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was stated.

CASE.

In the year 1868 the defendants compelled the writ was issued and before the case the occupiers to pay rents in respect of the lands so occupied, and such rents have since been paid and received. In the same year a road was made by the side of the field by the defendants and S., by means of which S. had access to land belonging to him, and which was also useful to the defendants as forming a shorter and more commodious way to their station; and in 1869 a coal siding was extended into part of the field.

By a special Act of the year 1861, it was provided that the time limited "for the sale of superfluous lands belonging to and vested in the company within the several parishes enumerated in the schedule to this Act annexed shall be, and the same are hereby extended to the further period of seven years from the passing of this Act."

By another special Act of the year 1868, it was provided that "the company may, notwithstanding anything to the contrary in the Lands Clauses Consolidation Act, 1845, or in any Act relating to the company, &c., retain and hold any lands belonging to them in the parishes enumerated in schedule A to this Act, and which have not yet been applied to the purposes of the company, for the period of ten years after the passing of this Act, &c." The parish of B. was one of the parishes enumerated in the respective schedules to the above mentioned special Acts.

There being no prescribed period within which the defendants were bound to sell superfluous lands, the period of ten years mentioned in section 127 would apply to lands not required by them for the purposes of the railway-Held, in ejectment brought by the owner of land adjoining to recover possession of a part of this field so let out for gardens, Sc., that it was land acquired by the promoters under the provisions of the Act of Parliament; that it was superfluous land which they were bound to sell and dispose of within ten years after the 30th of June, 1850; that as they had not done so, it had in 1860 become the property of the plaintiff; that the special Acts of 1861 and 1868 above referred to did not destroy his right; and that he could recover it in the action.

This was a case stated in an action of ejectment brought, as tenants in common, by two plaintiffs, one of whom died after NEW SERIES, 41.-Q.B.

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1. By the Berks and Hants Railway Act, 1845, the Berks and Hants Railway Company were incorporated for the purpose of making and maintaining a railway from or near the town of Reading to the towns of Newbury and Hungerford in the county of Berks, and another railway diverging from the said last-mentioned railway, to join the South Western Railway at or near Basingstoke, in the county of Southampton.

2. By section 34 of the said Act, it was enacted that the powers of the company for the compulsory purchase of lands for the purposes of that Act, should not be exercised after the expiration of three years from the passing of that Act; and by section 35, that the railway should be completed within five years from the passing of that Act, and on the expiration of such period, the powers of that or the recited Acts granted to the company for executing the railway, or otherwise, in relation thereto, should cease to be exercised, except as to so much of the said railway as should then be completed. This Act received the royal assent on the 30th of June, 1845; the time for completion of the railway as prescribed by that Act therefore expired on the 30th of June, 1850.

3. By an Act passed in the 9th year of the reign of Her present Majesty, 9 Vict. c. 14, the Berks and Hants Railway was vested in the Great Western Railway Company, with all rights, powers, privileges, and liabilities incident thereto. This Act received the royal assent on the 14th of May, 1846.

4. At and prior to the time of the giving of the notices by the defendants. hereinafter mentioned, the piece of land sought to be recovered in this action formed, together with certain other land on part of which the defendants' line, station, and other works, have since been constructed, a field containing 15a. Or. 33p., which was then the property of Jane May, John Simonds, and Charles Simonds.

5. The whole of the said field, con

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taining 15a. Or. 33p., was included in the plans and book of reference deposited in the office of the clerk of the peace for the county of Southampton and referred to by the first-mentioned Act, but the whole of the said field was not included within the limits of deviation delineated on the said plan, a narrow strip at the northern end of the said field being on the deposited plan beyond the line indicating the limits of deviation.

6. By a notice dated the 11th of March, 1846, given pursuant to the provisions of the several Acts of Parliament herein before referred to, the defendants required the said Jane May, John Simonds, and Charles Simonds, to treat with them, the defendants, for the purchase by the defendants of 3a. 1r. 4p., part of the said field, for the purposes of the said railway, and it was agreed that the value of the same should be settled by arbitration, and the same was accordingly referred to Mr. William Henry Fuller, who by his award dated the 22nd of August, 1846, fixed the value thereof at the sum of 5711. 7s. Od.

7. By another notice dated the 5th of November, 1846, given pursuant to the provisions of the several Acts of Parliament hereinbefore referred to, the defendants required the said Jane May, John Simonds, and Charles Simonds, to treat with them for the remainder of the said field, for the purposes of the said railway, and the value thereof was subsequently agreed between the parties at 1,7601. In both the said notices it was stated that the land was required by the Great Western Railway, for the purposes of the Berks and Hants Railway.

