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and entered into by the said company by such instrument PRECEDENT VIII. under their common seal, to be prepared and executed at their expense, as the counsel of the said E. F. shall PROVISIONAL COMadvise, and until the same shall have been done the said A. B. and C. D., and each of them, their and each of their heirs, executors, and administrators shall be jointly and severally personally responsible to the said E. F., his heirs and assigns, for the due performance and observance of the several stipulations and agreements herein before entered into by the said A. B. and C. D., and be liable to damages for the breach, non-performance, and non-observance of the same, or any of them, and so on from time to time as such damages shall accrue.
12. Lessees of collieries to con
tinue their works
for a limited period,
10. The persons constituting the firm of the B. Company, who are now getting coal and ironstone in and under the said lands, shall be allowed, up to and until the day of to get as tenants from year to year all the hard and soft coal, and the black and brown rakes of ironstone from deep to basset, in the and closes, and as shown and explained in the said plan annexed by a line coloured —, YIELDING AND PAYING to the said E. F., his heirs and assigns, £– per acre for the hard coal, £- per acre for the soft coal, and £- per acre for the ironstone; but the B. Company shall not sink the existing pits deeper, and shall not sink any further or other pits, and shall leave the existing pits in good re- 13. but not to pair, either when the coals and ironstone are worked out, sink fresh pits. or on the said day of, whichever shall first
happen; and shall remove the surface soil wherever the spoil arising from the workings of the said coals and ironstone, or any of them, is or shall be laid, and shall pay in the meantime to the tenant for the time being of the above-named lands annually £ for every acre, and so in proportion for any less quantity than an acre, now damaged, or which may hereafter be damaged, by the works in progress thereon, and shall level and restore every part of the same lands which may not have been levelled and restored under the agreement in that behalf hereinbefore contained.
11. No coal or ironstone shall be gotten by the B. Company, or any member thereof, in any part of the N. PROVISIONAL COM- estate, other than the hard coal and soft coal, and the black and brown rakes of ironstone under the lands hereinbefore mentioned.
MITTEE AND LANDOWNER.
14. Lessees to get only specified minerals.
15. Disputes to be referred to arbitration.
16. Agreement conditional on Act being obtained.
12. If any difference or dispute shall arise (g) between any of the parties to these presents, or their respective representatives, or any of them, and the said intended railway company, touching the amount of compensation to be paid for damage or otherwise, or the due and fair construction of these presents, or any act done or to be done in pursuance thereof, or anything relating thereto, such difference or dispute shall be referred to arbitration under and according to the provisions of the Lands Clauses Consolidation Act, 1845, or the Common Law Procedure Act, 1854, as the case may require, and that all the costs and expenses of both parties of and incidental to every such arbitration shall, in the absence of an award to the contrary, be borne and paid by the said railway company.
13. All the stipulations herein before contained shall be considered as conditional upon some Act of Parliament authorising the said intended railway receiving
(g) An agreement to refer future disputes where the arbitrators are not named cannot, it is apprehended, be considered a complete submission, for until the arbitrator is determined upon there is no one who has the binding authority to decide the questions submitted: Russell on Arb. 64. A Court of Equity will not entertain a bill for the specific performance of an agreement to refer; and in an action at law for the breach of such an agreement it seems that only nominal damages can be recovered, unless a sum is fixed as liquidated damages: Russell, 65. But the 11th section of the C. L. P. Act, 1854, provides, that whenever the parties to any instrument in writing shall agree that any then existing or future differences between them shall be referred to arbitration, and one party shall nevertheless commence an action at law or suit in equity against the other in respect of any matter agreed to be referred, the Court may stay proceedings in the action or suit; and the 12th and 13th sections provide for the appointment of arbitrators where the parties, or either of them, fail or refuse to make an appointment.
BY A RAILWAY
AGREEMENT between a LANDOWNER and a RAILWAY
AN AGREEMENT, made this
1. Whereas the said A. B. claims to be seised in fee simple (a) in possession of the lands and hereditaments
(a) By the Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18, see sections 6-9, tenants in tail or for life, guardians, trustees, and persons under disability are empowered to sell for a gross sum, and convey lands in fee simple to the companies, and also to enter into agreements for the sale of the fee simple for a gross sum, upon terms to be fixed by arbitration. But equitable tenants for life though they may contract to sell cannot alone convey the land: the trustees seised of the legal estate must join in the conveyance, Lippincott v. Smyth, 29 L. J. Ch. 520. By sect. 25 of the L. C. C. Act, directions are given respecting the manner in which the arbitrators are to be appointed; and it is declared that the appointment of an arbitrator shall be deemed a submission to arbitration, that neither party shall have power to revoke the same without the consent of the other, and that the death of either party shall not be a revocation. The 26th section empowers a party whose arbitrator may die pending the reference, to appoint another arbitrator; but by sec. 29, on the death or incapacity of a sole arbitrator, the matter must be referred de novo. Very similar provisions to the above are contained in the
