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Compensation

Cases.

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purchased a subsisting lease in certain lands, and they then gave & notice to the plaintiffs, the owners of the reversion in fee, for summoning a jury to assess the value of the fee simple and inheritance of certain lands, thereof. The plaintiffs now filed their bill, insisting that the com- reversioner in fee pany were not authorised by their act to take more than a certain would be sumportion of the land, and praying an injunction to restrain them from compensation to proceeding to assess the value of the excess beyond that portion. est in the

lands. Section 42 of the Great Western Railway Act, enacts,“ that upon pay

who contended

that the company ment or tender of the monies awarded by the jury, as compensation had no authority for lands or any injury thereto, the said lands, and the fee simple and portion of the inheritance thereof, should thenceforth be vested in and become the an injunction to sole property of the company, and that such payment or tender should pany from sumoperate to merge all terms of years, and to destroy all estates tail, &c.” The Vice-ChanThe Vice-Chancellor.—Supposing the plaintiffs to be right in their injunction. own view of the case, the proceedings before the jury as to the portion of the land, which they say the company are not entitled to take, will be a nullity. A jury can only assess the value of property which the act authorises the company to take ; consequently, if the company are not authorised to take this portion of land, the jury cannot ssess any value for it. So, also, with regard to what has been said as to the operation of the 42nd section of the act; that operation, if the plaintiffs are right, can never take effect. The plaintiffs say, that the company cannot lawfully acquire the inheritance in a portion of the land, —be it so : then the company can only acquire the inheritance of those lands which the act authorises them to take ; and if they are not authorised to take the land, they never can, by means of any assessment by a jury, or any tender or payment, acquire the inheritance of that land. There is no question raised before me of an attempt to take a possession not founded in law; there is no doubt but that the possession of the company is lawful; they will have, as long as their lease endures, all such rights as any other assignee of this lease would have, either at law or in equity. With respect to restraining the company from banking up the land in question—if the company, when in lawful possession of the land, had attempted to use the land in a manner which might cause some sudden and grievous injury to the inheritance, then the reversioner might come to this Court for redress ; but no case of this kind is made by the bill.

Motion refused, with costs.

P

Compensation

Cases.

2. Compensation Cases, where Lands, &c., have been indi

rectly injured.

Lew cuts and
otherwise to im-
prove a naviga.
ble river; and
the act gave com-

commissioners, or

such work." On
a bend in the river
there was an an.

owner of the ad

made a short cut from one extre

to the other, so that the ancient

A navigation com- Rex. v. The Commissioners of The Thames and Isis Navigation, (5 A. pany was empowered to inake & E. 804).]-Mandamus, requiring the defendants to pay certain

money awarded to Lord Boston, for compensation, under stat.

52 Geo. 3, c. xlvii, which empowered the defendants to improve pensation to per the navigation of the River Thames. The mandamus recited, that sons aggrieved, damaged, or in Lord Boston was seised in fee of an ancient towing-path on a part of jured by any work made by the the river, and to the exclusive right of towing barges at that part, by the operation taking reasonable tolls for such towing by his horses; that the comor effect of any

missioners made a cut, by which the barges were enabled to avoid that

part of the river, dispense with the use of the horses, and withhold cient towing-path, belonging to the the tolls; that the commissioners had by the cut injured the old joining land. The channel of the river, and made the navigation of the part aforesaid

less easy and convenient, and diverted the navigation of the river mity of the bend from Lord Boston's towing-path, and rendered the towing-path and

his exclusive right wholly unprofitable ; that Lord Boston had comtowing-path was no longer fre- plained to the commissioners and demanded compensation; that the quented, whereby the owner was discommissioners, at a subsequent meeting, made an order, determinaand the navigation tion, and judgment, that they could not accede to the application ; peded:--Held, that

that Lord Boston, being dissatisfied with such order, appealed to the towing-path was

Quarter Sessions, who ordered the commissioners to pay to him entitled staticeive £1000, in full compensation for the injury sustained by him, and Where commis- £200 costs, which the company refused to pay, and the writ then

commanded them to pay. The defendants made a return to the writ, plaint-Held, that

which stated, that the said commissioners, believing that the commination, and plainant had no claim to compensation, did not hear evidence on the judgment," from which an appeal complaint or the amount of the alleged loss, and notified to the lay.

complainant that they refused to accede to his application ; that the complainant, treating this refusal as an order, &c., appealed; that, on the appeal, the commissioners objected that the refusal was not an order, but the Quarter Sessions overruled the objection ; that the cut enabled navigators to avoid a dangerous bend of the river ; that the complainant was no further entitled to the path than as owner of the land; that they, the commissioners, had not obstructed the claimant's towing-path, nor placed any obstacle to the navigation against the towing-path; that parties might, and sometimes did, still navigate by

river was im

the owner of the

sioners refused to entertain a com

it amounted to
"an order, deter-

Compensation

Cases.

the old channel. The sections of the statute referred to in the argument are stated in the judgment.

