Cases in Equity. Gray v. The Railway Co. specifically pointed out,-probably not; but they believed they could come to an agreement. If they had not had this belief, Messrs. Gray, the plaintiffs, would not have insisted on this clause, neither would Liverpool and Bury the company have agreed to place themselves in their power, for it would have been useless, unless they could come to an agreement; but, after having failed to come to an agreement, by consent, this clause was agreed to. Now, the clause is this: "Whereas, John Gray and W. Gray are the owners and occupiers of certain mills, lands, and buildings, situate at Darcey Lever, through which the line of the railway, as delineated on the plans and sections before referred to, passes; be it enacted, that it shall not be lawful for the said Company, without the consent of the said John Gray and William Gray, or the owner or owners for the time being of the said mills, lands, and buildings, to construct the said railway nearer to the same mills, lands, and buildings, or any of them, than the south-east end of Lever Bridge, delineated on the plans, and therein numbered 1." They are not to construct the railway nearer to the same mills, lands, and premises, -not nearer to any part specified, but not nearer to the mills, lands, and buildings,-not nearer than the south-east end of Lever Bridge. Now, there is a collective description or name, "mills, lands, and buildings:" it includes the whole and every part of those premises of which John Gray and William Gray are the owners and occupiers. Now, they were the owners and occupiers of the whole which is delineated on the map, and the railway is not to be constructed nearer than the south-east end of the bridge, which bridge comes over the river Tonge, and is immediately continued by the road, which has on both sides a portion of those lands. The words in themselves do not seem to me to be attended with any difficulty: "You shall not come nearer to my estate." But by argument it is said that that cannot be the construction; and really the question is, whether there is anything to overcome that which is the plain and natural construction of these words. In the first place, it is said this construction would make the construction of the railway dependant altogether on the will of Messrs. Gray. That does not in itself seem very absurd, though it is said to be so. But it is said that cannot be the construction, because the whole scope of the act clearly manifests, that, at all events, there was to be a railway constructed. How is that? A railway is to be constructed, to be sure, but subject to the provisions in the act; and this is a provision in the act; and, therefore, it is not that the railway is to be constructed at all events, but it is that the Gray v. The Railway Co. Cases in Equity. railway is to be constructed subject to the provisions of the act, including, among others, this clause. Therefore, that does not go far. Liverpool and Bury Well, then it is said that you must give for this purpose a restricted meaning to the words "mills, lands, and buildings." Why must you? There is no distinction made in the act; but it is said the mills, lands, and buildings must mean either those which are employed in the factory, which gives the particular special value to the property, or it must mean those strictly cut by the line of railway as designed before, or it must have some other restricted meaning, found out in some other way. I think there has been a great deal of very ingenious argument used on that subject, but I do not find anything to convey to the mind anything like a conviction that this was the intention of both parties. As to all the arguments about the Legislature intending this or that, I think nothing of them. The Legislature had no object but to provide that there should be an agreement between the parties. The Legislature meant, provided this agreement should be made, that the railway should be constructed. Another argument has been urged with a great deal of ingenuity, and it certainly is very plausible: it is, that, supposing there was to be a railway, the intention was to keep the railway a certain distance off the line originally designed, and that it might be constructed on a parallel line. There is a great deal of plausibility about it; but there are no words in this clause of the act which in the least degree approach to an indication of any such thing being meant. I make this observation on the whole, that, if any one of these constructions had been meant, I believe the full effect of each construction might have been as clearly expressed in as many words as are employed in this clause. There is no one of them that there would have been any difficulty in expressing. If any one of the propositions was the real meaning of these parties, why was it not stated? If it was not the real meaning of both sides, why are we to strain the construction of the words that are found in the act? Now, with respect to these acts of Parliament, I have had the opinion stated to me which was expressed by Lord Cottenham on this subject; and, coming from him, I must say I consider it comes with peculiar weight, because never has he at any period, in the numerous cases which were at one time before every branch of the court, never has he shewn the least disposition to press any harsh construction against railway companies: on the contrary, he has been most anxious to uphold them, and sometimes, in cases of considerable difficulty, to uphold them in the legal exercise of those powers with which Parliament had invested them. And he says, "If Parliament has authorised the thing to be done by agreement, it is nonsense for you to come and ask the Court to put a liberal construction upon it. I am dealing between two men whose rights are to be determined and affected by agreement entered into between themselves. I must not look at consequences,-I must not look to the consequence of giving operation and effect to that which I think agreed on between these parties. They have agreed, and the Legislature have allowed them to agree on the terms on which they will give up their land." So, here, it may be that they may be very exorbitant terms which are demanded: I know nothing of it one way or the other. It may be that very fair and just terms were refused I know nothing of that; but, taking that clause to be the expression of an agreement, I think the agreement is, that you are not to enter upon these lands; that is, you are not to enter upon these lands, if you must do so by coming nearer than the end of the bridge. If that is the meaning of it, it is so to be intended. Well, then, how is this to be altered? I think it can hardly be altered without Parliament. I do not see how I am to make an agreement, or, by putting a liberal (that is to say, in this case, a forced) construction on this act