pany across the line of another, it was held that he had not exhausted his authority by a decision not in conformity with the act of parliament, but that he might make a second. (i)

134. The next class of provisions that it is proposed to consider, are those ordinarily introduced into railway acts for the protection of messuages, buildings, and other property of a like description, or appurtenant to or connected with the above. These are distinguishable according to the object which they contemplate, viz. according as they prohibit the company from taking property of the kind in question either absolutely, or except upon certain conditions; or else render it compulsory upon them in certain cases to take it; or prescribe some particular mode of proceeding touching the property in question.

135. First, then, a railway act usually provides that no houses, buildings, &c. are to be taken for the purposes of the act, other than those specified in the schedule, without the consent in writing of the proprietor. The substantial inquiry in construing the above provision, is as to the quality of the property intended by the act to be protected. Now such a provision evidently has reference to the privilege universally accorded by the law of this country to buildings inhabited by man. These consequently, it is natural to conceive, constitute the principal things contemplated by the legislature in inserting

(i) Clarence Railway Company v. Great North of England, Clarence and Hartlepool Junction Railway Company, 23 Law Journ. Exch. 137; S. C. 13 M. & W. 706; Great North of England, &c. Railway Company v. Clarence Railway Company, 1 Coll. 507.

such a provision. Hence, even though other descriptions of property are mentioned in the act, they must in general be construed of something bearing a reference to the principal thing. A railway act enacted that the company should not be authorized to take any house or other building, &c., or any ground set apart and used as a garden, orchard, yard, park, paddock, plantation, planted walk, or avenue to a house, or any inclosed ground, planted as an ornament or shelter to a house, or planted or set apart as a nursery for trees, other than such as were specified in the schedule to the act, &c. The Vice-Chancellor considered that, in the above section, the term yard was to be taken with reference to a building, the only other thing spoken of, wholly disconnected from a house, being a nursery for trees, the reason for the exception of which was almost evident on the face of it. (k)

136. Provisions of the second class are in general framed to meet two cases; 1st, where part of a messuage, building, &c. is required for the purposes of the railway, in which case the act gives the owner power to insist that the company shall take the whole or none; () and 2nd, where the property lies within such a distance of the railway as to be subject to deterioration by reason of its construction. The substantial question that arises in the former of the two cases is the same as that which has been just considered, and must therefore be determined upon like principles. Consequently, even

(k) Stone v. The Commercial Railway Company, 9 Sim. 626 ; S. C. 1 Railway Cas. 395.

(1) As to analogous provision in Lands Clauses Consolidation Act (8 Vict. c. 18), see act, s. 92, post, App.

though an act, in specifying the property intended to be thus privileged, speak expressly of other descriptions of property than houses or buildings, yet the terms so employed must be construed with reference to those with which they are found in connexion, and so as to preserve and carry out the prevailing unity of idea that pervades the clause. A railway act enacted, that in case of application by the company for any part of any house, garden, yard, warehouse, building, or manufactory, they should not, where the owner wished to part with the whole, and gave notice of the same to the company, be empowered to take or use less than the whole of such house, garden, yard, &c. The company wished to take, for the purposes of their act, part of a bonded timber yard of three acres in extent, containing certain detached sheds for stowing timber, &c. The Vice-Chancellor was of opinion, that the mere collocation of the words implied that the terms "garden and yard" were to be taken in connexion with a house, and that the premises in question not being connected with a messuage or building, (otherwise than as a deal shed, &c. might be called a building, which for the purpose in question it could not,) were not privileged property within the meaning of the above section. (m)

137. Where a railway act, instead of specifying any particular quality or description of property, speaks of the property of this or that person as the subject of protection, using the term apparently in the collective sense, that it seems will be construed

(m) Stone v. Commercial Railway Company, 1 Railway Cas. 375; S. C. 9 Sim. 621.

to include whatever is comprised in one take or lease. (n)

138. In the second case, viz. that of a house, &c. lying within such a distance of the railway as to be subject to deterioration by reason of the construction, &c. thereof, a like remedy is provided as in the former, viz. by empowering the owner to insist on the purchase of the thing injured. The consideration of the effect of this provision obviously involves two points; one, which has been already considered under the preceding head, touching the quality of the property intended to be protected, and a second, touching its situation within the given distance. To proceed then to the latter, where the entire house, &c. is within the requisite distance, no question can of course be made about the case being within the provision. But suppose that part of the thing deteriorated is within, and part without such distance, the question then would seem to come to this is it a case where the premises constitute one indivisible whole, and consequently the purchase and severance of a part would be ruinous to the whole, and where the part within the requisite distance constitutes a very large proportion of the property? If so, the whole it seems must be deemed within the distance. (o)

139. A public house was forty-four feet in depth; the greater part was within fifty feet of the railway, (that being the specified distance under the par

(n) Reg. v. The London and Greenwich Railway Company, 3 Railway Cas. 144, judgment of Lord Denman, C. J.; S. C. 3 A. & E. N. S. 166; 20 Law Journ. Q. B. 187.

(0) Walker v. London and Blackwall Railway Company, 3 A. & E. N. S. 744; S. C. 21 Law Journ. Q. B. 88.

ticular act), but a portion, comprising the bar, and varying in depth from thirteen to sixteen feet, was more than fifty feet from the railway; it was alleged that the premises were deteriorated by the railway, and that if the former portion only were purchased, the residue would be useless to the owner; it was held that compensation was claimable for the public house, under a provision of the kind under consideration. (o)

140. But where, instead of this indissoluble connexion between the different parts of the premises, there is a mere extraneous one, such as that of being held under one take or lease, and nothing to show that the company by taking the one part will interfere with the residue, then it seems they will not be compelled to purchase more than the part of the premises actually within the requisite distance. (p) S. and Co. were lessees of a piece of ground, (p) on which stood a vinegar manufactory, warehouses, &c. a principal dwelling house and garden, and five smaller dwelling houses. These premises were so situated that a straight line drawn parallel to the railway at the distance of fifty feet (being that specified by the particular act) would include a part of the principal dwelling house and the garden, but would pass between the rest of the premises and the railway. It was held that the company were not bound, under a provision such as that in question, to purchase more than the principal dwelling house and garden. (p)

(o) Walker v. London and Blackwall Railway Company, 3 A. & E. N. S. 744; S. C. 21 Law Journ. Q. B. 88.

(p) Reg. v. The London and Greenwich Railway Campany, 3 Railway Cas. 138; S. C. 3 A. & E. N. S. 166.