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Construction of an

agreement for the

upon the whole, in a case where we see no reason to doubt that substantial justice has been done, we are of opinion, that, without any excessive and unauthorised violence of construction, we may read the latter part of the clause in question in the manner above suggested.

We do not think that the cases cited have any very material bearing upon the present. In Reg. v. The Justices of the West Riding of Yorkshire, (In the Matter of the Ayr and Calder Navigation Company), (1 Adol. & Ell. 563), which is perhaps the nearest, and in which the jury had found, present damages, nothing; future damages, 28001.; this Court refused a mandamus, directing the sessions to enter a verdict in a particular manner, because they held that course to be getting rid by a side-wind of clauses in an act of Parliament, by which a certiorari was expressly taken away. There was no decision upon the finding of the jury. In the case of Lee v. Milner, (2 Mee. & W. 384), indeed, the Court of Exchequer did hold, that the finding of the future damages could not be sustained, upon the ground, that, in the absence of any actual and present damage, such finding must needs be uncertain and wild speculation. Supposing, however, that decision to be quite correct, it does not affect this case; because, here, the jury had sure grounds for ascertaining the amount of damage. In the case of Reg. v. The London Dock Company, (5 Adol. and Ell. 163), this Court held, that the tenant of a public house, whose custom had been affected by the cutting off communication by reason of the works of the company, was not entitled to compensation. But, in that case, no part of the premises had been taken or touched by the company.

The other cases cited respect the power of this Court and its right of interference where inferior Courts exceed their jurisdiction wholly or partially—a subject into which it is not needful for us to enter.

Upon the whole, we are of opinion that the rule must be discharged.-Rule discharged.

Cases relating to the Diversion of Roads, p. 381.

Breynton v. The London and North-western Railway Company, purchase of lands (11 Jurist, 28, Dec. 19, 1846).]—The plaintiff, William Breynton, was the owner of a piece of land in the parish of Armitage, in the county of Stafford, and of a brick-kiln and other works erected thereon. The railroad from Stafford to Rugby crossed over a

required for the purposes of a railway. A refer

ence to plans and sections deposited is not permitted.

portion of the land. The railroad had been purchased by the London and North-western Railway Company, the present defendants; and the question in dispute was, as to how far the company were entitled to interfere with a certain carriage-road which passed over the plaintiff's land, and the use of which was of considerable value to the plaintiff. The Trent Valley Railway Act, being the act under which the railroad was made, (8 & 9 Vict. c. cxii), made special provision for enabling the company to carry their railway on a level with this carriage-road. By an agreement dated the 26th July, 1846, and made between the plaintiff of the one part, and the agent of the railway company of the other part, after reciting, that, by an act of Parliament, known as the Land Clauses Consolidation Act, provision is made for settlement by arbitration of all matters connected with the sale of lands for public purposes; and after reciting, that the company were desirous of purchasing certain lands of the plaintiff in the parish of Armitage, for the purpose of constructing a railway from Stafford to Rugby, according to a certain plan and section thereof deposited with the parish clerk of the said parish, which said lands had been staked out by the agents of the said company, and contained by admeasurement 1R. 38P.; it was witnessed, that the plaintiff agreed to sell, and the agent of the company agreed to purchase, the land in question. Subsequently to this agreement, the company found it advisable to alter their plan of carrying the railway on a level with the carriageroad; and thereupon the plaintiff filed a bill for an injunction on the ground of the injury inflicted upon him by this alteration. On 1st October, 1846, an injunction was obtained ex parte, to restrain the company from lowering or excavating the carriage-road, so as to interfere with or affect the complainant's land in any manner inconsistent with the provisions of the Trent Valley Railway Act of Parliament, or the plans and sections therein referred to, or the agreement of the 26th July, 1846. This injunction was subsequently dissolved by the Master of the Rolls, and the case was now brought by way of appeal before the Lord Chancellor.

