No. 15.

Buccleuch v. Metr. Board of Works, L. R., 3 Ex. 313, 314.

be built upon; and in any claim for compensation by the said lessees on the ground of their lands or interest being injuriously affected by reason of the works by this act authorized, regard shall be had to the option by this section given to such lessees of taking leases of the land and foreshore adjoining to their respective properties at such rent as aforesaid." The plaintiff did not exercise his option under this section.

On the 14th of March, 1867, the plaintiff gave the defendants his notice of claim and arbitration, stating his interest in the causeway in the terms recited in the award, and set forth above in the 3d plea, and demanding compensation for damage done to him by reason of the defendants taking and using the causeway, and obstructing and removing the landing-place, and for further damage by the depreciation of his messuage and dwelling-house, lands, tenements, &c., and otherwise injuriously affecting the same. The amount payable was referred to arbitrators, who duly appointed an umpire, under the Lands Clauses Act 1845, before whom the matter was finally investigated. On the 5th of August, 1867, he awarded £8325 to the plaintiff "as and for compensation for the interest of the said Duke of Buccleuch in the said causeway, pier, and jetty, and for shutting up the said landing-place, and for the damage by the depreciation of the said mansion-house, lands, tenements, and hereditaments by the otherwise injuriously affecting the same by the execution by the said board of the said works, and by the exercise of the powers of the said Act. The defendants having declined to pay the sum awarded, this action was brought to recover it.

At the trial, the regularity of the formal proceedings and the validity of the award on the face of it were admitted; but the defendants proposed to impeach it by showing that the umpire had included certain matters in his award which were not the proper subjects of compensation. With this view they tendered the umpire himself (Mr. C. Pollock, Q. C.) * as a [* 314] witness, in order to explain the mode in which the total sum of £8325 was arrived at. The learned judge admitted the evidence, which, so far as is material, was as follows: I was the umpire in this matter. The claim was presented to me on the part of the duke in this way: it was said that the duke's causeway was taken from him, and that therefore, an easement attached to his house having been taken, he was let in to claim before an

- Buccleuch v. Metr. Board of Works, L. R., 3 Ex. 314, 315.

arbitrator for the loss and for general damage to the house, including all its "amenities," of whatever kind they might be.

Q. Among the amenities, was the one of view or prospect specifically mentioned? A. Yes. Q. Was it not very much dwelt upon? A. It is almost wrong to say loss of prospect. It was the comfort and privacy of the house. I cannot say there was any specific claim for loss of prospect in the sense of view from the house. It was not only the prospect of the water; the privacy was considered. Then there was the head of actual structural injury by the subsidence of a portion of the kitchen.

you

By the COURT: You took all these matters into consideration, and awarded £8000 or thereabouts? A. Yes, my lord. Q. Will tell us of what items the £8000 was composed. [This question was objected to, and admitted subject to the objection.]-A. I will tell you the mode in which the case for the board, the defendants, was shaped. They said, "True, the duke's house might be injured if he did nothing; but he may, if he likes, under the Act of Parliament, become a lessee of the Crown of (I think) very nearly half an acre of ground between the house and the river, and you (the umpire) must assume that he will become the lessee of the half acre." I may say, that if I had assumed that he had no power to take that land, my damages would have been larger; and I did assume that he would be advised to take it as lessee of the Crown. Then there was no dispute that, if he did so, the capitalized rent of the garden would be £2475. Adopting, as I did, that sum as a datum, my award was this: loss of jetty, £200; the structural damage to the walls, £50. I think the kitchen was said to have been penetrated by water. Capitalized rent of the garden, £2475. Then I put it that the expense of building a wall, laying out the garden, and other matters which the duke would be put to, would be £600; and then I thought that, after all [* 315] that * had been done, the house would be of less value to be occupied by a nobleman or gentleman than it had been before by the sum of £5000. If these sums are added together, they make up £8325. Q. As to the last item, what was it that occasioned the loss in value of the house? A. I thought, in the market, if that house was to be let to a nobleman or gentleman, he would give less for it by a capitalized sum of £5000. Q. How was the £5000 made up; was it £100 for this, and £1000 for that? Can you give us generally what the elements were?-A. I

No. 15. - Buccleuch v. Metr. Board of Works, L. R., 3 Ex. 315, 316.

cannot give you one single amount, but I can give you the elements. I had evidence before me by the surveyors, who put the sum at £16,000. They said the annual depreciation was £1000 in the rental. I did not think that, but I took into consideration the fact that the Duke of Buccleuch's house had, as it stood before, the road on one side in continuation of Parliament Street to Whitehall, but on the other side perfect privacy. When the embankment was made, the evidence showed there would be a roadway, and that roadway would be above the present level of the duke's garden; and, therefore, the only thing he could do would be to build a high wall, and shut it out. There would be traffic, and dust, and dirt, and noise, which seemed to me to alter the character of the house entirely. After I had heard all the evidence and arguments, and had been to see the place a second time, and taken into consideration all I could, it seemed to me, although it is true some people might not have the same objection to the alteration that others had, that upon the whole, if a person came there to take the house, he would not give for it by £5000 what he would have given for it before.

