259. Secondly. OF DAMAGES VIewed in respect In order to pro

OF THE TIME OF THEIR ACCRUING. vide for future damage, where there is a subsisting cause of injury which is incapable of beneficial alteration so as to prevent the occurrence of mischief, a railway act usually enacts that the jury shall assess the proper amount of compensation, not only for past, but likewise for future temporary or perpetual or for recurring damages, the cause of which cannot be fully obviated by the company. To bring a mischief within the purview of this clause, it must not be merely speculative and imaginary, and such as may never occur at all, but it must be one the cause of which is actually existing in some work of the company, and of which an example has occurred in bygone time, so as to afford a proper estimate for the future: for an instance may be put the case of leakage through the banks of a canal, and the interruption of a watercourse, the effect of which can be collected from prior instances of mischief. (s) Where therefore one railway is intended to cross another, the proprietors of the latter cannot apply for compensation on the score of apprehended obstruction, but must wait till the proprietors of the former commence their operations and those operations are found to produce actual injury, of a more or less permanent kind, by obstructing the traffic on the line which is crossed by the other. (t)

(1) Judgment of Parke, B., in Lee v. Milner, 2 M. & W. 842; see also Rex v. The Justices of the West Riding of Yorkshire, 1 A. & E. 571.

(1) Lee v. Milner, 2 M. & W. 824; see also Thicknesse v. Lancaster Canal Company, 4 M. & W. 472.

260. Where the character and extent of a future injury is capable of being ascertained, the party affected ought it seems to bring forward his entire claim at once, and not to lie by and make a fresh claim for compensation with every fresh recurrence of the mischief. (u) But for a new description of injury, it would seem to be competent for a party to have a new remedy.

IV. Proceedings to ascertain Amount of Compensation. 1.-Where Company the moving Party.

2.-Where Owner of Land, &c.

261. There are two cases to be here considered: the first, where the company is desirous of getting possession of the land upon which they are authorized by the act to enter; the second, where an owner of property seeks to compel the company to take the entirety of his property, or to make him compensation for injuries which, as he says, have been inflicted by the company in the course of their works, &c. In the former case the company is of course the moving party; in the latter, the owner of the property.

262. WHERE COMPANY THE MOVING PARTY. (1.) Notice. First, then, suppose a company are desirous of taking particular property under the provisions of their act, what a railway act usually prescribes to the company as the first step, is to give a certain number of days' notice to the owner of such property; the object of the notice is of

(u) See Rex v. Leeds and Selby Railway Company, 3 A. & E. 683, and more particularly the judgment of Littledale, J.

course to afford to the owner precise information of what he is required to treat for. It ought therefore to show clearly and accurately the quantity of property intended to be taken, its position, dimensions and figure, and where it constitutes a part only of the owner's entire premises, the particular manner in which it is to be cut out of the whole. (v)

263. Effect of notice. The moment the company have given the notice, and thus communicated to the proprietor what part of his property they require, the relative situation of vendor and purchaser is thereby created between them. (x) It gives the proprietor a right to insist upon the company taking that which they have given notice of their intention to take, a right to be enforced by a court of equity, or else by a court of law by mandamus. (y) For by the measure in question, the company must be considered to have exercised the option given them by the statute of purchasing the premises, an option from which they cannot afterwards be allowed to recede.(z)

264. Counter notice on part of owner. Upon receipt of the notice, the party to whom it is given

(v) Sims v. The Commercial Railway Company, 1 Railway Cas. 434.

(1) Stone v. The Commercial Railway Company, 1 Railw. Cas. 375; S. C. 4 Myl. & Cr. 122; Doo v. The London and Croydon Railway Company, 1 Railway Cas. 274.

(3) Judgment of Lord Chancellor in Stone v. The Commercial Railway Company, 1 Railway Cas. 400, 401; S. C. 4 Myl. & Cr. 122.

(=) Rer v. The Hungerford Market Company, 4 B. & Ad. 333; Rer v. The Commissioners for improving Market Street, Manchester, ibid. n. (a).

is within a certain time to communicate to the company what the nature of his estate is, and what he is willing to take for it. The notice and counter notice being thus given, the parties have the opportunity, if they can, of coming to an amicable arrangement. (a)

265. (2.) Precept. If the parties cannot agree at all, or only as to part of the property required by the company, the act then proceeds to provide (b) the means by which the remuneration to be paid the proprietor for the lands in question is to be ascertained; viz. by empowering the company to issue a precept (c) for the purpose of bringing the case before a jury. (a)

This precept must, in the first place, be consistent with the previous notice. The quality, quantity, position, dimensions and figure of the property as laid down in the one must fairly tally with those described in the other. To hold otherwise, indeed, would be virtually dispensing with the previous notice required by the act; for the property of which the jury is to fix the value being that prescribed by

(a) Judgment of Lord Chancellor in Stone v. The Commercial Railway Company, 1 Railway Cas. 400, 401; S. C. 4 Myl. & Cr. 122.

(b) The Lands Clauses Consolidation Act (8 Vict. c. 18) provides a threefold method for settling cases of disputed compensation according to the nature of the case, viz. by two justices, or by arbitration, or by a jury. See act, s. 21 et seq., post, App.

(c) Before the precept issues, the Lands Clauses Consolidation Act (8 Vict. c. 18) requires that notice be given to the other party. See act, £. 38, post, App. As to the provision of the same act on the subject of the precept, see ib. s. 39.

the precept, and that precept being no notice to the other party, if the company were at liberty either to exclude from the precept any portion of the property comprised in the previous notice, or vice versa, to include in the former what is not included in the latter, they might go before the jury and ask their verdict upon a case touching which such other party had no intimation of their real intention, and which therefore in all probability he could not be prepared

to meet.

266. Secondly. The precept must be addressed to such party as the act contemplates. Where therefore a railway act provides that in the case of the sheriff being a shareholder, or interested in the matters in question, the precept shall go to another person, a precept addressed to a sheriff so circumstanced would be irregular. (d)

267. Thirdly. The precept ought, it seems, to show upon the face of it, either expressly or impliedly, the authority of the company to issue the same under their act. (e) Such authority, however, may in general be presumed from the mere fact of the issuing of the precept by the company, as this leads to a necessary intendment that a previous agreement for the purchase could not be made, in which case the company have, according to the usual provisions of a railway act on this point, authority to issue their warrant. (e)

(d) See Corrigall v. The London and Blockwall Railway Company, 21 Law Journ. C. P. 209; S. C. 5 M. & Gr. 219.

(e) See Taylor v. Clemson, 2 A. & E. N. S. 1030; S. C. 2 G. & D. 346; 3 Railw. Cases, 65.