8 & 9 VICT. c. 18. ficial purpose to which land may be applied. Injury to trade by temporary obstruction. Ricket's case. Chamberlain's case. titled, may take into account not only the present purpose to which the land is applied, but also any 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., Reg. v. Brown, 2 L. R. (Q. B.) 631). Thus where, by the construction of a railway, part of an owner's land was taken, and several acres were severed from the rest, and all access cut off, the land at the time the railway was constructed being agricultural, but having a prospective value for building, it was held that the compensation jury valuing it as building land might estimate the damage by severance, as if all access were cut off, without any regard to the power of justices under ss. 68 and 69 of the Railways Clauses Consolidation Act, to order accommodation works, as these works could only he ordered with reference to the land as then used for agricultural purposes, and would have been useless as an access to building land: (Ibid.) The leading case on the subject of interruption of trade and injury to the good-will of premises is that of Ricket v. Metropolitan Railway Co., (2 L. R. H. L. 175. See the case below, 5 B. & S. 149–156; 34 L J. (Q. B.) 257; and Gattke's case, 3 MN. & G. 155; 6 R. C. 371, stated above,) in which the House of Lords (Lords Chelmsford and Cranworth, dissentiente Lord Westbury) affirmed the decision of the Exchequer Chamber, reversing that of the Queen's Bench. The important point which that case establishes is this, that where the claimant's land is not taken by the company, but only injuriously affected, he is entitled to compensation only in respect of damage done to the land itself, and not for any personal damage resulting from a mere temporary obstruction. In that case the railway company, in executing their works obstructed, by means of hoardings and slips continued for twenty months, the streets leading to a public-house occupied by the claimant, thereby making the access to it inconvenient. The jury having found that there was no structural damage to the premises, but that the claimant had sustained damage in respect of the interruption to his business, it was held on appeal that he was not entitled to compensation under the present section, or s. 6 of the Railways Clauses Act. "The injury," said Lord Cranworth in his judgment, "must be actual injury to the land itself, as by loosening the foundation of buildings on it, obstructing its light or its drains, making it inaccessible by lowering or raising the ground immediately in front of it, or by some such physical deterioration. Any other construction of the clause would open the door to claims of so wide and indefinite a character as could not have been in the contemplation of the legislature." Where, however, there is an actual injury to the house or land itself, consequential upon the acts done by the company, the owner is entitled to compensation; as in Chamberlain's case, (2 B. & S. 605,) in which the claimant was lessee of four houses in the highway, and of eight others in the course of erection for the purpose of being used as dwelling-houses, fronting a new road running at right angles to the highway, across which the railway was constructed, rendering the access to the houses less convenient, notwithstanding the substitution of a deviation road, and rendering them less useful for being used and occupied as shops. Compensation for Contingent Future Damage. 203 Previously to the case of Ricket v. Metropolitan Railway Co., it was 8 & 9 VICT. C. 18. held in the cases of Senior v. Metropolitan Railway Co., (2 H. & C. 258; 32 L. J. (Ex.) 225,) and Cameron v. Charing Cross Railway Co., (16 C. B. N. S. 430; 33 L. J. (C. P.) 313,) that where no structural damage had been sustained, but the obstruction had caused loss of business, the claimant was entitled to compensation on the ground that loss of trade was an injury to the value of the land itself, and therefore the subject of compensation under the present section; but these two cases are now overruled by the decision of the House of Lords in Ricket's case. must be once for With regard to damage that may be foreseen, compensation must Compensation be once for all, and a claimant cannot afterwards recover compen-all for damage sation for such damage, by action or otherwise: (Croft v. London which can be and North-Western Railway Co., 32 L. J. (Q. B.) 113; R. v. Leeds and foreseen. Selby Railway Co., 3 A. & El. 683.) As to damage subsequently accruing, and not foreseen at the time Contingent compensation was assessed, the authorities are not quite so clear, but future damage. it seems that compensation for it may be recovered under this section. Where the