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carried out under the Settled Land Acts, and this alternative course is usually adopted in order to save the expense of a valuation and of payment into court.
NOTICE TO TREAT (r).
Nature of Notice.-The first step which must be taken by the promoters, if they require to purchase lands under the compulsory powers of the Act, is to give notice to treat. This notice must be given (1) to all parties interested in such lands; or (2) to the parties enabled by the Act to sell or convey or release the same; or (3) such of the said parties as shall after diligent inquiry be known to the promoters. The notice must demand from such parties the particulars of their estate and interest in such lands and of the claims made by them for compensation (s), and must state the quantity and situation of the land proposed to be taken, a plan whereof is usually annexed. No party (t) can be required to sell a part only of any house or other building or manufactory if such party is willing and able to sell. the whole thereof (u); and a landowner who is served with a notice to treat for part (v) of his property can serve a counter-notice requiring the promoters to take the whole.
(r) Lands Clauses Consolidation Act, s. 18; as to service of notice, see ss. 19, 20.
(8) As to compensation for damage in addition to the purchase price, see s. 63.
(t) This includes parties under disability and also lessees. (u) Section 92.
(v) See Jepson on Lands Clauses Consolidation Act, pp. 275
Effect of Notice.-The effect of the notice to treat is to fix the extent of the land to be taken and to place the promoters under a legal obligation to take and pay for such land, and it is in every case a necessary preliminary in the case of a compulsory purchase (x). Notice to treat cannot be withdrawn without the landowner's consent, unless a counternotice is given by the landowner under s. 92. But if the notice has been validly withdrawn, a fresh notice to treat may be given (y).
Although after notice has been given the parties stand in a position analogous to that of vendor and purchaser (z), yet their rights are only rights given by the Act, and any proceedings to enforce those rights must be taken under the Act. It is not until the purchase-money has been ascertained, either by agreement or by one of the methods which the Act provides, that the actual relation of vendor and purchaser, with all the rights and obligations incident thereto, is established between the parties. Thus, after notice to treat, but before the price is fixed, no contract is arrived at which can be enforced by an action for specific performance (a), and if the owner dies, the purchase-money when ascertained will belong to his heir or devisee (b). On the other
(x) Tiverton and North Devon Rail. Co. v. Loose more (1884), 9 App. Cas. 480, at p. 503.
(y) Ashton Vale Iron Co., Limited v. Mayor of Bristol,  1 Ch. 591.
() (1884), 9 App. Cas. at p. 489.
(a) Adams v. London and Blackwall Rail. Co. (1850), 2 Man. & G. 118.
(b) In re Battersea Park Acts (1863), 32 Beav. 596.
hand, when once the purchase-money has been fixed, the court will enforce specific performance of the contract (c). If the promoters go into possession before the purchase-money has been fixed, they will be liable to interest at £4 per cent. as from the time of their taking possession (d).
When Notice must be given.-Notice to treat must be given within the period prescribed by the special Act for the exercise by the promoters of their powers of compulsory purchase, or if no period is prescribed, within three years from the passing of the special Act (e). If, however, the notice is given within the three years, the machinery for completing a purchase may be set in motion and worked by either party after the three years have expired (ƒ).
FIRST METHOD OF CARRYING OUT THE PURCHASE OTHERWISE THAN BY AGREEMENT.
The first method is that usually adopted by municipal corporations, who do not as a rule desire to take possession of the land until the amount of compensation has been ascertained.
If the compensation claimed does not exceed £50 (g), or the person claiming compensation is
(c) Harding v. Metropolitan Rail. Co. (1872), 7 Ch. 154. (d) Rhys v. Dare Valley Rail. Co. (1874), L. R. 19 Eq. 93. (e) 8 & 9 Vict. c. 18, s. 123.
(f) Tiverton and North Devon Rail. Co. v. Loosemore (1884), 9 App. Cas. at p. 480.
(g) 8 & 9 Vict. c. 18, ss. 22, 24.
only a yearly tenant (h), the same is settled by two justices.
In other cases the proper course is for the promoters to give ten days' notice of their intention to cause a jury to be summoned, and in such notice must state what compensation they are willing to give (i). The person claiming compensation then has an option to have the amount of compensation settled by arbitration, but he must exercise this option by notice to the promoters before they have issued their warrant to the sheriff to summon a jury (k). If the party claiming compensation desires arbitration, the compensation is settled by arbitrators in the manner provided in ss. 25-37 of the Act, as amended by the Lands Clauses Umpire Act, 1883. If the party claiming compensation does not elect in favour of arbitration, the matter is settled by a jury in the manner prescribed by ss. 39-50, or by a special jury if either of the parties so desire (1).
A long series of authorities has conclusively established that the jury or arbitrator has no right to try a question of the claimant's title to the interest which he alleges; any such question must be raised in subsequent proceedings.
Absent Parties.-If the party entitled to compensation is abroad or cannot be found, the promoters are entitled to have the compensation assessed by a surveyor, to be nominated by two justices (m).
(h) 8 & 9 Vict. c. 18, s. 121. (i) Ibid., s. 38.
(k) Ibid., s. 23.
(1) Ibid., ss. 54-56.
(m) Ibid., ss. 58-60.
however, the absent party is dissatisfied with the valuation of the surveyor, he can afterwards require the question of compensation to be submitted to arbitration (n).
SECOND METHOD OF CARRYING OUT THE PURCHASE OTHERWISE THAN BY AGREEMENT.
The course which is adopted where the promoters desire immediate possession of the lands is as follows (0) The promoters apply to two justices, or, in the case of a railway company, to the Board of Trade (p, to have a surveyor appointed, and this surveyor determines what is, in his opinion, the value of the land as to which notice to treat has been given. The sum so ascertained is deposited by the promoters at the Bank of England to the account of the Paymaster-General. The promoters then give to the parties entitled to sell the land a bond with two sufficient sureties in a penal sum equal to the sum deposited, to secure payment of such compensation as may be eventually fixed, with interest thereon at 5 per cent.
Upon complying with these requisites, the promoters are entitled to enter upon and use the land; but although they cannot be ejected by the owner, they do not acquire the legal estate, and the owner
(n) 8 & 9 Vict. c. 18, ss. 64, 65.
(0) Ibid., s. 85.
(p) Railway Companies Act, 1867, s. 39.