Ch. 732; 18 L. T., N. S. 811; but see also Starr v. London (Mayor, &c.), L. R., 7 Eq. 236; 20 L. T., N. S. 937.

The words "lands which shall have been taken for or injuriously affected" include such lands only as are actually taken or actually affected by the works of the undertakers. Burkinshaw v. Birmingham and Oxford Junction Railway Co., 5 Exch. 475; 20 L. J., Exch. 246; 6 Rail. Cas. 609.

The diversion of a stream is a taking and using it within the meaning of this act, and before such diversion can be made the value of the stream must be ascertained and secured to the owners of the land through which it flows. Ferrand v. Bradford (Corporation), 21 Beav. 412; 2 Jur., N. S. 175; 27 L. T. 11; and see ante, p. 189.

The Lands Clauses Act and the Railways Clauses Act do not contain any provisions under which a person, whose land has not been taken for the purposes of a railway, can recover statutory compensation from the railway company in respect of damage or annoyance arising from vibrations occasioned (without negligence) by the passing of trains after the railway is brought into use, even though the value of the property has been actually depreciated thereby. The right of action for such damage is taken away. Brand v. Hammersmith and City Railway Co., and, S. C., Hammersmith and City Railway Co. v. Brand, L. R., 1 Q. B. 130; 2 Q. B. 223; 4 H. L. 171; 35 L. J., Q. B. 53; 36 L. J., Q. B. 139; 38 L. J., Q. B. 265; see also Reg. v. Pease, 4 B. & Ad. 30; Vaughan v. Taff Vale Railway Co., 5 H. & N. 679; Rickett v. Metropolitan Railway Co., L. R.,.. 2 H. L. 175; R. v. Metropolitan Board of Works, L. R., 4 Q. B. 358; R. v. Cambrian Railway Co., L. R., 6 Q. B. 422; and Metropolitan Board of Works v. M'Carthy, infra; City of Glasgow Union Railway Co. v. Hunter, L. R., 2 Sc. App. 78; and Duke of Buccleuch v. Metropolitan Board of Works, infra.

A loss of river frontage is a ground for compensation. Buccleuch (Duke) v. Metropolitan Board of Works, L. R., 5 E. & I. App. 418; 41 L. J., Exch. 137; 27 L. T., N. S. 1.

The general rule is, that where a company does under their statutory powers that which but for such powers would have been actionable, they are liable to make compensation. Glover v. North Staffordshire Railway Co., 20 L. J., Q. B. 376; 15 Jur. 673; Metropolitan Board of Works v. M'Carthy, L. R., 7 E. & I. App. 243; 43 L. J., C. P. 385; 23 W. R. 115; 31 L. T., N. S. 182. Thus an occasional flooding of lands caused by a proper execution of parliamentary powers is within sect. 68. Ware v. Regent's Canal Co., 3 De G. & J. 212. See Fletcher v. Rylands, ante, p. 194. And where, in consequence of the undertakers' works, certain flood waters were prevented from spreading themselves as formerly, and were penned up and flowed over a bank on the plaintiff's land, it was held, that, though the defendants had properly constructed their works, they were nevertheless liable to make compensation. Lawrence v. Great Northern Railway Co., 20 L. J., Q. B. 293; 16 Q. B. 643; 15 Jur. 652. In an action for injury caused by the leaking of water from a reservoir belonging to a canal, it was pleaded that the damage was caused by the leaking of water through the banks of the reservoir, and not in any manner whatsoever by reason of the execution of the powers of the act, but by the default of the plaintiffs themselves in sinking shafts and pits in their own land, and so causing large quantities of water which naturally lay in the underground soil in which the pits and shafts were sunk, and which formed the banks and support of the said reservoir, to leak out and flow into the said shafts and pits: it was held, on demurrer, that the plea was bad. Barber v. Nottingham and Grantham Railway Co., 33 L. J., C. P. 193. An obstruction to ancient lights may be also the subject of compensation under this section. Bedford (Duke) v. Dawson, L. R., 20 Eq. 353; 44 L. J., Ch. 549; 33 L. T., N. S. 156; Clark v. London School Board, L. R., 9 Ch. App. 120; 43 L. J., Ch. 421; 22 W. R. 554; 29 L. T., N. S. 903. The owner of a ferry, the traffic of which fell off through the construction of a railway bridge

and footbridge, was held not entitled to compensation. Hopkins v. Great Northern Railway Co., L. R., 2 Q. B. Div. 224; 46 L. J., Q. B. 265; overruling R. v. Cambrian Railway Co., L. R., 6 Q. B. 422; 40 L. J. Q. B. 169. See ante, p. 190.

