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No. 15. Buccleuch v. Metr. Board of Works, L. R., 5 H. L. 424, 425.

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jurisdiction did not appear on the face of the proceedings, the sheriff had wrongly directed the jury, and evidence of that fact was obtainable without the aid either of the sheriff's notes

or the statement of the jurors. The case of The * Cale- [* 425] donian Railway v. Ogilvy, 2 Macq. Sc. Ap. 229, does not affect the present, for there the objection to the finding was apparent on the face of it. So it was in The City of Glasgow Union Railway Co. v. Hunter, L. R., 2 H. L., Sc. 78. Here the award was valid on the face of it, and could only be impeached by evidence, in itself inadmissible, of the motives which had influenced the mind of the umpire in making it.

As to the claim for compensation in respect of the causeway. In the first place it was denied to be in any way a part of the property of the plaintiff. It is true it was not the subject of an actual lease, but it had always been used as part of the property under the former lease, and the Crown was bound by two agreements to grant a new lease as from 1855, and as the plaintiff had performed his part of the agreement for the new lease, it must be taken to have been actually granted. In the next place, it was said that the plaintiff only had, and could only have, an easement over it, which he enjoyed in common with all the other subjects of the realm, for that being part of the soil of a navigable river it could not be made the subject of a grant to an individual, and that the taking away of that easement could not be matter for individual compensation. It may be admitted that

the Crown could not grant to a subject special and peculiar rights in a navigable river. Attorney-General v. Johnson, 2 Wils. Ch. Ca. 87, and Gann v. Whitstable, 11 H. L. C. 192. He had an actual property in the use of it. Mason v. Hill, 5 B. & Ad. 1 -24; Sampson v. Hoddinott, 1 C. B. (N. S.) 590; Miner v. Gilmour, 12 Moo. P. C. 131; and see Lord v. The Commissioners of Sydney, 12 Moo. P. C. 473; but here the special use was that of a part of the shore at low water, which use did not interfere in the least degree with any right of the public, who could not possibly use it as the plaintiff did, though it was individually advantageous to him. This especial use of the shore had been taken away by the act of the defendants, and the plaintiff was entitled to compensation for its loss.

The umpire had a right to consider all the matters which occasioned injury to the plaintiff, all which "injuriously affected"

No. 15.

his property.

Buccleuch v. Metr. Board of Works, L. R., 5 H. L. 425, 426.

In Reg. v. The Eastern Counties Railway, 2 Q. B. 347, the return to a mandamus negatived the injury [* 426] alleged, as the ground for compensation, but it was held that the compensation was not limited to the cases negatived in the return, but might extend to injury done without entering upon or taking the land, namely, by lowering a road on which the land abutted. That was a special injury to the plaintiff though it might be that the lowering of the road was a matter beneficial to the subjects at large. In Ricket v. The Metropolitan Railway Company, L. R., 2 H. L. 175, R. C. Vol. 1, p. 574, the subject of complaint was distinctly a public annoyance alone, yet even there one noble Lord in this House, Lord WESTBURY, was strongly inclined to hold that, for the special injury arising to an individual from that public annoyance, compensation ought to be given. Then came the case of The Hammersmith Railway Company v. Brand, L. R., 4 H. L. 171; 38 L. J. Q. B. 265; R. C. vol. 1, p. 623; but that case does not affect the present, for it was decided on the special words of the particular Act, and the claim being for injury from the effect of things which the Act had authorized to be done, and the effects of which must have been foreseen, the claim was held unsustainable. The City of Glasgow Union Railway v. Hunter, L. R., 2 H. L., Sc. 78, merely followed Hammersmith v. Brand; yet even there a noble Lord protested against the too narrow construction which had been adopted in previous cases with regard to consequential damage. In Re The Stockport Railway Company, 33 L. J. Q. B. 251, a plaintiff was held entitled to compensation for consequential damage, because the proximity of the railway rendered his building less suitable for a cottonmill on account of an increased danger of being set on fire. It is true that there land of the plaintiff had been taken, but that was only important as a reason for not applying to that case the rule that compensation could not be given for that which unless sanctioned by the Act would have been an actionable wrong. In Reg. v. The London Docks Co., 5 Ad. & E. 163, no land was taken, and on that account the party seeking compensation was held not to be entitled to it. But that ground of decision is one which can hardly be supported on principle, and it has already been questioned in this very case, L. R., 3 Ex. 328, by Mr. Baron BRAMWELL, and in this House by Lord CHELMSFORD, in The City of Glasgow Union Railway v. Hunter, L. R., 2 H. L., Sc. 82,

