are described in the notice to treat (r). The issuing of the notice to treat is the foundation of the jurisdiction of the jury or arbitrators to assess compensation (s); but if a party interested in lands enters into negotiations with the company, and agrees to waive the necessary notice to treat, he is afterwards estopped from taking the objection that he never received a notice (t); and, on the same principle, the company after appearing before a jury, cannot object to an inquisition, on the ground that it does not disclose that a notice to treat had been duly served (u). When the party who claims any estate or interest, in the lands proposed to be taken, has received a notice from the company requiring him to treat, he must, without loss of time, determine on the course which he will pursue. He may, within the twenty-one days mentioned in section 21, state the particulars of his claim, and endeavour to treat with the company as to the amount of compensation to be paid to him (x). If, on the other hand, the party interested in the lands gives no notice to the company, and takes no step to treat under the provisions of the 21st section, the company may then deal with the case as one of disputed compensation, and may proceed, under the 38th section, (post, App. 125), to give the party ten days' notice of their intention to summon a jury to assess the compensation, and this notice must also state what amount of compensation the company are willing to pay. (r) Stoney. The Commercial Railway Company, I Railway Cases, 375, post, 243. When a variance will not bar the claimant, see Walker v. The London and Blackwall Railway Company, 3 Q. B. 744. (1) R. v. Bagshaw, 7 T. R. 363; R. v. The Mayor of Liverpool, 4 Burr. 2244; R. v. The Trustees of the Norwich Road, 5 A. & E. 563. (1) R. v. The Committee for the South Holland Drainage, 8 A. & E. 429, post, 245. (u) R. v. The Trustees of Swansea Harbour, 8 A. & E. 447. (x) The party may, it seems, in this notice require that arbitrators should be appointed, according to the Form No. 3, ante, 156; but if the party who claims compensation intends that the case should go to a jury, then, as the liability of the com pany to pay the costs of the inquiry depends upon the sum which they may have previously offered, (8 Vict. c. 18, s. 51, post, App. 127), it will Claims for com pensation where not a notice to treat. On the receipt of this notice, the party who claims compensation has ten days allowed him to determine whether he will accept the offer made by the company, or not; and if he determines to decline the offer, he may declare his desire that the amount of the compensation shall be assessed by arbitrators, and not by a jury; for, by the Lands Clauses Consolidation Act (y), the party who claims compensation has now, in all cases, the option of having the amount of it (if it exceeds £50) assessed by arbitrators, provided he gives the company notice thereof in due time. If, therefore, the party be desirous of referring the question of compensation to arbitration, he must take care to serve a notice on the company, stating such to be his desire, before the expiration of ten days from the day when he received the company's notice. After that period has elapsed, the company are authorised to issue their warrant to summon a jury (z); and if the warrant is once issued, it will be too late to require the appointment of arbitrators. It is, however, to be observed, that the company have no option to require that the compensation shall be assessed by arbitrators; they can only issue a warrant to the sheriff, after having given the notice required by the 38th section (a). Cases may occur where lands have been taken, or injuthe company have riously affected, during the formation of the railway, and the party injured may, nevertheless, have never received any notice to treat, or offer of compensation, from the company. To provide for such cases, the 68th section of the 8 Vict. c. 18 (b) enacts, that, if any party shall be entitled to any compensation in respect of any lands, or of any interest be proper to ascertain what amount (y) See 8 Vict. c. 18, s. 23, post, App. 123; Id., s. 68, post, App. 130. (z) See 8 Vict. c. 18, s. 23, post, App. 123. (a) See 8 Vict. c. 18, s. 38, post, App. 125. (b) Post, App. 130. therein, which shall have been taken for, or injuriously affected by, the execution of the works, and for which the company shall not have made satisfaction, and, if the compensation claimed shall exceed 50l., such party may have the same settled either by arbitration or by the verdict of a jury, as he shall think fit; and, if such party desire to have the same settled by arbitration, it shall be lawful for him to give notice in writing to the company of such his desire, stating in such notice the nature of the interest in such lands in respect of which he claims compensation, and the amount of the compensation so claimed therein; and, unless the company be willing to pay the amount of compensation so claimed, and shall enter into a written agreement for that purpose, within twenty-one days after the receipt of any such notice from any party so entitled, the same shall be settled by arbitration in the manner herein provided; or, if the party so entitled as aforesaid desire to have such question of compensation settled by a jury, it shall be lawful for him to give notice in writing of such his desire to the company, stating such particulars as aforesaid; and, unless the company be willing to pay the amount of compensation so claimed, and enter into a written agreement for that purpose, they shall, within twenty-one days after the receipt of such notice, issue their warrant to the sheriff to summon a jury for settling the same in the manner herein provided; and, in default thereof, they shall be liable to pay to the party so entitled as aforesaid the amount of compensation so claimed, and the same may be recovered by him, with costs, by action in any of the superior courts (c). (e) The under-mentioned forms Nos. 5 to 8 may be used by parties thus entitled to demand compensation. To the No. 5. Railway Company. Whereas, in exercise of the powers contained in the act or