contained, would be enabled to sell and convey lands, to sell and Sect. 12. convey the lands so authorised to be purchased for extraordinary additional purposes. As to what are extraordinary purposes, see section 45 of the Railways Clauses Consolidation Act, 1845, ante, p. 112. accommodation. re-purchase 13. It shall be lawful for the promoters of the undertaking to sell Authority the lands which they shall have so acquired for extraordinary to sell and purposes, or any part thereof, in such manner, and for such con- such lands. siderations, and to such persons, as the promoters of the undertaking may think fit, and again to purchase other lands for the like purposes, and afterwards sell the same, and so from time to time; but the total quantity of land to be held at any one time by the promoters of the undertaking, for the purposes aforesaid, shall not exceed the prescribed quantity. from in 14. The promoters of the undertaking shall not, by virtue of the Restraint power to purchase lands for extraordinary purposes, purchase more on purchase than the prescribed quantity from any party under legal disability, capacitated or who would not be able to sell and convey such lands except under persons. the powers of this and the special Act; and if the promoters of the undertaking purchase the said quantity of land from any party under such legal disability, and afterwards sell the whole or any part of the land so purchased, it shall not be lawful for any party being under legal disability to sell to the promoters of the undertaking any other lands in lieu of the lands so sold or disposed of by them. Treasury 15. Nothing in this Act or the special Act contained shall enable Municipal any municipal corporation to sell for the purposes of the special Act, corporations not to sell without the approbation of the any without the lands which they could not have sold without such approbation approbation before the passing of the special Act, other than such lands as the of the company are by the powers of this or the special Act empowered to purchase or take compulsorily. See also section 108 of the Municipal Corporations Act, 1882. And with respect to the purchase and taking of lands otherwise than by agreement, be it enacted as follows: Treasury. scribed 16. Where the undertaking is intended to be carried into effect by Capital means of a capital to be subscribed by the promoters of the under- to be subtaking, the whole of the capital or estimated sum for defraying the before comexpenses of the undertaking shall be subscribed under contract pulsory binding the parties thereto, their heirs, executors, and administrators powers of for the payment of the several sums by them respectively subscribed put in force. before it shall be lawful to put in force any of the powers of this or the special Act, or any Act incorporated therewith, in relation to the compulsory taking of land for the purposes of the undertaking. This heading comprises sections 16-18 inclusive, and section 11 (a) of the Light Railways Act provides that in incorporating the Lands Clauses Acts that no variation shall be made in the provisions "with respect to the purchase and taking of land otherwise than by agreement." This provision must, however, be read subject to section 13 of the Light Railways Act, which provides for the settlement of compensation by a single arbitrator in all cases. The Arbitration Act, 1889, is to apply to such arbitration. There M purchase Sect. 16. will be some difficulty in construing the two Acts together, but where they are inconsistent the Arbitration Act would appear to be the one to be followed. A certificate of two The expression "capital to be subscribed by the promoters" probably may be construed to mean the "share capital as defined in section 28 of the Light Railways Act. Land may be purchased by agreement, and notices to treat may be served before the capital is subscribed. Guest v. Poole and Bournemouth Railway Company, L. R. 5 C. P. 553. 17. A certificate under the hands of two justices certifying that the whole of the prescribed sum has been subscribed, shall be Justices to be evidence sufficient evidence thereof, and on the application of the promoters of the undertaking, and the production of such evidence as such justices think proper and sufficient, such justices shall grant such certificate accordingly. that the capital has been subscribed. Notice of take lands. It would seem that notwithstanding section 13 of the Light Railways Act two justices will remain the proper parties to give the certificate and not the arbitrator. The order cannot contain any provision making it plain whether it is intended that two justices should thus act, or whether it is intended to intrust this duty to the arbitrator. 18. When the promoters of the undertaking shall require to intention to purchase or take any of the lands which by this or the special Act, or any Act incorporated therewith, they are authorized to purchase or take, they shall give notice thereof to all the parties interested in such lands, or to the parties enabled by this Act to sell and convey or release the same, or such of the said parties as shall, after diligent inquiry, be known to the promoters of the undertaking, and by such notice shall demand from such parties the particulars of their estate and interest in such lands, and of the claims made by them in respect thereof; and every such notice shall state the particulars of the lands so required, and that the promoters of the undertaking are willing to treat for the purchase thereof, and as to the compensation to be made to all parties for the damage that may be sustained by them by reason of the execution of the works. Service of notices on owners and lands, Notice to treat need not be delivered when it is merely intended to destroy an easement; the person whose land is thereby injured should afterwards claim compensation under section 68. Clark v. School Board of London, 9 Ch. 120; Wigram v. Fryer, 36 Ch. D. 587. For the decisions on this section see Browne and Allan on "Compensation," pp. 33-49. 