No. 15. - Buccleuch v. Metr. Board of Works, L. R., 5 H. L. 427, 428.

where his Lordship * said, "I should be disposed to say [* 427] with Baron BRAMWELL, 'It does seem strange that the taking a piece of a man's land should let him in to prove all sorts of damage for which he could not otherwise recover. Mr. Hawkins, Q. C., and Mr. Philbrick, for the respondents:

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The validity of the award is the real substantive question before the Court. The umpire had a right to determine an amount, but not to determine any question of law, nor to assume any new jurisdiction. Here the umpire has, by his own statement, assumed a jurisdiction over matters which were not properly subject to his authority. The award showed that upon the face of it. The plaintiff had asked for compensation for the loss of the jetty as if for the loss of a part of his property. It never was his property. Yet he treated it as such, and insisted. that his property was injuriously affected by what had been done, and, as the defendants contended, rightfully and properly done, under the Act; he asked for compensation for the loss of the use of the jetty during the progress of the work and after its completion. [Lord CAIRNS: By reason of the severance from the lands.] There was no distinct claim made on the ground of severance. The notice of claim set up the loss of the use of the jetty and nothing else.

The award is bad, because it is made in respect of a claim which could not be sustained at law. There could be no legal claim in respect of the loss of the pier or jetty. The extent of that claim was not in dispute, but the right to make any claim in respect of such a matter was so. That right was entirely denied. The plaintiff had no interest in the soil or bed of the river; and therefore he had no right to claim compensation for a loss of what was a mere incident to that soil. The Stockport Case, 33 L. J. Q. B. 251, did not justify such a claim, for there the injury made the subject of compensation was an injury in respect of what was the plaintiff's undoubted property; it was not doubtful or indirect injury, but direct and substantial, and was capable of a money measurement. The umpire here could not give himself jurisdiction over a supposed claim, a claim not sustainable in law, by making a formal finding in respect of it. In Ellis v. Saltau, 4 Car. & P. 327, n., the witness was merely told [428] that he need not state the reasons which influenced him

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VOL. III.- - 31

No. 15. – Buccleuch v. Metr. Board of Works, L. R., 5 H. L. 428, 429.

in making his award, if he desired not to do so: he did not object here. If the umpire has made an award which he had no legal right to make, no Court can properly be called on to enforce it.

What the umpire did was rightly got at by his evidence. His own statement was not only admissible, but it was the best evidence on the subject. There is great reason to doubt the supposed declaration of Baron BRAMWELL on the admissibility of the umpire as a witness, and the other Judges are clearly the other way. In In re The Dare Valley Railroad Company, L. R., 6 Eq. 429, 435, Vice-Chancellor GIFFARD said, "I can see no reason why the arbitrator should not be just as well called as a witness as anybody else, provided the points to which he is called as a witness are proper points on which to examine him. If there is mistake in point of subjectmatter, that is, if a particular thing is referred to an arbitrator, and he has mistaken the subject-matter on which he ought to make his award, or if there is mistake in point of legal principle going directly to the basis on which the award is founded, these are subjects on which he ought to be examined, and also grounds for setting aside his award." The examination of the umpire was certainly confined within these limits. [Lord CHELMSFORD sug

