Promoters of the undertaking to pay the costs of litigation as to such lands.

Lands not wanted to be

sold, or in de fault to vest in

owners of ad

joining lands.

according to what they shall find to have been the value of such lands, estate or interest, and profits, at the time such lands were entered upon by the promoters of the undertaking, and without regard to any improvements or works made in the said lands by the promoters of the undertaking, and as though the works had not been constructed.

CXXVI. In addition to the said purchase-money, compensa-. tion, or satisfaction, and before the promoters of the undertaking shall become absolutely entitled to any such estate, interest, or charge, or to have the same merged or extinguished for their benefit, they shall, when the right to any such estate, interest, or charge shall have been disputed by the company, and determined in favour of the party claiming the same, pay the full costs and expenses of any proceedings at law or in equity for the determination or recovery of the same to the parties with whom any such litigation in respect thereof shall have taken place; and such costs and expenses shall, in case the same shall be disputed, be settled by the proper officer of the court in which such litigation took place.

By the expression "full costs" is meant costs as between attorney and client. Doe d. Hyde v. Manchester, 12 C. B. 474.

And with respect to lands acquired by the promoters of the undertaking under the provisions of this or the special act, or any act incorporated therewith, but which shall not be required for the purposes thereof, be it enacted as follows:

CXXVII. Within the prescribed period, or if no period be prescribed within ten years after the expiration of the time limited by the special act for the completion of the works, the promoters of the undertaking shall absolutely sell and dispose of all such superfluous lands, and apply the purchase-money arising from such sales to the purposes of the special act; and in default thereof all such superfluous lands remaining unsold at the expiration of such period shall thereupon vest in and become the property of the owners of the lands adjoining thereto, in proportion to the extent of their lands respectively adjoining the same.

The words "which shall not be required" in the introductory paragraph, refer not to the period when the lands are acquired, but to that fixed by sect. 127 following. Great Western Railway Co. v. May, L. R., 7 E. & I. App. 283; 23 W. R. 141; 43 L. J., Q. B. 233; 31 L. T., N. S. 137. See Hooper v. Bourne and the Great Western Railway Co., infra.

This section is not incorporated with the Public Health Act, 1875, although the rest of the Lands Clauses Act is. See ante, p. 441.

Where under compulsory powers a company acquire land bonâ fide for the special purposes of their act, and the special purposes afterwards fail, the vendor's right of re-purchase is entirely dependent upon the 127th and 128th sections, and no immediate right of re-purchase arises within the ten years limited by the act. Though a person having an inchoate right of pre-emption under the above sections may apply to restrain by injunction damage to the property, he is not entitled to prevent all use of the land during the ten years; and where a railway company, after abandoning their undertaking, were applying to parliament for fresh powers of constructing another railway upon the land purchased for the purposes of the abandoned undertaking, the court allowed a demurrer to a bill by the vendor to restrain the execution of railway works upon such land, the plaintiff not alleging any special damage. Astley v. Manchester, Sheffield and Lincolnshire Railway Co., 27 L. J., Ch. 299; 4 Jur., N. S. 129. The expression 'dispose of" in the sections in question, means the transfer of the land to other persons and not the application of them to a different purpose from that for which they were originally obtained. S. C. on appeal, 27 L. J., Ch. 478; 2 De G. & J. 453.

Where there are several adjoining properties in contact with the superfluous land, it is to be divided among the owners of the adjoining properties in proportion to the frontage of each; meaning by frontage what would be the length of the line of contact of each property if the line were made straight from the point of intersection of the boundaries on one side to the point of intersection of the boundaries on the other side. Moody v. Corbett, L. R., 1 Q. B. 510; 34 L. J., Q. B. 166; 5 B. & S. 859; 14 L. T., N. S. 568. As to the effect of a subsequent act extending the period limited for the sale of superfluous lands, see ibid. See further as to who are adjoining owners, Smith v. Smith, infra, and Coventry v. London, Brighton and South Coast Railway Co., L. R., 5 Eq. 104; 37 L. J., Ch. 90; 17 L. T., N. S. 368; 16 W. R. 267; and cases cited under sect. 128.

