covenant to that effect, as tenant's damage, for the land occupied by the railway, and such sum is made payable by the covenant to the owner of the land, or his lessees or tenants; the question, to whom the money ought to be paid, whether to the landlord or tenant, seems to depend on this, whether the land is or is not severed from the farm. (k) That, if not expressly provided for by some agreement between the parties, must be a question for the jury to determine. (k)

15. III. It is proposed to speak of the respective remedies of the owners of the soil, and the grantee of the way leave. And herein first of the remedies at law. If the grantee of the way leave go beyond the authority given by the way leave, he thereby subjects himself to an action at the suit of the grantor. But where a railway constructed under a way leave is such, as the grantee of the way leave is warranted in making for the purpose, for which when made he may lawfully use it, the reversioner of the land traversed by the railway cannot have an action against the grantee simply on the ground of his intention to use it for other purposes, for which he has no right to use it; though, if the latter afterwards put in execution this unwarranted use of the railway, he may thereby subject himself to an action of trespass at the suit of the tenant. (1)

16. Secondly, of the remedies in equity. Where the construction of a way leave is doubtful, and the grantee attempts under colour of it to do what it

(k) Wilson v. Anderson, 1 Car. & K. 544.

(1) Durham and Sunderland Railway Company v. Walker, ubi supra.

may prove ultimately not to warrant, and what is calculated at any rate to work grievous injury to the land, the landowner has a right to have his property protected until the precise effect of the reservation can be ascertained by the decision of a court of law, and may accordingly apply to a court of equity to grant an injunction for this purpose. (m) It is usually, however, it is to be remarked, made a condition of granting an injunction under such circumstances that the plaintiff should proceed to a trial of the question at law at the earliest possible opportunity. (n)

17. To entitle himself to the interposition of a court of equity by way of injunction, a party must take care to make his application in due time; as the court may refuse to interfere where there has been laches or acquiescence in the proceedings of the undertakers.

Such an application must moreover be made while the undertaking is still in progress; since as soon as it is complete the undertakers are beyond the reach of an injunction, and this whatever be the means by which they have succeeded in bringing their work to completion. Thus it has been held that there is no equity to restrain by injunction the owners of a railroad, made over the plaintiff's land, from using the railroad after it has been completed, or from interrupting the plaintiff's workmen in removing it and restoring the land to its original state, although the possession of the land for the purpose of constructing the railroad may have been ob

(m) Farrow v. Vansittart and others, 1 Railw. Cas. 602. (n) Ibid.

tained from a tenant of the plaintiff by means of circumvention and fraud. (o) ·

18. A party may it seems carry his acquiescence to such a height as even to preclude himself altogether from taking advantage of his legal rights in regard of the reservation, whatever those rights may be; as, for instance, if, with a full knowledge of his legal rights and of the plans and intentions of the undertakers for their invasion, he lets them go on and lay out money and complete their works without making any opposition, or agrees to permit the scheme to be carried out, or even to assist and promote it. (p) But where the equitable grounds are not thus clear and decisive, as where the landowner has not this knowledge either of his own position or of the projects of the other side, there a court of equity would not, it seems, interfere to enjoin the former's legal rights, but would leave the parties to contest their rights at law in the first instance. (g) In general a party seeking the aid of a court of equity on grounds of the above nature, in opposition to an admitted legal right, must, in order to obtain it, give judgment in the action, or if he wishes to go on and defend the action, he must postpone his application in equity until after the result of the trial at law. (q)

(0) Deere v. Guest, 1 My. & C. 516.

(p) Barnard v. Wallis, 2 Railw. Cas. 162, judgment of the Master of the Rolls, S. C. 1 Cr & Ph. 85

(9) Ibid.

LIB. II.

OF RAILWAYS BY STATUTE.

CAP. I.

OF THE PROVISIONAL FORMATION OF A COMPANY PRE

VIOUS TO AN ACT OF PARLIAMENT, AND OF THE POWERS, DUTIES, RIGHTS AND LIABILITIES GROWING THEREOUT.

1. Of the Provisional Formation of a Company for the making of a Railway.

2. Of the Powers, Privileges and Incapacities of a Company for the making of a Railway in its Provisional State. 3. Of the Duties of such Company, and herein more particularly of the Steps preliminary to and of the obtaining the Act of Parliament.

4. Of the Rights and Liabilities growing out of the above State of Things.

SECT. 1. Of the Provisional Formation of a Company for the making of a Railway.

19. Where parties propose to construct a railway, and by consequence to apply to parliament for a grant of the necessary powers, there are three things mainly important for them to attend to: 1st. To comply with the requisitions of the recent act for the registration, &c, of joint stock companies, so far as they are applicable to companies for the making of railways; 2ndly. To procure the necessary sub

scriptions, and to establish such arrangements among the subscribers, as may provide for a due contribution towards the expenses at all events, whether the project succeed or not, and also for the conduct and management of the undertaking till an act is procured; and 3rdly. To comply with the regulations which are adopted by parliament on application for bills of this nature.

20. I. Of the registration of a company for the making of a railway, and herein, 1st, of provisional registration.

Before, however, adverting to the immediate head of our inquiry, there is a preliminary question, that it may be proper briefly to notice, viz. how far companies for the formation of railways in foreign states, or in the colonies, fall within the provisions of the above act. The true test then of the applicability of the act to such companies would seem to be, to consider whether it is intended by the projectors that the legal relation of partnership between the subscribers should be formed, and the government and administration of the company's affairs, as a company, be transacted here or abroad? In the former case, the company must be deemed to be substantially an English company, and consequently to fall within the provisions of the act; in the latter not. It follows, consequently, that even though a company have an office and place of business in this country, and a branch committee established here for the purpose of allotting shares, receiving deposits &c., still it is not within the act, if it originates abroad, and the management of its concerns is substantially carried on there, the branch com