gested that in Espinasse's Reports there were to be found [* 429] cases on this subject.1] In Brophy v. * Holmes, 2 Molloy,

it

1 The cases are probably these: Habershon v. Troby (3 Esp. 38). Case for maliciously holding to bail. There had been an action on disputed accounts was referred to arbitration. The award was in favor of the plaintiff. Erskine, for the plaintiff, called for the books, and proposed to examine the arbitrator. Lord KENYON: "I do not think I ought to admit the evidence. It seems to me that the arbitrator ought not to be permitted to depose here as to what transpired before him, either upon the examination of the parties, or on an inspection of the plaintiff's books."

Gregory v. Howard (3 Esp. 113). Disputed accounts; action on a promissory note. The plaintiff called a witness who had been acting as arbitrator to settle the accounts between the parties. Objection was taken to the witness speaking as to any communication made to him in the course of the arbitration. Lord KENYON: "I have often given my opinion on this

subject. Evidence of concessions made for the purpose of settling disputes I shall never admit, but facts admitted before the arbitrators I always shall. I shall, therefore, allow the arbitrator to be examined and to speak to such matters of fact as were admitted by the parties before him."

Martin v. Thornton (4 Esp. 180). Action for maliciously holding to bail. Plaintiff had been employed as a writer for the defendant, and had sued for payment for his services. While that action was pending, defendant had arrested plaintiff, and held him to bail for two sums which had been paid as satisfaction to him. Both cases were referred to arbitration. Award that the plaintiff had been fully paid, but that there was not any cause of action against him on account of the money which he had been so paid. The award was produced. Defendant's counsel then called the arbitrator to prove that the reference was of all matters in difference,

No. 15. Buccleuch v. Metr. Board of Works, L. R., 5 H. L. 429, 430.

there

1, there was a suit in respect of partnership accounts was an inquiry before an arbitrator, and he was examined and allowed to be asked what had passed before him.

The evidence shows that £5000 were given in respect of matters not included in the reference. If that should be determined to be an illegal item that vacates the whole award. Now that item. can be, as it were, earmarked, for the umpire gives a specific sum for each particular thing, and there is not any other item but that which may not be made the subject of compensation, and all the other items and the sums given in respect of them are known. [Lord CAIRNS: Suppose that, in consequence of all these other things, the house would have a less money value than before by £5000, would not the award be right?] But independently of the right to consider some of the things as causes of depreciation, the defendants insisted that, so far from the house being lessened in value by £5000, it was increased in value by £10,000. But without going into that question, it is clear that what was made to furnish grounds for so large a claim for compensation was, in fact, not a subject for consideration by the umpire. The case of the Stockport Railway, 33 L. J. Q. B. 251, cannot justify this claim, while the case of The Caledonian Railway v. Ogilvy, 2 Macq. Sc. Ap. 230, is a distinct authority to show that such a claim cannot be supported. No injury consequent on the creation of works authorized by the Legislature can be a ground for compensation. Hammersmith Railway Company v. Brand, L. R., 4 H. L. 171; 38 L. J. Q. B. 265; R. C. Vol 1, p. 623. The loss of prospect cannot be a ground for an action or for compensation. If one man comes on another's land and builds a high brick wall, there may be an action of trespass against him, and damages can be given for his wrongful use of the land, but not for the mere * loss of prospect [* 430] which the wall occasions. Here the loss is of that kind, and the loss and obstruction take place not on the plaintiff's land but on land that does not, and never did, belong to him. No action, therefore, would have lain by him if the Act had not passed, and no claim for compensation can be made under such circumstances for what was done under the authority of the Act. Re Penny & South Eastern Ry. Co., 7 El. & Bl. 660, 26 L. J. Q. B. 226.

and that a claim had been made before him by Martin for compensation for the injury. This evidence was objected to.

It was contended that the award must speak for itself, Lord ALVANLEY admitted the evidence.

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