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by the respective owners or lessees thereof under the said lands, or the railway or other works, as if this act had not passed, so that no damage be thereby done to such railway: Provided nevertheless, that in case any damage shall be done to such railway, the same shall be forthwith repaired at the expense of the owners or lessees of such mines, &c.; and if the same shall not be forthwith done, it shall be lawful for the company to repair, and to recover the expenses attending the same. Sect. 31, "that the respective owners and occupiers of any lands, &c., through which the railway is intended to be made, may accept and receive satisfaction for the value of such lands, or the interest therein by them conveyed, and also compensation for any damage by them sustained, by reason of the execution of any of the works, and also by reason of the severing or dividing such lands, and also for or on account of any damage, loss, or inconvenience which may be sustained by such parties, by reason of the execution of any of the powers of this act, in such gross sums as shall be agreed upon between such owners, &c., and the company." Sect. 32, "that if the persons interested in the lands should not agree with the company as to the amount of such purchase-money, or satisfaction, or other compensation, the said company shall, from time to time, issue their warrant to the sheriff to summon a jury, which jury shall assess the sums to be paid for the purchase of such lands, &c., except for such interests therein as shall have been of right purchased by the company from any other person; and also the separate and distinct sums of money to be paid by way of satisfaction or compensation, either for the damages which shall before that time have been done or sustained as aforesaid, or for the future, temporary, or perpetual, or for any recurring damages which shall have been so done or sustained as aforesaid, and the cause or occasion of which shall have been in part only obviated, removed, or repaired by the company, and which cannot or will not be further obviated, removed, or repaired by them.” Sect. 33, "that the jury shall also assess the compensation for any damage sustained by owners or occupiers of, or persons interested in, lands, &c., for or on account of any injury or loss which shall or may accrue to any such person, by reason of the execution of any of the powers of this act."

Lord Denman, C. J.-This claim cannot be supported. The act does not contemplate a future inconvenience of the kind which is the subject of this complaint. Littledale, J.-I am of the same opinion. The extent of the colliery was capable of being known at the time of the

purchase of the land, and the claim ought then to have been brought forward. The other judges concurred. Rule refused.

4. Compensation in other Cases.

Rex v. The Hungerford Market Co., (4 Barn.& Ado. 327; 1Nev. & M. 112).]—Mandamus, requiring the defendants to summon a jury, to assess compensation to E. Davies, for her interest in the "Ship" publichouse. The Hungerford Market Act enabled the defendants, within three years, to purchase certain premises mentioned in the schedule; and by section 6 it is enacted, That if any person interested in any premises shall, for twenty-one days next after notice given him of their being required for the purposes of the act, refuse to treat, or not agree, for the sale thereof, in every such case the company shall cause the value of such premises to be inquired of by a jury; and for summoning and returning such jury, they are empowered to issue their warrant to the high bailiff, who is required to impannel a jury. It appeared, that, on the 25th February, 1832, the company gave a written notice, under the 6th section, to the applicant, who was lessee for a term of years of the premises in question, and also to the owner of the freehold, stating that the premises were required for the purposes of the act, and that at the expiration of twenty-one days a precept would in due course be issued. Some negociation then ensued between the company and the solicitors of the owner and occupier of the premises; and in June, 1832, the company having ascertained that the sum demanded for compensation was larger than they expected, they offered to pay the parties all the necessary and reasonable expenses which had been incurred in consequence of the notice, but declined to proceed with the purchase. The applicant alleged, in support of the mandamus, that she had reduced her stock in trade, in consequence of having received the notice, and that the premises had been much lessened in value by the company's works.

Lord Denman, C. J.-The company have obtained an act, giving them great privileges in the purchasing of certain property. There is no power reserved to them of countermanding a notice once given, in case of disagreement as to terms, but they may summon a jury to ascertain them; that is their protection, in case of an exorbitant demand. If they are not bound by their notice, it follows that, after giving it, they are free, during the long period of three years (allowed by the ourth section of the act), to take the property or not, at their dis


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Where a company gave notice to an owner that his premises would be required for the purposes of an improvement act -Held, that the company could not afterwards withdraw the notice; and that it was no answer to allege, that they had no funds applicable for the payment of the compensation.

cretion, and the owner is at their mercy during that time. I cannot think that the Legislature so intended. The rule must therefore be made absolute, and the company must go to a jury, which is the security they have provided for themselves by this act. Taunton, J.— I am of the same opinion. If the notice could be countermanded, the company may state what they consider as a countermand, in their return to the mandamus. Rule absolute.

Rex v. The Commissioners for improving Market-street, Manchester, (4 Barn. & Ado. 33, n.)]-Mandamus requiring the defendants to assess compensation to one Newall. By the statute 1 & 2 G. 4, c. cxxvi, the commissioners were empowered to purchase certain premises by agreement with the owners, or, if the agreement could not be come to, then by assessment, to be ascertained as in the statute was mentioned. By sect. 27, if part only of any premises were wanted, the commissioners were required to purchase the whole, if the owner was unwilling to sell part. By sect. 31, if the owners of premises should neglect or refuse to treat, or should not agree with the commissioners, the sheriff, on the warrant of the commissioners, was required to summon a jury to assess the damages, and satisfaction to the owners, &c.

