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CASES ARGUED AND DETERMINED

IN THE

Court of Dueen's Bench

AND IN THE

Erchequer Chamber and house of Lords

ON ERROR AND APPEAL FROM THE QUEEN'S BENCH.

MICHAELMAS TERM, 35 VICTORIÆ.

V.

STONEHAM 1871.

THE LONDON, and Crystal Palace Railway Act, 1853." BRIGHTON AND SOUTH COAST The railway was purchased by the deNov. 10. RAILWAY COMPANY.

fendants under the provisions of the

“ West London and Crystal Palace Rail. Compensation-Right of Action--Lands Clauses Act (8 Vict. c. 18), s. 100Ex

way Act, 1857.”

At the trial a verdict tinction of Commonable Rights-Default

was found for the plaintiff, subject to the

following on the part of Promoters.

CASE. Where the right in the soil of land sub- 1. Tooting Beck Common is part of the ject to rights of common has been conveyed

een conveyed wastelands of the manor Tooting to the promoters of an undertaking by the Beck, in Surrey, and from time immemolord of the manor under the Lands Clauses rial the copyholders of the manor have Act (8 Vict. c. 18), s. 100, but the compensa- exercised a right of common of pasture tion payable to the commoners has not been over the common for all their common. ascertained in the manner provided by the able cattle, levant and couchant, on Act, any such commoner whose rights of their respective copyhold tenements. One common have been disturbed by the works of the copyhold tenements is an estate of the promoters may maintain an action called the Streatham Park Estate, conagainst them, and is not confined to pro- taining about 68 acres, principally pasture ceedings for compensation under the Lands land, on which a greater number of cattle Clauses Act.

could be maintained than could be main

tained on Tooting Beck Common. In Action for the disturbance by the de- 1853, and until the 3rd of April, 1862, fendants of a right of common of pasture George Phillipps was seised in fee of the over Tooting Beck Common, Surrey, part Streatham Park Estate, according to the of which was taken by the West End of custom of the manor. On the 3rd of April, London and Crystal Palace Railway Com- 1862, the estate was enfranchised by Mr. pany in the year 1853 for the construction Phillipps under the provisions of the Copyof their line under the “West London hold Act, 1852, sections 45 and 48, and NEW SERIES, 41.-Q.B.

B

was

he remained seised of it until his death entitled in respect of the diminution of in 1855, devising it by his will to trustees, the right of common of pasture, caused by their heirs and assigns, of whom the plain- their taking this part of the common. On tiff, at the commencement of this action, the 25th of September, 1853, a letter was he survivor.

addressed to them by Mr. Phillipps, claim2. At the time of the passing of the ing compensation as copyhold tenant for West London and Crystal Palace Railway loss of rights over the common, and asking Act, 1853, the only copyhold tenants of the whether they had taken any steps purmanor were Mr. Phillipps, as tenant of the suant to the Act 8 Vict. c. 18, for the purStreatham Park Estate, and Messrs. Loat pose of ascertaining the value of the copyand others, as joint tenants of a public holders' rights. house called the “Bell,” to which no pas- 5. Several other letters to the same ture land was attached, and, in fact, Mr. effect were written to the railway comPhillipps was the only tenant exercising the right of common of pasture over Toot- lands in the promoters of the undertaking in like ing Beck Common.

manner as if such lord of the manor or such other 3. The common, before the construction party as aforesaid had been seised in fee simple of of the railway, contained about 155a.

such lands at the time of executing such convey3r. 8p., of which the railway company

anco, and in default of such conveyance, it shall be

lawful for the promoters of the undertaking, if took 4a. 3r. 7p. under their Act. The fee they think fit, to execute a deed poll duly stamped simple of the 4a. 3r. 7p. was conveyed by in the manner herein before provided, in the case the lord and lady of the manor to the

of the purchase of lands by them, and thereupon railway company on the 28th of December,

the lands in respect whereof such last mentioned 1855.

