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would be likely to be wanted for the pur

tention. All this may be a hardship upon poses of the railway, then I should say

the company,

but we have nothing to do that it might be fairly said to be excepted with that, nor can I admit that the hardfrom the provisions of the 127th section slip is such as they represent, because of the Lands Clauses Act, by reason of the legislature intended to make it in. being required for the purposes of the perative upon railway companies to sell undertaking There is nothing in the the superfluous lands, and they are not case that leads to such a supposition; taken by surprise. They have a knowthere is nothing that would lead one to ledge that if they do not do so, they run suppose that this land is likely to become the risk of forfeiture. I think the for. available and useful to the railway. It feiture was intended to effect this, that is not enough to say a road has been the company should carry the enactments made, or that a bit of it has been applied of the legislature as to selling the land to the making of a siding. So far as into effect, and they have only themselves those pieces of land are concerned, it may to blame if they undergo a forfeiture by be said that this application to those pur. neglecting to comply with the Act of Par. poses, though quite at a recent period in liament. On these grounds I think that 1868, might have fairly led us to the our judgment must be for the plaintiff. inference now, at the expiration of the ten years, that those bits were still re- BLACKBURN, J.--I have come to the quired for the purposes of the under- same conclusion as my Lord. The first taking, but as I pointed out just now it question really is what is the application, is not because a very little bit of a very which involves partly the construction, of large close of land may be required, that the 127th section of the Lands Clauses you are to say the whole is required. Consolidation Act. By that section it is

Then comes the question whether, very plain that "superfluous land ” is under the operation of the more recent before the end of the prescribed period, Act of 1868, the company can say that which, in this case, would be the year the legislature intended to protect them 1860, land to be sold, and if not sold it is against the forfeiture that would other- to vest in the owners of the adjoining wise have accrued under the 127th sec- land; evidently the intention of the tion. I think the language of that en- legislature was to make a provision for actment cannot be held to have that securing that it should be sold by the effect; the operation of it refers only to company within the prescribed period. land belonging to the company. Now, by This is very analogous to the right of the effect of the 127th section of the Lands entry for a forfeiture. There is a vested Clauses Consolidation Act, the land at interest in the owner of the adjoining the expiration of the prescribed time land, to be enforced against the company, becomes, by force and operation of the if they have not sold the superfluous land. statute, taken out of the company, and Now the first great question is whether vested actually so as to become the pro

these lands are "superfluous" or not. perty of the owner of the adjoining land. (His Lordship read the 127th section The term “belonging,” used in the Act and then continued): The promoters of 1868, may be more or less ambiguous, therefore are absolutely to sell and dis. but I believe that it ought to be construed pose of “all such superfluous lands," against the company, who obtained it, and if they do not, this power of for. without notice to those parties who had feiture is given. The first thing is to previously acquired vested rights, and I see whether the land in question “is should certainly say that the legislature, acquired ... under .... the special if it had intended to take away the vested Act, or any Act incorporated thererights, and restore the ownership of this with.” As to the greater part of it, no property to the company, as though those

doubt was

ever raised, because, as far rights had never vested in others against as regards the limits of deviation, it was them, would have used clear and distinct not doubted that the notice as to deviation language to shew that such was its in- entitlel the promoters to take what was



within the limits. There was a doubt on have been "required,” and therefore are which we required information to shew not to be sold. I do not think that that is whether or not that portion that lay the meaning and intention of the legisbeyond the limits of deviation, but within lature, or that that is the meaning of the the parliamentary plan on which it was words. I think there is a difference between marked, could be said to be acquired the word “ ,

the word “required” and the word under the provisions of the Act, for it was “used.” What I understand the legisvery clear that when the company had lature to mean is land which, for the bought the land by agreement, not using purposes of the undertaking, the company the provisions of the Act, it was never require to be retained and kept, not land intended they should be within this once used but land which may be used section, and I am glad to hear the again. The legislature says that within House of Lords have put that construction a specified period the company shall sell upon it in The Glasgow Union Railway the superfluous land, that is, as it seems Company v. The Caledonian Railway (2). to me, land not required for the purposes I take it that the portions of land within of the Act and to be retained, and I those limits, though beyond the limits of think it means that the time when the deviation, may be acquired under the pro- selling comes into question is the time visions of the Act, and the reason is that when you have to see whether the land the legislature thought it might be conve- is required, and, if I am right in that, nient for the company to have land during that decides this part of the case comthe time the works were going on, but that pletely, because here what was actually when they have completed these works, it done was this, these lands were bought, a would no longer be required to be usedportion was actually used for making the Therefore the legislature, in saying that works, and another portion which was not the works shall be carried on on such land, required for making the works, but which and shall not go beyond such distance, do it was convenient to have for depositing nevertheless say you may purchase land spoil upon, was used for that purpose. though beyond the limits of deviation if The company might have hired land for marked

the plans.

