8 VICT. Cap. 19. [LXXXIV.] [85] ENTRY ON LANDS. And with respect to the entry upon lands by the promoters of the undertaking, be it enacted as follows: LXXXIII. Payment of price to be made previous to entry, except to survey, etc. The promoters of the undertaking shall not, except by consent1 of the owners and occupiers, enter upon any lands which shall be required to be purchased or permanently used for the purposes and under the powers of this or the special Act, until they shall either have paid to every party having any interest in such lands, or deposited in the bank in the manner herein mentioned, the purchase money or compensation agreed or awarded to be paid to such parties respectively for their respective interests therein: provided always, that for the purpose merely of surveying and taking levels of such lands, and of probing or boring to ascertain the nature of the soil, and of setting out the line of the works, it shall be lawful for the promoters of the undertaking, after giving not less than three nor more than fourteen days' notice to the owners or occupiers thereof, to enter upon such lands without previous consent, making compensation for any damage thereby occasioned to the owners or occupiers thereof.2 1 As to entry by consent, see Law of Rlys. pp. 205-207, and cases there cited. As to what acts amount to entry, ibid. p. 207; and as to lands not taken but only injuriously affected, ibid. As to uplifting of consigned sum pending reduction, see Fortune v. Ed. and Bathgate R. C. (1849), 11 D. 531 2 As to entry for surveying purposes, see Law of Rlys. p. 208. By 13 & 14 Vict. c. 83, sec. 26, the right to compensation here given is not to be affected by authority granted to abandon the making of the railway. LXXXIV. Promoters to be allowed to enter on lands before purchase on making deposit by way of security and giving bond.-Provided also, that if the promoters of the undertaking shall be desirous of entering upon and using any such lands before an agreement shall have been come to, or an award made or verdict given, for the purchase money or compensation to be paid by them in respect of such lands, it shall be lawful for the promoters of the undertaking to deposit in the bank by way of security, as hereinafter mentioned, either the amount of purchase money or compensation claimed by any party interested in or entitled to sell and convey such lands, and who shall not consent to such entry, or such a sum as shall by a valuator, appointed by the sheriff1 in the manner herein before provided in the case of parties who cannot be found, be determined to be the value of such lands, or of the interest therein which such party is entitled to, or enabled to sell and convey, and also, if required so to do, to give to such party a bond, under the hand of the secretary or proper officer or person authorised, if the promoters be a company or corporation, or if they be not a company or corporation, under the hand of the promoters, or any two of them if more than one, with two sufficient securities, to be approved of by the sheriff2 in case the parties differ, for a sum equal to the sum so to be deposited, for payment to such party, or for making a deposit in the bank for the benefit of the parties interested in such lands, as the case may require, under the provisions herein contained, of all such purchase money or compensation as may in manner herein before provided be determined to be payable by the promoters of the undertaking in respect of the lands so entered upon, together with interest thereon at the rate of five pounds per centum per annum from the time of entering on such lands until such purchase money or compensation shall be paid to such party, or deposited in the bank for the benefit of the parties interested in such lands, under the provisions herein contained; and upon such deposit by way of security being made as aforesaid, and such bond being delivered or tendered to such non-consenting party as aforesaid, it shall be lawful for the promoters of the undertaking to enter upon and use such lands, 2 Now by Board of Trade after hearing parties. 3 As to entry on deposit and giving bond, see Law of Rlys. pp. 209-215; and as to form and requisites of bond, p. 212, and cases cited. See also 30 & 31 Vict. c. 126, sec. 36. As to interest where bond dispensed with, West H. R. C. v. Place (1894), 21 R. 576; and as to date from which interest is payable, Rhys. v. Dare Valley R.C. (1874), L. R. 19 Eq. 93, and Pigott v. G. W.R. (1881), 18 Ch. D. 146; Law of Rlys. pp. 210, 218, 365, 957, and 958. As to right to continue in possession after three or five years though compensation not yet paid, see Armitstead v. North Staffordshire R. C. (1851), 16 Q. B. 526; Worsley v. South Devon R. C. (1851) 16 Q.B. 539; Loosemore v. Tiverton and North Devon R. C. (1884), 9 A.C. 480. As to deposit without actual entry, see Reg. v. Manley Smith (1892), 67 L.T. 197. Compensation for minerals is not within the conditions of the bond, Neath and Brecon R.C. (1876), 2 Ch. D. 201. Costs cannot be ordered to be paid under sec. 79 out of the money deposited, Neath and Brecon R. C. (1874), 9 L. R. Ch. 263. LXXXV. Deposit to be paid into bank, and cashier to give a receipt.