Compensation
Cases.

riorated in value by the railway being constructed so near it. He applied to the company to purchase the whole of the premises, making compensation for goodwill, &c., which application was not noticed. He then gave them notice to issue their warrant to summon a jury, to determine whether he was entitled to compensation. This notice being disregarded, Walker served the sheriff with a precept, as he was authorised to do by the act, requiring him to summon a jury to assess the compensation. Walker's affidavit then stated that a jury was accordingly impannelled; and that, after the complainant's counsel had opened his case, a surveyor was called, and stated “that the entirety of the said dwelling-house was not situated within fifty feet of the railway; but that a small portion of the dwelling-house, abutting upon the high road, was beyond fifty feet; but that such portion beyond and out of the said fifty feet did not exceed thirteen feet; that the said dwelling-house could not be divided, and that a perpendicular line, drawn at right angles to the high road, would leave only the front of the dwelling-house beyond the said fifty feet, and the remaining chief part of the dwelling-house within fifty feet of the railway." The counsel for the company then objected to the reception of any evidence to shew the value of the premises or their deterioration, contending, that, because the entirety was not within fifty feet, the Court had no jurisdiction to assess the value, or to proceed with the inquiry; and the under-sheriff refused to hear any evidence and to allow the inquiry to proceed, and told the jury that the claimant was not entitled, under the act, to have the premises purchased. The surveyor also made affidavit, that, if the company purchased only that portion of the house which was within the fifty feet, the remainder would be of no use to the complainant. The affidavits in opposition to the rule stated that the portion of the complainant's house nearest to the railway was eighteen feet from it; that the part occupied as the bar and chief place of business was more than fifty feet from the railway; and that the public-house was not deteriorated in value by the construction of the railway, unless any injury had arisen from the removal of houses, and consequent loss of custom. They stated also, that, after argument on the objection, the under-sheriff directed the jury to find "that the claimant is not entitled to have his property purchased, a portion thereof not being within fifty feet of the railway."-Cur. adv. vult.

Lord Denman, C. J., now delivered judgment, and, after referring to sects. 50 and 51 of the statute, and to the facts stated in the affida

vits, as to the proceedings at the inquisition, his Lordship said-We
are now to consider whether the objection taken before the under-
sheriff was well founded. We are of opinion, that any house, of which
a very large proportion is within fifty feet, ought to be called a house
within fifty feet. This would be so held by a jury, if called to pro-
nounce a verdict on such an issue. In the absence of any appropriate
jurisdiction for deciding it, there is strong reason for holding the
company to the rule of construing the words of parties most against
themselves. The proceedings of the company may, according to the
admission of their own act, be so injurious to houses so described, as
to call for the remedy which it provides; and, though the description
is not perfect, there are pretty clear indications of the intention of
the Legislature. The compensation must be attained through the
medium of a verdict, and must be ascertained and settled as in pur-
chases; and we have just seen that no owner of a house purchased is
bound to part with a portion of it only. If they will take any part
of a house, they are compellable to purchase the whole of it. If,
then, they come within fifty feet of a house, and thereby deteriorate
that house in value, the compensation must be settled in the same
manner, that is, for the whole house, at the owner's option. The
company have also an option. They are in no case compellable to
purchase any portion of a house, which portion is more than fifty feet
from the railway; and, whenever called to take a part, they may
have the whole, if they prefer it, subject to compensation. From
these words an argument is deduced, that the company, though free
to take the whole, is not compellable to do so. But we do not think
the inference just. The proviso seems, indeed, to be framed on the
erroneous supposition that the act had given power to the owner to
compel the purchase of a part of a house, and had then cut down
that power, giving the company the option; but from such a mis-
take we cannot reasonably infer that the company were intended to
be free to buy the whole or a part as they thought proper, when it is
plain that a purchase of a part might be ruinous to the whole, and
when, in the analogous case of taking and purchasing, the option of
parting with the whole is given to the owner, if a part only should be
required by the company. Mandamus awarded.

Compensation
Cases.

Reg. v. North Midland Railway Co., (2 Railway Cases, 1).]—Manda- A mandamus was mus requiring the defendants to assess compensation to Messrs. Grat-issued to compel a ton. It appeared by the affidavits that the complainants were where it appeared

company to assess compensation,

Compensation
Cases.

that the colliery of

the applicants was
inundated with
water, in conse-
quence of the
company having
diverted the course
of a brook.

If damage be done,
partly under the
powers of an act,
and partly not,
the proper remedy
is by mandamus,
and not by ac-
tion (e).

