would be likely to be wanted for the purposes of the railway, then I should say that it might be fairly said to be excepted from the provisions of the 127th section of the Lands Clauses Act, by reason of being required for the purposes of the undertaking. There is nothing in the case that leads to such a supposition; there is nothing that would lead one to suppose that this land is likely to become available and useful to the railway. It is not enough to say a road has been made, or that a bit of it has been applied to the making of a siding. So far as those pieces of land are concerned, it may be said that this application to those purposes, though quite at a recent period in 1868, might have fairly led us to the inference now, at the expiration of the ten years, that those bits were still required for the purposes of the undertaking, but as I pointed out just now it is not because a very little bit of a very large close of land may be required, that you are to say the whole is required.

Then comes the question whether, under the operation of the more recent Act of 1868, the company can say that the legislature intended to protect them against the forfeiture that would otherwise have accrued under the 127th section. I think the language of that enactment cannot be held to have that effect; the operation of it refers only to land belonging to the company. Now, by the effect of the 127th section of the Lands Clauses Consolidation Act, the land at the expiration of the prescribed time becomes, by force and operation of the statute, taken out of the company, and vested actually so as to become the property of the owner of the adjoining land. The term "belonging," used in the Act of 1868, may be more or less ambiguous, but I believe that it ought to be construed against the company, who obtained it, without notice to those parties who had previously acquired vested rights, and I should certainly say that the legislature, if it had intended to take away the vested rights, and restore the ownership of this property to the company, as though those rights had never vested in others against them, would have used clear and distinct language to shew that such was its in

tention. All this may be a hardship upon the company, but we have nothing to do with that, nor can I admit that the hardship is such as they represent, because the legislature intended to make it imperative upon railway companies to sell the superfluous lands, and they are not taken by surprise. They have a knowledge that if they do not do so, they run the risk of forfeiture. I think the forfeiture was intended to effect this, that the company should carry the enactments of the legislature as to selling the land into effect, and they have only themselves to blame if they undergo a forfeiture by neglecting to comply with the Act of Parliament. On these grounds I think that our judgment must be for the plaintiff.

BLACKBURN, J.-I have come to the same conclusion as my Lord. The first question really is what is the application, which involves partly the construction, of the 127th section of the Lands Clauses Consolidation Act. By that section it is very plain that "superfluous land" is before the end of the prescribed period, which, in this case, would be the year 1860, land to be sold, and if not sold it is to vest in the owners of the adjoining land; evidently the intention of the legislature was to make a provision for securing that it should be sold by the company within the prescribed period. This is very analogous to the right of entry for a forfeiture. There is a vested interest in the owner of the adjoining land, to be enforced against the company, if they have not sold the superfluous land. Now the first great question is whether these lands are 66 superfluous" or not. [His Lordship read the 127th section. and then continued]: The promoters therefore are absolutely to sell and dispose of "all such superfluous lands," and if they do not, this power of for feiture is given. The first thing is to see whether the land in question "is acquired. . . . under . . . . the special Act, or any Act incorporated there with." As to the greater part of it, no doubt was ever raised, because, as far as regards the limits of deviation, it was not doubted that the notice as to deviation entitle the promoters to take what was

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within the limits. There was a doubt on which we required information to shew whether or not that portion that lay beyond the limits of deviation, but within the parliamentary plan on which it was marked, could be said to be acquired under the provisions of the Act, for it was very clear that when the company had bought the land by agreement, not using the provisions of the Act, it was never intended they should be within this section, and I am glad to hear the House of Lords have put that construction upon it in The Glasgow Union Railway Company v. The Caledonian Railway (2). I take it that the portions of land within those limits, though beyond the limits of deviation, may be acquired under the provisions of the Act, and the reason is that the legislature thought it might be convenient for the company to have land during the time the works were going on, but that when they have completed these works, it would no longer be required to be used. Therefore the legislature, in saying that the works shall be carried on on such land, and shall not go beyond such distance, do nevertheless say you may purchase land though beyond the limits of deviation if marked upon the plans. Therefore I come to the conclusion that the lands now in question were acquired under the provisions of the Act of Parliament.

Now comes the question what was meant by this "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." I quite agree with my Lord that "such superfluous lands" is merely a short phrase to avoid repeating "such lands as shall be acquired under the provisions of the Act, but shall not be required for the purposes of the Act." Now what is the meaning of the word "required"? Mr. Manisty's argument was this, he said that if once lands be used for the purposes of the Act at all, then they have been "required," and that these lands having been once, as he said required for the purposes of the Act,