-The money so to be deposited as last aforesaid shall be paid into the bank,1 to be placed to an account to be opened in the name of the parties interested in or entitled to sell and convey the lands so to be entered upon, and who shall not have consented to such entry, subject to the control and disposition of the Court of Session;2 and upon such deposit being made, the cashier or other proper officer of the bank shall give to the promoters of the undertaking, or to the party paying in such money by their direction, a receipt for such money, specifying therein for what purpose and to whose credit the same shall have been paid in. 1 See Law of Rlys. p. 213, note (d). 2 Ed., Perth, and Dundee R.C. (1850), 22 Sc. Jur. 573. LXXXVI. Deposit to remain as a security, and to be applied under the direction of the court.-The money so deposited as last aforesaid shall remain in the bank by way of security to the parties whose lands shall so have been entered upon for the performance of the bond to be given by the promoters of the undertaking, as hereinbefore mentioned, and the same may, on the application by petition of the promoters of the undertaking, be ordered to be invested in the public funds or upon heritable securities, and accumulated; and upon the conditions of such bond being fully performed, it shall be lawful for the Court of Session, upon a like application, to order the money so deposited, or the funds in which the same shall have been invested, together with the accumulation thereof, to be repaid or transferred to the promoters of the undertaking, or, if such conditions shall not be fully performed, it shall be lawful for the said court to order the same to be applied in such manner as it shall think fit for the benefit of the parties for whose security the same shall so have been deposited.1 1 See Miles v. N.B.R (1867), 5 M. 402; and Thomson v. N.B.R. 5 M. 410. See also Main v. Lan. and Dumb. R.C. (1895), 22 R. 487; and dist. Fortune v. Ed. and Bathgate R.C. (1849), 11 D. 531. LXXXVII.-Penalty on the promoters of the undertaking entering upon lands without consent before payment of the purchase money.—If the promoters of the undertaking or any of their contractors shall, except as aforesaid, wilfully enter upon and take possession of any lands which shall be required to be purchased or permanently used for the purposes of the special Act, without such consent as aforesaid, or without having made such payment for the benefit of the parties interested in the lands, or such deposit by way of security as aforesaid, the promoters of the undertaking shall forfeit to the party in possession of such lands the sum of ten pounds, over and above the 1845. [86] [87] [88] [89] 8. VICT. Cap. 19. [90] [91] [XCII.] amount of any damage done to such lands by reason of such entry and taking possession as aforesaid, such penalty and damage respectively to be recovered before the sheriff; and if the promoters of the undertaking or their contractors shall, after conviction in such penalty as aforesaid, continue in unlawful possession of any such lands, the promoters of the undertaking shall be liable to forfeit the sum of twenty-five pounds for every day they or their contractors shall so remain in possession as aforesaid, such penalty to be recoverable by the party in possession of such lands, with expenses, by action in any competent court: provided always, that nothing herein contained shall be held to subject the promoters of the undertaking to the payment of any such penalties as aforesaid, if they shall bona fide and without collusion have paid the compensation agreed or awarded to be paid in respect of the said lands to any person whom the promoters of the undertaking may have reasonably believed to be entitled thereto, or shall have deposited the same in the bank for the benefit of the parties interested in the lands, or made such deposit by way of security in respect thereof as herein before mentioned, although such person may not have been legally entitled thereto.1 1 See Gl. District Subway Co. v. Johnstone (1892), 20 R.J.C. 28. LXXXVIII. Decision of sheriff not conclusive as to the right of the promoters. -On the trial of any action for any such penalty as aforesaid, the decision of the sheriff, under the provision hereinbefore contained, shall not be held conclusive as to the right of entry on any such lands by the promoters of the undertaking. LXXXIX.-Proceedings in case of refusal to deliver possession of lands.