19. All notices requiring to be served by the promoters of the undertaking upon the parties interested in or entitled to sell any occupiers of such lands shall either be served personally on such parties or left at their last usual place of abode, if any such can after diligent inquiry be found, and in case any such parties shall be absent from the United Kingdom, or cannot be found after diligent inquiry, shall also be left with the occupier of such lands, or if there be no such occupier, shall be affixed upon some conspicuous part of such lands. As to the procedure when the person is abroad or cannot be found, see section 58. Service of notice 20. If any such party be a corporation aggregate such notice shall be left at the principal office of business of such corporation, or, if on a cor poration of dispute no such office can after diligent inquiry be found, shall be served on Sect. 20. some principal member, if any, of such corporation, and such notice such shall also be left with the occupier of such lands, or, if there be no occupier, shall be affixed upon some conspicuous part of such lands. aggregate. 21. If for twenty-one days after the service of such notice, any If parties such party shall fail to state the particulars of his claim in respect of fail to treat any such land, or to treat with the promoters of the undertaking in or in case respect theeof, or if such party and the promoters of the undertaking question to shall not agree as to the amount of the compensation to be paid by be settled the promoters of the undertaking for the interest in such lands mentioned. belonging to such party for which he is by this or the special Act enabled to sell, or for any damage that may be sustained by him by reason of the execution of the works, the amount of such compensation shall be settled in the manner hereinafter provided for settling cases of disputed compensation. The methods of settling questions of disputed compensation provided by the Lands Clauses Acts are three : 1. By justices, when the amount claimed does not exceed 50%. (sections 22, 68), and when the person has no greater interest than as a tenant from year to year (section 121). 2. By arbitration by two arbitrators and an umpire (sections 23, 64, 68, and 130). 3. By a sheriff and jury (sections 23, 68). Under the Light Railways Act, s. 13, these various tribunals are displaced dealing with the settlement of compensation by surveyors are not displaced Although the notice to treat under section 18 demands the particulars of the owner's estate and interest, it has been held that the owner, unless he requires arbitration under section 23, is not bound to give these particulars. Probably the effect of section 13 of the Light Railways Act is to require the owner to give the particulars. as after pensation claimed 22. If no agreement be come to between the promoters of the Disputes undertaking and the owners of or parties by this Act enabled to sell as to comand convey or release any lands taken or required for or injuriously went the affected by the execution of the undertaking, or any interest in such amount lands, as to the value of such lands or of any interest therein, or as to the compensation to be made in respect thereof, and if in any such exceed 501. case the compensation claimed shall not exceed fifty pounds, the to be settled same shall be settled by two justices. See note to section 21. does not by two justices. ceeding 501. 23. If the compensation claimed or offered in any such case shall Compensaexceed fifty pounds, and if the party claiming compensation desire tion exto have the same settled by arbitration, and signify such desire by to be settled notice in writing to the promoters of the undertaking, before they by arbitrahave issued their warrant to the sheriff to summon a jury in respect at the option of such lands, under the provisions hereinafter contained, stating in of the party such notice the nature of the interest in respect of which such party tion or jury, claiming tion. Sect. 23. claims compensation, and the amount of the compensation so claimed, the same shall be so settled accordingly; but unless the party claiming compensa- compensation shall as aforesaid signify his desire to have the question of such compensation settled by arbitration, or if when the matter shall have been referred to arbitration the arbitrators or their umpire shall for three months have failed to make their or his award, or if no final award shall be made, the question of such compensation shall be settled by the verdict of a jury as hereinafter provided. Costs of how to be borne. See note to section 21. Section 24 deals with procedure before justices. Sections 25-33 relate to the appointment of arbitrators and umpires and their powers are not applicable. Under the Light Railways Act in compensation cases there will be only one arbitrator, and he may be appointed by the Board of Trade. The Lands Clauses Consolidation Act, 1869, and the Lands Clauses (Umpire) Act, 1883, are therefore not applicable. The powers of the arbitrator are regulated by the Arbitration Act, 1889, Appendix, post, p. 286. See the note to the Railways Clauses Act, 1845, s. 126, ante, p. 134. 