the company did not of itself prevent the use of the butts, that it was the formation of the road as a whole which rendered it impossible to fire on the range, inasmuch as bullets which did not lodge in the butts must pass over and render dangerous other parts of the private road as well as the part constructed on the land taken, and that there was no such damage from severance as claimed.

23. The under-sheriff summed up to the jury and directed them to say what compensation should be made to the claimants by reason of the company having taken the nine and a half acres, and how much for the severance or otherwise injuriously affecting the lands held therewith, and he drew their attention to the fact that the rifle brigade had no lease of the land in the immediate rear of the butts, and might be turned out of possession at any moment. The jury gave their verdict for 3001. as the purchase-money of the land, and 2,5007. for

severance.

26. The Court may draw all such inferences of fact as a jury might properly draw.

The questions for the opinion of the Court are-whether the plaintiff as such commanding officer is entitled to recover the sums found and assessed by the jury or either of them?

Horace Lloyd (R. E. Turner with him) (on June 4), for the plaintiff.-Under the Lands Clauses Act (8 Vict. c. 18), s. 49, (1) the landowner is at liberty to claim not only the value of the lands pur

(1) 8 Vict. c. 18. s. 49: "Where such inquiry shall relate to the value of lands to be purchased, and also to compensation claimed for injury done, or to be done, to the lands held therewith, the jury shall deliver their verdict separately for the sum of money to be paid for the purchase of the lands required for the works, or of any interest therein, belonging to the party with whom the question of disputed compensation shall have arisen, or which, under the provisions herein con. tained, he is enabled to sell or convey, and for the sum of money to be paid by way of compensation for the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such lands by the exercise of the powers of this or the special Act, or any Act incorporated therewith."

NEW SERIES, 41.—Q.B.

chased but compensation for injury done to the lands held therewith. The plaintiff was therefore clearly entitled to compensation for injury to such part of the land used as a rifle range as had been leased to trustees. With regard to the residue, it will be said that they were not interested in the soil within the meaning of the Act, but had only a revocable license. The jury, however, were instructed as to the plaintiff's title, and might well consider that some compensation was due in respect of the license, as it was not likely to be disturbed. If some compensation were properly due, the Court cannot entertain an appeal from the finding of the jury.

Philbrick (Hawkins with him), for the defendants, contended-first, that no compensation could be awarded for severance, as there was no physical connexion between the land taken and the residue of the land occupied by the plaintiff'; secondly, that as there was no interest in, but only a precarious occupation of the land immediately behind the rifle butts, it was impossible to assess compensation in respect of the rifle range taken as a whole.

COCKBURN, C.J.-We are all of opinion that judgment ought to be for the plaintiff. If section 49 of the Lands Clauses Act is referred to, it will be seen that the legislature, in giving powers to companies to take land compulsorily, contemplate the giving of compensation both for land actually taken, and for damage to land held at the same time with the land taken, which may accrue by reason of severance, or by reason of the land not taken being injuriously affected by the execution of the undertaking. In the present case land has been taken by the company, and the land so taken was held at the same time and for a common purpose, and was connected with the land which has been left. It is true that between the land taken and that left there is an intervening space filled up by land not belonging to those who are now claiming compensation; but the lands thus separated from one another were connected, and therefore I think the requirement of the statute, the condition on which compensation may be claimed

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namely, that land held with the land taken is injuriously affected-is satisfied. We have to consider, as it seems to me, only the question, whether he land not taken has been injuriously affected by the taking of that which has been taken. think that when the facts are looked at, that is a proposition about which there can be no doubt. The land which has been taken and that which has been left formed part of the rifle shooting range, and, as such, were useful and beneficial to the owners; and the simple fact is, that by taking the land which they have taken the company have rendered the possibility of using that which is left for the purpose of a rifle range impossible, and so have altogether depreciated the value of that which is left; because it was as a shooting range that its principal value accrued. What matters it that between the two there is a piece of land which does not belong to the parties claiming compensation, except this, that, inasmuch as their right to use that land as part of the range depended on the will or license obtained from the owner of the land, it was a precarious right. But inasmuch as there was no reason to suppose he would alter his will in respect of it and change his mind, and give notice that the license or permission given should be withdrawn, I see no reason why the jury should not, looking at the whole state of things, come to the conclusion that substantially the occupation was not of so precarious a tenure but that they might infer that the existing state of things would not be altered; and that that which had been used before as an entire rifle range would have continued to be one, and consequently, that the land had a value which it would not have lost but for the intervention and act of the company; and, therefore, there should be some compensation for this loss.

