Where vendor absolutely entitled, lands

chief rents.

veyors if they agree, or if not then the surveyor nominated by the said justices, shall annex to the valuation a declaration in writing, subscribed by them or him, of the correctness thereof; and all such purchase-money or compensation shall be deposited in the bank for the benefit of the parties interested, in manner hereinafter mentioned.

This section applies to cases of permanent injury to land in the occupation of a tenant for life, as well as to lands purchased and taken. Stone v. Yeovil Corporation, L. R., 1 C. P. Div. 691; 45 L. J., C. P. 657; 24 W. R. 1073; 34 L. T., N. S., 874; affirmed in C. A.; L. R., 2 C. P. Div. 99; 46 L. J., C. P. 137.

X. It shall be lawful for any person seised in fee of, or entitled to dispose of absolutely for his own benefit, any lands may be sold on authorized to be purchased for the purposes of the special act to sell and convey such lands or any part thereof unto the promoters of the undertaking, in consideration of an annual rentcharge payable by the promoters of the undertaking, [but, except as aforesaid, the consideration to be paid for the purchase of any such lands, or for any damage done thereto, shall be in a gross sum.]

Repealed.

Payment of rents to be charged on tolls.

So much of this section as provides that, save in the case of lands of which any person is seised in fee, or entitled to dispose absolutely for their own benefit, the consideration to be paid for any lands or for any damage done thereto shall be in a gross sum, is repealed by 23 & 24 Vict. e. 106 (Lands Clauses Consolidation Acts Amendment Act, 1860), s. 1; and by sect. 2 of that act, the provisions of the 10th and 11th sections of the Lands Clauses Act, as to power to sell, &c. lands for an annual rentcharge and to recover, are extended to all sales where parties are under disability. See the Act of 1860, post.

XI. The yearly rents reserved by any such conveyance shall be charged on the tolls or rates, if any, payable under the special act, and shall be otherwise secured in such manner as shall be agreed between the parties, and shall be paid by the promoters of the undertaking as such rents become payable; and if at any time any such rents be not paid within thirty days after they so become payable, and after demand thereof in writing, the person to whom any such rent shall be payable may either recover the same from the promoters of the undertaking, with costs of suit, by action of debt in any of the superior courts, or it shall be lawful for him to levy the same by distress of the goods and chattels of the promoters of the undertaking.

See note to preceding section.

chase lands

accommoda

sell and re

purchase such

XII. In case the promoters of the undertaking shall be Power to purempowered by the special act to purchase lands for extra- required for ordinary purposes, it shall be lawful for all parties who, additional under the provisions herein before contained, would be enabled tion. to sell and convey lands, to sell and convey the lands so authorized to be purchased for extraordinary purposes. XIII. It shall be lawful for the promoters of the under- Authority to taking to sell the lands which they shall have so acquired for extraordinary purposes, or any part thereof, in such manner, and for such considerations, 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.

lands.

XIV. The promoters of the undertaking shall not, by virtue Restraint on of the power to purchase land for extraordinary purposes, incapacitated purchase from purchase more than the prescribed quantity from any party persons. under legal disability, or who would not be able to sell and convey such lands except under 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 land so sold or disposed of by them.

XV. Nothing in this or the special act contained shall Municipal corporations enable any municipal corporation to sell for the purposes of not to sell the special act, without the approbation of the commissioners without the approbation of her Majesty's treasury of the United Kingdom of Great of the treasury. Britain and Ireland, or any three of them, any lands which they could not have sold without such approbation before the passing of the special act, other than such lands as the company are by the powers of this or the special act empowered to purchase or take compulsorily.

And with respect to the purchase and taking of lands otherwise than by agreement, be it enacted as follows:

XVI. Where the undertaking is intended to be carried into effect by means of a capital to be subscribed by the promoters

Capital to be

subscribed

before com

pulsory powers of purchase put in force.

of the undertaking, the whole of the capital or estimated sum for defraying the expenses of the undertaking shall be subscribed under contract binding the parties thereto, their heirs, executors, and administrators, for the payment of the several sums by them respectively subscribed, 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 lands for the purposes of the undertaking.

The 16th and 17th sections do not apply to the case of an existing company authorized to construct further works and to raise further capital. Weld v. London and South Western Railway Co., 8 L. T., N. S. 13; 33 L. J., Ch. 142; 32 Beav. 340; and see also Reg. v. Great Western Railway Co., 1 E. & B. 253; 22 L. J., Q. B. 65.

