slight and precarious to be made a ground for compensation, except there are conclusive words in the act of parliament to embrace it. It will not, therefore, be held to be included in the terms of an act which speaks simply of the value of the tenant's unexpired term and interest. (b)

III. For what Damages.

251. Our third head of inquiry is as to the kind of damage for which a party may claim compensation under the ordinary provisions of a railway act on that subject. (c) For the purpose of such inquiry cases of damage caused by a railway company may be regarded in two lights: 1st, according to their general nature and character; and 2ndly, according to the time of their accruing.

The former head of inquiry again subdivides itself into several: 1st, whether the damage is caused in the execution of the powers of the act; 2ndly, whether it is independent or not of a taking of land; and 3rdly, assuming it to be so, and the act to make provision for compensating such species of damage, whether it is, in other respects, of a character contemplated by the act as a ground of compensation.

252. CHARACTER OF DAMAGE. 1st. Whether caused in execution of Act. (c) In general, to entitle a party to compensation, under a railway statute, for any act

(b) Rer v. Liverpool and Manchester Railway Company, 4 A. & E. 650.

(c) As to provision of Lands Clauses Consolidation Act (8 Vict. c. 18,) on this head, see Act, s. 18, et seq. post, App., and s. 68, ib.

of the company, it must be something done in the execution of the powers of the act. (e). Where, therefore, the company are guilty of a clear excess of the authority conferred on them by their act, as, for instance, by doing what their act prohibits, the injury thereby occasioned would seem to be more properly remediable by action than by seeking compensation under the company's act; accordingly, where a company in the execution of the powers of their act erected a railway station and embankment near a house used as a starch manufactory, and thereby obstructed its lights, &c., the house being of a class which the act expressly declared they should not take, injure, &c. without the owner's consent in writing, and no such consent having been obtained, it was held that an action lay against the company for the damage. (f)

253. Assuming the act complained of to be done in the execution of the powers of the act, it remains, secondly, to be considered whether it is independent or not of a taking of land. (g) The latter class of injuries, viz. those connected with a taking of land, are those for which a railway act in a greater or less degree invariably provides compensation. (h) With

(e) See as to this point, Rer v. The Hungerford Market Company 3 N. & M. 622; S. C. 1 A. & E. 678; Rex v. Nottingham Old Waterworks Company, 6 A. & E. 355.

(f) Turner v. Sheffield and Rotherham Railway Company, 3 R. Cas. 222; S. C. 10 M. & W. 425.

(g) See, ante, n. (c), p. 191.

(h) It has however been questioned whether, under the provisions of the Eastern Counties Railway Act, 6 & 7 Will. 4, c. cvi., a jury have power to award compensation, not merely for the general injury sustained by the severance of land taken

regard to the former class, the question how far compensation can be claimed for them or not, must depend upon the terms of the particular act. Considering, however, the nature of the powers entrusted to railway companies, and the great extent of country through which their works are, generally speaking, intended to be carried (all of which renders it but reasonable that any injury to property which can be shown to arise from the prosecution of those works should be fairly compensated to the party sustaining it), it would seem that where an intention to give compensation for injuries of the class in question is expressed in any part of the act, every fair intendment ought to be given to effectuate that intention. Where, therefore, an act, in conferring upon the company its powers of taking land, &c. expressly declares that such injuries are provided for in the compensation clause; and where the earlier part of that clause is sufficient to embrace all such injuries, such plain and clear tokens of the intention of the legislature can not, it seems, be allowed to be defeated, simply because the direction contained in a subsequent part of the same clause, as to the finding of the jury, is applicableonly to the case of land taken and of some ulterior damage thereupon.

254. By a railway act a company was empowered to lower roads, &c. making full satisfaction in manner thereinafter mentioned to persons interested in lands to be taken, used, or injured for all damages sustained by executing the powers of the act. For

for the purposes of the company, but also for a total loss of all communication. See Manning v. Eastern Counties Railway Company, 12 M. & W. 237, judgment of Parke, B.

K

settling differences between the company and persons interested in lands to be taken, used, damaged, or injuriously affected by the execution of such powers, if any person entitled to such purchase money or compensation as aforesaid should refuse the company's offer, the matter was to be settled by a jury, who were to assess the sum to be paid for the purchase of the lands, and also the compensation for damages done by severance, &c. such compensation to be assessed separately from the value of the land. It was held that compensation was not limited by the act to the cases of a taking of or entry upon land, but might be awarded for an injury quite independent of any such taking or entry, namely, for the lowering a road on which certain land abutted, and thereby injuring and deteriorating the land, impeding the access thereto, and rendering additional fences necessary. (i)

255. So, likewise, where a company entered upon the adjoining land and began to dig and remove the subsoil for the purpose of making an embankment, it was held to be an injury falling within the scope of the compensation clause, though the direction given by that clause as to the finding of the jury was in express terms applicable only to the case of a taking of land and of ulterior damage thereupon. (k)

256. 3dly, Assuming the class of acts in question to fall within the scope of a railway statute, there remains a question as to the general character of

(i) Reg. v. Eastern Counties Railway Company, 2 A. & E. N. S. 347; S. C. 20 Law Journ. Q. B. 66; 1 G. & D. 589.

(k) See judgment of Vice-Chancellor in Innocent v. North Midland Railway Company, 1 Railway Cas. 242; see also Rex v. Nottingham Old Water Works Company, 6 A. & E. 355.

the particular act, and whether it is such as makes it a sufficient ground for compensation. The cases for which a railway act in general purports to make provision in this respect, are those of lands, &c. damaged, injured, or injuriously affected, in the execution of the powers of the act. (1) Such language must, it is conceived, be understood of direct injuries, occasioned by some positive act of the company, as if in the construction of their works they chance to darken the lights of a house, stop a drain, interrupt a flow of water, or the like. Accordingly a charge of lowering a road, and thereby deteriorating the adjoining land, impeding its access, and rendering additional fences necessary, has been held enough for the purpose, the lowering of the road being provided for by the act. (m) So likewise the raising the level of a brook and so causing an inundation of the applicant's property, (n) and the making and maintaining of a railway without a sufficient drainage to protect the neighbouring property, &c. whereby a like result was produced. (o)

(4) As to provision of Lands Clauses Consolidation Act, 8 Vict. c. 18, on this head, see act, s. 68, post, App.

(m) Reg. v. The Eastern Counties Railway Company, 2 A. & E. N. S. 347; S. C. 20 Law Journ. Q. B. 66; 1 G. & D. 589. So likewise the cutting off access to property by raising an embankment near it, and compelling the owner to open new means of access, &c. has been held a sufficient ground for a mandamus issuing to a company; Reg. v. Bristol and Exeter Railway Company, Crown Office Roll, 7 Vict.

(a) Reg. v. North Midland Railway Company, 2 Railway

Cas. 1.

(0) Reg. v. North Union Railway Company, 1 Railway Cas. 729. So likewise the cutting off the supply of water to a