Incorporation of the Act with Special Acts.

145

any law then in force, or by any law not containing any express 8 & 9 VICT. c. 18. enactment to the contrary, thereafter to be made, was or should be

directed to be done by more than one justice.

(d) As to the legal meaning of the word " owner," see R. v. Kerrison, "Owner."

1 M. & S. 435 ; Bullard v. Harrison, 4 M. & S. 387; Russell v. Shenton,

3 Q. B. 449; Chauntler v. Robinson, 4 Exch. 163 ; 19 L. J. (Ex.) 170.

act.

IV. And be it enacted, That in citing this act in other Short title of the Acts of Parliament, and in legal instruments, it shall be sufficient to use the expression "The Lands Clauses Consolidation Act, 1845."

act may be incorporated with

portions of this

other acts.

V. And whereas it may be convenient in some cases to Form in which incorporate with Acts of Parliament hereafter to be passed (a) some portion only of the provisions of this act (b): Be it therefore enacted, That, for the purpose of making any such incorporation, it shall be sufficient in any such Act to enact that the clauses of this Act with respect to the matter so proposed to be incorporated (describing such matter as it is described in this Act in the words introductory to the enactment with respect to such matter) shall be incorporated with such Act, and thereupon all the clauses and provisions of this Act with respect to the matter so incorporated shall, save so far as they shall be expressly varied or excepted by such Act, form part of such Act, and such Act shall be construed as if the substance of such clauses and provisions were set forth therein with reference to the matter to which such Act shall relate.

tive.

(a) Lord Westbury, C., in Re Cherry (31 L. J. (Ch.) 351; 10 W. R. Not retrospec305; 7 Jur. N. S. 1184; 6 L. T. N. S. 31) observed that the Lands Clauses Act is not retrospective.

extending acts

(b) In the last-cited case an Act, passed before the Lands Clauses Extension of Act, gave certain powers of reinvestment to the Commissioners of powers to special Woods and Forests, and these powers, under the words "such and subsequent to the same powers, authorities, privileges, and exemptions, as were Lands Clauses given in the former Act," were extended by an act passed subsequently to the Lands Clauses Act. These words were held by his Lordship to exclude the operation of the Lands Clauses Act.

Act.

In a case in which it appeared that the Westminster Bridge Act, Distinction as to 1859, did not incorporate the Lands Clauses Act, 1845, and omitted previous acts. to provide for a certain class of costs, the same learned judge held that the provisions of the Consolidation Act with respect to these costs should be taken to be incorporated in the special act: (Ex parte Vicar of St Sepulchre's, 33 L. J. (Ch.) 372; 12 W. R. 499; 10

Jur. N. S. 298; 9 L. T. N. S. 819 ; 3 N. R. 594.) And his Lordship Re Cherry exexplained his decision in Re Cherry, ubi supra, by showing that in plained, that case there was a mere reference as to costs, to an Act anterior, and not, as in the case before him, subsequent, to the Lands Clauses

Act.

K

8 & 9 VICT. c. 18. General rule: Eton College

case.

Lancashire and

In the first case upon the question of the incorporation of the Consolidation Act, in an extension Act not expressly providing for it, it was held that, whenever after the passing of the Lands Clauses Act, an Act passes, giving further powers for the extension of an "undertaking" authorised by an act passed before the Lands Clauses Act, the Lands Clauses Act is to apply to the whole "undertaking,” as if it had always been applicable to it, so far as any of its provisions remain applicable, or there is anything to be done under it. Upon this principle, s. 80 was held to apply under the above circumstances: (Ex parte Eton College, 20 L. J. (Ch.) 1; 15 Jur. 45.)

And this was expressly followed in a case where the applicability Yorkshire Rail- of s. 68 of the Lands Clauses Act was in question: (Lancashire and Yorkshire Railway Co. v. Evans, 15 Bea. 322.)

way Co. v. Evans. Re Ellison.

Rule dissented from.

Re Neachell.

Re Holden.

Construction of

And the words "the special act or any act incorporated therewith" occurring in s. 80 were held to be a good reason for adopting the rule referred to: (Re Ellison, 8 De G. M. & G. 62; 25 L. J. (Ch.) 379; followed in Re Derriman, 1 W. N. 269.)

