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case is to be taken as part thereof with 29. The following are the measurements the following explanation. From A to C of the several boundaries. From H to G is the whole northern boundary of the 441 feet, from G to B 357 feet, from B first mentioned field purchased by the to C 814 feet, and from C to D 364 feet. company. AE and CD are portions still From H to D is about equal to GC. visible of the west and east boundaries 30. The writ of ejectment commencing respectively. The rest of those boundaries this action was issued and tested on the and the southern boundary are not shewn, 10th day of June, 1869; since that time, the sonthern portion of the field having viz., on the 17th day of January, 1870, been absorb:d by the railway, the station, the plaintiff Thomas May died. and other works ; the portion of the field 31. The plaintiffs contend that not so absorbed is coloured green. The much of the said field purchased by the strip between the lines AE and GH is the defendants in the year 1847, as has been road formed by John Burgess Soper and and is occupied for the purposes and in the the company in 1869. The land coloured manner hereinbefore mentioned, as abuts pink is the land purchased by the defen- on the boundary line GB is superfluous dants from Magdalen College; the northern land within the meaning of section 127 of portion of it is that sold by the defendants the Lands Clauses Consolidation Act, to Henry Downes and others, and by them 1845, and that the plaintiffs who, from conveyed to the Basingstoke Burial Board. the 4th of June, 1860, down to the year The middle portion is that sold to the 1867, were the owners of the said close Society of Friends, and now the Quakers' abutting to the north (from G to B) on Cemetery, and the lower portion is that part of the said field coloured green, were retained by the defendants. The lines ard are entitled, by reason of such, ownerGB, HF, GH, and BF, contain and shew ship, to recover possession of so much of the piece of land sought to be recovered the field coloured green as adjoins their in this action; there is no actual division boundary, viz., the piece GB FH. of the land at BF, that line being put on 32. The defendants on the other hand the plan only to shew the extent of the contend that the said land claimed by plaintiffs' claim. The land to the north the plaintiff's was not nor is superfluous of GB is that which formerly belonged to land within the meaning of the said secplaintiff's and others, sold to John Burgess tion, and that if the said lands were suSoper in 1867. The land to the north of perfluous lands within the meaning of the BC, and to the east of CD, is the land said section, the plaintiff's are not entitled belonging to Lord Bolton. The land to to recover them. the west of the pink belongs to other pro

33. The Court are to have the same prietors, not being either of the parties to power of drawing inferences of fact as a this action. The dotted lines running jury would have. across the field nearly at the north boun. 34. The question for the opinion of the dary, and at the east end curving down Court is, whether, under the circumnearly to the south boundary, shew the stances hereinbefore set forth, the survivextent to which the spoil covered the field, ing plaintiff is entitled to recover possesthe space outside those lines to the north sion of the whole or any and what part of and east being what was left uncovered. the said piece of land claimed in the writ. A straight line, if drawn across the plan If the Court is of opinion in the affirmafrom the point M to the point N, will tive, judgment is to be entered for the cross the field near the northern boundary plaintiff accordingly, with costs of suit; thereof, and will represent the line of de- if the Court is of opinion in the neyaviation laid down on the plan deposited on tive, judgment is to be entered for the the application for the first mentioned Act. defendants, with costs of suit.

28. The extent of the land coloured green is about ten acres. The portions un- Pinder (Cole with him), for the surcovered by spoil amount to about two viving plaintiff.--The plaintiff is entitled acres, and the piece claimed by the plain- to recover the piece of land mentioned tiffs mcaso res about 4 acres.

in the 31st paragraph of the case

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GB FH, on the ground that it is "superfluous land" within the meaning of the 127th section of the Lands Clauses Consolidation Act, 1845. That section is set out in the 23rd paragraph, and inasmuch as no specific period of time is prescribed as applicable to the present case, and as the defendants have not sold the land within ten years after the expiration of the time limited for the completion of the works, the land vested in and became the property of the owners of the land adjoining. Paragraph 2 states that the time for the completion of the railway expired on the 30th of June, 1850; the title of the plaintiff therefore was complete on the 30th of June, 1860, so that the fact of the conveyance to Soper mentioned in paragraph 17 becomes immaterial. The defendants cannot be heard to contend that the 127th section does not apply on the ground that the land was acquired under a private voluntary agreement, for the 6th and 7th paragraphs shew that the usual notices to treat were given by them. In Lord Carington v. The Wycombe Railway Company (1), which raised a question as to the right of preemption, Selwyn, L.J., said, p. 219, "It was also contended, on behalf of the appellants, that the 128th section did not apply, because this was a case of voluntary agreement, and not of compulsory purchase. But the transaction commenced with the usual notice to treat, given in the ordinary exercise of the company's compulsory powers; and I think the legislature cannot be considered as having intended to deprive a landowner of the right of pre-emption, because, after having received such a notice, and proceeding to a certain extent towards an arbitration, he comes to an agreement with the company on the subject of the price to be paid without going on to a final award or to an enquiry before a jury." In The City of Glasgow Union Railway Company v. The Caledonian Railway Company (2), Lord Westbury said, "We naturally expect that lands taken by compulsory powers shall, if not wanted for the railway, be restored to the proprietors from