The plans deposited need not specify the particular works which it is proposed to make on the land to be taken. It is sufficient if the land be within the limits of deviation delineated on the plan. Weld v. London and South Western Railway Co., supra.

On a mandamus to complete a railway pursuant to an act incorporating the Lands Clauses Act, it was returned inter alia that the undertaking was one to be carried into effect by means of a capital to be subscribed by the promoters, and that the capital had not been subscribed for under a contract pursuant to the section in the text, nor could the defendants then or at any time procure it to be so subscribed for. It was pleaded, by way of estoppel, that the company had taken land of a third party as part of the line, in exercise of the compulsory powers. The Court of Queen's Bench held that the return was good, as it showed that a compliance with the command in the writ, which would necessitate the exercise of the compulsory powers, would be illegal. And it was also held, that the plea of estoppel was bad, as the matter disclosed by it was res inter alios acta. See R. v. The Great Western Railway Co., 1 E. & B. 253; 22 L. J., Q. B. 65.

But where a notice having been given and the amount of compensation not having been settled by agreement, the landowner required a company to have the compensation assessed in the manner pointed out by the act, and on their refusal brought an action for a mandamus to compel them, and the company pleaded that when the notice was given the whole of the capital had not been subscribed, it was held, by the Court of Common Pleas on demurrer to the plea, that the object of sect. 16 is to protect the landowner; and that such a notice, when the landowner is willing to sell, is not "a putting in force any of the powers" aforesaid; and that the company could not treat the notice as invalid, and that the plea was bad. Guest v. The Poole and Bournemouth Railway Co., 39 L. J., C. P. 329; and L. R., 5 C. P. 553; 22 L. T., N. S. 589.

When the legislature authorizes a company to take for the purposes of their undertaking any lands specially described in their acts, it constitutes them judges whether they will or will not take those lands, provided that they act with the bond fide object of using the lands for the purpose authorized by the act, and not for any sinister or collateral purpose. Having provided for affording compensation to the owners of the lands, the legislature leaves it to the company to determine what lands are necessary to be taken. Stockton and Darlington Railway Co. v. Brown, 9 H. L. Cas. 246; 6 Jur., N. S. 1168; 8 W. R. 708. See also Kemp v. South Eastern Railway Co., L. R., 7 Ch. App. 364; 41 L. J., Ch. 404; 20 W. R. 306; 26 L. T., N. S. 110.

Companies are not entitled to take compulsorily land required only for the purpose of excavating materials therefrom, although within the limits

of deviation. Eversfield v. Mid Sussex Railway Co., 3 De G. & J. 286; 5 Jur., N. S. 776; Bentinck v. Norfold Estuary Co., 8 De G., M. & G. 714. An agreement, by a landowner, with the promoters of a railway company, that in the event of their obtaining an act of parliament he will sell them such land as they require at a fixed rate, is binding upon him, although the company has no existence at the time of the contract; and it is no objection, on the ground of want of mutuality, that the company are not bound to take the land. If, however, the company exercise their compulsory powers and take proceedings under the sections in the Lands Clauses Consolidation Act relating to the purchase of lands otherwise than by agreement, they cannot afterwards enforce the agreement. The Bedford and Cambridge Railway Co. v. Stanley, 32 L. J., Ch. 60; 2 J. & H. 746; 7 L. T., N. S. 477; 9 Jur., N. S. 152.

has been

XVII. A certificate under the hands of two justices, certi- A certificate of fying that the whole of the prescribed sum has been subscribed, two justices to shall be sufficient evidence thereof, and on the application of that the capital the promoters of the undertaking, and the production of such subscribed. evidence as such justices think proper and sufficient, such justices shall grant such certificate accordingly.

The certificate given under this section is, except perhaps in the case of fraud, conclusive. Ystalyfera Iron Co. v. Neath and Brecon Railway Co., L. R., 17 Eq. 142; 22 W. R. 149; 29 L. T., N. S. 662.

See also as to this section, Weld v. London and South Western Railway Co., cited supra, p. 604.

intention to

XVIII. When the promoters of the undertaking shall Notice of require to purchase or take any of the lands which by this or take lands. 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.

A notice to treat under this section constitutes the relation of vendor Notice has and purchaser as between a company and the landowner (Doo v. London the effect of a and Croydon Railway Co., 1 Rail. Cas. 257; 3 Jur. 258), whether such contract. notice be given by trustees under an act of parliament for a public purpose, or by a company formed for a private speculation. Steele v. Liverpool, 7 B. & S. 261. See also Sparrow v. Oxford, &c. Railway Co., 2 De G.,

W.

