case is to be taken as part thereof with the following explanation. From A to C is the whole northern boundary of the first mentioned field purchased by the company. AE and CD are portions still visible of the west and east boundaries respectively. The rest of those boundaries and the southern boundary are not shewn, the southern portion of the field having been absorbed by the railway, the station, and other works; the portion of the field not so absorbed is coloured green. The strip between the lines AE and GH is the road formed by John Burgess Soper and the company in 1869. The land coloured pink is the land purchased by the defendants from Magdalen College; the northern portion of it is that sold by the defendants to Henry Downes and others, and by them conveyed to the Basingstoke Burial Board. The middle portion is that sold to the Society of Friends, and now the Quakers' Cemetery, and the lower portion is that retained by the defendants. The lines GB, HF, GH, and BF, contain and shew the piece of land sought to be recovered in this action; there is no actual division of the land at BF, that line being put on the plan only to shew the extent of the plaintiffs' claim. The land to the north of GB is that which formerly belonged to plaintiff's and others, sold to John Burgess Soper in 1867. The land to the north of BC, and to the east of CD, is the land belonging to Lord Bolton. The land to the west of the pink belongs to other proprietors, not being either of the parties to this action. The dotted lines running across the field nearly at the north boundary, and at the east end curving down nearly to the south boundary, shew the extent to which the spoil covered the field, the space outside those lines to the north and east being what was left uncovered. A straight line, if drawn across the plan from the point M to the point N, will cross the field near the northern boundary thereof, and will represent the line of deviation laid down on the plan deposited on the application for the first mentioned Act.

28. The extent of the land coloured green is about ten acres. The portions uncovered by spoil amount to about two acres, and the piece claimed by the plaintiffs measures about 4 acres.

29. The following are the measurements of the several boundaries. From H to G 441 feet, from G to B 357 feet, from B to C 814 feet, and from C to D 364 feet. From H to D is about equal to GC.

30. The writ of ejectment commencing this action was issued and tested on the 10th day of June, 1869; since that time, viz., on the 17th day of January, 1870, the plaintiff Thomas May died.

that So

31. The plaintiffs contend much of the said field purchased by the defendants in the year 1847, as has been and is occupied for the purposes and in the manner herein before mentioned, as abuts on the boundary line GB is superfluous land within the meaning of section 127 of the Lands Clauses Consolidation Act, 1845, and that the plaintiffs who, from the 4th of June, 1860, down to the year 1867, were the owners of the said close abutting to the north (from G to B) on part of the said field coloured green, were and are entitled, by reason of such ownership, to recover possession of so much of the field coloured green as adjoins their boundary, viz., the piece GB FH.

32. The defendants on the other hand contend that the said land claimed by the plaintiffs was not nor is superfluous land within the meaning of the said scction, and that if the said lands were superfluous lands within the meaning of the said section, the plaintiff's are not entitled to recover them.

33. The Court are to have the same power of drawing inferences of fact as a jury would have.

34. The question for the opinion of the Court is, whether, under the circumstances hereinbefore set forth, the surviving plaintiff is entitled to recover possession of the whole or any and what part of the said piece of land claimed in the writ. If the Court is of opinion in the affirmative, judgment is to be entered for the plaintiff accordingly, with costs of suit; if the Court is of opinion in the negative, judgment is to be entered for the defendants, with costs of suit.

Pinder (Cole with him), for the surviving plaintiff. The plaintiff is entitled to recover the piece of land mentioned in the 31st paragraph of the case as

GB FH, on the ground that it is " superfluous land" within the meaning of the 127th section of the Lands Clauses Consolidation Act, 1845. That section is set out in the 23rd paragraph, and inasmuch as no specific period of time is prescribed as applicable to the present case, and as the defendants have not sold the land within ten years after the expiration of the time limited for the completion of the works, the land vested in and became the property of the owners of the land adjoining. Paragraph 2 states that the time for the completion of the railway expired on the 30th of June, 1850; the title of the plaintiff therefore was complete on the 30th of June, 1860, so that the fact of the conveyance to Soper mentioned in paragraph 17 becomes immaterial. The defendants cannot be heard to contend that the 127th section does not apply on the ground that the land was acquired under a private voluntary agreement, for the 6th and 7th paragraphs shew that the usual notices to treat were given by them. In Lord Carington v. The Wycombe Railway Company (1), which raised a question as to the right of preemption, Selwyn, L.J., said, p. 219, "It was also contended, on behalf of the appellants, that the 128th section did not apply, because this was a case of voluntary agreement, and not of compulsory purchase. But the transaction commenced with the usual notice to treat, given in the ordinary exercise of the company's compulsory powers; and I think the legislature cannot be considered as having intended to deprive a landowner of the right of pre-emption, because, after having received such a notice, and proceeding to a certain extent towards an arbitration, he comes to an agreement with the company on the subject of the price to be paid without going on to a final award or to an enquiry before a jury." In The City of Glasgow Union Railway Company v. The Caledonian Railway Company (2), Lord Westbury said, "We naturally expect that lands taken by compulsory powers shall, if not wanted for the railway, be restored to the proprietors from (1) 37 Law J. Rep. (N.s.) Chanc. 213; s. c. Law Rep. 3 Chanc. App. 377.