the owners of certain collieries, and that, in 1830, they had made an adit or sough, from a stream called Smith's Brook, for the purpose of watering and laying dry the coal, and that the water pumped up from the mine had been accustomed to run off along the adit, into Smith's Brook; that the complainants had worked the colliery from 1830 to October, 1838, when they were prevented from getting any more coals, in consequence of the coal-works being filled with water; that the defendants, in proceeding to carry the powers of their act (6 & 7 W. 4, c. cvii) into execution, had altered and diverted the course of Smith's Brook into a new course, upon much higher ground, and had thereby caused the water to flow up the said sough or adit, and also to flow into the outcrop of the said coal, and from thence into the said coal-works, in such large quantities as to render it impossible to work the same. Messrs. Gratton accordingly gave notice to the company of this injury, and demanded compensation, which was refused. The affidavits in answer stated that the colliery had for several years been liable to occasional stoppages, from water flowing into the works; and that when the new course of the brook was first set out, upon the suggestion of Gratton, instructions were given to make the bottom of the new course of the same depth as the adit of the colliery, so as to permit the same to drain freely into the brook; and that after the new course was completed, the water from the colliery has been constantly seen draining into it through the adit; and that afterwards there was a heavy flood, which washed a quantity of earth down the new course, and partially obstructed the mouth of the adit; and that such soil still remains, it not being considered necessary to clear the same away, as the colliery had ceased to be worked for a period of three months before that time. It was denied that the company had, by any work done by them, caused the water to flow from such stream into the adit in larger quantities than it had always done. Sect. 12 of the statute empowered the company to alter the course of any rivers, &c., as may be necessary for constructing tunnels, bridges, or passages over or under the same, and to divert or alter the course of any rivers or streams of water, or to raise or sink any such rivers or streams, in order the more conveniently to carry the same over or under or by the side of the railway, and to make drains or conduits into, through, or under any lands adjoining the railway, for the purpose of conveying water from or to the railway, the said company doing as little damage as may be in the execution

(e) See also Lyster v. Lobley, 7 A. & E. 124, post, 238.

of the said several powers, and making full satisfaction to all persons interested, in any lands taken or injured, for all damages to be by them sustained; and that the act should be sufficient to indemnify the company and all other persons for what they should do by virtue of the powers thereby granted.-Lord Denman, C. J. We do not adjudge that there is damage done; that is a question for the jury: it is enough to induce us to issue a mandamus, that the claimants say, by the raising of the level of the brook, that being part of the word "diverting," they have suffered.-Littledale, J. They cannot recover by action for the lawful acts; they must have a mandamus for that. If part of the injury has been done under the powers of a statute, they cannot have their remedy for it by action at law. Rule absolute.

Reg.v. The North Union Railway Co., (1 Railway Cases, 729; 8 Dow. P. C. 329).]-Mandamus to the defendants, requiring them to grant compensation to Ryland and others, for damages sustained by the execution of the stat. 4 Will. 4, c. xxv, and for the further temporary or perpetual, or for any returning damages which the said applicant may sustain. The applicants were the owners and occupiers of a factory and chemical dye-works, adjoining the North Union Railway. It appeared, that, after the company had commenced making the railway near the applicant's premises, complaint was made to the company, that clay and sand, mixed with water, flowed from the railway into the premises, the railway having been raised higher than the adjoining lands; and notice was given to the company, that, unless they formed a bank, or used other means to prevent the water from flowing into the works, great injury would result; that this evil might be remedied by making a sufficient sluice on the side of the railway, by which the overflow of water might be carried away; that there was a dye-house at the said works, in which a great number of vats were filled with indigo; also, that there were bleachrooms and chemical works, all of which places were lower than the railway; that, on the 6th of July, 1838, a great quantity of rainwater came down the railway, from the higher part of the road, and swept through the applicant's premises, and the effects and property therein were totally spoiled or much damaged; that the company had turned their drains into two ancient drains in the bleach-croft, which were intended only for agricultural purposes, and so overcharged them, that they broke up through the surface of the land. The

Compensation

Cases.

The Hungerford Market Company pulled down a house which they purchased; and in

doing so, it was ascertained that the party-wall of the adjoining

house was of an

insufficient thickness, whereupon the company took proceedings under the Metropolitan Building Act, and the wall was rebuilt:-Held, that the occupier of the adjoining house was not entitled to receive compensation for damages sustained

affidavits of the company in answer stated that much care had been used in constructing the railway, with a view to the drainage and protection of adjoining lands, and preventing, as far as practicable, the detention of water, or the diverting of it from its ancient and legitimate channels; that the water was made to empty itself into the channels, by arrangement and agreement with Messrs. Ryland, and that the overflow of water was caused by works which they had subsequently erected; that the rain which took place on the said 6th July was much greater, in suddenness of rise and extent, than any in the experience of the deponents.-Lord Denman, C. J. We think there is enough doubt to require a return as to the facts. It is not denied that acts injurious to the parties have been done, but they are said to have been done with their consent. This must be investigated. The other judges concurred. Rule absolute.

Rex v. The Hungerford Market Co., (1 A. & E. 668)].-Mandamus requiring the defendants to assess compensation to Mary Yeates, for damage sustained by her in respect of No. 23, in the Strand, of which premises she was tenant for years, carrying on a business there. It appeared that the defendants had purchased the adjoining house, No. 22, Strand, and that, in August, 1832, they gave notice to Mrs. Yeates, under the Building Act, (14 Geo. 3, c. 78, s. 38), that the party-wall between the two houses must be repaired; and they stated their intention to have the wall surveyed, pursuant to the lastmentioned act, and required her to appoint surveyors to meet those of the company, on the 17th of November. Mrs. Yeates referred the application to her landlord, who appointed surveyors to meet those by the rebuilding named by the company. On the 2nd of November, she was served, on behalf of the company, with a certificate of the surveyors, that the wall was of insufficient thickness, and ought to be rebuilt. Before the serving of such certificate (as she stated) the company began to take down No. 22; and, on the 14th of November, they proceeded to pull down the party-wall and build another. No. 22 was entirely taken down and rebuilt. By these operations Mrs. Yeates sustained the damage for which compensation was now sought; the principal items being,-expense occasioned in removing from the premises, loss of stock, loss of trade, damage to her household goods, and injury to her business. The company, in opposition to the rule, stated that the length of time given to Mrs. Yeates by the notice, for appointing surveyors, had been dispensed with by her son; that they

of the