In assessing compensation to parties whose premises may be injuriously affected by works done under the authority of parliament, the company are not entitled to set off any benefit accruing to such parties, or to the neighbourhood, by the construction of the railway. Senior v. Metropolitan Railway Co., 32 L. J., Ex. 225; 2 H. & C. 258; 8 L. T., N. S. 544; 9 Jur., N. S. 802; 11 W. R. 836.

The 68th section only gives compensation in cases where the incorporated company is doing what is authorized by statute, but which may nevertheless cause damage to an individual. Accordingly this section has been held to be inapplicable to cases where recourse may be had to an action at law for damages. Broadbent v. Imperial Gaslight Co., 7 De G., M. & G. 436; 26 L. J., Ch. 276; affirmed 29 L. J., Ch. 377; 7 Cl. H. of L. Rep. 600. Where the acts of a company are partly wrongful and partly authorized, the owner of property affected by these acts will only be entitled to compensation so far as the injury can be traced to the authorized acts. Bigg v. Mayor, &c. of London, 28 L. T.,

N. S. 336.

Caledonian

Prospective and contingent damages may be awarded. Railway Co. v. Lockhart, 3 Macq. H. L. Cas. 813; 3 L. T., N. S. 66; 6 Jur., N. S. 1311; and hereon see also Croft v. London and North Western Railway Co., 32 L. J., Q. B. 113; 3 B. & S. 436; 11 W. R. 360; 7 L. T., N. S. 741; 9 Jur., N. S. 962. Where prospective damages, being then unforeseen, had not been taken into account, it was held that the landowner was not precluded from insisting on a further claim in respect of such unforeseen damages subsequently sustained. Lancashire and Yorkshire Railway Co. v. Evans, 15 Beav. 322; and see also Lawrence v. Great Northern Railway Co., 6 Rail. Cas. 656; 16 Q. B. 643; 20 L. J., Q. B. 293; 15 Jur. 652; and In re Ware, 23 L. J., Exch. 145; 9 Exch. 395; 7 Rail. Cas. 780. But where the damage could reasonably have been foreseen it should be assessed at the time of the original assessment. R. v. Leeds and Selby Railway Co., 5 N. & M. 246; 3 A. & E. 683. The word "lands" does not include easements. Pinchin v. London and Blackwall Railway Co., 24 L. J., Ch. 417; 5 De G., M. & G. 94; 19 Jur., 241; Bird v. Great Eastern Railway Co., 19 C. B., N. S. 268; 34 L. J., C. P. 366; 16 L. T., N. S. 365; 11 Jur. N. S. 782; 13 W. R. 989; Temple Pier Co. v. Metropolitan Board of Works, 34 L. J., Ch. 262; 12 L. T., N. S. 369; 13 W. R. 535; Macey v. Metropolitan Board of Works, 33 L. J., Ch. 377; 10 Jur., N. S. 333; 12 W. R. 619; 10 L. T., N. S. 66; Thicknesse v. Lancaster Canal Co., 4 M. & W. 472. But where land

is injuriously affected by reason of interference with easements attaching thereto, compensation is payable therefor. Eagle v. Charing Cross Railway Co., L. R., 2 C. P. 638; 36 L. J., C. P. 297; 16 L. T., N. S. 593; 15 W. R. 1016; Clark v. London School Board, supra, p. 636.

The Midland Railway Company, under one of their acts of parliament, took land under which plaintiffs' water-pipes were laid. The pipes were buried beneath the railway company's embankment, and ceased to be used. Afterwards, in making a tunnel, the railway company took up the pipes. Plaintiffs claimed compensation for the value of the pipes under the Lands Clauses Act, 1845, sect. 68: held (affirming the judgment of Manisty, J.), that the plaintiffs had no interest in land, and therefore were not entitled to compensation under the Lands Clauses Act. New River Co. v. Midland Railway Co., 36 L. T., N. S. 539.

A railway company took land on which cotton mills would probably have been built. The owner had other land on which he had built a reservoir from which water might be supplied to such cotton mills when built. In proceeding under the Lands Clauses Act to ascertain the compensation, the umpire received evidence as to the profits which might

have been derived from supplying water to the mills when built, and awarded compensation for the loss of those prospective profits: it was held (affirming the decree of the Master of the Rolls), that the umpire was right in receiving the evidence and in awarding such compensation. Ripley v. Great Northern Railway Co., L. R., 10 Ch. App. 435; 23 W. R. 685; 31 L. T., N. S. 869.