An apparent exception to the rule above stated is afforded by a case before Vice-Chancellor Kindersley, who, on the ground that the contract in the matter before him was incomplete, held that the provisions of the Lands Clauses Act could not apply, but observed that this was his only reason for differing from Lord Truro's decision in the Eton College case: (Re Neachell, 3 W. R. 634; 25 L. T. 280.) But Sir G. L. Turner, L. J., in Re Ellison (ubi supra) was unable to hold the ground of the Vice-Chancellor Kindersley's decision in Re Neachell to be valid, and the latter case is therefore practically overruled.

Another attempt to set aside the rule in the Eton College case was made in a case before Vice-Chancellor Wood, who thought that a company ought not to be allowed to avail themselves of new powers conferred by the Lands Clauses Act without coming under the new liabilities created by that Act: (In re Holden's Estate, 3 W. R. 644 ; 1 Jur. N. S. 995.) But the facts of this case render it identical with Re Ellison, and it cannot therefore be admitted to be law. Where, however, an Act passed before the Lands Clauses Act has been subsequently repealed, but the repealing Act (which incorporates the Lands Clauses Act) expressly provides that the costs of reinvestment of money paid in under the repealed Act shall follow the provisions of the repealed Act, such costs alone will be allowed: (Re St Katherine Docks Co., 1 W. N. 291; 14 W. R. 978.)

It may be remarked that under the old railway acts, before the old railway acts. Lands Clauses Act was passed, the Court construed their provisions as to costs strictly according to the terms of the Act: (Re Strachan, 20 L. J. (Ch.) 511; 9 Hare, 185. See the notes to s. 80, post.

PURCHASE OF LANDS BY AGREEMENT.

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

VI. Subject to the provisions of this and the special act it shall be lawful for the promoters of the undertaking (a) to agree with the owners (b) of any lands by the special act

authorised to be taken (c), and which shall be required for 8 & 9 VICT. c. 18. the purposes of such act (d), and with all parties having any estate or interest in such lands, or by this or the special act enabled to sell and convey the same, for the absolute purchase, for a consideration in money, of any such lands, or such parts thereof as they shall think proper, and of all estates and interests in such lands of what kind soever (e).

moters.

(a) It is not clear from the numerous cases upon the subject Nature of conwhat is the precise binding nature of contracts entered into between tracts with propromoters and landowners before the passing of a railway act, in consideration of the withdrawal by landowners of their opposition to the passage of the bill through Parliament.

ham's decisions.

Such agreements were held by Lord Cottenham to be valid and Lord Cottenbinding upon the company when incorporated by their act: (Edwards v. Grand Junction Railway Co. 1 My. & Cr. 650, 672; Stanley v. Chester and Birkenhead Railway Co., 3 My. & Cr. 773; 9 Sim. 264; Lord Petre v. Eastern Counties Railway Co., 1 R. C. 462. And see Greenhalgh v. Manchester and Birmingham Railway Co., 3 My. & Cr. 784; Vauxhall Bridge Railway Co. v. Spencer, Jac. 64.)

But these decisions have in later cases been much dissented from Dissent there(if not actually overruled) in the cases of Caledonian Railway Co, from. v. Magistrates of Helensburgh, 2 Macq. 391; Williams v. St George's Harbour Co., 2 De G. & J. 547, and other cases; and they were especially disapproved of by Sir R. T. Kindersley, V.-C., in Earl of Shrewsbury v. North Staffordshire Railway Co., L. R. 1 Eq. 593, 616, 617; 35 L. J. (Ch.) 156; 14 W. R. 220; 13 L. T. N. S. 648; 12 Jur. N. S. 63.

Where, however, there is a clear agreement by the promoters to Secus, where take the land in consideration of the withdrawal of opposition, the agreement is clear and opposilandowner may sustain an action in case of the breach of it, although tion withdrawn. the railway be abandoned: (Bland v. Crowley, 6 Exch. 522; 20 L. J. (Ex.) 218; 6 R. C. 756.)

