« EelmineJätka »
COMPANY FROM A
4. The joint decision in writing of the said C. D. and E. F. on such of the four points hereinbefore referred to BY A RAILWAY them as they shall agree upon, and the decision in writing of the said G. H. on such of those four points as the said C. D. and E. F. shall disagree upon, shall be absolutely binding on and shall be submitted to by the parties hereto, and shall not be disputed or challenged by either of them (g).
6. Decision of the arbitrators on the points on which they may
agree, and of the umpire on the points on which they may disagree, to be binding.
7. The parties not to tender
witnesses for examination, and to be restricted
as to the nature of the evidence
offered by them; but the referees
may summon witnesses and call for any evidence.
5. Neither of the parties to the present agreement shall be at liberty to tender for examination to the said referees or the said umpire any witness, or to produce before the said referees or umpire any documentary evidence whatsoever, excepting only such as relates strictly to the value of the lands in question, such as rentals, rate-books, maps, and the like, which documentary evidence (when produced) shall be assumed in the first instance by the referees and umpire to be that which it purports to be, without any proof by evidence of its being so; but this provision is not to prevent the referees, or the umpire (so far only as respects the points which may have to be determined by him), from calling for and examining any witness, or from calling for and ordering the production of any further documentary evidence, in case it shall appear to them or him to be necessary to do so (h); and the parties hereto shall respectively obey to the best of their ability such orders (if any) for the production of additional documentary evidence as the referees jointly, or the umpire (as far
arbitrator shall have been appointed, the arbitrators shall, before entering on the reference, appoint in writing an umpire, and on his death or incapacity to act, shall appoint another umpire; and the Railways Clauses Act and the Companies Clauses Act contain similar provisions.
(g) An award cannot properly be made as to part by arbitrators and as to part by the umpire, unless there be an express provision for the purpose in the submission: Tollet v. Saunders, 9 Price, 612; Hetherington v. Robinson, 7 Dowl. 192.
(h) With regard to the powers possessed by the arbitrators and umpire of calling for evidence and examining witnesses, see sect. 32 of the Lands Clauses Act.
only as respects the points which may have to be deter- PRECEDENT IX. mined by him), may think proper to make.
6. Neither of the parties hereto shall be at liberty to appear before the said referees or the said umpire by counsel or solicitor or agent, the intention of the parties hereto being, that the referees and umpire shall, after a personal inspection of the land, with the assistance (if necessary) of such documentary evidence as is hereinbefore mentioned, come to such decision as to them or him may on those materials seem just.
FOR PURCHASE BY A RAILWAY COMPANY FROM A
8. The parties not to appear by
counsel or solici
9. Landowner to show a good title, and convey to
7. The said A. B. will, within three.calendar months after he shall have received notice of the decision of the referees or umpire on the points hereby referred to them, the company on show a good title to, and will (on payment to him of the amount fixed by purchase-money and compensation assessed as aforesaid, the arbitration, and on the Company entering into a covenant to make and maintain such communications (if any) as the referees or umpire shall decide to be necessary), convey, or procure to be conveyed to the Company by all necessary parties (i),
(i) An agreement for the purchase of land by a company under the Lands Clauses Consolidation Act is complete when notice to take the land has been served and the value has been duly fixed; and if upon payment of the purchase money, or the deposit of it in the bank, the owner refuses to convey the land, the company may either convey the lands to themselves under sect. 75 of the Lands Clauses Consolidation Act, or may file a bill for specific performance. Regent's Canal Co. v. Ware, 23 Beav. 575; Bedford and Cambridge Railway Co. v. Stanley, 1 New Rep. 162; but if the company, having entered into an agreement for purchasing land at a fixed rate, subsequently proceed to have its value assessed, and to take it under their compulsory powers, they abandon their rights under the agreement. Bedford, &c., Railway Co. v. Stanley, supra.
When the price has been fixed by agreement, or ascertained by award, the landowner may of course compel the company by a suit in equity to complete the purchase. Inge v. Birmingham, &c., Railway Co. 3 De G. M. & G. 658; Mason v. Stokes Bay Railway Co. 1 N. R. 84, and the purchase money will belong to his personal representatives in the event of his death immediately after the price has been ascertained. Re Wootton's Trusts, 1 N. R. 193.
Where, however, several modes are provided by which the amount of the purchase-money may be ascertained, a Court of Equity cannot
Contracts for sale to public companies when complete and how enforceable.
COMPANY FROM A
PRECEDENT IX. and free from all incumbrances, the land coloured red in the annexed plan, and its appurtenances (including all BY A RAILWAY mines and minerals under the said land (k)), and will, within one calendar month after he shall have received notice of such decision, pay, in the manner pointed out by such decision, such costs and charges (if any) as he shall be thereby directed to pay.
and to pay such costs of the arbitration as may be awarded against
10. Company to purchase at the
price to be fixed,
and pay such
costs of the arbi-
11. Arbitration may be made a rule of Court. 12. Agreement
not to prejudice
the company's statutory powers of taking possession of the land.
