Page images
PDF
EPUB

damages awarded to him as a party interested. This action was commenced on the 7th of July, 1836. The question submitted to the court was, whether the plaintiff was entitled to recover upon all or any of the counts in the declaration.

Lord Abinger, C. B.-The point is, that the company have taken land, upon which there was a railroad, and that the plaintiff was entitled to damages in respect of this easement, even before any actual injury was sustained. But we think that his claim to compensation must be made at the time of the injury. With regard to the question of tenancy, it does not appear that the plaintiff had such an interest as entitled him to compensation. If a party becomes tenant, from year to year, from Michaelmas, and lets to another, from year to year, from March, at a higher rent than he himself pays, he may perhaps, under such circumstances, have a reversion, for which he would be entitled to compensation. But it is sufficient to say that the present case raises no such question. Our judgment must, therefore, be for the defendants. Parke, B.-It is urged, that the company were irregular in entering upon land of Sir R. H. Leigh, without first making compensation to the plaintiff in respect of his right to make a railroad over that land. I do not think, however, that the company were bound, before they entered, to buy up the plaintiff's rights. The sections of the act oblige the company to purchase the interest of the owners in fee or for life, but they do not apply to easements. Parties in the situation of the plaintiff are entitled to compensation for any injury they may sustain, but they are not entitled to compensation prospectively, since the extent of damage cannot be ascertained until after the damage has been actually inflicted. The company may, therefore, enter upon the land before making compensation. The last count is framed on the ground of the plaintiff having a reversion in respect of the tenancy between him and Atherton. The plaintiff's counsel has observed, that the possessor of the term is to be included in any bargain made by the owner with the company; and that, unless that were the case, great injustice might be done to a tenant in possession, under a long term of years. There would be great weight in that observation, if the plaintiff had any reversionary interest here. But it is impossible to say upon this case, that he has any reversion as against a stranger; he may have had some reversion as against his tenant, although that does not appear. But it is unnecessary for us to decide that point.-Judgment for the defendant (c).

(c) See another point decided in this case, ante, 202.

Compensation

Cases.

Compensation
Cases,

Turnpike trustees were authorised to pull down certain houses

specified in a local act, "making or

tendering satisfac

tion to the owners

or proprietors of
such houses:"-
Held, first, that a
lessee for a term
of years, as well

as the owner in
fee of the pre-
mises, was enti-
tled to receive
compensation.
Secondly, that
trespass would not

lie, where the trus

tees pulled down a

house, before com. pensation was tendered; but that the proprietor ought to have proceeded to assess

the compensation in the manner provided by the act (d).

Lister v. Lobley, (7 A. & E. 124; 6 Nev. & M. 643). Trespass for destroying the plaintiff's buildings. The defendant justified under the provisions contained in a local turnpike act, 5 W. 4, c. xxxvi. The question turned upon the construction of the act. Sect. 25 empowered the trustees, and they were thereby authorised and empowered and required to make the said road through any lands or hereditaments, &c., and for such purpose it should and might be lawful for the said trustees to enter upon such lands, &c., laid down or described in a map thereinafter mentioned, and also to take or pull down the houses, &c., in the schedule to the act annexed, “making or tendering satisfaction to the owners or proprietors of all private lands, houses, buildings, tenements, and premises, so taken or used for the same, or for any loss or damage they may sustain thereby." On the trial, it appeared that the premises in question were private lands and buildings, comprehended in the schedule mentioned in the act; that the plaintiff held them for a term of years; that the defendants had taken the lands and pulled down the buildings, and had made satisfaction to the owner of the fee simple, which the latter had accepted; but that no compensation had been tendered to the plaintiff. A verdict having been found for the plaintiff, a rule nisi was obtained to set it aside, on the grounds; 1st. That, the plaintiff was not entitled, to receive any compensation ; 2nd. That, if he was entitled, he ought to have proceeded, under the statute, to enforce it; and, lastly, that trespass would not lie.