:

received

And it has been frequently held that, if the company have re- Where company ceived the benefit of such agreements, or have actually adopted havent of acts of them since their incorporation, they will be enforced in equity promoters. (Gooday v. Colchester Railway Co., 17 Bea. 132; Williams v. St George's Harbour Co., 2 De G. & J. 547; Preston v. Liverpool, &c., Ray Co., 1 Sim. N. S. 586; Earl of Lindsey v. Great Northern Rubray Co., 10 Hare, 664; Eastern Counties Railway Co. v. Hawkes, 5 H. L. Ca. 356. But see per Lord St Leonards, 5 H. L. Ca. 368.)

must be intrâ

But several cases show that, in order to be binding upon the Such contracts future company, contracts of this nature must be within the powers vires of the comof the company as incorporated by its act of Parliament: (Cale- pany. donian Railway Co. v. Magistrates of Helensburgh, 2 Macq. 391; Preston v. Liverpool, Manchester, and Newcastle Railway Co., 5 H. L. Ca. 605, 621; Proprietors of the Leominster and Shrewsbury Canal 7. Shrewsbury and Hereford Railway Co., 3 K. & J. 654; Webb v. Lord James Stuart, 1 De G. M. & G. 721 ; 21 L. J. (Ch.) 450; Bedford and Cambridge Railway Co. v. Stanley, 2 J. & H. 746; 32 L. J. (Ch.) 60; 9 Jur. N. S. 152.)

Nor must the contract be conditional, or vague, or dependent And must not be

conditional on

construction of

railway.

8 & 9 VICT. c. 18. upon the construction of the railway, or the taking of the land: (Preston v. Liverpool, Manchester, and Newcastle Railway Co., 5 H. L. Ca. 605; Gage v. Newmarket Railway Co., 18 Q. B. 457; 7 R. C. 168; 21 L. J. (Q. B.) 398; Webb v. Direct London and Portsmouth Railway Co., 1 De G. M. & G. 521; 20 L. J. (Ch.) 566; 9 Hare, 129; Lord James Stuart v. London and North-Western Railway Co., 1 De G. M. & G. 721; 16 Jur. 209; 21 L. J. (Ch.) 451.) But the contract must expressly contain the terms upon which the opposition is to be withdrawn: (Aldred v. North Midland Railway Co., 1 R. C. 404, and Hargreaves v. Lancashire, &c., Railway Co., 1 R. C. 416.)

Where land

It is not a ground of objection that the landowner happens to be owner is a peer. a peer of the realm, unless it appears that it was intended to influence his vote as a member of Parliament by the payment of a consideration : (Lord Petre v. Eastern Counties Railway Co., 1 R. C. 462; Lord Howden v. Simpson, 10 A. & E. 820; 3 R. C. 294; Earl of Shrewsbury v. North Staffordshire Railway Co., L. R. 1 Eq. 593, 613; 35 L. J. (Ch.) 156; 14 W. R. 220; 13 L. T. N. S. 648; 12 Jur. N. S. 63.)

Sums paid for withdrawal of opposition belong to the inheritance.

Contracts under the Railways Construction Facilities Act, 1864.

Equitable tenant for life.

Death of owner.

Lands author

It is not, however, allowed that the landowner, not being absolutely entitled to the land, should put into his pocket sums paid for the withdrawal of opposition to the bill, but they are bound to hold such sums as trustees for the inheritance: (Pole v. Pole, 2 Dr. & Sm. 420; Earl of Shrewsbury v. North Staffordshire Railway Co., L. R. 1 Eq. 593; 35 L. J. (Ch.) 156; 14 W. R. 220; 13 L. T. N. S. 648; 12 Jur. N. S. 63; and see s. 73, post.)

With respect to railway companies to which the Railways Construction Facilities Act, 1864, (27 & 28 Vict. c. 121,) is applicable, the 30th section of that Act provides that contracts made before the company's incorporation between landowners and promoters shall be as binding as if they had been entered into by the company.

(b) An equitable tenant for life may contract to sell, but cannot convey, the land, without the concurrence of the trustees: (Lippincott v. Smyth, 29 L. J. (Ch.) 520; 8 W. R. 336; 6 Jur. N. S. 311; 2 L. T. N. S. 79.)

If the "owner" die before completion of the contract, devising his property in trust for his children, some of whom are infants, but without a sufficient trust for sale, each party must pay his own costs of the suit necessary in consequence of the death: (London and South-Western Railway Co. v. Bridger, 12 W. R. 948.)

