"entitled to any compensation in respect of any lands 1861. JOLLY V. WIMBLEDON 1861. JOLLY V. WIMBLEDON The decision in The Marquis of Salisbury v. The Great Northern Railway Company (a) was upon that part of sect. 124 which provides for the case in which the estate, interest or charge is disputed: the Court of Common Pleas held that, the title to the land being in dispute, ejectment was the proper mode of trying that question; and that after the plaintiff's title had been established, the Company might have the benefit of the provision that they should remain in possession six months by the Court restraining the execution. When the Company admit the existence of a charge, they are allowed six months to determine whether they will give up the land or purchase it, and what compensation they will offer; and ejectment does not lie any more than trespass would. [Channell B. Suppose the Company have notice of the charge and do nothing.] It would be a question for the jury whether they disputed the existence of the charge. Ejectment for the purpose of determining title can only be brought within six months; and therefore it lies upon the plaintiff to shew that there was a dispute which required to be settled by ejectment. In this case the title of the plaintiff was not disputed. Secondly. The plaintiff had not, under the mortgage deed, a good title in possession enabling him to maintain ejectment, inasmuch as a tenancy was created in the mortgagor, which tenancy was never determined, and was outstanding in the representatives of the mortgagor at the time of the commencement of the action. [He referred to the provisions of the deed.] Bovill, for the respondent (the plaintiff below).-First. (a) 5 C. B. N. S. 174. Sect. 124 of stat. 8 & 9 Vict. c. 18. is not inconsistent with the right to bring ejectment: effect will be given to it, by holding that it does not bar the right of action but only restrains the writ of possession upon the judgment recovered in the action from issuing until the expiration of the six months. No mistake or inadvertence of the Company, and no abstaining by them from disputing the title, would operate either together or separately as a bar to the right of action; if it would, it does not appear in this case that there was any mistake or inadvertence of the defendants. The omission by the defendants to admit the plaintiff's title was an omission in their own default. [He cited Hyde v. The Mayor of Manchester (a).] The defendants ought to have shewn that they paid compensation to the plaintiff within six months after notice of the plaintiff's charge, and, not having done so, they lose the benefit of sect. 124, and are made trespassers ab initio. Further, the defendants dispute the title of the plaintiff by defending this action, and therefore are not within sect. 124. Secondly. No tenancy was created by the mortgage deed; or, if any was created, it was only a tenancy at will and was determined by the bringing of this action. [He cited Doe d. Garrod v. Olley (b), Doe d. Snell v. Tom (c), The Metropolitan Counties and General Life Assurance Society v. Brown (d), Doe d. Wilkinson v. Goodier (e). Horace Lloyd, in reply. 1861. JOLLY V. WIMBLEDON and DORKING Railway Company. 1861. JOLLY V. WIMBLEDON ERLE C. J. (Dec. 4th) delivered the judgment of the Court. This ejectment was brought for lands taken by the Railway Company according to the provisions of the Acts relating thereto, of which lands the mortgagor had been in possession; and, although the purchase money was not paid to him, the parties were treating for an agreement, and the taking of those lands was lawful as far as the interest of the party in occupation was concerned. The plaintiff was mortgagee in fee of these lands, but the mortgage was not known by the defendants to exist till he sent the letter in August, 1859. After this, letters ensued in which the plaintiff gave no information of his title and the defendants did not dispute his title, but asked for a short delay while their legal advisers were absent from London. In the following October, the plaintiff brought this ejectment, and the question is whether, under these circumstances, the 124th section of The Lands Clauses Consolidation Act, 1845, affords a defence. This section relates to lands which have, by mistake, been omitted to be purchased, and enacts that if, after the promoters have entered on lands, which they are authorized to purchase and which are permanently required, any party shall appear to be entitled to any interest or charge thereon which, through mistake, was not purchased, then the promoters shall remain in undisturbed possession: provided that within six months after notice of the claim, or in case of dispute of title within six months after title shall have been established by law, they pay the compensation therein mentioned. The defendants contend that their right to undisturbed possession during six months is a bar to an action of ejectment, which must be founded on a supposed wrong ful possession during that time, and we are of opinion that the defendants are right. The statute provides for the taking of lands under every modification of interest, and for the making of compensation in respect of any lawful claim; and it has been uniformly held that, wherever compensation is provided under the statute in respect of any claim, there the common law remedies in respect of that claim are suspended or taken away. By the sections preceding the 124th, provisions are made in respect of interests known when the lands are taken the taking is made lawful to the Company, the compensation is secured to the owner, and the ordinary remedies at law for the taking alleged to be wrongful are taken away. Then follows sect. 124, with respect to interests in lands which have been already taken, and which interests, by mistake, have been omitted to be purchased. The intention of the section, by analogy with what has preceded, would be to give the same protection against actions in respect of these interests as had been before given in respect of other interests in land. The words are, the Company "shall remain in undisturbed possession" if they duly "if compensate. These words express that the possession not only is then lawful, but has been, and shall continue so, if the condition is performed. It is very reasonable that a Company giving all parliamentary publicity with plans and books of reference, should have security from litigation for their works under their statute: it is expressly given in respect of all possible known interests, and it seems unreasonable to suppose that an unknown interest should alone be intended to have the privilege of bringing an action against the Company, together with a right to compensation under the statute. If, 1861. JOLLY V. WIMBLEDON and DORKING Railway Company. |