No further evidence was offered on the part of the defendants, and the plaintiff, who had not proved in the first instance that there had been any structural damage to the kitchen, did not give any evidence, after the examination of the umpire, on that point. His attention, however, was not expressly drawn to the matter at the time by the defendants. A verdict was entered for the plaintiff for the full amount of the award, with leave to move to enter a nonsuit or verdict for the defendants.

In Easter Term, Hawkins, Q. C. (Philbrick with him), obtained a rule accordingly, calling on the plaintiff to show cause why a verdict for the defendants or a nonsuit should not [* 316] be entered, or a new trial had on the ground that the umpire awarded compensation in respect of items, the existence of which was not shown at the trial; that no title to the jetty or causeway was proved; that the taking, user, destruction, or obstruction of the jetty or causeway, was not a matter in respect of which the plaintiff was entitled to compensation, and that in awarding compensation in respect thereof, the umpire exceeded his jurisdiction; that the umpire awarded compensation in respect of some one or more matters, in respect of which he had no jurisdiction to award compensation; that the injurious affecting of the premises

Buccleuch v. Metr. Board of Works, L. R., 3 Ex. 316-318.

in respect of which the umpire made his award, was not proved at the trial, nor was the plaintiff's right or title to recover compensation in respect thereof, proved; that the verdict was against the evidence; and that the Lord Chief Baron misdirected the jury, in telling them that on the evidence given the plaintiff was entitled to the verdict and full benefit of the award.

There was no cross rule on the ground of the improper reception of evidence, but the umpire's evidence was admitted, subject to the opinion of the Court. If admissible and relevant, it was to be considered; if inadmissible, it was to be struck out. It was arranged that the demurrer should be brought on at the same time with the rule.

[317]

[318]

May 25, 26. Mellish, Q. C., and Dering, showed cause against the rule. First, the plaintiff made out a sufficient title to the causeway.

Secondly, the inquiry into what were the components of the total awarded ought not to have been entered on. The award is good on its face. It is for two things: 1st, the obstruction of the causeway in which the plaintiff had an interest either as its owner or as an adjoining occupier, with an easement over it (and in his notice he claims in the alternative), and 2ndly, for the injurious affection of his premises. Now, he certainly had an interest of some sort, capable of being the subject of compensation in the causeway; and the judgment of the Court in the demurrer shows that his premises might be, and the facts show that they were, injuriously affected. Here, therefore, is a clear case of a good award made prima facie concerning matters within the umpire's jurisdiction. That being so, he ought not to have been called to prove how he had arrived at the sum awarded; in other words, to say what was passing in his own mind. Such evidence is inadmissible.

[BRAMWELL, B. Suppose two persons agree to refer matters, A. and B., to an arbitrator; and he makes an award reciting that they were so referred to him, and giving, say, £100 "of and concerning the premises." You contend that he cannot be called to prove that he really included matter C. in making his award, and gave £20 in respect of it?]

Certainly not. If such a course could be adopted no award would be safe, especially where the arbitrator was a layman. He might be right in the result, but his account of the way he came to a conclusion would be sure to give rise to legal objection.

- Buccleuch v. Metr. Board of Works, L. R., 3 Ex. 318, 319.

[KELLY, C. B. This is not a case where the umpire made an award concerning a matter wholly beyond his jurisdiction. His evidence was sought by the defendants to show that he acted on a wrong impression as to a matter within his jurisdiction.]

It is alleged that he exceeded his powers, and made [* 319] compensation in respect of matters over which he had no jurisdiction to award it. But that is no objection to the award. In Mortimer v. South Wales Railway Company, 1 E. & E. 375 28 L. J. Q. B. 129, it was held that a jury's excess of jurisdiction was no answer to an action on a judgment, and the same rule applies to an arbitrator.

[CHANNELL, B. The real point is this: Can you contradict an award or vitiate it by oral evidence? It would be a very broad proposition to assert that you can never do so.]

Evidence consistent with the award may be given; but nothing inconsistent with its being a good award is admissible. Upon both grounds, therefore, the rule should be discharged. The umpire's evidence was not admissible, but if admissible it only confirmed the award.

Hawkins, Q. C., and Philbrick, in support of the rule. The umpire's evidence was not offered to vary the award but to avoid it altogether. The case differs from that put by Baron BRAMWELL, for this was a compulsory reference under the Lands Clauses Act, 1845, and the award is open to the same objection as the inquisition of a jury (25 & 26 Vict. c. 93, s. 23), which could be set aside if they exceeded their jurisdiction, Read v. Victoria Station and Pimlico Railway Company, 1 H. & C. 826; 32 L. J. Ex. 167; which disposes of the case cited, Mortimer v. South Wales Railway Company. An arbitrator cannot by carefully wording his award give himself jurisdiction; nor can the award be sent back to him that he may divide it; see per ERLE, C. J., and WILLES, J., in Re Newbold v. Metropolitan Railway Company, 14 C. B. (N. S.) 405, at p. 410; Russell on Arbitration, 3rd ed. p. 467. Then if the award may be shown to be absolutely void by extrinsic evidence, the arbitrator or umpire is as competent a witness to show it as any one else. Again, there was no proof of structural damage. at the trial, although it was expressly traversed. [Mellish, Q. C., objected that this point was not taken at the trial. If it had been he was perfectly prepared to have proved structural damage.] It. was part of the plaintiff's case to prove it.