Lord Cottenham, C.-This seems to me a very plain case. It turns on the agreement; because, under the particular act, the company have a right to pass the road on a level, a thing most objectionable, if it can be avoided; and by the general act they would have power to pass under the road. Have they parted with these powers by their agreement? There is no such contract between the plaintiff

The decision in Sharp v. Day, ante, 592, over

ruled by Lord

Lyndhurst, C., on appeal.

and the company. The contract is, that the company, having to pass over the land, therefore agree to purchase the land. To shew this, I need only refer to the instrument itself. It recites, that the company are desirous of purchasing the plaintiff's land, for the purpose of constructing their railway, according to a certain plan and section thereof, deposited with the parish clerk, and that land has been staked out by the agents of the company; the contract, then, is to sell, that is all. It is only saying, "We have staked out certain land, deposited our plans, and now we wish to purchase." From this contract, the necessity of lowering the road may arise, but this contingency is no part of the contract. The company may make s road over the land at any time, and lower the carriage-road afterwards, and if any damage should arise from so doing, compensation must be made to the parties injured. So far as the plan is necessary to the contract, it becomes by reference part of the contract; but so far as it is not necessary to the contract, reference does not make it part of the contract. Quoad the plan then, so far as lowering or not lowering the road is concerned, the agreement is silent. As to injury to the plaintiff, there is none. If any injury is caused in the construction of the railway, there is compensation under the provisions of the act. If it arises from anything unconnected with the construction of the railway, the contract has nothing to do with it, and the case must be put on quite different grounds. The exhibition of the plan cannot be referred to in order to raise an equity between parties. There is no ground for granting an injunction. The act says that the railway company may from time to time make the railway. The argument on the other side is this: that when once they have shewn an intention to make it in one particular mode, there can be no change or alteration. There is no ground for this argument. The present application must be refused.

Cases in Equity, p. 592.

Sharp v. Day, 16 Law Journal, (Ch. 7).—This case, decided before Knight Bruce, V. C., (see ante, 592), was appealed against to the Lord Chancellor, and Lord Lyndhurst, C., delivered judgment as follows:

The parties composing the provisional committee in this case had incurred joint debts and liabilities to a considerable amount. They were also, independently of the subscriptions mentioned in the bill, possessed of joint property to some extent. It is so stated in the bill

and for the present purpose, the statement must be taken to be true. The plaintiff complains that the defendants have possessed themselves of this property, and that it is applicable, and ought to be applied to the discharge of the joint debts and liabilities, but that the defendants intended to apply it to other and improper purposes. He prays therefore, among other things, for an account of this property, and of the joint debts and liabilities, and that the property may be applied in the discharge of such debts, &c. It appears to me, upon this statement, that there is enough of averment in the bill to sustain it against a general demurrer for want of equity. But the bill goes much farther: the plaintiff requires not only an account of this property, but also of the fund subscribed, pursuant to the resolutions of the meeting of the provisional committee, but to which he had refused to contribute. He complains of the intended misapplication of the money, and prays various matters respecting it. I cannot understand, however, by what right he claims to represent the subscribers to this fund, or to unite himself with them in a suit respecting it. The money was voted and paid upon the faith that all would contribute their proportion. This the plaintiff declined doing. He can have no right therefore to interfere with the fund, or to direct or control its application; it belongs exclusively to the subscribers, and if he wishes to enforce any supposed claim with respect to it, he cannot, I conceive, do this by representing or uniting himself with them, but must proceed adversely against them, and in such a manner as to give them an opportunity of properly defending their rights. The plaintiff is seeking to free himself from liability at their expense; that is, out of a fund which belongs solely to them.

A principal object of the bill is to restrain further proceedings in the action at law brought by Day. The subscribers have no interest in obtaining this injunction; still less have they an interest in applying a fund exclusively theirs in discharge of the debt for which the action is brought. I think, therefore, the record is improperly framed in respect to the parties, and that the demurrer ought to be allowed. I feel the less difficulty in coming to this conclusion, as the Vice-chancellor rested his judgment principally upon the doubts which he entertained when the case was before him.


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