have been "required," and therefore are not to be sold. I do not think that that is the meaning and intention of the legis lature, or that that is the meaning of the words. I think there is a difference between the word the word "required" and the word "used." What I understand the legis lature to mean is land which, for the purposes of the undertaking, the company require to be retained and kept, not land once used but land which may be used again. The legislature says that within a specified period the company shall sell the superfluous land, that is, as it seems to me, land not required for the purposes of the Act and to be retained, and I think it means that the time when the selling comes into question is the time when you have to see whether the land is required, and, if I am right in that, that decides this part of the case completely, because here what was actually done was this, these lands were bought, a portion was actually used for making the works, and another portion which was not required for making the works, but which it was convenient to have for depositing spoil upon, was used for that purpose. The company might have hired land for the temporary purpose of depositing soil. There is nothing in the Act to prevent them using it for that temporary purpose, but in using the land for that temporary purpose they were not, at that moment, "requiring" it because they might have got other land, and when the temporary purpose is over, though the land may have been changed from having become a hollow, as here where it has become a hill, and very possibly the surface greatly improved, and it may be much better ground, being ground at the top of a hill, and at all events in the process of time it has become of agricul tural value, and is used for agricultural purposes, it seems to me impossible to say in the sense I put upon the words, that it was required. I quite agree with my Lord, that it is not necessary at the moment of the sale that it should be in actual use, but I think if the station or the yard had been made larger than the company were requiring for use, and the consequence was that they put up a paling across and a portion was lying idle, that that at that

moment could not be said to be used for the purposes of the Act, though it was acquired for the purposes of the Act. The only thing that is pointed ont to make us come to the conclusion that the land in question was required in 1860, is what is stated at the bottom of the 14th paragraph, namely, that in another part of the acquired land, and in 1869 (it is not said whether before this writ was served or after, but after the dispute had arisen,) the company extended one of their coal sidings; under what circumstances is not stated or how. I dare say they were improving their station, and may have done this for the purposes of the Act, but I apprehend it is too much to ask us to draw the conclusion that that act, done in 1869, after the litigation commenced, without explanation, is to relate back to 1860, when every circumstance in the case shews that the land in question was land, although it had been previously used, which was not required to be kept, which is the construction I put on s. 127. If that is wrong, that argument falls to the ground; but I think it is right, and the consequence is, that in 1860 the plaintiff, who is now alive, would have been entitled to maintain an action of ejectment, and to enter upon and obtain the land, or half of it, in respect of its having become his property under the terms of the Act.

Then comes the other question, namely, the one arising on the Act of 1868 - for though there are two Acts, Mr. Manisty says the Act of 1868 was by far the most favourable to the company, and it was upon that that he principally relied, and it was upon that that during the argument I fancy I made up my mind soonest, but upon this also I made up my mind against the defendants. The state of things in 1868 was this, that according to the rule I have been expressing, the plaintiffs had become entitled to this land, which was in point of law vested in them, and they had the right to enter upon it, but they had not entered upon it, and the railway company were in actual possession, and as against everybody, excepting the plaintiffs, were proprietors. The only persons that could interfere with them as to this portion of

land were the plaintiffs. Now, that being the state of things, they were promoting an Act of Parliament, the 31 & 32 Vict. c. 145, and I think, from the words used, it is pretty plain that the drawer of section 20 was thinking of such cases as this, and wished to provide for them. I do not say that the object was iniquitous or absurd, or one that the legislature would have scouted. In the case of Moody v. Corbett (5) I thought the proposal of the London and Brighton Company to obtain an Act of Parliament to undo a verdict where a man had brought ejectment, and the litigation was in full force, I thought the attempt to do that by a side wind must have knowingly been done with the intent to cheat the legis lature, and I thought it was wrong, but I do not think there was the slightest impropriety in going to Parliament, and saying "We are in this position; we have a long slip of land which the owners of the adjoining land have a right to enter upon as though for forfeiture, but which right they have never exercised; now we pray you to enact that we shall retain for ten years longer that land, and that their right shall be postponed for that period." I think if they had said that, the legislature would most likely have said it is most reasonable; and I think if you are going to do that you cannot serve every owner with personal notice, but still you should let them be aware, and hear of it, and I think the legislature would have said, "before we can do that, let us know that they have been made to know it by a notice stuck up upon the church doors or put in the newspapers; anyhow, let them be made aware that they are going to be deprived of it." Now, the words used, which are the words of the promoters, I find say thisthat notwithstanding the Lands Clauses Consolidation Act or any Act relating to the company with which that Act is incorporated, "the company may retain and hold any lands belonging to them which have not yet been applied to the purposes of the company for the period of ten years after the passing of this Act." In one sense I quite agree that land belonging to them might be applied to mean the land that belonged to them as against all

the world except the one person who had the right to enter in a form which I call analogous to a forfeiture. Mr. Manisty urged that the plaintiffs simply had the right to enter in a form which I call analogous to a forfeiture; and urged something more than that, namely, that though they had a right to enter they were to ask for possession. But I do not think they were put to the election, and in that respect do not agree with Mr. Manisty's argument; and further though I think the words might bear the above sense, I think it is a strong and good principle to lay down, that where people are promoting an Act, and more especially a private Act, in which they are to take away a person's property, they should use such clear language as to shew there can be no doubt that the legislature had adopted it, that they knew they were taking away a person's rights, and that they would not do it without his having an opportunity of being heard. Moody v. Corbett (5) is on that principle. I think here that the Great Western Railway Company in promoting this Act have failed to use the words they could easily enough have used. They might have put in the words, "and that the persons, the adjoining owners, not intending to enter, shall not enter." They might easily have put in words to that effect, and if the legislature had enacted these words, I do not sce that we could have said otherwise than that they were to operate and defeat a person's claim. But no such words are used, and I think we ought not to con strue the Act as taking away the vested rights of a party when there are no words to shew the legislature meant this and knew what they were doing. I think there is no other point that requires any further observations from me, but for these reasons I think the plaintiff is entitled to our judgment.