8. The Company, on such title being shown and such conveyance executed, will accept the said conveyance, and pay to the said A. B. such purchase-money and compensation, and execute such covenant as is hereinbefore mentioned, and also within one calendar month after notice of such decision as aforesaid to pay in the manner thereby pointed out such costs and charges (if any) as the Company shall be thereby directed to pay.
9. This submission shall be made a rule of the High Court of Chancery (1).
10. Nothing herein contained shall restrict or delay the exercise of or in any manner diminish such rights of entry on the said lands intended to be taken by the said company as the company would have had if these presents had not been made [and that (with reference solely to the exercise of such rights of entry) the said A. B. is to be taken to have claimed £as the whole amount of purchase-money and compensation payable by the Company
decide which of them shall be pursued. Adams v. Blackwall Railway Co. 2 M. & G. 118.
(k) As to the rights of the mine-owner and the Company where the mines are reserved, see supra, p. 40, n. (d).
(1) The power of making the submission to arbitration a rule of any of the superior Courts on the application of either party is given by the Lands Clauses Act, s. 36, and the Common Law Procedure Act, 1854; s. 17 of the latter Act enacting that where the submission provides that it shall be made a rule of one in particular of the superior Courts, it shall be made a rule of that Court only. It is not necessary to make the award or the appointment of the umpire a rule of Court: Re Bradshaw's Arbitration, 12 Q. B. 562; Russell on Arb. 568. The submission to arbitration may be made a rule of Court in Chancery: Re Elliot, 2 De G. & S. 23.
in respect of their taking and using the piece of land PRECEDENT IX. coloured red in the plan (m)]. IN WITNESS, &c. (n).
FOR PURCHASE BY A RAILWAY COMPANY FROM A
AGREEMENT between a TENANT for LIFE in POSSES PRECEDENT X.
SALE TO A RAILWAY COMPANY IN CONSIDERATION OF A RENTCHARGE.
AN AGREEMENT made this
(m) The words within brackets may, if considered unnecessary, be omitted. They are intended to obviate a difficulty which the company, should it afterwards wish to avail itself of the powers given by the 85th sect. of the Lands Clauses Act, might experience, in consequence of the landowner not having claimed a specific sum. This section enables railway companies to enter upon lands before an agreement is come to, or an award made, for the purchase-money or compensation, upon paying into the bank either the amount of the purchase-money or compensation claimed, or such a sum as shall be determined on by a surveyor appointed by two justices, and upon giving a bond for payment of the full amount of the purchase-money and compensation which may ultimately be found payable. See Hodges on Railways, p. 207, 2nd edit.
(n) Such an agreement as that in the text should be under the seal of the Company, though if signed by two directors according to sect. 97 of the Companies Clauses Act (8 Vict. c. 16) it would be valid. As to how far such an agreement may be enforced in a Court of Equity, see Adams v. Blackwall Railway Company, 2 M'N. & G. 118; Juge v. The Stour Valley Railway Company, 3 De G., M'N. & G. 658; Morgan v. Milman, 3 De G. M. & G. 24.
(a) This agreement is made under the powers of 23 & 24 Vict. c. 106, ingrafted on the L. C. C. Act, which powers apply only to the purchase of lands by agreement, and not to compulsory purchases.
2. Recites notice to treat by Com
SALE TO A RAIL-
the said Company gave the said A. B. notice in writing that they required for the purposes of their works and undertaking (b), and were willing to treat with him for the TION OF A RENT- purchase of ALL THOSE pieces of land, &c. [parcels from the notice to treat], and were willing to treat and agree with the said A. B. as to the compensation to be made to him, and all persons having or claiming any estate or interest in the said premises for the damage done to the lands delineated on the map or plan deposited in the office of the Clerks of the Peace as aforesaid, and of which the said A. B. is such tenant for life as aforesaid: AND WHEREAS the said A. B. is willing to sell to the said Company the said premises specified in the said notice, and has consented to accept a perpetual rent-charge as the consideration for the purchase thereof, and as compensation for such damage as above referred to, NOW IT IS HEREBY mutually agreed between the said A. B. and the said Company as follows:
4. Vendor willing
to sell for a perpetual rentcharge.
5. Agreement to sell for a rent
oharge to be fixed
6. Appointment of valuers.
Land taken com.
pulsorily may be used only for purposes of the Act.
1. The said A. B. will sell, and the said Company will purchase at the price and in consideration of a perpetual clear yearly rent-charge of such an amount as shall be assessed and fixed by the arbitration or umpirage provided for by the second clause, and to be made payable and secured at the times and in the manner mentioned in the third clause of this agreement, the fee simple in possession free from incumbrances of the said premises specified in the said notice, and the Company will make, and the said A. B. will accept compensation by means of such a rentcharge as aforesaid, for all the damage referred to in the said notice.
2. It shall be referred to C. D., of an able practical surveyor, on behalf of the said A. B., and to E. F., of, &c., an able practical surveyor on behalf of the
(b) Where purchases of land are made under compulsory powers, the vendors on the one hand, and the purchasers on the other, have a right to confine the exercise of the ownership to the specified purpose. Bostock v. North Staffordshire Railway Company, 3 Sm. & G. 283; Bentinck v. Norfolk Estuary Company, 26 L. J. Ch. 404.