Patteson, J.-I entertain no doubt that the words "owners or proprietors" in this statute include tenants for terms of years, and that such tenants are to receive compensation for "any loss or damage they may sustain." The plain meaning must be, that any person who suffers is to have satisfaction. It has been argued that compensation is to be given to the landlord for all the loss, and that the landlord and tenant are to settle between themselves. I should assent to this, if I could find any clause enabling the tenant to recover in this way; but as there is no such clause, and as it could not have been intended to leave the tenant without remedy, I must infer that the meaning was, that every owner, reddendo singula singulis, should receive satisfaction for his own share.

Lord Denman, C. J., said, on a subsequent day.-On the second point, the rule must be made absolute. The amount of compensation

(d) See Fenton v. The Trent and Mersey Navigation Co., 9 M. & W. 203, ante, 222; R. v. North Mid

land Railway Co., 2 Railway Cases, 1, ante, 195.

cannot, generally, be ascertained till the work is done. The effect of the words in question is, that they shall not do it, without being liable to make compensation.

Williams, J.-Words authorising trustees to enter lands and remove buildings," making or tendering satisfaction," cannot render them trespassers ab initio, if they omit to make or tender it.-Rule absolute, accordingly.

the

At

Rex v. The Leeds and Selby Railway Co., (3 A. & E. 683; 5 Nev. & M. 246).—Mandamus, requiring defendants to assess compensation to be paid to one Bates for the damage sustained by him by reason of works authorised by the Railway Act, 11 G. 4 & 1 W. 4, c. lix. the time of the passing of the act, Sir Charles Ibbetson was owner of a coal mine, then under lease to Bates, which would expire in 1852. In 1831 Sir Charles Ibbetson conveyed certain land to the company, the surface of which was above the coal mine, not then reached by the workings of the colliery. No compensation was claimed on his part for the mine, nor for any present or future effect which the railroad might have upon the mine. The company afterwards carried their railroad across this land. In 1834, the workings arrived at the line of the railway, and it was then first discovered that the coal near the line of the railway could not be gotten without injuring the railway; and that the part of the mine beyond the railway must also be worked in a more expensive way. Some damage was, in fact, done by the works of the colliery to the railway, which the company required Bates to repair, under sect. 30; and Bates claimed compensation for the alleged injury sustained by him, in consequence of the interruption of the works of the colliery occasioned by the railway, and also for the expense of repairing the damage done by the colliery works. The company refused to make compensation, and the present application was thereupon made. Sect. 3 of the act empowered the company to use lands necessary for the purposes of the act, they making full compensation in manner thereinafter mentioned. Sect. 18 provided for the alteration by the company of the railways then in use, for the purposes of the colliery working on the lands of Sir Charles Ibbetson. Sect. 30, that nothing shall extend to give to the company any mines or minerals under land purchased by the company, except only so much of such minerals as may be necessary to be dug for the purposes of this act; but all such mines, &c., shall be deemed to be excepted out of the purchase of such land, and may be worked

[blocks in formation]

Compensation
Cases.

Turnpike trustees were authorised to pull down certain houses

specified in a local tendering satisfaction to the owners

act, "making or

or proprietors of
such houses:"-
Held, first, that a
lessee for a term
of years, as well
as the owner in
fee of the pre-
mises, was enti-
tled to receive
compensation.
Secondly, that
trespass would not

lie, where the trus

tees pulled down a

house, before compensation was tendered; but that the proprietor ought to have proceeded to assess

the compensation in the manner provided by the act (d).