8. By an indenture dated the 12th of May, 1847, made between the said Jane May, John Simonds, and Charles Simonds, of the one part, and the defendants of the other part, the whole of the said land, containing 15a. Or. 33p., was, in consideration of the sum of 2,3311. 78. Od. (being the amount of the said two sums of 571l. 7s. Od. and 1,7607.), conveyed by the said Jane May, John Simonds, and Charles Simonds, to the defendants, their successors and assigns, for ever. The Court, or either of the

parties, may, if necessary, refer to this deed.

9. Immediately upon the completion of the said purchase, the defendants took possession of the said field, and upon a portion thereof, containing 5a. Or. 33 p., or thereabouts, constructed in part the said line of railway, together with a station and other works connected with the said railway, the land used for such purposes being at the southern end of the said field, and upon part of the remainder of the said field they deposited chalk and other spoil, which, in making the said railway, was excavated from a cutting near the said field, and in order to provide and for the purpose of providing a place for depositing the chalk and spoil from the said cutting, the company purchased the whole of the said field instead of purchasing only a portion

thereof.

10. The said station constructed by the said company on the said field is a terminal station, and is situated at the junction with the London and South Western Railway at Basingstoke.

11. The chalk and spoil so deposited still remain where they were deposited, on the said part of the said field, and in some places they are in mounds, and in depth vary from about one foot at the edges to eight or nine feet where there are mounds.

12. After the said chalk and spoil had been deposited, and the railway opened, the company allowed their servants and persons employed by the company to occupy the portion of the said field not used for the station, as gardens, and for other purposes, and in one or two instances, persons not servants of or employed by the company were in the occupation of parts of the field, and on one or two occasions paid small rents to the station master, but as to this it is to be taken that the station master received such rents for his own use and not on account of or as agent for the company, and that, having been allowed to occupy, he took upon himself to let.

13. Although the spoil which was laid on the field was chalk, the persons who entered into the occupation of it were able, by manure and other means, to make it productive, and vegetables and garden

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produce were grown on parts, and tolerable crops of corn, beans, and other farm produce on other parts of it.

14. The deposit of chalk and spoil was completed without covering the whole of the said field, and there was left a margin or portion to the north and east uncovered, containing about two acres, and neither that portion nor the part covered with chalk has ever been occupied since the railway was made, in any manner or for any purpose except as aforesaid, and except that the defendants in the year 1869 extended their coal sidings into a portion of the said field; such portion, however, being no part of what is claimed by the plaintiffs.

15. In the year 1868 the company required the persons occupying parts of the said field, as before mentioned, their number being about fourteen, to pay small rents to the company for the portions occupied by them respectively, and they have since paid and the company have received such rents. Previously to the year last mentioned, the company had not called for nor received any rent. The whole quantity of land for which such rents are paid is 9a. 3r. 14p., and the aggregate amount of rent is 121. 4s. 2d.

16. The only agreement in writing relating to any part of the land in question, was one made on the 4th of November, 1868, between Thomas Laughton, as agent for the defendants, of the one part, and Charles Hewitt, of the other part, whereby the defendants agreed to let to Hewitt three pieces of arable land, containing together seven acres or thereabouts, at the clear yearly rent of 121. 10s., from the 29th day of September, then last, upon certain terms and conditions, and amongst others, that the tenancy thereby created might be determined by either party giving to the other of them three calendar months' notice in writing, such notice to expire on any quarter day, and in the event of the defendants requiring the whole or any portion of the premises for the purposes of the railway or works connected therewith, then and in such case the defendants should be entitled to take possession of the same upon giving twenty-eight days' notice in writing, and might by themselves, their agents and

servants, enter upon the premises without being deemed trespassers for so doing, paying the tenant the value of the crop. The land comprised in the above agreement included from two to three acres of the land sought to be recovered in this action.

17. The close of land situate to the north of that portion of the northern boundary of the said field, which is shewn on the plan extending from G to B, and immediately adjoining thereto, contains 37a. Or. 33p., or thereabouts, and was at the time of the purchase of the said field by the defendants as hereinbefore mentioned, the property of the said Jane May, John Simonds, and Charles Simonds, and by an indenture dated the 4th of June, 1860, the was conveyed to the plaintiffs, Thomas May and John May, as tenants in common, and continued to be vested in them until the 18th day of June, 1867, on which last mentioned day they conveyed the same to the said John Burgess Soper in fee. B G is not the whole southern boundary of tl at close, it extends further westward. The Court or either of the parties may, if necessary, refer to this deed.