MELLOR, J.—I am entirely of the same opinion, though I confess I have come to the conclusion, with some hesitation as to one of the points. I certainly, for some little time, thought the contention of Mr. Manisty as to the meaning of "superfluous lands" might be established; for though I quite agree that the words

"superfluous lands," are synonymous with, and intended to express the same idea as the other words to which my Lord referred, still, I thought that in making a railway, and in considering what land they should take, the company might necessarily take a considerable portion of land which might not be appropriated to the use of the railway at all, and therefore it appeared to me that the words might be so construed as to be limited to those lands, which, after the lapse of so many years, it was manifest that the company did not require for any purpose of the Act; but I have come to the opposite conclusion now, for the reasons that have already been assigned, and also from this circumstance, that although it is quite true that it appears to have been decided, and probably would be the construction of the section that enables them to take lands for the purposes of the railway, that they may take lands for the purposes of spoil, there are the provisions by which they may enter upon land for the purpose of depositing spoil, which are called powers to take land for temporary purposes; and that treats the deposit of spoil as if it were a temporary purpose.

Now, considering that here the object was simply to deposit the material that was excavated during the making of the railway, that this has ceased, and that there is no present object the railway can have for retaining this spoil bank, so far as it appears upon the case, I think it must be considered that when they ceased to use the land for the purpose of depositing spoil, and used it for the purpose of letting it out at rentals, or otherwise, it could no longer be said to be used for the purposes of the Act, and therefore I think that the narrower construction, which I at one time thought there was some foundation for, is wrong, and I now come to the same opinion as the rest of the Court upon that subject. Then, if that be so, and the ten years have expired from the execution of the works, and nothing has been done upon the land to shew, or no preparation made to shew, it is necessary for the purposes of the railway, then it comes under the Act, and immediately vests in the adjoining owner; and I do not think Mr. Manisty

is right in saying some act of the person claiming is required. No person would repudiate an accession of property which cannot be to his disadvantage in any sense, but may be to his advantage, and the words are very strong. The Act says that at the expiration of such period the land shall thereupon, that is, the expiration of the period, vest in and become the property of the owners of the land adjoining thereto. I think, therefore, there is no foundation for that argument. I agree entirely in the opinion expressed by my Lord and my brother Blackburn with regard to the quantity of land taken. If it had been a mere insignificant strip, as suggested by Mr. Manisty, supposing he had been right as to the effect of placing spoil upon the land, I should have thought you could not take notice of that mere strip, because you cannot measure with nicety, but when it comes to a matter of two acres out of fifteen, it does present a different view to my mind, and I think the spoil not extending to that, and becoming stationary for some time, and not used, it was not required for the purpose of the railway. I had also some little hesitation as to the words of the Act of 1868, but I am satisfied, for the reasons assigned, that it is not intended to take away or destroy the right which has become vested in the owner; so vested that it has become his property. I think this would require stronger words than any words that can be found there, and I think that our present view of the construction of the Act of 1868 is right, and upon all these grounds I come to the same conclusion as my Lord and my brother Blackburn.

QUAIN, J.-I also agree that the plaintiff in this case is entitled to judgment. Upon the construction of the Act of 1868 I feel no doubt, for it would be extremely dangerous to construe the general words of a private Act so as to do away with a vested right, though the owner of that vested right had no notice, and had not got any compensation under the statute. To hold that an Act of Parliament like that did away with a vested right would be very dangerous, and nothing, in my judgment, but the most express words would entitle us to put such a construction upon it. I also

agree that these lands were acquired under the Act of Parliament, although some may be beyond the limits of deviation, and I cannot agree with Mr. Manisty that, if they were at any time used for the purposes of the Act, they then, notwithstanding they may afterwards have ceased to be used, never become superfluous lands under this Act of Parliament. That construction I think would have the effect of repealing the statute, and directly contravene the manifest policy of the legislature in passing the Act of Parliament. The result is this: we come back to the question of fact. Were these lands lands that were required for the purposes of the Act either in 1860, or even down to the time this action is brought? I regret that that question should have been left to us as a question of fact. In the North Staffordshire case, Mr. Justice Patteson held it was a case to be left to the jury. We have therefore to decide on the bare facts of this particular case, and as far as I am concerned I rest my judgment upon it, and can we say, looking at it as a matter of inference from the evidence, that these lands were required for the purposes of the railway? I think the evidence is conclusive that they were not. In the first place it is expressly said they were originally bought for the sole purpose of putting spoil upon, and that we all know is a temporary purpose, and may cease and has ceased as soon as that purpose has been accomplished; and then the question arises whether they were required afterwards in any sense for the company's purposes. Now it is clear from the evidence they were not. They were let out as gardens for the purpose of growing crops, and after a statement of this in paragraph 12 it is found expressly in the 14th paragraph of the case that "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