It was

matter for the jury, and if they had been of opinion that this occupation was so precarious a thing that no value could be attached to it, it would have been right to have found a verdict accordingly. But they have come to the opposite conclusion, and I cannot see that they were wrong. Things would doubtless have remained exactly as they were but for the company;

the company take this land, and the consequence is that the other land, though separated from the land taken by the intervening field, has been sensibly and materially diminished in value. It is therefore injuriously affected. I see no reason why the corps should not be entitled to compensation for it, it being perfectly clear that, in point of fact, the company have done them a most serious injury by taking the land which they have taken, and thus destroying the range. I think, therefore, judgment ought to be for the plaintiff.

BLACKBURN, J.-I also think that our judgment should be for the plaintiff. I agree that compensation could only be given where from the words of the statute there is sufficient to shew the intention of the legislature to give compensation; and the question therefore is, whether the Lands Clauses Consolidation Act does apply to such a case as this. Now the two sections which are material are the 49th and the 63rd. The 49th section enacts. [The learned judge read the section.] I think that section, taken by itself, did clearly express the intention of the legislature, that the jury should give damages for the taking of the land, and, also, if severed, for the injury to the other lands held therewith. I think those words, "the injury to the other lands held therewith,” mean from the severing or otherwise injuriously affecting the lands by the exercise of the powers of the Act. The 63rd section corroborates this view. [The learned Judge read the section.] The words used in the two sections are slightly different, but there can be no doubt at all that the legislature intended that the same measure of compensation should exist in the case of compensation assessed by arbitrator, justices, or surveyors, and in the case of compensation assessed by a jury; and I think that they have clearly and plainly expressed this, and that when the land is taken and other land is held therewith, or in the language of the other section it is severed from the land which is taken, it means the same thing; and that when land is held therewith there is to be compensation not simply for the taking of the land, but for the injury to the other land by the se

I

verance or otherwise injuriously affecting the other land; and the question really comes to be whether in the present case it can be said that the lands which form the rifle range, from the shooting point to the butts, are held " therewith," that is, with the lands taken beyond the butts, so as to be severed from those other lands. Now, as I understand, Mr. Philbrick's contention was that no lands can be held along with, so as to be held therewith or severed from the others in any sense, unless physically contiguous. do not see anything in the wording of the Act to shew that; nor do I see anything in the nature of the thing to require it. In the present case the land leased of Raphael, though not actually contiguous, is held for the very same purpose. The lease was expressly obtained because the other land in front of the butts could not be used for a rifle range without it; and it was for that reason required for the very purpose of enabling the other land to be used as a rifle range; and Raphael's land, though not occupied by the same title, was occupied by the same occupier, or the same parties, for the same common object. I think, therefore, in every sense of the word, it was held "therewith." I do not inquire precisely whether the word "severed" distinctly applies-whether this would or would not be properly and strictly called "severance because I am of opinion that the words "severed or injuriously affected" quite apply to such a case as this. In the case of Duke of Buccleuch v. The Metropolitan Board of Works (2) there was great difference of opinion as to the application of these words, the minority of the Exchequer Chamber thinking them applicable in a way which I certainly thought they were not. Certainly there is not anything less favourable to the present claimant than there was in that case. the Exchequer Chamber I expressed the opinion that the words "otherwise injuriously affected," extended to anything analogous to injuries which, though they do not arise strictly from severance, yet were ejusdem generis, and so near it. Taking that view of the matter, which I

(2) 39 Law J. Rep. (N.s.) Exch. 130.