Therefore I the temporary purpose of depositing soil. come to the conclusion that the lands There is nothing in the Act to prevent now in question were acquired under the them using it for that temporary purpose, provisions of the Act of Parliament. but in using the land for that temporary

Now comes the question what was purpose they were not, at that moment, meant by this “but which shall not be re- "requiring it because they might have quired for the purposes thereof, be it got other land, and when the temporary enacted as follows. Within the prescribed purpose is over, though the land may period, or if no period be prescribed, withi have been changed from having become ten years after the expiration of the time a hollow, as here where it has become limited by the special Act for the com- a hill, and very possibly the surface pletion of the works, the promoters of greatly improved, and it may be much the undertaking shall absolutely sell and better ground, being ground at the top dispose of all such superfluous lands." I of a hill, and at all events in the proquite agree with my Lord that “such cess of time it has become of agriculsuperfluous lands" is merely a short phrase tural value, and is used for agricultural to avoid repeating “such lands as shall be purposes, it seems to me impossible to say acquired under the provisions of the Act, in the sense I put upon the words, that but shall not be required for the purposes it was required. I quite agree with my of the Act.” Now what is the meaning Lord, that it is not necessary at the moment of the word “ required”? Mr. Manisty's of the sale that it should be in actual use, argument was this, he said that if once but I think if the station or the yard had lauds be used for the purposes of the Act at been made larger than the company were all, then they have been required," and requiring for use, and the consequence that these lands having been once, as he was that they put up a paling across and said required for the purposes of the Act, a portion was lying idle, that that at that

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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 legislature, 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

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the world except the one person who had “superfluous lands,” are synonymous the right to enter in a form which I call with, and intended to express the same analogous to a forfeiture. Mr. Manisty idea as the other words to which my Lord urged that the plaintiffs simply had the referred, still, I thought that in making a right to enter in a form which I call railway, and in considering what land analogous to a forfeiture; and urged they should take, the company might something more than that, namely, that necessarily take a considerable portion though they had a right to enter they were of land which might not be appropriated to ask for possession. But I do not think to the use of the railway at all

, and they were put to the election, and in that therefore it appeared to me that the words respect do not agree with Mr. Manisty's might be so construed as to be limited argument; and further though I think to those lands, which, after the lapse of the words might bear the above sense, I so many years, it was manifest that the think it is a strong and good principle to company did not require for any purpose lay down, that where people are promoting of the Act; but I have come to the oppoan Act, and more especially a private Act, site conclusion now, for the reasons that in which they are to take away a person's have already been assigned, and also from property, they should use such clear this circumstance, that although it is language as to shew there can be no doubt quite true that it appears to have been that the legislature had adopted it, that decided, and probably would be the conthey knew they were taking away a per

struction of the section that enables them son's rights, and that they would not do to take lands for the purposes of the rail. it without his having an opportunity of way, that they may take lands for the purbeing heard. Mooily v. Corbett (5) is on poses of spoil, there are the provisions by that principle. I think here that the which they may enter upon land for the Great Western Railway Company in pro- purpose of depositing spoil, which are moting this Act have failed to use the called powers to take land for temporary words they could easily enough have purposes; and that treats the deposit of used. They might have put in the words, spoil as if it were a temporary purpose. “and that the persons, the adjoining Now, considering that here the object owners, not intending to enter, shall not was simply to deposit the material that enter.” They might easily have put in was excavated during the making of the words to that effect, and if the legislature railway, that this has ceased, and that had enacted these words, I do not see there is no present object the railway can that we could have said otherwise than have for retaining this spoil bank, so far as that they were to operate and defeat a it appears upon the case, I think it must person's claim. But no such words are be considered that when they ceased to use used, and I think we ought not to con. the land for the purpose of depositing strue the Act as taking away the vested spoil, and used it for the purpose of rights of a party when there are no words letting it out at rentals, or otherwise, to shew the legislature meant this and it could no longer be said to be used for knew what they were doing. I think the purposes of the Act, and therefore I there is no other point that requires any think that the narrower construction, further observations from me, but for which I at one time thought there was these reasons I think the plaintiff is en- some foundation for, is wrong, and I now titled to our judgment.