Lord Denman, C. J.-His lordship, after stating the facts, proceeded as follows:- The cause shewn by the commissioners in their return is, that the damage described is not, within the statute, a grievance. Their argument was, that a mere diversion of custom from the owner of a towing-path, who lets out his horses to be used there, can be no more considered as an injury, than could the loss of guests brought upon the owner of an ancient public-house, by making a new road, cutting off a bend by which the house stood. We were referred to authorities where a claim somewhat similar was held inadmissible (?). The answer is to be found in the very peculiar language of this statute, which differs altogether from the numerous aets of the same nature which were sent to us after the argument (m). We might have found little difficulty in deciding that such damage could not give the sufferer the denomination of a party aggrieved. And though the remedy is provided for the party who thinks himself aggrieved, and that question is sent to the Quarter Sessions, yet those words would probably have not been held extensive enough to prevent our judgment, that such damage was no grievance. But the clause empowers every one who may think himself aggrieved, damaged, or injured by any work made by the commissioners, or by the operation or effect of any such work, to apply for compensation to the commissioners, who are to make such order, determination, and judgment thereon as to them shall seem just, and give such satisfaction to the party complaining as to them shall seem reasonable : and, on refusal by the commissioners, the party is to apply to the sessions, who are required to entertain such appeal, and to make such order and adjudication thereon as to the justices shall seem just, and award such costs as they shall think just, which order and determination shall be final. Lord Boston asks for compensation, and is refused.

() On this point the following copies of several local acts were sent antborities were cited :-Rex v. The to the learned judges, for the purpose Commissioners of the Nene Outfall, of shewing that (as was contended) 9 B. & C. 875, post, 218; Rex v. The there was nothing peculiar in the London Dock Company, 5 Ad. & E.

language of the present act. On this 163, post, 233; Rex v. The Bristol point the General Turnpike Act, 3 Dock Company, 12 East, 429, post, Geo. 4, c. 126, ss. 85, 145; and 4 217.

Geo. 4, c. 95, 8. 87, were also re(m) By the direction of the Court, ferred to.

Compensation

On his appeal to the sessions, that Court is invested with cognizance of the cause, and enjoined to make such order thercon as seems just ; a much wider power than merely to assess damages for some recog. nised injury. Can we say that they have done wrong, in deciding that the damage has accrued by the operation and effect of works done by the commissioners ? On the contrary, to assert that it has not, would have been a direct untruth, in the ordinary sense of the words; and no other sense is attached to them by any clear legal authority. Another objection to the mandamus, that the order of sessions included two objects, for one of which the prosecutor was clearly entitled to no compensation, was not much pressed at the bar, but has occupied the attention of the Court. For if the £1000 were awarded, partly for the loss of profits from the towing-path, and partly for obstructing the old channel, and the latter had certainly not been made out, we were disposed to think that the judgment comprehending both could not have been sustained. But this objection also is cured by the extensive language of the act. The mandamus alleges the obstruction as one cause of complaint, and the loss of profits from the towing-path as another; and recites, that the sessions gave their compensation for “the said injury;" that must be the twofold injury. The return, indeed, denies that the channel was at all obstructed, and states, that all who prefer that course may still pursue it. But the sessions must be taken to have found the fact, when they gave compensation for it; and their order to do what to them seems just and reasonable, is made final and conclusive. If the sessions did not inquire into that point, the return might have so averred, and an issue of fact might have been raised. The fact of the commissioners asserting the channel not to have been obstructed, is quite consistent with the fact of the sessions having adjudged that it was. Another objection

Cases,

al nd was more relied on-that the jurisdiction of the sessions did not attach, because the commissioners had come to no order, determination, or judgment, from which an appeal would lie. On the facts, we have not the least hesitation in saying, that the refusal to accede to Lord Boston's application, or to hear any evidence in support of it, was a plain determination that he was not entitled to what he claimed, and consequently a proper subject of appeal. This is one of a class of cases which has become exceedingly numerous, in which the Court has found itself constrained to give the words of a private act an effect probably never contemplated, and very probably not intended by the Legislature which enacted it.

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But our duty is to look to the language employed, and construe it in its natural and obvious sense. The liabilities thus imposed on themselves by bodies of men, are the conditions upon which the public empower them to perform works expected to be beneficial to both contracting parties. We are not at liberty to inquire whether the bargain is reasonable, but are bound to see it executed. Therefore we must award a peremptory writ of mandamus.

act.

Reg.v. The Eastern Counties Railway Company, (2 Q. B. 347; S.C., Where a public 2 Railway Cases, 736).]—Mandamus, requiring the defendants to the land of the assess compensation to one John Collingridge. The following facts lowered by a railappeared on the writ of mandamus, and the return thereto, the case under the powers having been argued on a concilium. The writ suggested, that John where by the acCollingridge was assignee of a lease for ninty-nine years, of a leasehold was impeded, and estate, on the road leading from Bow to Old Ford, Middlesex ; that, made necessary.at the time of the sustaining of the damage hereinafter mentioned, part owner of the land of the said estate was bounded on one side by a highway, called the compensation, alFairfield Road, and was on a level with the same ; " that the com- his land had been pany, in making the railway, and to carry the same over the said purposes of the road, have lowered the same to a great depth in front of the land, and thereby the land is greatly deteriorated in value, and the access thereto, from the road, has been greatly impeded; and, by reason of the declivity from the said land to the road it hath become necessary to make additional fences, and to level certain parts of the land against the road, for the beneficial enjoyment of the same.” The writ then alleged that, under the provisions of the statute, (6 & 7 W. 4, c.cvi), the said applicant was entitled to receive compensation for the damages sustained by him, by the means aforesaid. The return to the writ stated, that the company, acting under the statute, had made a railway, in the line and over the lands delineated upon the plans and described in the books of reference, &c., in accordance with the provisions of the act ; that the said premises of the said John Collingridge are not set forth or mentioned in the said schedule, nor were they required for the purposes of the railway. The return then stated, “That we have not entered upon the estate in the said writ mentioned, nor have we set out and appropriated the same for the purposes of the railway; nor have we taken or used the same lands or any part thereof; nor have we cut, &c., the same; nor have we made or constructed any works whatever, in, over, or upon the said lands and premises.” “That the said John Collingridge is not the

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