The passing of a subsequent act, giving a company power to lease and mortgage certain superfluous lands, does not take away the original power of selling them possessed by the company. Tomlin v. Budd, L. R., 18 Eq. 368; 43 L. J., Ch. 627; 22 W. R. 529.

In Smith v. Smith, (L. R., 3 Ex. 282; 38 L. J., Ex. 37), it was held that sections 127 and 128 do not apply where a railway has been abandoned. As to what is to be considered "superfluous land,' see Beauchamp (Earl of) v. Great Western Railway Co., L. R., 3 Ch. App. 745; 19 L. T., N. S. 189; Lord Carrington v. Wycombe Railway Co., L. R., 3 Ch. App. 377; 37 L. J., Ch. 213; 18 L. T., N. S. 96; Blackmore v. South Western Railway Co., 19 L. T., N. S. 4; 38 L. J., Ch. 19; 16 W. R. 1105; L. R., 4 H. L. 610. See also London and Greeenwich Railway Co. v. Goodchild, 3 Rail. Cas. 507; 8 Jur. 455; 13 L. J., Ch. 224; London and North Western Railway Co. v. West, L. R., 2 C. P. 553; 36 L. J., C. P. 245; Great Western Railway Co. v. May, L. R., 7 E. & I. App. 283; 43 L. J., Q. B. 233; 23 W. R. 141; 31 L. T., N. S. 137; Betts v. Great Eastern Railway Co., L. R., 8 Ex. 294; 43 L. J., Ex. 4; Horne v. Lymington Railway Co., 31 L. T., N. S. 167.

The test appears to be this-are the lands retained by the company with the bona fide intention of using them; and is there at the expiration of the period for sale of superfluous lands, though the land in question is not in actual use, a reasonable prospect that it will be required and used for the purposes of the company? If the answer is affirmative, they are not "superfluous lands." Hooper v. Bourne and the Great Western Railway Co., L. R., 2 Q. B. Div. 339; 46 L. J., Q. B. 509; distinguishing The Great Western Railway Co. v. May, supra.

The lands when the period arrives at which they become superfluous vest in the adjoining owner without any act on his part. Great Western Railway Co. v. May, supra.

Lands to be

offered to

from which

they were originally

taken, or to adjoining

owners.

CXXVIII. Before the promoters of the undertaking dis

owner of lands pose of any such superfluous lands they shall, unless such lands be situate within a town, or be lands built upon or used for building purposes, first offer to sell the same to the person then entitled to the lands (if any) from which the same were originally severed; or if such person refuse to purchase the same, or cannot after diligent inquiry be found, then the like offer shall be made to the person or to the several persons whose lands shall immediately adjoin the lands so proposed to be sold, such persons being capable of entering into a contract for the purchase of such lands; and where more than one such person shall be entitled to such right of pre-emption such offer shall be made to such persons in succession, one after another, in such order as the promoters of the undertaking shall think fit.

Right of preemption to be claimed within

six weeks.

Differences as

See Carrington v. Wycombe Railway Co., L. R., 2 Eq. 825; 37 L. J., Ch. 213; Highgate Archway Co. v. Jeakes, L. R., 12 Eq. 9; 40 L. J., Ch. 408; London and South Western Railway Co. v. Blackmore, 39 L. J., Ch. 713; May v. Great Western Railway Co., L. R., 8 Q. B. 26; L. R., 7 E. & I. App. 283; 42 L. J., Q. B. 6; Betts v. Great Eastern Railway Co., 43 L. J., Ex. 4; R. v. Drayton Highway Board, L. R., 1 Q. B. Div. 608.

CXXIX. If any such persons be desirous of purchasing such lands, then within six weeks after such offer of sale they shall signify their desire in that behalf to the promoters of the undertaking, or if they decline such offer, or if for six weeks they neglect to signify their desire to purchase such lands, the right of pre-emption of every such person so declining or neglecting in respect of the lands included in such offer shall cease; and a declaration in writing made before a justice by some person not interested in the matter in question, stating that such offer was made and was refused, or not accepted within six weeks from the time of making the same, or that the person or all the persons entitled to the right of pre-emption were out of the country, or could not after diligent inquiry be found, or were not capable of entering into a contract for the purchase of such lands, shall in all courts be sufficient evidence of the facts therein stated.