RR

Taking additional lands.

Effect of delay.

Stamp.

Description of lands in notice.

Sale by auction restrained.

M. & G. 94; 21 L. J., Ch. 731; and Edinburgh, Perth and Dundee Railway Co. v. Leven, 1 Macq. H. L. C. 284.

Accordingly, where a notice has once been given, the company cannot abandon it without the consent of the landowner. R. v. Hungerford Market Co., 1 N. & M. 112; 4 B. & Ad. 327.

Nor can the company abandon such notice as to part, and give a valid fresh notice as to the residue. Tawney v. Lynn and Ely Railway Co., 16 L. J., Ch. 282; 4 Rail. Cas. 615.

But where the company has given notice to take a part of a property, and a counter-notice is given requiring them to take the whole, the company may abandon their notice and refuse to take any part. King v. Wycombe Railway Co., 28 Beav. 104; 29 L. J., Ch. 462.

After one notice to treat, the company may give a second in respect of other land belonging to the same landowner, as the first notice is not considered to have exhausted their powers. Stamps v. Birmingham, Wolverhampton and Stour Valley Railway Co., 2 Phillips, Ch. Cas. 673; 6 Rail. Cas. 123; Simpson v. Lancaster, &c. Railway Co., 4 Rail. Cas. 625; 15 Sim. 580; 11 Jur. 879; Maule v. Moncrieffe, 5 Bell, App. Cas. 333.

Although a notice to treat include lands beyond what the company can take under its compulsory powers, yet if the owner acquiesce by applying for a reference or appointing an arbitrator under sects. 23 and 25, he cannot object to sell the quantity mentioned in the notice to treat. Re Corporation of Huddersfield and Jacomb, L. R., 17 Eq. 476; 30 L. T., N. S. 78; affirmed on appeal, L. R., 10 Ch. App. 92; 31 L. T., N. S. 466.

After great delay in proceeding on notices to treat, they will be considered as abandoned. Hedges v. Metropolitan Railway Co., 28 Beav. 109; 3 L. T., N. S. 643; and see Richmond v. North London Railway Co., 37 L. J., Ch. 273; 18 L. T., N. S. 8; affirmed on appeal, L. R., 3 Ch. App. 679; and Ex parte Quicke, 13 W. R. 924; 12 L. T., N. S. 580.

The notice does not require to be stamped as an agreement. Rawlings v. Metropolitan Railway Co., 18 L. T., N. S. 871; 37 L. J., Ch. 824.

As to what is a sufficient description in the notice of the property to be taken, see Simms v. Commercial Railway Co., 1 Rail. Cas. 431.

Where a railway company gave a notice to treat for the purchase of a mere easement (of making and maintaining the railway by a bridge over the landowner's property), the notice was held valid by Wood, V.-C. (Pinchin v. London and Blackwall Railway Co., 1 Kay & J. 34; 2 Eq. R. 1172); but on appeal it was considered otherwise (3 Eq. R. 443; 5 De G., M. & G. 851; 24 L. J., Ch. 417; 1 Jur., N. S. 241; 24 L. T. 196).

If, after notice to treat, the landowner attempt to sell the lands by auction, he will be restrained. Metropolitan Railway Co. v. Woodhouse, 34 L. J., Ch. 297; 12 L. T., N. S. 113; 13 W. R. 516. But it would seem that the mere service of the notice to treat will give the company no title as against another company acting under parliamentary powers. Bristol and North Somerset Railway Co. v. Somerset and Dorset Railway Co., 22 W. R. 601.

A corporation acting under an improvement act, not for profit, may take all the property in the schedule to the act, although not actually required for the purpose specified in the act. Quinton v. Bristol Corporation, L. R., 17 Eq. 524; 43 L. J., Ch. 783; 22 W. R., 434; 30 L. T., N. S. 112. But it always rests on the promoters to show that they are not taking more than their act allows, and any doubt the landowner must have the benefit of. Simpson v. South Staffordshire Waterworks Co., 4 De G., J. & S. 679; 34 L. J., Ch. 380; 12 L. T., N. S. 360. If the excess taken by a company beyond what they have parliamentary powers for is very small the Court will not grant an injunction against them. Dowling v. Pontypool, Caerleon and Newport Railway Co., L. R., 18 Eq. 714; 43 L. J., Ch. 761, which see also as to the question what deviation a company may make, and the evidence admissible to explain the statutory plans.