-If in any case in which, according to the provisions of this or the special Act, or any Act incorporated therewith, the promoters of the undertaking are authorised to enter upon and take possession of any lands required for the purposes of the undertaking, the owner or occupier of any such lands, or any other person, refuse to give up the possession thereof, or hinder the promoters of the undertaking from entering upon or taking possession of the same, it shall be lawful for the promoters of the undertaking to apply by petition to the sheriff for possession of the same, and upon such application the sheriff may authorise and order possession of any such lands accordingly; and the expenses accruing by reason of such application, to be settled and decerned for by the sheriff, shall be paid by the person wrongfully refusing to give or hindering possession; and the amount of such expenses shall be deducted and retained by the promoters of the undertaking from the compensation, if any, then payable by them to such party; or if no such compensation be payable to such party, or if the same be less than the amount of such expenses, then such expenses, or the excess thereof beyond such compensation, if not paid on demand, may be levied by poinding and sale, and the sheriff may issue his warrant accordingly.1 1 See Loosemore v. Tiverton and North Devon R.C. (1882), 22 Ch.D. 25. XC. Parties not to be required to sell part of a house. And be it enacted, that no party shall at any time be required to sell or convey to the promoters of the undertaking a part only of any house or other building or manufactory, if such party be willing and able to sell and convey the whole thereof.1 1 For commentary on and illustration of this section, see Law of Rlys. pp. 197-204, and cases there cited. As to effect and requisites of counter notice to take whole, pp. 198, 199. As to the persons entitled to the benefit of the section, p. 199. As to what forms "part of a house," pp. 199-202; part of a manufactory," pp. 202-204. As to effect of special provisions dispensing with the application of sec. 90, see Law of Rlys. p. 204, and p. 199 note (h). As to construction of "required," Gardner v. Charing Cross R.C. (1861), 2 J. & H. 248, at p. 256. The company cannot be compelled to take the whole, Reg. v. L. and S. W.R. (1848), 5 R.C. 669; Law of Rlys. pp. 198 and 253, and cases there cited. As to access see M'Laren v. City of Gl. Un. R.C. (1878), 5 R. 1042. As to service of counter notice on company, see Reg. v. Metr. R.C., e.p. Knock, 17 L.T. 291. INTERSECTED LANDS. And with respect to small portions of intersected land, be it enacted as follows: 1 XCI. Power to owners of intersected lands to insist on sale.-If any lands, not being situate in a town 1 or built upon, shall be so cut through and divided by the works as to leave, either on both sides or on one side thereof, a less quantity of land than half a statute acre, and if the owner of such small parcel of land require the promoters of the undertaking to purchase the same along with the other land required for the purposes of the special Act, the promoters of the undertaking shall purchase the same accordingly, unless the owner thereof have other land adjoining to that so left into which the same can be thrown; and if such owner have any other land so adjoining, the promoters of the undertaking shall, if so required by the owner, at their own expense, throw the piece of land so left into such adjoining land, by removing the fences and levelling the sites thereof, and by soiling the same in a sufficient and workmanlike manner. 1 In reference to this and the following section, see Law of Rlys. pp. 171, 172, and cases there cited, especially Carington v. Wycombe R.C. (1866), 3 Ch. App. 377. See also 8 & 9 Vict. c. 33, sec. 15, and Law of Rlys. p. 450. XCII. Power of promoters of the undertaking to insist on purchase where expense of bridges, etc., exceeds the value.-If any such land1 shall be so cut through and divided as to leave on either side of the works a piece of land of less extent than half a statute acre, or of less value than the expense of making a bridge, culvert, or such other communication between the land so divided as the promoters of the undertaking are, under the provisions of this or the special Act, or any Act incorporated therewith, compellable to make, and if the owner of such lands have not other lands adjoining such piece of land, and require the promoters of the undertaking to make such communication, then the promoters of the undertaking may require such owner to sell to them such piece of land; and any dispute as to the value of such piece of land, or as to what would be the expense of making such communication, shall be ascertained as herein provided for cases of disputed compensation; and on the occasion of ascertaining the value of the land required to be taken for the purposes of the works, the sheriff, or the jury, or the arbiters, as the case may be, shall, if required by either party, ascertain by their verdict or award the value of any such severed piece of land, and also what would be the expense of making such communication. This section, in contrast to the preceding, applies to all intersected land wherever situated. Eastern Co. R. C. v. Marriage (1860), 9 H.L.C. 32. As to costs of inquiry, see Cobb v. Mid-Wales R. C. (1866), 1 L.R. Q.B. 342. COMMON LANDS. And with repect to such lands as shall be of the nature of commonty, be it enacted as follows: XCIII. Proceedings in regard to lands in commonty, etc.