The case is different where the difficulty arises, not from the accident of the death before a conveyance could be made, but where a landowner, with the knowledge of the existence of the contract, nevertheless, by dying intestate, allows the estate to devolve upon an infant heir, and renders a suit inevitable. See as to this subject the notes to s. 82, post.

(c) The lands "authorised to be taken" are those described and ised to be taken. comprised in the special act and the plans deposited with the bill.

Corrections in plans.

Doubts con

As to corrections of such plans, see the 7th section of the Railways Clauses Act, 1845, (post,) and Taylor v. Clemson, 11 CL. & Fin. 610, and Ware v. Regent's Canal Co., 3 De G. & J. 212.

Doubts with respect to what lands are authorised to be taken are strued in favour generally construed in favour of the landowner: (Simpson v. South of landowners. Staffordshire Waterworks Co., 13 W. R. 729; 6 N. R. 184 ; 34 L. J.

(Ch.) 380; 11 L. T. N. S. 411; 12 L. T. N. S. 360; Webb v. Manchester 8 & 9 VICT. C. 18. and Leeds Railway Co., 4 My. & Cr. 120.)

(d) As to the purposes for which lands may be required to be "Required for taken and lawfully used, see the 16th and 45th sections of the Rail- the purposes of ways Clauses Act, post, and the cases thereon.

such act."

(e) The Court of Chancery has jurisdiction to enforce specifically Specific performcontracts made under this section: (Inge v. Birmingham and Stour ance. Valley Railway Co., 3 De G. M. & G. 658; 1 Sm. & Gif. 347.) See further as to the remedies of unpaid vendors against railway companies, the note to s. 85, post. The rights of an unpaid vendor against a railway company, and his remedies by declaration of his hen, injunction, or sale, are apparently identical, whether his land be taken under an agreement or by compulsion. See Walker v. Ware, Hadham, and Buntingford Railway Co., L. R. 1 Eq. 195; AttorneyGeneral v. Sittingbourne and Sheerness Railway Co., L. R. 1 Eq. 636; Bishop of Winchester v. Mid-Hants Railway Co., L. R. 5 Eq. 17; Williams v. Great Eastern Railway Co., 3 W. N. 148; Wing v. Tottenham and Hampstead Junction Railway Co., 3 W. N. 190.

bers as to con

In Sanderson v. Cockermouth and Workington Railway Co., 19 Inquiry in ChamL. J. (Ch.) 503; 2 H. & T. 327, an inquiry in Chambers was struction of directed as to the mode in which a contract to construct a siding works. and approaches ought to be completed. And see Lytton v. Great Northern Railway Co., 2 K. & J. 394.

The mode of ascertaining the amount of compensation must not Uncertainty in have been left uncertain by the contract: (Morgan v. Milman, 3 De contracts. G. M. & G. 24; 17 Jur. 193.)

exercise of com

The company are treated as having abandoned their agreement if Abandonment they subsequently exercise their compulsory powers with respect to by subsequent the land comprised in the agreement: (Bedford and Cambridge pulsory powers. Railway Co. v. Stanley, 2 J. & H. 746; 32 L. J. (Ch.) 60; 9 Jur.

N. S. 152; 1 N. R. 162.)

As to how far a contract, enforceable in equity, is constituted by Whether notice the notice to treat and assessment of the compensation, see the to treat constinotes to s. 18, post.

For the law with respect to the mode in which directors may bind themselves by contract, see the notes to s. 97 of the Companies

Clauses Act, ante, p. 89, et seq.

tutes an enforceable contract.

money.

Where the land is taken under agreement, the time of pay- Time of payment ment of the purchase-money is a matter of arrangement. The of purchaseLands Clauses Act does not provide for this: (Hutton v. London and South-Western Railway Co., 7 Ha. 259.)

But where interest was to be paid from the day of the commence- Interest. ment of the works until the purchase-money was paid, and the works were not begun for two years, a decree for immediate specific performance was refused: (Bodington v. Great Western Railway, 13 Jur. 144.)

It has also been decided that, in the absence of express provision, Company must the company must complete within a reasonable time; and that complete within they have no right to say that they might complete whenever they

The absence of any provision in the Lands Clauses Act with regard to costs where lands are taken by agreement would seem to make it necessary to provide expressly for them in any such agreement.

reasonable time.