(2) Law Rep. 2 Scotch App. 160.

whom they have been compulsorily taken. But the company is left to deal with the lands which they have acquired by private treaty as any ordinary proprietor may do." But there the land had been acquired by voluntary agreement for "extraordinary purposes" arising incidentally. Further it is submitted that the defendants cannot contend that the land is required for the purposes of the Act, on the ground that they had need of a place upon which they would be able to place their chalk and spoil -see Earl Beauchamp v. The Great Western Railway Company (3), which shews that where the company is compellable to do something on the land, it may be said to be for the purposes of the Act, but that would not apply to the present case, where the land has been used for garden and agricultural purposes.-See Lund v. The Midland Railway Company (4). Next, it is submitted that there is nothing in the provisions of the Acts which are mentioned in paragraphs 24 and 25 of the case to prevent the plaintiff from maintaining the present action. Those provisions cannot have the effect of extending the time within which the defendants "shall absolutely sell and dispose of" the land, when the title of the plaintiff had accrued to him previously, see Moody v. Corbett (5), affirmed in the Exchequer Chamber (6).

[COCKBURN, C.J.-The words, "belonging to and vested in the company," can hardly apply to lands which had previously vested in other persons.]

Manisty (Raymond with him), for the defendants.-There is not any decision which shews that this land is superfluous land within the meaning of the 127th section, and it is submitted that it is not so. That section was never intended to operate upon lands obtained under the powers of the Act, and substantially applied, within the prescribed period, to the purposes of the Act. The land in question has been applied to the purpose of providing a place for the deposit of the spoil of the

(3) 38 Law J. Rep. (N.s.) Chanc. 182; s. c. Law Rep. 3 Chanc. App. 745.

(4) 34 Law J. Rep. (N.S.) Chanc. 276. (5) 34 Law J. Rep. (N.s.) Q.B. 166.

(6) 7 B. & S. 544; s. c. 35 Law J. Rep. (N.s.) Q.B. 161; Law Rep. 1 Q.B. 510.

company. This was a substantial application to the purposes of the undertaking, and it cannot be reasonably contended that, because at the end of the period of ten years, it is used as garden land, it has ceased to be land required for the purposes of the undertaking.

[QUAIN, J.-If that contention is correct, any temporary use for the purposes of the Act would get rid of the effect of the provisions of the Act.]

No; the use must be a substantial one. The preamble to the section is, “and with respect to lands acquired by the promoters of the undertaking under the provisions of this or the special Act, or any Act incorporated therewith, but which shall not be required for the purposes thereof, be it enacted as follows." Now this land was required for the purposes of the undertaking. It has been used for the spoil, and a road has been made upon it. Next, the attention of the Court has already been called to the Act of 1861, upon which reliance is placed by the defendants. The language of the Act of 1868 referred to in paragraph 25 is even more favourable to the defendants.

[BLACKBURN, J.-Can we construe the language of a public general Act by reference to the private special Act of the company? COCKBURN, C.J.-If the land has previously vested in some one else, how can it be said to belong to the com pany? Suppose the statute had not passed; an action of ejectment might have been maintained against the defendants. If so, must not the land have devested out of them ?]

The words, "which have not yet been applied," must have some meaning. Another point well worthy of consideration is this: can it be said that the land is to vest in an owner who is unwilling to take it, so that he would be liable to all the consequences of being the owner; as, for instance, for a nuisance existing upon it? There must be an election to take it, before it can absolutely vest in him.

Pinder was not heard in reply.

COCKBURN, C. J.-I think that our judg ment should be for the plaintiff. We have to put a construction on the 127th NEW SERIES, 41.-Q.B,

section of the Lands Clauses Consolidation Act, and to see how far that clause applies to the present case.