compensation to be paid by a railway company to the owner of land, from whom the company had purchased some land, for all injury and damage to his remaining estate, "by severance or otherwise," had been assessed by an arbitrator, it was held that the compensation awarded related only to such damage as was capable of being ascertained and estimated at the time, and did not embrace contingent and possible damages which might arise afterwards by the works of the company at other places, and which could not be foreseen by the arbitrator: (Lawrence v. Great Northern Railway Co., 16 Q. B. 643.) So it was held by the Court of Exchequer that the arbitrator should not award compensation for future damage that may possibly arise to that part of the claimant's land which is not taken, by reason of the execution of the company's works, as, when such damage arose, the claimant would "be entitled to compensation under the 68th section, which is expressly provided to meet such a case as this:" (Ware v. Regent's Canal Co., 9 Exch. 395; 7 R. C. 780.) In Croft v. London and NorthWestern Railway Co., (32 L. J. (Q B.) 120,) in which case it was not necessary to decide the point, as the Court was of opinion that the damage there was foreseen, Cockburn, C. J., says "It certainly would, as far as the company is concerned, be grievously harassing if, upon any occasion upon some unforeseen damage arising afterwards, they were to be subject to litigation. The Legislature evidently contemplated that there should be an arbitration to settle the difference, or that a jury should be called in, and not that the company should be made liable to harassing actions to all time. It is true there may be cases in which damage not contemplated, not foreseen at the time when the inquiry takes place, either before the arbitrator or before the jury, may arise; but I think it is more likely to be the other way." But Mellor, J., says, (p. 122,) “ I am far from saying, that in some instances a jury might not be summoned to assess compensation for injury which could not be foreseen at the time the jury were first summoned to assess compensation in the particular case, or where the arbitrator at the time of his award could not have foreseen the damage that afterwards resulted." 8 & 9 VICT. c. 18. And Crompton, J., in the same case, distinguishes between foreseen and unforeseen damage, and expresses no opinion as to the latter. (See further, Broadbent v. Imperial Gas Co., 26 L. J. (Ch.) 276; R. v. Aire and Calder Navigation, 30 L. J. (Q. B.) 337.) Works may be executed before compensation made. Notice. Where claimant is a lessee for years. Mistake. Issue of warrant. Mandamus. And in equity it has been held that a party may proceed under s. 68 to assess compensation for damage sustained after the satisfaction of his primary claim, which could not have been foreseen: (Lancashire and Yorkshire Railway Co. v. Evans, 15 Bea. 332) It is not unlawful for the company to execute works authorised by their act before paying compensation for injury arising from such execution. A plaintiff, who did not dispute the right of the company to widen a bridge in such a manner as to draw off water from a reservoir connected with his mill, was held not entitled to prevent the works proceeding until he had received compensation for the loss of water occasioned thereby: (Hutton v. London and South-Western Railway Co., 18 L. J. (Ch.) 345.) See s. 6 of the Railways Clauses Act, post. (e) By s. 21, ante, the claimant is required to state "the particulars of his claim in respect of any such land." The object of the notice in each case is the same, and the same degree of particularity would seem necessary-i.e., such as would enable the company to meet the just claim of the party by ascertaining the value of the land, offering him compensation accordingly. (See per Cockburn, C. J., Healey v. Thames Valley Railway Co., 34 L. J. (Q.B.) 52; 11 L. T. N. S. 268.) If compensation is claimed for consequential damage as well as for land taken, there should be a separate claim for each, (R. v. Commissioners of Dudley Improvement Act, 10 L. T. 372,) and the claim should state the full amount claimed, and not merely supply the means of calculating it: (Falconer v. Aberdeen Railway Co., 15 Court of Sess. Cas. 352, decided on a section of the Scotch Land Clauses Act, similar to the present.) 