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am by no means inclined to depart from, I think the piece of land held of Raphael, was certainly held with the land in front of the butts for the very purpose of enabling it to be used as a rifle range; and when I find the effect of the cutting off and depriving them of it is completely to stop the use of the rifle range, I think, to say the least, that is an "injuriously affecting" so much ejusdem generis with severance as to be included in those general words, and therefore the plaintiff ought to be entitled to recover. An objection was taken, that the owner of the land immediately in the rear of the targets, that is, of the land between the targets and Raphael's land, might, if he had pleased, have withdrawn the license, certainly at the end of a year, perhaps at a day's pleasure, and so stopped the firing over the range altogether; that no doubt does go to the quantum of damage, and shews that the right as to actual enjoyment was precarious; and consequently the jury ought to take into account, in giving a verdict and damages, the possibility that the owner of the land might wish to apply his land to another purpose, or wishing to make an extortionate rent from the rifle range, might withdraw his license. cannot see, however, when two pieces of land are occupied together for a common purpose, and the possession of both is essential for that purpose, why any person who has lost the benefit of the part not taken away should not be compensated; and, as I have said, the words of the Act are quite wide enough to cover this, the damage, even if not exactly arising from severance, still being at all events so much ejusdem generis as to come within the general words which follow.

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MELLOR, J.-I am of the same opinion. The taking away any portion of the land in which the claimants had acquired an interest, whether for a long or a short term, necessarily affected the range; and in this case the company did take a portion of Raphael's land for the purposes of the Act under their compulsory powers. The Act proceeds upon the principle that a man holding land in a particular district or place, may receive injury in respect of other land held "therewith," that is, not necessarily under the same title. So that

if land is to be taken, the statute makes it a condition not only to pay for the land taken, but to pay compensation for injuriously affecting the remaining lands. There is no doubt that here there was an injurious affection of the remaining lands, because as the one object of the corps had been to acquire the various interests which they did acquire for the purpose of the range, taking away one portion of the extremity of the land for the purpose of the gas company entirely destroyed any power of using the whole as a range. It would be very strange indeed if such a case were not within the statute. Therefore, I am clearly of opinion that the claimant is entitled to the amount the jury assessed, as we have nothing to do with the amount of damages.

LUSH, J.—I am also of opinion that the land taken by the company was land held with the other lands within the meaning of the 49th section. The argument of the defendants amounts to this, that there cannot be a severance within the meaning of this clause except in cases where the land taken is actually contiguous to the land left. Now, it appears to me that there is nothing whatever in the Act to suggest any such intention. There are many cases in which a factory consists of many detached buildings-a gunpowder factory, for instance, where every process must be, by law, carried on in a building standing at a distance from every other building. It seems monstrous to say that if one of the buildings necessary for the factory were taken there would be no severance, within the meaning of this clause, of that building from the rest. There is nothing, as I said before, in the language of the clause, which to my mind suggests that. I think it means lands connected together in use as regards the purpose to which they are applied by the owner. If in the case I have put one of such buildings is taken, the loss of that virtually depreciates the rest of the buildings for the purpose for which the owner has applied them, and that is a severance which entitles the owner to this class of damage. Here there happens to be a space between the land taken and the land left in which the plaintiff had no legal interest; but then he had a license from

the owner to make use of it for all the purposes which he required. What does it signify, the several pieces forming as respects their use one range, whether the party has a legal interest in the space which lies between them or not? The argument of the defendants comes to this: It is true that the company have by the taking away of one partof the land depreciated the value of the rest; but they ought not to pay for that, because the same thing might have been done possibly by the owner of the intermediate piece; he might have stepped in at any time and deprived the corps of the license; that would have had the same effect of destroying the range as taking this piece of land. But that is no answer on the part of the company to the legality of the claim; that only goes to the amount of damages.

Judgment for the plaintiff.

Attorneys-J. & R. Gole, for plaintiff; Wyatt, Hoskins & Hooker, for defendants.

1872.

May 31. j

JOYCE V. THE REALM MARINE IN-
SURANCE COMPANY.