compensation shall have been deposited as afore

said, shall vest absolutely in the promoters of the 4. The railway company took possession undertaking, and they shall be entitled to the of the 4a. 3r. 7p. shortly after the Act of immediate possession thereof, subject nevertheless 1853 was passed, having, when they took to the commonable and other rights theretofore possession, taken no proceedings under

affecting the same, until such rights shall have the Lands Clauses Consolidation Act,

been extinguished by payment or deposit of the

compensation for the same in manner hereinafter 1845 (1), to settle or ascertain the com- provided. pensation, if any, to which Phillipps was By section 101, the compensation for rights of pany, but no proceedings were taken by by Mr. Phillipps, and Mr. Loat, one of them to ascertain the compensation, if any, the joint tenants of the Bell public-house; due to Mr. Phillipps, and on the 15th of had several interviews with the surveyor June, 1857, a notice was served on them by of the defendants, in which the question Mr. Phillipps requiring them forth with to of compensation was discussed, but no convene a meeting of the parties entitled result was arrived at; the surveyor of the to commonable rights upon Tooting Beck defendants at last telling Mr. Jones that Common, in the manor of Tooting Beck, he was not sufficiently instructed and and to proceed, as directed by the Lands he could not treat with him. Clauses Consolidation Act, 1845, to ascer- 7. Afterwards a correspondence took tain the compensation to which the parties place between Mr. Francis, as solicitor of are entitled in respect of their common- Mr. Phillipps, on one side, and the surveyor able rights upon that portion of the

common is to be determined by the promoters (1) By the Lands Clauses Consolidation Act (8 and a committee of the parties entitled to such Vict. c. 18), s. 99, the compensation in respect of the rights. right in the soil of any lands subject to any rights By section 102, the promoters may convene a of common shall be paid to the lord of the manor, meeting of the parties entitled to rights of comin case he shall be entitled to the same or to such mon by advertisement. party, other than the commoners, as shall be en- By section 103 the meeting so called are to titled to such right in the soil, and the compen. appoint a committee not exceeding five in number. sation in respect of all other commonable and By section 104 power is given to the committee other rights in or over such lands, including 80 chosen to agree with the promoters for the therein

any commonable or other rights to which compensation to be paid for the extinction of the the lord of the manor may be entitled other than commonable rights. his right in the soil of such lands, shall be deter- By section 105, if upon such committee being mined and paid and applied in manner hereinafter appointed they shall fail to agree with the proprovided with respect to common lands, the right moters of the undertaking as to the amount of in the soil of which shall belong to the commoners, the compensation to be paid as aforesaid, the and upon payment or deposit in the bank of the same shall be determined as in other cases of discompensation so determined, all such commonable

puted compensation. and other rights shall cease and be extinguished. By section 106, if upon being duly convened by

By section 100, upon payment or tepder to the the promoters of the undertaking, no effectual lord of the manor or such other party as aforesaid, meeting of the parties entitled to such commonable of the compensation which shall have been agreed or other rights should take place; or, if taking upon or determined in respect of the right in the place, such meeting fail to appoint such committee, soil of any such lands, or on deposit thereof in the the amount of such compensation shall be deterbank in any of the cases herein before in that mined by a surveyor to be appointed by two behalf provided, such lord of the manor or such justices, as herein before provided in the case of other party as aforesaid shall convey such lands parties who cannot be found. to the promoters of the undertaking, and such By section 107, upon payment or tender to such conveyance shall have the effect of vesting such committee or any three of them, or if there shall

and solicitors of the defendants on the common which had been taken by them other side, in which an arbitration on the for the purposes of their railway.

claim was discussed. From this time No meeting was convened in pursuance until August 3, 1868, no proceedings of this notice. On April 14, 1858, Mr. were taken or letters written with respect Phillipps served a notice of claim on the to the claim. On that day a letter was railway company describing his property, written by the solicitors of Mr. Phillipps' the nature of his interest in it, and con. trustees to the defendants, requiring the taining the particulars of his claim, and company to call a meeting pursuant to on November 21, 1858, he obtained a rule section 102 of the Lands Clauses Con. calling upon them to shew cause why a solidation Act, to assess the amount mandamus should not issue, commanding payable in respect of the copyhold rights them to convene a meeting under the over the portion of Tooting Beck Common Lands Clauses Consolidation Act, 1845, taken by the company for the purposes sect. 102.

