duals, provided that, by special act, they have been vested with such powers. Yet practically they are applicable to corporations. only; for it is not probable that the Legislature would in the present day confer aggressive powers, for the purpose of carrying public undertaking of the kind intended by these statutes, on an individual, or on the fluctuating membership of an unincorporated association. It may be observed that, in the last general Act applicable to railways, the Railway Construction Facilities Act, 1864, the effect of the certificate, when obtained by a company not previously incorporated, is to make it a corporation (a). In pursuing our examination into this branch of the subject, we shall enter somewhat fully into the Lands Clauses Act, and shall afterwards consider more briefly the provisions of the Railway Clauses Act, and other statutes which bear upon this part of the treatise. When reference is made to the consolidated statutes which were passed in duplicate, those applicable to Scotland are always intended, unless the contrary is expressly stated. (a) It does not affect the truth of these observations, that the powers of the Act have been conferred on government boards or officials, for such are always corporations aggregate or sole; nor that the Crown is, by 7 and 8 Vict. Mode of treating the subject. CHAPTER XII. LANDS CLAUSES CONSOLIDATION ACT. Application of THE Lands Clauses Consolidation (Scotland) Act (a) applies to Lands Clauses Act. Powers to purchase and convey. any undertaking in Scotland authorized by special act obtained subsequently to the 8th of May 1845, to exercise compulsatory powers for the acquisition of land, and, as in the case of the other Consolidation Acts, is held to be incorporated with the special act, except in so far as its provisions may be varied or excepted by those of the latter (preamble and sec. 2). But inasmuch as it may be found convenient in some cases to incorporate with the special act some portions only of the general Act, this may be done by specifying the clauses intended to be incorporated in the preamble to the special act (sec. 5). The Act may be referred to in other Acts, and in legal instruments, as the Lands Clauses Consolidation (Scotland) Act, 1845 (sec. 4). The company having obtained their special act, are empowered to agree with the owners of the lands authorized to be taken, and with all parties having any right or interest therein, for the absolute purchase of the right of property (sec. 6) (b); and in like manner the Act confers full powers on such parties to dispose of the lands, or such interest as they may have in them, to the company, notwithstanding of any entails, trusts, corporate rights, etc., which would otherwise affect the validity of the transaction (secs. 7, 8). (a) 8 and 9 Vict. c. 19 (8th May 1845). The corresponding English Act, of which this is a mere transcript, with the necessary alterations in technical language and remedial details, is the Lands Clauses Consolidation Act, 8 and 9 Vict. c. 18 (8th May 1845). (b) Where a conventional agreement has been made, it will be strictly enforced, even in its penal clauses. Glasgow and Ardrossan Canal Co. v. Glasgow and Greenock Ra. Co., 1850, 13 D. 182. In the general case, the owners or others interested in the lands authorized to be taken, may make any agreement as to price or compensation with the company they think proper; but where, except for the provisions of the statute or special act, they would not be entitled to exercise the power of alienation, the purchasemoney or compensation, if not fixed by the Sheriff, a jury, arbitration, or a valuator appointed by the Sheriff in terms of the statutory provisions, must not be less than that determined by the valuation. of two practical valuators, one nominated by each party, and in case of their not agreeing, of a third valuator appointed by the Sheriff. The valuation must be authenticated by a declaration in writing, signed by the valuators (sec. 9). Instead of a sum of money, the consideration may be in all cases an annual feu-duty or ground-annual payable by the company. This annual payment must be charged on the tolls or rates, if any, payable under the special act; and may be otherwise secured as the parties may agree. If the feu-duty or ground-annual is not paid by the promoters within thirty days after it becomes payable, and after demand in writing, the creditor may recover the amount with costs by action against the promoters, or may levy it by poinding and sale of their goods and effects (secs. 10 and 11). These provisions, which were originally limited to the case of parties entitled in their own right to dispose absolutely of the lands acquired, are now extended to cases where the parties to the sale are under incapacity or disability, and could not alienate except under the statutory powers (23 and 24 Vict. c. 106, sec. 3). The whole of these provisions apply to cases where the company are empowered by their special act to purchase lands for extraordinary purposes (a) (sec. 12). When such powers are possessed, the lands acquired under them may be disposed of as the company see fit, and others may be again purchased in their place; but the total amount of land held at any one time by the company for extraordinary purposes must not exceed the quantity prescribed (sec. 13). It must, however, be