CXXX. If any person entitled to such pre-emption be to price to be desirous of purchasing any such lands, and such person and the promoters of the undertaking do not agree as to the price thereof, then such price shall be ascertained by arbitration,

tration.

and the costs of such arbitration shall be in the discretion of the arbitrators.

See sect. 25, ante, p. 615.

CXXXI. Upon payment or tender to the promoters of the Lands to be undertaking of the purchase-money so agreed upon or deter- the purchasers. conveyed to mined as aforesaid they shall convey such lands to the purchasers thereof by deed under the common seal of the promoters of the undertaking, if they be a corporation, or if not a corporation under the hands and seals of the promoters of the undertaking, or any two of the directors or managers thereof acting by the authority of the body; and a deed so executed shall be effectual to vest the lands comprised therein in the purchaser of such lands for the estate which shall so have been purchased by him; and a receipt under such common seal, or under the hands of two of the directors or managers of the undertaking as aforesaid, shall be a sufficient discharge to the purchaser of any such lands for the purchasemoney in such receipt expressed to be received.

CXXXII. In every conveyance of lands to be made by the promoters of the undertaking under this or the special act the word " grant" shall operate as express covenants by the promoters of the undertaking, for themselves and their successors, or for themselves, their heirs, executors, administrators and assigns, as the case may be, with the respective grantees therein named, and the successors, heirs, executors, administrators and assigns of such grantees, according to the quality or nature of such grants, and of the estate or interest therein expressed to be thereby conveyed, as follows, except so far as the same shall be restrained or limited by express words contained in any such conveyance; (that is to say,)

A covenant that, notwithstanding any act or default done by the promoters of the undertaking, they were at the time of the execution of such conveyance seised or possessed of the lands or premises thereby granted for an indefeasible estate of inheritance in fee simple, free from all incumbrances done or occasioned by them, or otherwise for such estate or interest as therein expressed to be thereby granted, free from incumbrances done or occasioned by them:

A covenant that the grantee of such lands, his heirs,

successors, executors, administrators, and assigns (as the

Effect of the word "grant" in convey

ances.

Land tax and poor's rate to be made good.

case may be), shall quietly enjoy the same against the promoters of the undertaking and their successors, and all other persons claiming under them, and be indemnified and saved harmless by the promoters of the undertaking and their successors from all incumbrances created by the promoters of the undertaking:

A covenant for further assurance of such lands, at the expense of such grantee, his heirs, successors, executors, administrators, or assigns (as the case may be), by the promoters of the undertaking, or their successors, and all other persons claiming under them:

And all such grantees, and their several successors, heirs, executors, administrators and assigns respectively, according to their respective quality or nature, and the estate or interest in such conveyance expressed to be conveyed, may in all actions brought by them assign breaches of covenants, as they might do if such covenants were expressly inserted in such conveyances.

CXXXIII. And be it enacted, that if the promoters of the undertaking become possessed by virtue of this or the special act, or any act incorporated therewith, of any lands charged with the land tax, or liable to be assessed to the poor's rate, they shall from time to time, until the works shall be completed and assessed to such land tax or poor's rate, be liable to make good the deficiency in the several assessments for land tax and poor's rate by reason of such lands having been taken or used for the purposes of the works, and such deficiency shall be computed according to the rental at which such lands, with any building thereon, were valued or rated at the time of the passing of the special act; and on demand of such deficiency the promoters of the undertaking, or their treasurer, shall pay all such deficiencies to the collector of the said assessments respectively; nevertheless if at any time the promoters of the undertaking think fit to redeem such land tax, they may do so in accordance with the powers in that behalf given by the acts for the redemption of the land tax.

As soon as any part of the line is made and in work the company can claim to be assessed for that part as a line and not as if it were still land and houses, &c., as before. East London Railway Co. v. Whitchurch, L. R., 7 E. & I. App. 81; 43 L. J., M. C. 159; 22 W. R. 665 (overruling Reg. v. Metropolitan District Railway Co., L. R., 6 Q. B. 698; 40 L. J., M. Č.