Lister v. Lobley, (7 A. & E. 124; 6 Nev. & M. 643). Trespass for destroying the plaintiff's buildings. The defendant justified under the provisions contained in a local turnpike act, 5 W. 4, c. xxxvi. The question turned upon the construction of the act. Sect. 25 empowered the trustees, and they were thereby authorised and empowered and required to make the said road through any lands or hereditaments, &c., and for such purpose it should and might be lawful for the said trustees to enter upon such lands, &c., laid down or described in a map thereinafter mentioned, and also to take or pull down the houses, &c., in the schedule to the act annexed, "making or tendering satisfaction to the owners or proprietors of all private lands, houses, buildings, tenements, and premises, so taken or used for the same, or for any loss or damage they may sustain thereby." On the trial, it appeared that the premises in question were private lands and buildings, comprehended in the schedule mentioned in the act; that the plaintiff held them for a term of years; that the defendants had taken the lands and pulled down the buildings, and had made satisfaction to the owner of the fee simple, which the latter had accepted; but that no compensation had been tendered to the plaintiff. A verdict having been found for the plaintiff, a rule nisi was obtained to set it aside, on the grounds; 1st. That, the plaintiff was not entitled, to receive any compensation; 2nd. That, if he was entitled, he ought to have proceeded, under the statute, to enforce it; and, lastly, that trespass would not lie. Patteson, J.-I entertain no doubt that the words " owners or proprietors" in this statute include tenants for terms of years, and that such tenants are to receive compensation for "any loss or damage they may sustain." The plain meaning must be, that any person who suffers is to have satisfaction. It has been argued that compensation is to be given to the landlord for all the loss, and that the landlord and tenant are to settle between themselves. I should assent to this, if I could find any clause enabling the tenant to recover in this way; but as there is no such clause, and as it could not have been intended to leave the tenant without remedy, I must infer that the meaning was, that every owner, reddendo singula singulis, should receive satisfaction for his own share.

Lord Denman, C. J., said, on a subsequent day. On the second point, the rule must be made absolute. The amount of compensation

(d) See Fenton v. The Trent and Mersey Navigation Co., 9 M. & W. 203, ante, 222; R. v. North Mid

land Railway Co., 2 Railway Cases, 1, ante, 195.

cannot, generally, be ascertained till the work is done. The effect of the words in question is, that they shall not do it, without being liable to make compensation.

Williams, J.-Words authorising trustees to enter lands and remove buildings, "making or tendering satisfaction," cannot render them trespassers ab initio, if they omit to make or tender it.-Rule absolute, accordingly.

the

At

of

Compensation
Cases,

Where a company form a railway, all

purchased land to minerals being re

served to the ven

dor, and no claim

was then made by

compensation in

the vendor for

damage which

respect of future

Held, that, when adjoining colliery vendor approached the railway was

might result:the works of an

belonging to the

the land on which

made, the lessee

of the collier compensation.

could not claim

Rex v. The Leeds and Selby Railway Co., (3 A. & E. 683; 5 Nev. & M. 246).—Mandamus, requiring defendants to assess compensation to be paid to one Bates for the damage sustained by him by reason of works authorised by the Railway Act, 11 G. 4 & 1 W. 4, c. lix. the time of the passing of the act, Sir Charles Ibbetson was owner a coal mine, then under lease to Bates, which would expire in 1852. In 1831 Sir Charles Ibbetson conveyed certain land to the company, the surface of which was above the coal mine, not then reached by the workings of the colliery. No compensation was claimed on his part for the mine, nor for any present or future effect which the railroad might have upon the mine. The company afterwards carried their railroad across this land. In 1834, the workings arrived at the line of the railway, and it was then first discovered that the coal near the line of the railway could not be gotten without injuring the railway; and that the part of the mine beyond the railway must also be worked in a more expensive way. Some damage was, in fact, done by the works of the colliery to the railway, which the company required Bates to repair, under sect. 30; and Bates claimed compensation for the alleged injury sustained by him, in consequence of the interruption of the works of the colliery occasioned by the railway, and also for the expense of repairing the damage done by the colliery works. The company refused to make compensation, and the present application was thereupon made. Sect. 3 of the act empowered the company to use lands necessary for the purposes of the act, they making full compensation in manner thereinafter mentioned. Sect. 18 provided for the alteration by the company of the railways then in use, for the purposes of the colliery working on the lands of Sir Charles Ibbetson. Sect. 30, that nothing shall extend to give to the company any mines or minerals under land purchased by the company, except only so much of such minerals as may be necessary to be dug for the purposes of this act; but all such mines, &c., shall be deemed to be excepted out of the purchase of such land, and may be worked

« EelmineJätka »