Now it appears to me that what the legislature intended, and we have nothing to do with the policy of the legislature, was that railway companies acquiring for the purposes of their undertaking, land, and being authorized by parliament to acquire land, inasmuch as they very frequently may make an erroneous calculation as to the quantity of land which they require to take, shall not, if they have acquired land under the authority of their Acts, which turns out to be more than they want, or which, having been required for some purpose, ceases to be any longer necessary for the purposes of the railway, shall not be allowed to hold in their hands lands thus superfluous and not required for their undertaking. We have nothing to do with the policy, as I have said, of that legislation. The only ques tion is to see whether the terms in which the enactment is framed are applicable to a case like the present; and I must say I think that they are so. The words seem to me to be simple enough. [His Lordship read the section as set out in paragraph 23, and then proceeded.] The words" "superfluous lands are here synonymous with land, according to the previous expression," not required for the purposes of the undertaking," the promoters are to sell such superfluous lands, and if they do not, they are subjected to this penalty, which is evidently intended to enforce compliance, upon their part, with the terms of the enactment, they are liable to the forfeiture of the land which is to become, at the expiration of that period, the property of and vest in the owners of the land adjoining thereto.

Now it is contended that if at any time after the passing of the Act authorizing the acquisition of the land, the land in question, which is said to be "superfluous," has been applied to any use connected with the railway, that that would enable the company, in all future time, to retain the property and the possession of such land, I cannot think that that can have been what was intended by the legislature. The object evidently was to prevent land not required for the purposes of the rail

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way undertaking from remaining vested in the hands of these companies, who are only empowered and authorized to acquire land for the purposes of their undertaking. Again, it is contended that if by any possibility the land in question could be brought to be applicable, or could become applicable at any future time, to the purposes of the railway, that that would be sufficient to warrant the company in not feeling the obligation cast upon them by this Act of Parliament of selling the land, if superfluous. In that again, I for one cannot agree, except to this extent; and to this extent I go along with Mr. Manisty, that if, looking to the surrounding circumstances of the company, and the present, I will not say immediately present, but still the present possibility, that it may reasonably be contemplated that there shall be reasonable ground to believe that the land in question will become available for the purposes of the undertaking, it is not because there may not have been up to the moment of the expiration of the ten years, or at the actual moment of that expiration, an immediate application of the land to the purposes of the undertaking, that you are to shut your eyes to the fact that it will soon become available for such purposes. I think under such circumstances it is perfectly legitimate and proper to say that the land is still required for the purposes of the undertaking, and therefore is not superfluous land within the meaning of the section. Again, I cannot think that if a certain quantity of land has been taken within the provisions and powers of the Act, as specified in the plans, sections, and so forth, and it turns out that a portion of that land is required for the purposes of the railway, that you are to treat it as one entire and undivided whole, and say that because out of fifteen acres taken for a particular purpose connected with the undertaking, a certain portion has been found to be required, that, therefore, all the rest will follow the conditions of that part which has been taken, and may be said to have been acquired for the purposes of the railway. Suppose the promoters had taken, as in the present case, fifteen acres, and required only two, while those two would be protected, the other thirteen

would acquire and have the character of "superfluous" land.

way.

Now comes another question, upon which my opinion is decidedly against Mr. Manisty's argument. He says that this land was taken by the company for the purpose of putting upon it the spoil which resulted from the cutting and the operations in constructing the railway, and that having once been used for that purpose it remains to all time land required for the purposes of the railway. Now, in the first place, a distinction is to be made between so much of this land as has been applied to that purpose, and so much as has not been covered with spoil. With regard to the latter, it has never been applied to any purposes of the railThat part will come, without any possibility of doubt, within the 127th section, and I think also that the same reasoning would apply to that which has been used for the purpose of depositing the spoil. At the time that part was made available for that purpose, it was land required for the purposes of the railway in one sense. The construction of the railway required that there should be some ground on which the spoil should be deposited, but that purpose has been fully effected and accomplished, and now the land having acquired a certain degree of fresh fertility is made available for agricultural or horticultural purposes, and is not wanted, in any sense of the term, for the purposes of the railway itself or of the company. On the contrary, the company let it out as gardens, and took a rent for it. How can it be said that that is any longer required for the purposes of the undertaking? It was in time past, but it has ceased to be so, and therefore it is land in the hands of the company not required for the purposes of the undertaking, and therefore is " superfluous." Under these circumstances, the promoters are bound to sell it within the prescribed period. It seems to me it was acquired under their Acts, and therefore comes within the terms of the 127th section, if it ceased to be required for the purposes of the undertaking, and my opinion is, it has so ceased. If, on the facts of the case, I could see any fair and reasonable probability or expectation that this land