of their railway. 6. Upon

the service of this rule This letter led to a lengthened corressome correspondence took place between pondence between the same parties, but the parties, and the advertisement and no arrangement for settling the claim for notice mentioned in section 102 of the compensation being arrived at on the Lands Clauses Consolidation Act were 24th of June, 1869, this action was como published and served. A meeting was

menced. appointed by the advertisement, and 8. The construction of the railway notice given that it was to be held across the common was completed in the at Streatham on February 12, 1859, and lifetime of Mr. Phillipps. He took no proMr. Phillipps and several other per. ceedings to oppose but gave no formal sons met on that day at the place ap- consent to its construction. pointed, but no effectual meeting of 9. Unless the conveyance by the lord parties entitled to commonable rights on and lady of the manor on December 28, the common took place. Soon after the 1855, mentioned in paragraph 3, is in meeting Mr. Jones, a surveyor appointed itself an approvement of the 4a. 3r. 7p.,

there has been no approvement by them be no such committee, then upon deposit in the

of this part of the common. bank in the manner provided in the like case of 10. The injury done to the plaintiff's the compensation which shall have been agreed right of common by the mere taking by upon or determined in respect of such commonable

the railway company of the 4a. 3r. 7p. is or other rights, it shall be lawful for the promoters of the undertaking, if they think fit, to execute

too small to be appreciable, but the a deed poll duly stamped, in the manner therein

construction of the line in the particular before provided in the case of the purchase of direction severs a triangular piece on the lands by them, and thereupon the lands, in re- north side of the railway from the rest of spect of which such compensation shall have been so paid or deposited, shall vest in the promoters

the common, and the effect of this is, al. of the undertaking, freed and discharged from all

though there is access to it from the rest such commonable and other rights, and they shall

of the common by an archway under the be entitled to immediate possession thereof. railway, that a commoner is deprived of the use of the pasture of this triangular not by action at law. The company

were piece to the same extent to which he justified, according to sec. 100, in enterenjoyed it before the railway was made.

ing upon the land so soon as they had Subject to any question of law arising on

obtained a conveyance from the lord of the case the loss to the plaintiff of the the manor. It is true that the section enjoyment to the same extent as before provides that they are to hold possession the railway was made, of this triangular subject to the commonable rights, but this piece as well as of the 4a. 3r. 7p., entitles means, subject to the liability to make comthe plaintiff to a verdict for more than pensation for these rights. The failure in nominal damages.

the proceedings under the Lands Clauses The Court is to be at liberty to draw Act, for assessing the compensation for inferences of fact.

the commonable rights, arose entirely from The questions for the opinion of the the laches of the person through whom Court are

the plaintiff claims, and the only remedy, First, Whether, upon the facts stated

if any, now available for the plaintiff, is in this case, the plaintiff is entitled to in a Court of Equity. It was the policy maintain this action.

the legislature, in framing the Lands Second, If it cannot be maintained, Clauses Act, to take away all rights of whether the plaintiff is entitled to recover action in respect of property acquired compensation by any other proceeding, by the promoters, and to substitute for

Prentice (Murphy with him), for the them a right to compensation-Glover v. plaintiff.—The action is maintainable, for The North Staffordshire Railway Company the West London Railway Company have (2). interfered with the plaintiff's rights of common, without having taken the steps COCKBURN, C.J.-I do not think that we prescribed by the Land Clauses Act for the need call upon you to reply, Mr. Prentice. extinction of the commonable rights, and We are all agreed that an action will lie. the defendants now represent the West The company acquire the waste of the London Railway Company. It is evi. manor with rights of common over it, dent, from the language of sections 104, and in order to get full and entire pro105, and 106 of the Act, that if the perty and possession they must settle both compensation for commonable rights can- with the lord, and with the commoners. not be settled by the promoters and a With regard to the compensation, the committee of commoners, it is the duty Act of Parliament says that when they of the promoters to take the next step of have done certain things and have made applying to justices to appoint a sur- compensation, they shall be entitled to veyor, for if the duty were cast upon the possession, but subject to the common. commoners, it might be impossible for able rights of the commoners ; in other them to agree upon a representative to words, that they shall stand in the place make the application.

of the lord. If it rested there, it would [COCKBURN, C.J. - Cannot the com- come to this, that just as the lord is moners apply for a mandamus against liable for disturbing the rights of the the company ?]

commoners, the company standing in his There would still be a difficulty, where shoes would also be liable to have an the commoners are not agreed upon the action brought against them for disturbcourse to be adopted. It appears, upon ing these rights. The statute then goes reference to sec. 107, that it is only upon on to make provision for extinguishing payment of the compensation, that the the rights of the commoners, and land is to vest in the promoters, freed certain course is pointed out, which may and discharged from all commonable be pursued in order to ascertain what rights; and until these righ s are extin- the commonable rights are, and to secure guished, the plaintiff is entitled to his the making of compensation. It is only common law remedy in respect of them. Pollock (Warton with him), for the

(2) 16 Q.B. Rep. 912; s. c. 20 Law J. Rep. defendants. The plaintifl's remedy is (x.s.) Q.B. 376.

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