of Parliament, compel these persons to give up their land, which they have not agreed to give up, for the price that has been offered to them. I am surprised at the course which the parties have taken. I regret it. I cannot help thinking they would have agreed, if there had been a communication made by the company immediately after the act of Parliament passed; if, instead of the general notice given in the month of August, there had been a communication proposing an agreement. That was not done, but the common notice was given. It excited alarm, which was appeased to some extent by the answer received to it, and then the whole matter was entirely disregarded. It is said, and, I believe, perfectly according to the facts, that it happens in this case that these gentlemen possess the whole tract of land between the utmost bounds of deviation; and it is a peculiarity here, that, by refusing to agree, or by the parties being unable to come to an agreement, it stops the railway altogether. If it is so, was not that known to the parties at the time? Had they not the maps-had they not everything ascertained at that moment? Did not they see at that time, that, if there was no agreement, there could be no railway? I am not at all clear that this may not lead to much more serious inconvenience than has yet been apprehended; and it was with a view to that, that I adverted to Cases in Equity. Gray v. The Liverpool and Burg Railway Co. Cases in Equity. what had been the doctrine of the Court at one time; and I do not know whether it may not be applied again. If it is shewn that the Live pool and Bury plan marked out by Parliament cannot be executed, have the com Gray v. The When a bill in equity will be dis parties. pany a right to do anything at all with the railway? If it is clear that the object for which Parliament intended this railway to be applied, viz., a communication by railway from Liverpool to Bury,-if it is perfectly clear that the line is cut off, and that the whole of it cannot be effected, has this railway company a right to persist, and invade the property of individuals, which they are only to do for the public benefit, to be secured by the whole? Now, this I state to shew how strongly I feel what was the duty of this railway company-that, as to all those things with respect to which they were dependant on individual agreement, it was their duty to have those agreements settled before they began to cut anywhere. It is a strange thing, indeed, that men's properties are to be taken from them in this way, with a view to the general benefit, the parties not having done those things which are incumbent on them to secure their capacity and stability to complete the whole (a). That, however, is not part of this application. I am of opinion, that, on the construction of this clause, the company have not a right to make a railway through these lands until they have entered into an agreement with the plaintiffs, and I shall, therefore, grant this injunction. Greathed v. The London and South-western Railway Company, missed for want of (10 Jurist, 343, Feb. 27th and 28th, 1846).]—This bill was filed by Edward Harris Greathed, a proprietor of ten shares in the Southampton and Dorchester Railway Company, "on behalf of himself and all other the shareholders of said Company, (except such as are defendants hereto, and such as have contracted to sell their shares to the London and South-western Railway Company), their directors and agents," against the London and South-western Railway Company and the Southampton and Dorchester Railway Company. The bill, after reciting the act incorporating the Southampton and Dorchester Railway Company, (8 & 9 Vict. c. xciii), whereby it appeared, that, for the purpose of laying down a single line of rails, the capital was to be 500,000l.; and that, in the event of the Board of Trade requiring a double line of rails to be laid down, the capital might be increasing to any extent, not exceeding 180,000l.; that the capital should be divided into shares of 507.; that the number of directors was to be twelve, of whom four should be directors for the time being (a) See further on this subject, ante, 556. of the London and South-western Railway Company; the gauge of such railway to be of such mode and construction as would admit of the same being worked continuously with the London and Southwestern Railway; and after reciting the various clauses in that act, and in the several acts incorporating the South-western Railway Company and the Great Western Railway Company, whereby the directors of said several companies were empowered to enter into any contract or agreement with any other railway company; and that every such contract should contain such covenants, clauses, provisoes, conditions, and agreements as the contracting parties might respectively think advisable and mutually agree upon; stated, that, in 1844, the provisional committee of the Southampton and Dorchester Railway Company entered into an arrangement with the Great Western Railway Company for granting a lease of the Southampton and Dorchester Railway to the Great Western Railway Company; that, the Board of Trade having approved of the Southampton and Dorchester Railway, it was proposed, under the sanction of the Board of Trade, that the Great Western Railway Company should abandon their agreement for the lease in favour of the London and South-western Railway Company; that the provisional committee of the Southampton and Dorchester Railway Company were apprehensive that the London and South-western Railway Company would, if allowed to have a controlling power in the direction of a company for making the Southampton and Dorchester Railway, not carry the same into execution according to the proposed line, but, instead, would forward the making of a railway from Salisbury to Dorchester, and, to prevent their so doing, it was agreed between the Great Western Railway Company, the London and Southwestern Railway Company, and the provisional committee of the Southampton and Dorchester Railway, with the sanction of the Board of Trade, that the Southampton and Dorchester Railway Company should be so constituted and preserved as to be independent of the direct or indirect control of the London and South-western Railway Company; that the last-mentioned company should subscribe for such of the shares in said Southampton and Dorchester Railway as had not then been subscribed for by persons prepared to pay their deposits; and that the Southampton and Dorchester Railway Company should grant to the London and South-western Railway Company a lease of the Southampton and Dorchester Railway; and that such agreement should be carried out, according to the minute of agreement entered into by the Great Western Railway Company, the London and South Cases in Equity. Greathed v. The London and South-western Railway Co. |