(1) 37 Law J. Rep. (N.s.) Chanc. 213; s. c. Law Rep. 3 Chanc. App. 377.

(2) Law Rep. 2 Scotch App. 160.

whom they have been compulsorily taken. But the company is left to deal with the lands which they have acquired by private treaty as any ordinary proprietor may do." But there the land had been acquired by voluntary agreement for "extraordinary purposes" arising incidentally. Further it is submitted that the defendants cannot contend that the land is required for the purposes of the Act, on the ground that they had need of a place upon which they would be able to place their chalk and spoil

-see Earl Beauchamp v. The Great Western Railway Company (3), which shews that where the company is compellable to do something on the land, it may be said to be for the purposes of the Act, but that would not apply to the present case, where the land has been used for garden and agricultural purposes.-See Lund v. The Midland Railway Company (4). Next, it is submitted that there is nothing in the provisions of the Acts which are mentioned in paragraphs 24 and 25 of the case to prevent the plaintiff from maintaining the present action. Those provisions cannot have the effect of extending the time within which the defendants "shall absolutely sell and dispose of" the land, when the title of the plaintiff had accrued to him previously, see Moody v. Corbett (5), affirmed in the Exchequer Chamber (6).

[COCKBURN, C.J.-The words, "belonging to and vested in the company," can hardly apply to lands which had previously vested in other persons.]

Manisty (Raymond with him), for the defendants.-There is not any decision which shews that this land is superfluous land within the meaning of the 127th section, and it is submitted that it is not so. That section was never intended to operate upon lands obtained under the powers of the Act, and substantially applied, within the prescribed period, to the purposes of the Act. The land in question has been applied to the purpose of providing a place for the deposit of the spoil of the

(3) 38 Law J. Rep. (N.s.) Chanc. 182; s. c. Law Rep. 3 Chanc. App. 745.

(4) 34 Law J. Rep. (N.s.) Chanc. 276. (5) 34 Law J. Rep. (N.S.) Q.B. 166.

(6) 7 B. & S. 544; s. c. 35 Law J. Rep. (N.s.) Q.B. 161; Law Rep. 1 Q.B. 510.

company. This was a substantial appli- section of the Lands Clauses Consolidacation to the purposes of the undertaking, tion Act, and to see how far that clause and it cannot be reasonably contended applies to the present case. that, because at the end of the period of Now it appears to me that what the ten years, it is used as garden land, it has legislature intended, and we have nothing ceased to be land required for the purposes to do with the policy of the legislature, of the undertaking.

was that railway companies acquiring for (Quain, J.-If that contention is cor- the purposes of their undertaking, land, rect, any temporary use for the purposes

and being authorized by parliament to of the Act would get rid of the effect of acquire land, inasmuch as they very frethe provisions of the Act.]

quently may make an erroneous calcula. No; the use must be a substantial one. tion as to the quantity of land which they The preamble to the section is, “and with require to take, shall not, if they have respect to lands acquired by the promoters acquired land under the authority of their of the undertaking under the provisions Acts, which turns out to be more than of this or the special Act, or any Act in. they want, or which, having been required corporated therewith, but which shall not for some purpose, ceases to be any longer be required for the purposes thereof, be it necessary for the purposes of the railway, enacted as follows." Now this land was shall not be allowed to hold in their required for the purposes of the under- hands lands thus superfluous and not taking. It has been used for the spoil, required for their undertaking. We have and a road has been made upon it. Next, nothing to do with the policy, as I have

, the attention of the Court has already said, of that legislation. The only ques. been called to the Act of 1861, upon which tion is to see whether the terms in which reliance is placed by the defendants. The the enactment is framed are applicable to language of the Act of 1868 referred to a case like the present; and I must say I in paragraph 25 is even more favourable think that they are so.