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18. In the month of March, 1868, by an arrangement between the defendants and the said John Burgess Soper, a strip of the last mentioned field (i.e. the one bought by the defendants) on the west side thereof was cut off and made into a road, which road led to the property of the said John Burgess Soper to the north, and was also useful to the said defendants, the railway company, as forming a shorter and more convenient way from their station to the neighbourhood of Basingstoke. On one side thereof this road was made by the said John Burgess Soper, the railway company providing gravel. There was no conveyance or other deed executed on the occasion, and the soil of the said road continued to be in the railway company. The road is private, never having been dedicated to the public.

19. At or about the same time that the defendants purchased the said field as hereinbefore mentioned, they also purchased certain other land abutting thereon on the west for the entire length thereof, (being the land coloured pink on the plan) from Magdalen College, the then owners of the same. It was purchased for the

same purpose as the first mentioned field was purchased for, viz., the deposit of spoil from the said cutting, and was used for that purpose in the same way, and such last mentioned land has since been dealt with by the defendants in manner following, that is to say:

20. On the plan this land is shewn in three pieces. The one nearest the north, containing 3r. 6p., was, on the 1st day of August, 1855, sold and conveyed by the defendants to Messrs. Henry Downs and others, who shortly after conveyed the same to the Burial Board of Basing stoke, who are the present owners thereof, and now forms part of the cemetery for their parish.

21. The middle piece, containing 1,000 superficial square yards or thereabouts, was in the year 1867 conveyed by the defendants to trustees for the Society of Friends, and who since that period have used it for the purpose of a burial ground, and the same is now used and occupied by the said Society for that purpose.

22. The remaining portion of the said land so purchased by the defendants from Magdalen College as aforesaid, being the piece to the south, is retained by the defendants, and has for several years past been by them let at certain yearly rents to one or more of their servants or others, who use and occupy the same for garden and agricultural purposes.

23. In the Lands Clauses Act, 8 & 9 Vict. c. 18 (incorporated in the Act first above mentioned), is the following enactment and introduction thereto (Sec. 127), "And with respect to lands acquired by the promoters of the undertaking, under the provisions of this or the special Act, or any Act incorporated therewith, but which shall not be required for the purposes thereof, be it enacted as follows. Within the prescribed period, or if no period be prescribed, within ten years after the expiration of the time limited by the special Act for the completion of the works, the promoters of the undertaking shall absolutely sell and dispose of all such superfluous lands, and apply the purchase money arising from the sale to the purposes of the special Act, and in default thereof all such superfluous land remaining unsold at the expiration of such

period, shall thereupon vest in and become the property of the owners of land adjoining thereto, in proportion to the extent of their lands respectively adjoining the same."

24. By section 41 of the Great Western (Lightmoor to Coalbrookdale, &c.) Act, 1861, which received the royal assent on the 1st of August in that year, it is enacted as follows: "The periods respectively limited by the various existing Acts of the Company, by the Lands Clauses Consolidation Act, 1845, therewith incorporated, for the sale of superfluous lands and belonging to and vested in the company, within the several parishes enumerated in the schedule to this Act annexed, shall be and the same are hereby extended to the further period of seven years from the passing of this Act." Basingstoke is one of the parishes enumerated in the schedule.

25. By the Great Western Railway Act, 1868 (31 & 32 Vict. c. 145), which received the royal assent on the 31st July, 1868, it is in section 20 enacted as follows: "The company may, notwithstanding anything to the contrary in The Lands Clauses Consolidation Act, 1845,' or in any Act relating to the Company with which that Act is incorporated, retain and hold any lands belonging to them in the parishes enumerated in Schedule A to this Act, and which have not yet been applied to the purposes of the company, for the period of ten years after the passing of this Act, but the company shall, at the expiration of that period, sell and dispose of all such parts of those lands respectively as shall not then have been sold or disposed of or applied to or are not then required for the purposes of their undertaking." Basingstoke is one of the parishes mentioned in Schedule A.

26. The land which, on the north, adjoins the remainder of the northern boundary of the field of 15a. Or. 33p. purchased by the defendants as herein before mentioned, and on the east adjoins the eastern boundary thereof, is the property of Lord Bolton, and altogether contains 66a. 3r. 2p. On the south, what remains of the field is now bounded for its entire length by the station, roads, and works of the railway company.

27. The plan which accompanies this

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