acts of Parliament under which you are authorised to make and construct a certain rail M Form No. 5. Notice from the owner of lands to The powers of the company to enter on lands to be purchased or permanently used. the company, requiring compensation for lands taken or injuriously affected, and requiring the amount of compensation to be settled by arbitration, more than (See 8 Vict. c. 18, s. 68, post, App., 130. The company may not, without consent, enter on any lands required to be purchased or permanently used, until they have paid the purchase-money or compensation for the same, or deposited it in the Bank: provided always, that, way from to —, you have entered upon [or, "and taken"] certain parcels of land [here describe the lands with particularity, as in the notice, Form No. 2, ante, 153], for the purpose of making spoil banks and side cuttings thereon [or, " for the purpose of obtaining therefrom materials for the construction [or, 'repair'] of the said railway" [describe the injuries done to the lands according to the facts]], and for other purposes connected with 507. being claimed. the construction of the said railway, whereby the said lands have been damaged and injuriously affected*. Now, I the undersigned A. B., being the owner in fee simple of the above-mentioned lands, do hereby, in pursuance of the statute or statutes in that case made and provided, give you the said company notice, that I require you to pay me compensation in respect of my said lands, which you have [or, "taken"] damaged and injuriously affected as aforesaid, and in respect of my interest therein, and that the amount of my claim for compensation, by reason of the premises, is £—. And further take notice, that, unless you the said company are willing to pay to me the said sum of £, and shall enter into a written agreement for that purpose within twenty-one days after the receipt by you of this notice, then it is my desire that the amount of compensation to be paid to me by you by reason of the premises shall be ascertained by arbitration, according to the provisions of the act or acts of Parliament in that case made and provided. And, if you the said company fail to pay me the said sum of £—, or to enter into such written agreement as aforesaid, within the said twenty-one days, then and in that case I do hereby request and require you to nominate and appoint an arbitrator to act on your behalf in the matter of the said arbitration. Witness my hand, this day of in the year of our Lord 18-. A. B., of [insert address]. Form No. 6. A similar form where the owner requires a jury to assess the compensation. (See 8 Vict. c. 18, s. 68, post, App., 130). To the No. 6. Railway Company. Whereas &c. [as in the Form No. 5, supra, to *; then proceed as follows:] Now, I the undersigned A. B., being the owner in fee simple of the abovementioned lands, do hereby, in pursuance of the statute or statutes in that case made and provided, give you the said company notice, that I require you to pay me compensation in respect of my said lands, which you have [or, "taken"] damaged and injuriously affected, as aforesaid, and in respect of my interest therein, and that the amount of my claim for compensation, by reason of the premises, is £. And further take notice, that, unless you the said company are willing to pay to me the amount of the com. pensation so claimed, and shall enter into a written agreement for that purpose within twenty-one days after the receipt by you of this notice, then it is my desire that the amount of the compensation to be paid to me by you by reason for the purposes of surveying and setting out the line of the railway, they may enter, after giving notice. (Id., s. 84, post, App., 136). But the company may enter upon and use the lands without consent, upon paying the value of the of your entering on such lands as aforesaid shall be settled by a jury, according to the provisions contained in the act or acts of Parliament in that case made and provided. And, if you the said company fail to pay the said sum of ―, or to enter into such written agreement as aforesaid, then and in that case I do hereby request and require you, within twenty-one days after the receipt of this notice, to issue your warrant to the sheriff of I [here insert the county], or other proper officer, to summon a jury [if a special jury is desired, alter the form accordingly; see 8 Vict. c. 18, s. 54, and post, 176] for settling the amount of the said compensation, as in the said act or acts is directed and provided. Witness my hand, this To the day of No. 7. in the year of our Lord 18-. of [here insert address]. Railway Company. Whereas &c. [as in the Form No. 5, supra, to*; then proceed as follows:] Now, I the undersigned A. B., being the tenant in tail [or, "" being committee of E. F., Esq., a lunatic, the owner in fee simple," as the case may be, setting forth the estate and interest of the parties in the lands: see Form No. 4, ante, 157] of the above-mentioned lands, do hereby, in pursuance of the statute or statutes in that case made and provided, give you the said company notice, that I require you to pay compensation in respect of the said lands, which you have [or, "taken"] damaged and injuriously affected as aforesaid, and in respect of my estate and interest therein, and that the amount of the claim for compensation, by reason of the premises, is £. And further take notice, that, unless you the said company are willing to pay or deposit the said sum of £, and shall enter into a written agreement for that purpose, within twenty-one days after the receipt by you of this notice, then it is my desire that the amount of compensation to be paid by you by reason of the premises shall be ascertained by arbitration, according to the provisions of the act or acts of Parliament in that case made and provided. And, if you the said company fail to pay or deposit the said sum of —, or to enter into such written agreement as aforesaid within the said twenty-one days, then and in that case I do hereby request and require you to nominate and appoint an arbitrator to act on your behalf in the matter of the said arbitration. Witness my hand, this |