It appeared, that, on the 28th November, 1829, the commissioners gave notice to Newall, that a messuage and premises occupied by him were wanted for the purposes of the act; and the notice required him to give up possession on the 29th of November, 1830. Notices were also given to Newall's tenants of other parts of the premises. In 1829 and 1830, negociations took place between Newall and the commissioners respecting the purchase, but they could not agree upon terms; and in December, 1830, Newall gave notice to the commissioners, requiring them to issue their warrant for summoning a jury. This notice not having been complied with, the present application was made. On the part of the commissioners, affidavits were put in, stating that their funds were limited, and subject to the payment of interest on a very large debt, and that they were under a restriction as to borrowing further sums; that they gave the notices merely with a view of being enabled to take any favourable opportunity which might occur for purchasing; but not with any final determination to purchase at all events; that the sum demanded was unreasonable, and that Newall, though he claimed compensation for goodwill, had refused to give any estimate of it; that, if a jury gave

any sum at all approaching that now demanded, it was doubtful if the funds would be adequate for a considerable time; and that the improvement to be effected by taking the premises in question would not, in the judgment of the commissioners, warrant such an expense.

The court ordered a mandamus, and the commissioners, in Easter term, 1831, made their return, in which they repeated the statements above mentioned; they also alleged, that, after the giving the notice, they had been obliged, by a vote of the ley-payers, to make new purchases, by which great expense would be incurred, and that Newall's premises had been bought by him with a full knowledge that they would be required for the purposes of the act; they further stated, that a very small portion of the premises was in fact requisite for those purposes; and that the commissioners did not know that they should ever have funds applicable to the payment of Newall's demands. On a subsequent day, a rule was obtained to quash the return for insufficiency, and, after counsel had been heard on both sides, the court held the return to be insufficient, and ordered a peremptory mandamus to issue.

Stone v. The Commercial Railway Co., (1 Railway Cases, 375; 4 My. &C. 122).]—Motion for an injunction to restrain the defendants from proceeding on a precept to assess damages, in respect of certain land required for the purposes of the act, and from taking possession of the same. The bill stated, that, previous to 1823, one Richardson was seised in fee of a wharf near to a dock on the Regent's canal, and that, in 1824, a great portion of the premises, three acres in extent, were converted into a yard for bonding timber, in which a business of considerable value was carried on by the plaintiff; that the timber-yard is mentioned in the schedule annexed to the act, as a "timber-yard;" that the plaintiffs had received a notice from the company, which required the plaintiffs, within fourteen days, to treat with the company for the land delineated in a plan accompanying the notice. The bill then stated, that a correspondence had taken place between the plaintiff and the defendants on the subject of the notice, and that. no agreement having been made, the company at length issued a warrant to the sheriff, requiring him to assess the compensation to be paid to the plaintiff; that a plan accompanied the last-mentioned precept, for the purpose of pointing out the portions of the premises in respect of which the jury were to assess the compensation: but that the plan did not correspond with the plan attached to the notice to treat. Lord Chancellor.-I have no difficulty whatever in saying that the



1. When a company have given a notice to treat, the

relative situation

of vendor and created between

purchaser is

the parties as to the lands men

tioned in the


2. The precept requiring the sheriff to assess compen

sation must describe the lands as

they were described in the no

tice to treat.


A notice to treat for lands ought clearly to shew that a road on the

land is intended to

be taken for the purposes of the act.

company have not done that which the act of Parliament requires them to do. The moment the company have given the notice under the statute, the relative situation of vendor and purchaser is created by that notice. It gives the proprietor a right to insist upon the company taking that, of which they have given notice of their intention to take a right to be enforced by this court, or by a court of law, by mandamus. The parties not having come to any agreement, the company resort to that power which the act gives them, of issuing a precept, for the purpose of bringing the case before a jury; and the course they adopt is, to abandon for this purpose a large portion of the land comprised in their first notice; and to include in it a considerable portion not included in that first notice. It is admitted, that, so far as it comprises the latter, the company are not in a situation to go before a jury; but if I were to consider this as within the provisions of the act, it would be in the power of the company, having given a notice for any portion of property, to subdivide that into as many proceedings before the sheriff as they might think fit. It is obvious that this would be a total departure from the act it would be a great inconvenience to those who have to deal with these companies. The company must confine their rights within the limits of the act of Parliament. The case before the jury must be consistent with the precept, and the precept must be consistent with the notice. The result is, that I extend the injunction against proceeding in any manner upon the precept.

Kemp v. The London and Brighton Railway Company, (1 Railway Cases, 495).]-Motion for an injunction. It appeared that the railway company gave notice to the plaintiff that the property described, as referred to in the plan to the notice annexed, and therein coloured green, would be taken and used for the purposes of the act, 1 Vict. c. cxix. The parties being unable to agree as to the amount which should be paid as compensation, the matter was referred to a jury, and after they were impannelled the above-mentioned plan was produced, on which there were certain portions of land marked green, and across the part so coloured there was a road marked, the colour of which was white: this represented an ancient roadway, which was bounded on each side by lands belonging to the plaintiff. The jury assessed a certain sum as compensation; and, at a subsequent period, the plaintiff applied for an injunction to restrain the defendants from destroying the ancient roadway above referred to, on the

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