A lessee having a reasonable expectation of a renewal of his lease, but having no right to demand such renewal, is not entitled to compensation in respect of such expectancy. R. v. Liverpool and Manchester Railway Co., 4 A. & E. 650; 6 N. & M. 186. But beneficial covenants in a lease may be taken into account in assessing the compensation payable to a lessee. Bourne v. Mayor of Liverpool, 33 L. J., Q. B. 15; 8 L. T., N. S. 573; 10 Jur., N. S. 125; see further as to compensation for lessee's interests, Johnson v. Edgeware, Highgate and London Railway Co., 14 L. T., N. S. 45; Ex parte Luntley, 13 L. T., N. S. 490; Re Collis's Estate, 14 L. T., N. S. 352; and Re North's Estate, 19 L. T., N. S. 43. As to precarious interests, e.g. the right of a volunteer corps to shoot over land taken, see Holt v. Gaslight and Coke Co., L. R., 7 Q. B. 728.

Where no part of the lands of a tenant from year to year are taken by the undertakers, but his interest in the lands is injuriously affected by the works, he is entitled to claim compensation and to have it determined under sect. 68 before a jury or arbitrators; and his case does not come within sect. 121, which provides for the assessment of the compensation being made before justices only when some part of the lands is required by the company. R. v. The Sheriff of Middlesex, 31 L. J., Q. B. 261; 10 W. R. 717.

"A jury, whether the dispute be as to the value of land required to be taken by the company or as to the compensation for damages by severance, in assessing the amount to which the landowner is entitled, have to consider the real value of the land, and may take into account not only the present purpose to which the land is applied, but also every other more beneficial purpose to which in the course of events at no remote period it may be applied, just as an owner might do if he were bargaining with a purchaser in the market." Per Cockburn, C. J., in R. v. Brown, L. R., 2 Q. B. 630, 631; 36 L. J., Q. B. 322.

As to when lands are considered to be "injuriously affected" within the meaning of the Lands Clauses Act, see further, Shelford on Railways, 4th edit., vol. 2, pp. 317 et seq.

A misnomer, not calculated to mislead, in the name of the company occurring in the notice under the 68th section, will not vitiate such notice. Eastham v. Blackburn Railway Co., 9 Exch. 758; 23 L. J., Ex. 199; 2 C. L. R. 716.

In order to bring himself within the 68th section, a claimant must give, in his notice for a jury, such reasonable information as to his interest as will enable the promoters to judge whether they will pay the whole claim, or what amount they ought to offer; and where a claimant is occupier under a lease for years, it is not sufficient to state in the notice that he "holds under a lease." Healey v. Thames Valley Railway Co., 34 L. J., Q. B. 52; 5 B. & S. 769; 11 L. T., N. S. 268; 10 Jur., N. S. 1182. See Cameron v. Charing Cross Railway Co., 33 L. J., C. P. 313; 16 C. B., N. S. 430.

Where a leaseholder filed a bill against a railway company for an injunction to restrain them from proceeding with their works to the injury of his premises adjoining until they should properly entitle themselves to do so, and the company erected a hoarding so as to prevent the progress of their works from being seen by him, the court ordered the company to give access to him, his surveyors and builders, to go over and view the works carried on close to his premises at all reasonable times of the day upon his giving half an hour's notice. Saul v. Metropolitan Railway Co., 16 L. T., N. S. 169.

A person may have right to compensation when any part of his land or an easement is taken for things which otherwise would not be ground of compensation. Buccleuch (Duke) v. Metropolitan Board of Works, L. R., 5 E. & I. App. 418; 41 L. J., Ex. 137; 27 L. T., N. S. 1.

As to interference with public rights (e.g., public right of way), see R. v. Metropolitan Board of Works, 38 L. J., Q. B. 201; L. R., 4 Q. B. 358; Rangeley v. Midland Railway Co., 17 L. T., N. S. 408; 18 L. T., N. S. 69; L. R., 3 Ch. App. 306; 37 L. J., Ch. 313.

