sation money, but stated that he would accept 1500l., if the Company would build a bridge over the railway, so as to connect the severed parts of the kitchen garden. 1849. WILLEY v. THE SOUTH- Statement. No further communication passed between the Compa- RAILWAY CO. ny and the Plaintiff upon the subject till July, 1848, when, after some prior correspondence, the Company offered to the Plaintiff 4637., and undertook to build a bridge to connect the two parts of the garden. That offer was declined. The Company shortly afterward, under the provisions of the Lands Clauses Consolidation Act, procured Mr. Moss, a surveyor, to be nominated by one of the Metropolitan Police Magistrates for Woolwich, to determine the amount which ought to be paid to the Plaintiff. Mr. Moss made a valuation, dated the 2nd of September, 1848, and valued the Plaintiff's interest at 7407., and directed that the Company should construct a barrow bridge to connect the severed portions of the land. The sum of 7407. was paid into the Bank of England by the Company; and a bond for 7401. was executed by the Company and two sureties, dated the 13th of November, 1848, and conditioned for the payment to the Plaintiff, or for the deposit in the Bank, of all such purchase-money or compensation as might be determined to be payable in respect of the interest of Willey, together with interest from the time at which the Company entered upon the land. The Company soon afterward took possession, and staked out the part they required. The Plaintiff insisted that these proceedings on the part of the Company were defective, because the surveyor had been appointed by one Magistrate only (a); and because the surveyor having directed (a) By the 2 & 3 Vict. c.71, s. 14, any one of the Magistrates of the Metropolitan Police Courts was authorised to do all such acts as were by any law, not containing 1849. WILLEY v. THE SOUTH EASTERN RAILWAY Co. Statement. the Company to make a bridge for the Plaintiff, it was impossible for them to comply with the 85th section, which directed, that whatever compensation the surveyor awarded, should be paid into court. This bill was filed on the 20th of December, 1848, to obtain an injunction; and on the 31st of January, 1849, an injunction was obtained by the Plaintiff from the Vice-Chancellor of England, to restrain the Company from entering upon or interfering with any part of the lands comprised in the Plaintiff's lease, and from excavating or otherwise dealing with the same, and from erecting or making on any part of the lands any works for the purposes of the railway, until the Defendants had complied with the provisions of the Lands Clauses Consolidation Act. The Company, after taking some further steps, which it is not necessary to mention, paid the whole amount of Mr. Willey's claim, namely, 2350l., into the Bank of England, in the name of the Accountant-General of the Court of Chancery, to the account of Mr. Willey. They then delivered to him a bond from themselves and two sureties, in the sum of 2350l. It bore date the 2nd of February, 1849; and, after reciting that the Company required a piece of land situate at Charlton, containing 1R. 8P., being part of the piece of land referred to in the plan deposited with the clerk of the peace, being number 18, in which the Plaintiff was or claimed to be interested, and that 2350l. was the amount of purchase-money or compensation claimed by the Plaintiff for his interest in the said land, and that the Company had deposited that sum in the Bank of England, to the account of the Plaintiff; the condition of the bond was for the payment by the Company, or their sureties, to "the said Richard Willey, his executors, administrators, or assigns, or for the deposit in the Bank of England, for his or their benefit, as the case might require, under the provisions of pany the Lands Clauses Consolidation Act, all such purchasemoney or compensation as might, in manner by the same act provided, be determined to be payable by the Comin respect of the interest of the said Richard Willey in the said hereditaments and premises, together with interest thereon at the rate of five per cent. per annum, from the time of entering upon the said hereditaments and premises by the Company, until such purchase-money or compensation should be paid or deposited." On the following day, the Vice-Chancellor ordered the injunction to be dissolved. A motion was now made to the Lord Chancellor, by way of appeal, for the purpose of reviving the injunction. The principal question was, whether the last bond which the Company had given to the Plaintiff satisfied the 85th section of the Lands Clauses Consolidation Act, 1845, which is stated at length in the judgment of the Lord Chancellor. 1849. WILLEY v. THE SOUTHEASTERN RAILWAY Co. Statement. Mr. Rolt and Mr. Bagshawe, in support of the motion. The 85th section was inserted for the benefit of Railway Companies, with a view to assist them in cases where they required possession of land before they had had an opportunity of settling with the owner; but it was not intended to include cases where a Company has had more than two years to come to some arrangement with the owner. The 86th and 89th sections bear out that construction; and the present case can scarcely be held to be within the 85th section, unless that section is decided to apply to all cases, whatever may have been the default and negligence of the Company. But, even if the case is within that section, this bond is Argument. 1849. WILLEY v. EASTERN RAILWAY Co. Argument. open to several objections. The Company may first give a bond, and then take possession; but here they first take THE SOUTH- possession, and they cannot then say, that they will set the matter right by giving a bond. Again, the identity of the land, of which the Company have taken possession, and the land referred to in the bond, does not appear. When the notice was given, in 1846, the land required was distinctly shewn, and the quantity is the same as is mentioned in the bond; but there is nothing to identify the two pieces. Another objection is, the bond professes to secure interest from the time when the Company entered into possession. But the entering into possession, which is referred to in the bond, is evidently a future entering; whereas the Company entered into possession in November last, and they ought to pay interest from that time: but the bond does not secure that interest. The bond is also conditioned for payment to the Plaintiff or his representatives, or for a deposit in the Bank for his or their benefit. Therefore, no one but the Plaintiff or his representatives could be benefited by the bond. But the bond ought to protect the interest of all parties who are or may be interested in the land; and it is not sufficient to protect the interest merely of the party who professes to be the owner: Poynder v. The Great Northern Railway Company (a). Mr. Bethell and Mr. John Baily, for the Company. If the Company committed any error in their first bond, they are certainly entitled to correct it as soon as possible, and thus comply with the 85th section; otherwise that section would be virtually struck out of the act if the Company made any false step. The bond required by the 85th section is to deal with two alternatives, either the payment to the parties, or the deposit for the benefit of the parties interested. Here the Company, having information of the (a) 2 Ph. 330. Plaintiff's title, treat with him as the interested party; and therefore the direction of the act is strictly complied with. [The LORD CHANCELLOR.-The complaint is a singular one, because the party who raises it complains that the security is to himself, instead of being to the parties who may answer to a particular description.] There is nothing to exclude the operation of the 85th section from any case where the Company want the land, and cannot come to terms with the owner. As to the identity, there is a certain quantity mentioned in the original notice from the Company, and there is a bond to secure the payment of the purchase-money for that exact quantity. The land is merely parcel of a larger piece, and has no boundaries by which it can be defined. If there should be any question as to interest, the Plaintiff is not deprived, by this proceeding, of any right. He has all which this act provides for him, and anything further must be obtained by some other remedy. Mr. Rolt replied. 1849. WILLEY v. THE SOUTHEASTERN RAILWAY Co. Argument. The LORD CHANCELLOR : The question is, whether anything has been stated to shew that the Company have been guilty of any irregularity in the course which has been pursued, or in the bond that has been given, so as to justify the Court in restraining the Company from proceeding with their works, or dealing with the land under the authority given by the act. The whole amount of the money claimed has been paid into the Bank, and a bond has been given. Mr. Willey claiming to be, and being, as the Company are willing to assume, the lessee Feb. 10th Judgment. |