2. Recites landowner's claim to be seised in fee.
Sales to railway companies by and persons
FOR PURCHASE BY A RAILWAY COMPANY FROM A
annexed plan, and the
PRECEDENT IX. described in the schedule hereto, and delineated on the Railway Company (having under their said Act power so to do) have determined to take so much and such parts thereof as are coloured red in the said annexed plan, and have given the said A. B. notice of their intention so to take the same (b): AND WHEREAS the amount of purchase-money to be paid by the said company for the land taken, and of the compensation for damage by severance and other damage which the said A. B. may be entitled to claim from the said company is a matter in dispute between the parties hereto NOW THESE PRESENTS WITNESS, and it is hereby agreed:
Amount of purchase-money and compensation in dispute.
4. Agreement to refer to arbitration
the amount of purchasemoney
and with bad
2. That it shall be referred to C. D., of, &c., surveyor, and to E. F., of, &c., surveyor, First, to assess and fix the sum to be paid by the company to the said A. B. as the price of the fee simple and inheritance, free from all incumbrances, of the land coloured red in the annexed plan. Secondly, to assess and fix the sum to be paid by the company to the said A. B., as compensation for all damage. by severance, and other damage permanent or temporary occasioned by the formation of the said railway and the works connected therewith to the other or adjoining
Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), and the Companies Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16): as to the mode of settling certain disputes by arbitration, see Russell on Arb. 96 et seq. By 23 & 24 Vict. c. 106, tenants for life and other persons under disability are empowered to sell land in consideration of a perpetual rent charge. See Precedent X., infra.
The company pays all the costs of making out the landowner's title, and may require a sixty years' title; a possessory title for thirty-six years is not enough, Douglas v. London & North-Western Railway Co., 3 K. & J. 173; and if a person claiming to be owner within the meaning of the Act fails to make out a good title he cannot compel the company under the L. C. C. Act, s. 76, to deposit the purchase-money in the bank until the amount has been assessed by a jury. Ib.
(b) As to the power of railway companies to purchase or use lands by agreement after the special Act has been obtained, see Hodges on Railways, 184, 2nd edit.
lands of the said A. B. (c). Thirdly, to fix the number PREcedent IX. and nature of the communications (if any) to be made by the company between any parts of the lands of the said A. B. which may be separated from each other by the said COMPANY FROM A railway when made (d). Fourthly, to fix the amount of the costs and charges of this arbitration, and the mode nature of the in which such costs and charges are to be paid and satisfied (e).
3. In case the said C. D. and E. F. shall be unable to agree with reference to any one or more of the four points hereinbefore agreed to be referred to them, the point or points on which they shall so disagree shall be referred to the final arbitration and decision of G. H., of, &c., surveyor (ƒ).
(c) With regard to compensation for the injury done by severance, and for other damage occasioned by the railway, see the Companies Clauses Act and the Railways Clauses Act; Russell on Arb. 439; Bradshaw's Arbitration, 12 Q. B. 562; Yates v. Mayor, &c., of Blackburn, 29 L. J. Exch. 447; Reg. v. London & North-Western Railway Co., 3 Ell. & B. 443; Chapman v. Monmouthshire, &c., Railway Co., 2 H. & N. 267; Read v. Victoria, &c., Co., 1 New Rep. 446.
(d) If an agreement on this subject should have to be enforced by a Court of Equity, an inquiry will be made in chambers to ascertain what ought to be done: Sanderson v. Cockermouth and Workington Railway Company, 2 H. & T. 327. Unless there be a stipulation on the point in the submission, an arbitrator has no power to set out approaches and ways to the severed land: Re Ware, 9 Exch. 395,
the number and
communications to be made by the companythe costs of the
5. Appointment of an umpire.
(e) The Lands Clauses Act, s. 34, provides, that all the costs of Arbitrations such an arbitration as that in the text, and incident thereto, to be under L. C. C. settled by the arbitrators, shall be borne by the promoters of the undertaking, unless the arbitrators shall award the same or a less sum than shall have been offered by the promoters, in which case each party shall bear his own costs, and the costs of the arbitrators shall be borne by the parties equally. The Railways Clauses Act, s. 135, and the Companies Clauses Act, s. 133, leave all these costs in the discretion of the arbitrators or umpire. As to how the costs are to be settled and should be awarded, and by what parties they are payable, see Russell on Arb. 441; Martin v. Leicester Waterworks Co., 3 H. & N. 463; Yates v. Mayor, &c., of Blackburn, 29 L. J. Exch. 447. (f) The L. C. Act, s. 27, provides, that where more than one