-The promoters of the undertaking may convene a meeting of the parties entitled to any rights of property or servitude, or other rights, in or over such lands, to be held at some convenient place in the neighbourhood of the lands, for the purpose of their appointing a committee to treat with the promoters of the undertaking for the compensation to be paid for the extinction of such rights; and every such meeting shall be called by public advertisement, to be inserted 1845. [93] [94] [95-98. Copy- mon lands [102] 8 VICT. Cap. 19. [103] [104] [105] [106] [107] once at least in two consecutive weeks in some newspaper circulating in the county or in the respective counties and in the neighbourhood in which such lands shall be situate, the last of such insertions being not more than fourteen nor less than seven days prior to any such meeting; and notice of such meeting shall also, not less than seven days previous to the holding thereof, be affixed upon the door of the church of the parish where such meeting is intended to be held, or, if there be no such church, some other place in the neighbourhood to which notices are usually affixed; and if such lands be part of a barony a like notice shall be given to the superior or baron.1 1 As to this and following sections, see Law of Rlys. pp. 172-175, and cases there cited. XCIV. Meeting to appoint a committee. The meeting so called may appoint a committee, not exceeding five in number, of the parties entitled to any such rights; and at such meeting the decision of the majority of the persons entitled to such rights present shall bind the minority and all absent parties; but such meeting shall not be effectual for the purpose unless five at least of the parties entitled attend the same, if there be so many as five in all of the parties entitled to such rights. XCV. Committee to agree with promoters of the undertaking.—It shall be lawful for the committee so chosen to enter into an agreement with the promoters of the undertaking for the compensation to be paid for the extinction of such rights, and all matters relating thereto, for and on behalf of themselves and all other parties interested therein, and all such parties shall be bound by such agreement, and it shall be lawful for such committee to receive the compensation so agreed to be paid; and the receipt of such committee, or of any three of them, for such compensation, shall be an effectual discharge for the same; and such compensation, when received, shall be apportioned by the committee among the several persons interested therein, according to their respective interests; but the promoters of the undertaking shall not be bound to see to the apportionment or to the application of such compensation, nor shall they be liable for the misapplication or non-application thereof. XCVI. Disputes to be settled as in other cases. If upon such committee being appointed they shall fail to agree with the promoters of the undertaking as to the amount of the compensation to be paid as aforesaid, the same shall be determined as in other cases of disputed compensation, [the said committee being deemed and held to be the proprietors of the said rights, with reference to all proceedings for ascertaining the value thereof]. XCVII. If no committee be appointed, the amount to be determined by a valuator. If, upon being duly convened by the promoters of the undertaking, no effectual meeting of the parties entitled to such rights shall take place, or if, taking place, such meeting fail to appoint such committee, the amount of such compensation shall be determined by a valuator, to be appointed by the sheriff as hereinbefore provided in the case of parties who cannot be found. XCVIII. Upon payment of compensation payable to commoners the lands to vest.-Upon payment or tender to such committee, or any three of them, or if there shall be no such committee, then upon deposit in the bank in the manner provided in the like case of the compensation which shall have been agreed upon or determined in respect of such rights, and it shall be lawful for the promoters of the undertaking, if they think fit, to execute a disposition, duly stamped, in the manner herein before provided in the case of the purchase of lands by them, and thereupon the lands in respect of which such compensation shall have been so paid or deposited shall vest in the promoters of the undertaking freed and discharged from all such rights, and they shall be entitled to immediate possession thereof; and it shall be lawful for the Court of |