come to the same opinion as the rest of the Court upon that subject. Then, if


, MELLOR, J.-I am entirely of the same that be so, and the ten years have expired opinion, though I confess I have come from the execution of the works, and noto the conclusion, with some hesita- thing has been done upon the land to tion as to one of the points, I certainly, shew, or no preparation made to shew, for some little time, thought the contention it is necessary for the purposes of the of Mr. Manisty as to the meaning of railway, then it comes under the Act, "superfluous lands" might be establisbed; and immediately vests in the adjoining for though I quite agree that the words owner; and I do not think Mr. Manisty

is right in saying some act of the person agree that these lands were acquired under claiming is required. No person would the Act of Parliament, although some may repudiate an accession of property which be beyond the limits of deviation, and I cannot be to his disadvantage in any sense, cannot agree with Mr. Manisty that, if but may be to his advantage, and the words they were at any time used for the purare very strong. The Act says that at the poses of the Act, they then, notwithstandexpiration of such period the land shall ing they may afterwards have ceased to thereupon, that is, the expiration of the be used, never become superfluous lands period, vest in and become the property under this Act of Parliament. That conof the owners of the land adjoining there- struction I think would have the effect of to. I think, therefore, there is no founda- repealing the statute, and directly contration for that argument. I agree entirely vene the manifest policy of the legislature in the opinion expressed by my Lord and in passing the Act of Parliament. The remy brother Blackburn with regard to the sult is this: we come back to the question quantity of land taken. If it had been a of fact. Were these lands lands that were mere insignificant strip, as suggested by required for the purposes of the Act either Mr. Manisty, supposing he had been right in 1860, or even down to the time this as to the effect of placing spoil upon the action is brought ? I regret that that land, I should have thought you could question should have been left to us as a not take notice of that mere strip, because question of fact. In the North Stafford. you cannot measure with nicety, but when shire case, Mr. Justice Patteson held it it comes to a matter of two acres out of was a case to be left to the jury. We fifteen, it does present a different view to have therefore to decide on the bare facts my mind, and I think the spoil not ex- of this particular case, and as far as I am tending to that, and becoming stationary concerned I rest my judgment upon it, for some time, and not used, it was not and can we say, looking at it as a matter required for the purpose of the railway. of inference from the evidence, that these I had also some little hesitation as to the lands were required for the purposes of the words of the Act of 1868, but I am satis- railway? I think the evidence is conclu. fied, for the reasons assigned, that it is sive that they were not. In the first place not intended to take away or destroy the it is expressly said they were originally right which has become vested in the bought for the sole purpose of putting owner ; so vested that it has become his spoil upon, and that we all know is a property I think this would require temporary purpose, and may cease and stronger words than any words that can has ceased as soon as that purpose has be found there, and I think that our pre- been accomplished ; and then the question sent view of the construction of the Act arises whether they were required after. of 1868_ is right, and upon all these wards in any sense for the company's grounds I come to the same conclusion as purposes. Now it is clear from the evi. my Lord and my brother Blackburn. dence they were not. They were let out

as gardens for the purpose of growing Quain, J.-I also agree that the plaintiff crops, and after a statement of this in in this case is entitled to judgment. Upon paragraph 12 it is found expressly in the construction of the Act of 1868 I feel the 14th paragraph of the case that no doubt, forit would be extremely danger- "the deposit of chalk and spoil was ons to construe the general words of a pri- completed without covering the whole vate Act so as to do away with a vested right, of the said field, and there was left a though the owner of that vested right had margin or portion to the north and east no notice, and had not got any compensa- uncovered, containing about two acres, tion under the statute. To hold that an and neither that portion nor the part Act of Parliament like that did away with covered with chalk has ever been occupied a vested right would be very dangerous, since the railway was made in any manner and nothing, in my judgment, but the or for any purpose except as aforesaid, most express words would entitle us to and except that the defendants in the year put such a construction

it. I also 1869 extended their coal sidings into a


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