34. All the costs of any such arbitration, and incident thereto, to arbitration be settled by the arbitrators, shall be borne by the promoters of the undertaking, unless the arbitrators shall award the same or a less sum than shall have been offered by the promoters of the undertaking, in which case each party shall bear his own costs incident to the arbitration, and the costs of the arbitrators shall be borne by the parties in equal proportions. As this section will be incorporated in orders authorising light railways, presumably the payment of costs will be governed by it. If not, the costs will be in the discretion of the arbitrator under schedule 1 (i.) of the Arbitration Act, 1889, but that schedule only applies where there is no provision in the submission. In the application of the Act to Scotland it is distinctly provided that the costs shall be in the discretion of the arbiter. Section 26 (3). As to the effect of this section, see Metropolitan District Railway Company v. Sharpe, 5 App. Cas. 425. This section does not cover the costs of preliminary negotiations. The offer should be made before the arbitration commences: that probably means before the matter is referred to the arbitrator as provided in section 13 of the Light Railways Act. As to the time to make the offer, see Fitzhardinge v. Gloucester and Berkeley Canal Company, L. R. 7 Q. B. 776; Yates v. Mayor of Blackburn, 29 L. J. Ex. 447; Gray v. North Eastern Railway Company, 1 Q. B. D. 696. An offer by a town clerk on the instruction of a sub-committee of the council, but not sanctioned by the council, is not a valid offer. Foster v. Mayor of Sheffield, 72 L. T. 549. The costs under this section, if it is applicable, may be taxed pursuant to the Lands Clauses (Taxation of Costs) Act, 1895 (58 & 59 Vict. c. 11), which is as follows: 1. (1.) Where under the Lands Clauses Consolidation Act, 1845, or any Act incorporating the same, any question of disputed compensation is determined by the verdict of a jury, or by arbitration, the costs of and incidental to the inquiry or to the arbitration and award, as the case may be, shall, if either party so requires, be taxed and settled as between the parties by one of the masters of the Supreme Court, and such fees shall be taken in respect of the taxation as may be fixed in pursuance of the enactments relating to the fees to be taken in the offices of those masters; and all those enactments (including the enactments relating to the taking of fees by means of stamps) shall extend to the fees in respect of such taxation. (2.) Section forty-five of the Regulation of Railways Act, 1868, and Sect. 34. section one of the Lands Clauses Consoldation Act, 1869, are hereby repealed. 31 & 32 Vict. c. 119. 2. This Act may be cited as the Lands Clauses (Taxation of Costs) 32 & 33 Vict. Act, 1895. As to the scale of costs, see Light Railways Act, s. 13, sub-sect. (2). c. 18, Short title. the pro 35. The arbitrators shall deliver their award in writing to the Award to be promoters of the undertaking, and the said promoters shall retain delivered to the same, and shall forthwith, on demand, at their own expense, moters of furnish a copy thereof to the other party to the arbitration, and the undershall at all times, on demand, produce the said award, and allow the same to be inspected or examined by such party or any person appointed by him for that purpose. The effect of this section is to place the burden of taking up the award and paying the arbitrator's fee upon the light railway company. If the landowner voluntarily takes up the award and pays the arbitrator's fee it would seem that he cannot recover it from the company. Shrewsbury (Earl of) v. Wirral Railways Committee [1895], 2 Ch. 812. Section 36 enabled a submission to be made a rule of court. See now Arbitration Act, 1889, s. 1, Appendix, post, p. 286. taking. 37. No award made with respect to any question referred to Award not arbitration under the provisions of this or the special Act shall be void set aside for irregularity or error in matter of form. See the Arbitration Act, 1889, s. 7, post, p. 288. Sections 38-57 relate to the procedure to have compensation determined by a sheriff and jury. through error in form. absent par veyor ap 58. The purchase money or compensation to be paid for any Compensalands to be purchased or taken by the promoters of the undertaking tion to from any party who, by reason of absence from the kingdom, is ties to be prevented from treating, or who cannot after diligent inquiry be determined found, or who shall not appear at the time appointed for the inquiry by a surbefore the jury as hereinbefore provided for, after due notice thereof, pointed by and the compensation to be paid for any permanent injury to such two justices. lands, shall be such as shall be determined by the valuation of such able practical surveyor as two justices shall nominate for that purpose as hereinafter mentioned." This section will not apparently be affected by section 13 of the Light Railways Act. See note to section 21, ante, p. 67. to nominate a surveyor. 59. Upon application by the promoters of the undertaking to Two justices two justices, and upon such proof as shall be satisfactory to them that any such party is, by reason of absence from the kingdom, prevented from treating, or cannot after diligent inquiry be found, or that any such party failed to appear on such inquiry before a jury as aforesaid, after due notice to him for that purpose, such justices shall, by writing under their hands, nominate an able practical surveyor for determining such compensation as aforesaid, and such surveyor shall determine the same accordingly, and shall annex to his valuation a declaration in writing subscribed by him of the correctness thereof. See note to last section. |