observed, that the company cannot, under the power to purchase land for extra (a) That is, lands which, by their special act, the company are empowered to take in certain circum stances for other purposes than the When conferred by statute. What consideration may be. Lands purextraordinary chased for purposes. Aggressive powers cannot subscribed capital is paid up; nor after ordinary purposes, acquire more than the prescribed quantity from any party who, without the statutory provisions, would not have power to alienate; and if the prescribed quantity have once been acquired from such persons, and be afterwards disposed of, it cannot be again purchased from persons of this description (sec. 14). When the undertaking is to be carried into effect by means of a be used till the capital to be subscribed by the shareholders, the whole of the capital of the company, or estimated sum for defraying the expenses of the undertaking, must be subscribed under contract, before any of the powers contained in the general or special act as to taking of land can be exercised (sec. 15) (a). The certificate of the Sheriff is sufficient evidence that this provision has been complied with (sec. 16). These powers cannot be exercised after expiration of the prescribed scribed period. period; and if none is prescribed, not after three years from the passing of the special act (sec. 116). But it has been held that, if notice has been given of intention to take lands before elapse of the prescribed period, all the subsequent steps might be taken after; the principle being that, by giving such notice, the company have exercised their powers of compulsatory purchase, and that all that follows is mere matter of detail (b). elapse of pre Aggressive act. Exception. The powers to take land for the purposes of the undertaking, assumed to be conferred on companies brought under the operation of this Act, are always to be interpreted in strict accordance with the company's special act. Therefore, when a clause was contained in a special railway act declaring that it should not be lawful to take the land of another railway company, except with consent of the company, it was held that this provision controlled the general powers to take land necessary for the purposes of the undertaking, in so far as related to the property of the company, the rights of which were so protected (c). Where, however, the procedure to have the amount of compen (a) This does not apply to branch railways made by an existing company; R. v. Great West. Ra. Co., 1 E. and B. 253; Weld v. South-West. Ra. Co., 32 Beav. 340. (b) Edinburgh and Glasgow Ra. Co. v. Monklands Ra. Co., 1850, 12 D. 1304, and 13 D. 145; R. v. Birmingham and Oxford Ra. Co., 19 Law Jour. (Q. B.) 453, and 20 Law Jour. (Q. B.) 304; Great Northern Ra. Co., 17 Q. B. 840; Sparrow v. Oxford and Worcester Ra. Co., 9 Ha. 436, 7 Ra. Ca. 92; North Stafford Ra. Co., 16 Q. B. 526; South Devon Ra. Co., 16 Q. B. 539. (c) Caledonian Ra. Co. v. Edinburgh and Glasgow Ra. Co., 1854, 17 D. 162. sation ascertained has miscarried through the fault of one of the parties, such party cannot plead that the statutory period has elapsed so as to prevent the provisions of the Act being carried out, even after the prescribed period (a). The first step on the part of the company intending to take land under their compulsatory powers is to give notice to all parties interested in the lands required, or enabled by the general or special acts to make the conveyance, or to such of them as after diligent inquiry can be discovered. The notice must require from such parties the particulars of their interests, and of the claims made by them in respect thereof, and must state the particulars of the lands required, the willingness of the company to treat for the purchase, and their readiness to make compensation for any damage caused by execution of the undertaking (sec. 17). Such notices must be served on those entitled to receive them, personally, or by leaving them at their last usual place of abode. If the owners are out of the kingdom, or cannot be found, service must be made on their factors or agents, if any; and a copy must also be left with the occupier, and if there be none such, it must be affixed on some conspicuous part of the lands (sec. 18). Notice of in tention to take lands. The immediate effect of this notice seems to be, to establish to Effect of notice. a certain extent, and for certain purposes, a contract of sale between the company and the parties entitled to convey the lands required, for a price to be fixed in one or other of the modes provided by the Act (b). The consequence of this is, that the company cannot abandon their purchase, except with consent of the seller, but may be compelled to take the statutory procedure for having the lands valued (c). They cannot without consent of parties limit their (a) See Commissioners for Harbour of Leith v. Trinity Harbour Co., 1842, 4 D. 1056. This was a case which arose before the Lands Clauses Act was passed; but it was under a special act which contained provisions almost identical. (b) Glasgow and Monklands Ra. Co. v. Glasgow Waterworks Co., 1849, 11 D. 1153; Edinburgh and Glasgow Ra. Co. v. Monklands Ra. Co., 1850, 12 D. 1304, and 13 D. 145; Edinburgh and Dundee Ra. Co. v. Leven, 1848, 10 D. 1013, aff. 1852, 1 Macq. 284, 1 Stu. 686; (c) R. v. Hungerford Market Co., |