Marine Insurance-Re-assurance subject to conditions of Original Policy—“ To commence from loading at as above "Outward cargo to be homeward Interest twentyfour hours after Arrival.”

A policy of insurance was underwritten by defendants for 1,000l., which was declared to be a re-assurance subject to all clauses and conditions of the original policy, on the ship D., at and from any port or ports in any order on the West Coast of Africa to the vessel's port or ports of call and discharge in the United Kingdom, the insu rance to commence "from the loading of the goods at as above." By the original policy the insurance was for 1,000l. upon the cargo of the D., at and from Liverpool to any ports in any order backwards and forwards and forwards and backwards on the coast of Africa, and thence back to a port of discharge in the United Kingdom, with leave to increase the valuation of the

cargo on the homeward voyage; "outward cargo to be considered homeward interest twenty-four hours after her arrival at her first port of discharge." Goods were shipped at Liverpool, and the vessel, with the same goods on board, departed from a port on the West Coast of Africa, and more than twentyfour hours after she had arrived at her first port of discharge, the goods were lost by perils insured against in the original policy : -Held, that the words "the insurance to commence from the loading of the goods as above" were qualified by the words in the original policy, by which outward cargo was to be considered homeward interest twentyfour hours after the vessel's arrival at her first port of discharge, and that the risk had consequently attached and the underwriters were liable.

Declaration that by a policy of insurance in consideration of 301. the defendants promised and agreed with the plaintiff that they would pay and make good all such losses and damages thereinafter expressed, as might happen to the subject matter of the policy, and might attach to the policy in respect of the sum of 1,0007. thereby insured, which insurance was thereby declared to be upon cargo, being a re-insurance subject to all clauses and conditions of the original policy, and to pay as may be paid thereon in the ship or vessel called The Daybreak, whereof

is at present master, or whoever shall go for master of the said ship or vessel, lost or not lost, at and from any port or ports, place or places, in any order on the West Coast of Africa, to the vessel's port or ports of call and discharge in the United Kingdom; and that the defendants promised and agreed that the insurance should commence upon the freight and goods or merchandise aforesaid from the loading of the goods or merchandise on board the ship or vessel, at as above, and continue until the goods or merchandise be discharged and safely landed at as above; and that it was a clause and condition of the original policy in the firstnamed policy mentioned that the insurance made by the original policy should be for 1,000l. upon the cargo, valued at 3,3501., of the vessel Daybreak, at and from Liverpool to any port or ports, place

or places, in any order backwards and forwards and forwards and backwards on the coast of Africa and African islands during her stay and trade there, and thence back to a port of call and discharge in the United Kingdom, with leave to call at or off any ports or places for any purpose, and to discharge, exchange, and take on board goods wherever she might call at or proceed to, and to tranship, sell, or barter all or any goods or property on the coast of Africa and African islands with any vessels, boats, factories, and canoes, and to transfer interest from this vessel to any other vessels, and from any other vessels to this vessel in port and at sea without being deemed a deviation with leave to increase the valuation of the cargo on the homeward voyage; outward cargo to be considered homeward interest twenty-four hours after her arrival at her first port of discharge. Averment, that divers goods being the goods in the first-named policy mentioned, were shipped at Liverpool in and on board of the ship to be carried therein on the voyage; and the vessel with the goods on board thereof departed from a port or place on the West Coast of Africa, to wit, Cabenda, on and in the course of her voyage in the original policy described, and afterwards while the ship was proceeding on her said voyage within the meaning of both the policies, and more than twenty-four hours after she had arrived at her first port of discharge within the meaning of the original policy, and during the continuance of the risk, the goods being then on board of the ship, were, by the perils insured against by the original policy, wholly lost, and the sum of 1,000l. became payable, and was paid on the original policy in respect of such loss.

Demurrer and joinder in demurrer.

Wood Hill, in support of the demurrer. -The declaration is bad. The policy contains the words "beginning the insurance from the loading at as above." Now the insurance is from ports on the West Coast of Africa to ports in the United Kingdom, and as it appears that the goods were not loaded at any port or place on the West Coast of Africa, the risk never attached. It will be contended