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: (Ibid.) But in a case of temporary interruption of traffic, where consequently it was unnecessary for the claimant to state the duration of his term, it was held that a tenant who held under a lease had sufficiently described himself as the "occupier :" (Cameron v. Charing Cross Railway Co., 33 L. J. (C. P.) 313.) A mistake in the name of the company, which does not mislead, does not invalidate the notice: (Eastham v. Blackburn Railway Co., 9 Exch. 758.) (f) Where the matter is not merely in negotiation, but the lands have been actually taken or injuriously affected, it seems that no notice need be given by the company to the claimant of their intention to cause a jury to be summoned: (Railstone v. York, &c., Railway Co., 15 Q. B. 404; 19 L. J. (Q. B.) 464, (dissentiente Coleridge, J.;) Hayward v. Metropolitan Railway Co., 33 L. J. (Q. B.) 73. But see Richardson v. South-Eastern Railway Co., 11 C. B. 154.) It would follow from this that the claimant, if he desires a special jury, will have no opportunity of requiring one unless he demands it in his original notice. The company may be compelled by mandamus to issue their war Costs-Lien-Application of Compensation. 205 rant to the sheriff, even where the claimant has a remedy in equity: 8 & 9 VICT. c. 18. Reg. v. Irish South-Eastern Railway Co., 1 Ir. L. R. 119; and see Fotherby v. Metropolitan Railway Co., L. R. 2 C. P. 188; and the notes to s. 39, ante.) In an action against a railway company under this section for the full compensation claimed because of default by the company to summon a jury within twenty-one days, a plea "that the claim was not a bona fide claim within the statute, but in fraud of the defendants, and without any reasonable cause," will not be allowed; but Erle, C. J., disallowed it without prejudice to any application to plead a plea framed on the case of Wade v. Simeon, 2 C. B. 548; 15 L J. (C. P.) 114; (Hooper v. Bristol Port Railway and Pier Co., 35 L. J. (C. P.) 299.) (g) It has been held that this provision of the statute incorporates Costs. with this section all the previous provisions as to the summoning of juries, including ss. 51 and 52, ante, which provide for the payment of the costs of an inquiry before a jury: (South-Eastern Railway Co. v. Richardson, 21 L. J. (C. P.) 122; 15 C. B. 810; Railstone v. York, &c., Railway Co., ubi supra.) See s. 45 of 31 & 32 Vict. c. 119, in the Appendix. The 68th section was held to be incorporated into an act passed Incorporation of after the Lands Clauses Act, and extending an act passed before that s. 68 in extenact: (Lancashire and Yorkshire Railway Co. v. Evans, 15 Bea. 332.) sion acts. It seems that the ordinary vendor's lien is enforceable in respect Lien for unpaid of unpaid compensation, notwithstanding the payment into Court compensation. of a sum of money under the 85th section; and in a late case, Lord Romilly, M. R., referred it to Chambers to ascertain what was due to the plaintiff for principal, interest, and costs, directed a day to be fixed for the payment of what should be found due, and in default of payment ordered a sale of the land: (Walker v. Ware, Hadham, and Buntingford Railway Co., L. R. (Eq.) 195, 200; 34 L. J. (Ch.) 94; 13 L. T. N. S. 517.) clared in a suit. But the same judge refused to make a similar decree in a case in Cannot be enwhich, though specific performance of an agreement, and an inquiry forced until deas to the amount due, had been decreed in the cause, it was attempted, on petition, under the liberty to apply, to enforce the vendor's lien, which had not in fact as yet been declared to exist, as a charge upon the property: (Attorney-General v. Sittingbourne and Sheerness Railway Co., 1 L. R. (Eq.) 636; 14 L. T. N. S. 92.) See further as to remedies for recovering unpaid compensation and purchase-money the notes to s. 85, post. APPLICATION OF COMPENSATION. And with respect to the purchase-money or compensation Application of coming to parties having limited interests or prevented from compensation. treating, or not making title, be it enacted as follows: payable to par. LXIX. If the purchase-money or compensation which Purchase-money shall be payable in respect of any lands, or any interest ties under disatherein, purchased or taken by the promoters of the under- to £200 to be detaking from any corporation, tenant for life or in tail, posited in the bility amounting 8 & 9 VICT. C. 18. 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 moneys paid into the said courts; and such moneys shall remain so deposited until the same be applied to some one or more of the following purposes; (that is to say,) Application of moneys de posited. Title to the pro In the purchase or redemption of the land-tax, or the 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. (a) The Court of Chancery will not, in consequence of property havperty not affected ing been taken for a railway, allow the title to the property to be by payment into Court. interfered with, the object of the act of Parliament being to define the manner in which the railway company shall be bound to make. |