The words seem to the defendants.

to me to be simple enough. [His Lord. [BLACKBURN, J.-Can we construe the ship read the section as set out in paralanguage of a public general Act by refer- graph 23, and then proceeded.] The ence to the private special Act of the words "superfluous lands” are here syno. company? COCKBURN, C.J.-If the land nymous with land, according to the previous has previously vested in some one else, expression, “not required for the purposes how can it be said to belong to the com. of the undertaking,” the promoters are pany ? Suppose the statute had not to sell such superfluous lands, and if they passed ; an action of ejectment might do not, they are subjected to this penalty,

, have been maintained against the defend- which is evidently intended to enforce ants. If so, must not the land have compliance, upon their part, with the devested out of them ?]

terms of the enactment, they are liable to The words, "which have not yet been the forfeiture of the lnd which is to beapplied," must have some meaning. come, at the expiration of that period, Another point well worthy of considera- the property of and vest in the owners of tion is this : can it be said that the land the land adjoining thereto. is to vest in an owner who is unwilling Now it is contended that if at any time to take it, so that he would be liable to after the passing of the Act authorizing all the consequences of being the owner; the acquisition of the land, the land in as, for instance, for a nuisance existing question, which is said to be "superfluous,' upon it? There must be an election to has been applied to any use connected take it, before it can absolutely vest in with the railway, that that would enable him.

the company, in all future time, to retain Pinder was not heard in reply.

the property and the possession of such land.

I cannot think that that can have been COCKBURN, C.J.-I think that our judg- what was intended by the legislature. ment should be for the plaintiff. We The object evidently was to prevent land have to put a construction on the 127th not required for the purposes of the rail. New Series, 41,--Q.B,


way undertaking from remaining vested would acquire and have the character of in the hands of these companies, who are "superfluous" land. only empowered and authorized to acquire Now comes another question, upon land for the purposes of their undertaking. which my opinion is decidedly against Again, it is contended that if by any pos- Mr. Manisty's argument. He says that sibility the land in question could be this land was taken by the company

for brought to be applicable, or could become the

purpose of putting upon it the spoil applicable at any future time, to the pur- which resulted from the cutting and the poses of the railway, that that would be operations in constructing the railway, and sufficient to warrant the company in not that having once been used for that purfeeling the obligation cast upon them by pose it remains to all time land required this Act of Parliament of selling the land, for the purposes of the railway. Now, if superfluous. In that again, I for one in the first place, a distinction is to be cannot agree, except to this extent; and made between so much of this land as to this extent I go along with Mr. Manisty, has been applied to that purpose, and so that if, looking to the surrounding cir- much as has not been covered with spoil. cumstances of the company, and the pre- With regard to the latter, it has never sent, I will not say immediately present, been applied to any purposes of the rail. but still the present possibility, that it may way. That part will come, without any reasonably be contemplated that there possibility of doubt, within the 127th shall be reasonable ground to believe that section, and I think also that the same reathe land in question will become avail- soning would apply to that which has been able for the purposes of the undertaking, used for the purpose of depositing the it is not because there may not have been spoil. At the time that part was made up to the moment of the expiration of the available for that purpose, it was land ten years, or at the actual moment of that required for the purposes of the railway expiration, an immediate application of in one sense. The construction of the the land to the purposes of the under- railway required that there should be taking, that you are to shut your eyes to some ground on which the spoil should the fact that it will soon become available be deposited, but that purpose bas been for such purposes. I think under such fully effected and accomplished, and now circumstances it is perfectly legitimate the land having acquired a certain degree and proper to say that the land is still re- of fresh fertility is made available for quired for the purposes of the undertak- agricultural or horticultural purposes, ing, and therefore is not superfluous land and is not wanted, in any sense of the within the meaning of the section. Again, term, for the purposes of the railway itself I cannot think that if a certain quantity or of the company. On the contrary, the of land has been taken within the pro- company let it out as gardens, and took visions and powers of the Act, as specified a rent for it. How can it be said that in the plans, sections, and so forth, and it that is any longer required for the purturns out that a portion of that land is poses of the undertaking? It was in time required for the purposes of the railway, past, but it has ceased to be so, and therethat you are to treat it as one entire and fore it is land in the hands of the comundivided whole, and say that because pany not required for the purposes of the out of fifteen acres taken for a particular undertaking, and therefore is purpose

connected with the undertaking, fluous." Under these circumstances, the a certain portion has been found to be promoters are bound to sell it within the required, that, therefore, all the rest will prescribed period. It seems to me it was follow the conditions of that part which acquired under their Acts, and therefore has been taken, and may be said to have comes within the terms of the 127th section, been acquired for the purposes of the if it ceased to be required for the purposes railway. Suppose the promoters had of the undertaking, and my opinion is, it taken, as in the present case, fifteen acres, has so ceased. If, on the facts of the case, and required only two, while those two I could see any fair and reasonable prowould be protected, the other thirteen bability or expectation that this land

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