. 16 is material in this respect, for it shews the anxiety of the legislature to give coinpensation to private individuals. No contract was made by the prosecutor for any compensation, and I am not aware of any clause in the Lands Clauses Consolidation Act, enabling the Company to give pecuniary compensation for the loss of such easeiments as bathing and boating. The next objection applies to the return, and is, that the return does not aver that this was not ground built upon within the meaning of the 93rd section of the Land Clauses Consolidation Act; but, in my opinion, the words such land in the 94th section do not apply to land in a town, or land built upon, but to the intersected lands. For these reasons, I am of opinion that the demurrer ought to be allowed.

LEFROY, B.-We have to consider whether the judgment of the Court of Queen's Bench is right. The effect of that judgment was to refuse to the prosecutor works of accommodation which he sought. It is material to see what he sought, and what he did not seek. He states generally that he

and his family had occupied these lands for a consi derable time, and had enjoyed bathing in the sea; he does not rest there, for if he did, the mandamus must be refused; but he goes on to say, that the railway ran through his lands, and that in conse quence he and his family were excluded from access to the sea. If he had rested his case on this, that, having lands near the sea, a railway was interposed between him and the sea, he would be without a remedy; for there is not anything in these Acts of Parliament which gives to her Majesty's subjects a right of access to the sea, if they should happen to have lands along the sea-side, and a railway was to be run between them and the sea. There are no such provisions, but there is this provision, that if a railway runs through a piece of land, and so intersects it as to occasion an injury, the owner has a right to have that injury removed, and a tunnel or passage made which would enable him to go from one side of the land to the other. If a party's own

land goes down to the sea, the simple and only right he has is to obtain from the Company a culvert or passage which would enable him to go from one part of the land to the other. This is the very right claimed. The prosecutor says that his land is intersected, and his access to the sea cut off, and he requires that the Company shall make such works as will enable him to go from one part of his land to the other. Virtually it comes to this, has he a right to the culvert?" If he has not, he will be shut out from the sea. It would be a strange interpretation of the meaning of the 68th section, to say, that in providing works of accommodation to relieve a party from any interruption to the use of his land, that section contemplated that he was to have relief from being shut out from the use of the sea. That would be a strange interpretation of these words, "the use of the lands," to mean "the use of the sea." Prima facie, he has a right, by the 68th section, to the use of the land, but not to have a communication to the sea; he may have it as incidental to the land, but the injury is not his being deprived of the sea. It is quite another question, whether that is a right to be compensated in damages; we are now considering whether he has a right to specific accommodation works under the 68th section. Supposing him now to have a right to accommodation works, to enable him to go from one part of the land to another, if his right to relief be founded on intersection, the basis of his right is interseetion; there is no other injury but intersection. If it is in virtue of the intersection of his land, that he is to get specific works, must he not be bound by every provision in the act that gives him the right. The case made by the mandamus is for intersected land, the claim is for intersected land, to make a culvert, because the railway has intersected the land, and have not the company a right to say, the value of the land is less than the price of the culvert you require us to make. If the company have not this right, the words must be expunged from the act of Parliament. The company called on him to sell that piece of land, and upon his refusing to do so, they had it valued, pursuant to the terms of the act of Parliament. The 49th sec. of the 8 & 9 Vic. c. 18, prescribes the mode of