When a special act incorporates the whole of the Lands Clauses Act, such incorporation is sufficient to give persons injuriously affected a right to compensation, without any provisions to that effect in the special act. Reg. v. Vestry of St. Luke's, Chelsea, L. R., 7 Q. B. 148; 41 L. J., Q. B. 81; 20 W. R. 209; 25 L. T., N. S. 914. The City of London Sewers Act, 1848, by sect. 2 incorporates the Lands Clauses Act, 1845, but by sect. 3 excludes the operation of those provisions of the Lands Clauses Act which relate to "the purchase and taking of lands otherwise than by agreement," and those words are the descriptive heading of sects. 16-68 of that act. Compensation was given by the special act in certain special cases of injury to, and interference with, property; but no compensation was given for the injuriously affecting of lands generally. The plaintiff, whose premises were injuriously affected by works executed by the defendants under the powers of the local act, claimed compensation under sect. 68 of the Lands Clauses Act: held, reversing the judgment of the court below, that sect. 68 of the Lands Clauses Act was not incorporated in the local act. Quære, whether, if sect. 68 of the Lands Clauses Act had been incorporated, compensation could have been claimed under it, the plaintiff not being entitled to compensation by any other statutory provision. Ferrar v. Commissioners of Sewers of London, L. R., 4 Ex. 227; 38 L. J., Ex. 102; 17 W. R. 709. The London (City) Improvement Act, 1847, provided by sect. 1 that the Lands Clauses Consolidation Act, 1845, "so far as the provisions thereof were not expressly varied or excepted, should be incorporated; and by sect. 19, that "so much of the Lands Clauses Consolidation Act, 1845, as relates to the purchase of lands otherwise than by agreement," should not be incorporated. The Holborn Valley Improvement Act, 1864, by sect. 5 incorporated the said Act of 1847, except sect. 19, and also the provisions of the Lands Clauses Consolidation Act, 1845, "except the part of the last-mentioned act with respect to the purchase and taking of lands otherwise than by agreement." An act for further improvements of the Holborn Valley, passed in 1867, by sect. 1 incorporated the previous Improvement Act, except certain sections, and the Lands Clauses Consolidation Act, 1845, "except the provisions of the last-mentioned act with respect to the purchase and taking of lands otherwise than by agreement." Under the Holborn Valley Improvement Act, 1864, the defendants constructed certain works, and thereby blocked up a street near the plaintiff's premises and diminished the access to and value of the premises; and the plaintiff sent in a claim under the 68th section of the Lands Clauses Consolidation Act, 1845: held, that sect. 68 of the Lands Clauses Consolidation Act, 1845, was excepted from the local acts, and that (even assuming sect. 68, if incorporated, would give a right to compensation) this being so, and no other sections giving such a right, the plaintiff was not entitled to compensation either by statutory process or right of action at common law. Dungey v. Corporation of London, 38 L. J., C. P. 298; 20 L. T., N. S. 921; 17 W. R. 1106. Refer also to Reg. v. Mayor, &c. of London, L. R., 2 Q. B. 292.

And with respect to the purchase-money or compensation coming to parties having limited interests, or prevented from treating, or not making title, be it enacted as follows:

LXIX. If the purchase-money or compensation which shall Purchasemoney payable be payable in respect of any lands, or any interest therein, to parties

under disability amounting to

2007. to be deposited in the bank.

Application of monies deposited.

purchased or taken by the promoters of the undertaking from any corporation, tenant for life or in tail, married woman seised in her own right or entitled to dower, guardian, committee of lunatic or idiot, trustee, executor or administrator, or person having a partial or qualified interest only in such lands, and not entitled to sell or convey the same except under the provisions of this or the special act, or the compensation to be paid for any permanent damage to any such lands, amount to or exceed the sum of two hundred pounds, the same shall be paid into the bank, in the name and with the privity of the accountant general of the Court of Chancery in England,* if the same relate to lands in England or Wales, or the accountant general of the Court of Exchequer in Ireland if the same relate to lands in Ireland, to be placed to the account there of such accountant general, ex parte the promoters of the undertaking (describing them by their proper name), in the matter of the special act (citing it), pursuant to the method prescribed by any act for the time being in force for regulating monies paid into the said courts; and such monies shall remain so deposited until the same be applied to some one or more of the following purposes; (that is to say,)

In the purchase or redemption of the land tax, or the discharge of any debt or incumbrance affecting the land in respect of which such money shall have been paid, or affecting other lands settled therewith to the same or the like uses, trusts, or purposes; or

In the purchase of other lands to be conveyed, limited, and settled upon the like uses, trusts, and purposes, and in the same manner, as the lands in respect of which such money shall have been paid stood settled; or

If such money shall be paid in respect of any buildings taken under the authority of this or the special act, or injured by the proximity of the works, in removing or replacing such buildings, or substituting others in their stead, in such manner as the Court of Chancery shall direct; or

In payment to any party becoming absolutely entitled to such money.

By 35 & 36 Vict. c. 44, the office of accountant general of the Court of Chancery has been abolished, and the duties transferred to Her Majesty's paymaster general. See Judicature Act, 1875, ss. 24, 30.