Page images
PDF
EPUB

CASES ARGUED AND DETERMINED

IN THE

Court of Queen's Bench

AND IN THE

Exchequer Chamber and House of Lords

ON ERROR AND APPEAL FROM THE QUEEN'S BENCH.

MICHAELMAS TERM, 35 VICTORIÆ.

1871. Nov. 10.

STONEHAM V. THE LONDON,

BRIGHTON AND SOUTH COAST
RAILWAY COMPANY.

Compensation-Right of Action-Lands Clauses Act (8 Vict. c. 18), s. 100-Extinction of Commonable Rights-Default on the part of Promoters.

Where the right in the soil of land subject to rights of common has been conveyed to the promoters of an undertaking by the lord of the manor under the Lands Clauses Act (8 Vict. c. 18), s. 100, but the compensation payable to the commoners has not been ascertained in the manner provided by the Act, any such commoner whose rights of common have been disturbed by the works of the promoters may maintain an action against them, and is not confined to proceedings for compensation under the Lands Clauses Act.

Action for the disturbance by the defendants of a right of common of pasture over Tooting Beck Common, Surrey, part of which was taken by the West End of London and Crystal Palace Railway Company in the year 1853 for the construction of their line under the "West London NEW SERIES, 41.-Q.B.

and Crystal Palace Railway Act, 1853." The railway was purchased by the defendants under the provisions of the "West London and Crystal Palace Railway Act, 1857." At the trial a verdict was found for the plaintiff, subject to the following

CASE.

1. Tooting Beck Common is part of the waste lands of the manor of Tooting Beck, in Surrey, and from time immemorial the copyholders of the manor have exercised a right of common of pasture over the common for all their commonable cattle, levant and couchant, on their respective copyhold tenements. One of the copyhold tenements is an estate called the Streatham Park Estate, containing about 68 acres, principally pasture land, on which a greater number of cattle could be maintained than could be maintained on Tooting Beck Common. In 1853, and until the 3rd of April, 1862, George Phillipps was seised in fee of the Streatham Park Estate, according to the custom of the manor. On the 3rd of April, 1862, the estate was enfranchised by Mr. Phillipps under the provisions of the Copyhold Act, 1852, sections 45 and 48, and

B

he remained seised of it until his death in 1865, devising it by his will to trustees, their heirs and assigns, of whom the plaintiff, at the commencement of this action, was the survivor.

2. At the time of the passing of the West London and Crystal Palace Railway Act, 1853, the only copyhold tenants of the manor were Mr. Phillipps, as tenant of the Streatham Park Estate, and Messrs. Loat and others, as joint tenants of a publichouse called the "Bell," to which no pasture land was attached, and, in fact, Mr. Phillipps was the only tenant exercising the right of common of pasture over Tooting Beck Common.

3. The common, before the construction of the railway, contained about 155a. 3r. 8p., of which the railway company took 4a. 3r. 7p. under their Act. The fee simple of the 4a. 3r. 7p. was conveyed by the lord and lady of the manor to the railway company on the 28th of December, 1855.

4. The railway company took possession of the 4a. 3r. 7p. shortly after the Act of 1853 was passed, having, when they took possession, taken no proceedings under the Lands Clauses Consolidation Act, 1845 (1), to settle or ascertain the compensation, if any, to which Phillipps was

(1) By the Lands Clauses Consolidation Act (8) Vict. c. 18), s. 99, the compensation in respect of the right in the soil of any lands subject to any rights of common shall be paid to the lord of the manor, in case he shall be entitled to the same or to such party, other than the commoners, as shall be entitled to such right in the soil, and the compensation in respect of all other commonable and other rights in or over such lands, including therein any commonable or other rights to which the lord of the manor may be entitled other than his right in the soil of such lands, shall be determined and paid and applied in manner hereinafter provided with respect to common lands, the right in the soil of which shall belong to the commoners, and upon payment or deposit in the bank of the compensation so determined, all such commonable and other rights shall cease and be extinguished.

By section 100, upon payment or tender to the lord of the manor or such other party as aforesaid, of the compensation which shall have been agreed upon or determined in respect of the right in the soil of any such lands, or on deposit thereof in the bank in any of the cases hereinbefore in that behalf provided, such lord of the manor or such other party as aforesaid shall convey such lands to the promoters of the undertaking, and such conveyance shall have the effect of vesting such

entitled in respect of the diminution of the right of common of pasture, caused by their taking this part of the common. On the 25th of September, 1853, a letter was addressed to them by Mr. Phillipps, claiming compensation as copyhold tenant for loss of rights over the common, and asking whether they had taken any steps pursuant to the Act 8 Vict. c. 18, for the purpose of ascertaining the value of the copyholders' rights.

5. Several other letters to the same effect were written to the railway com

lands in the promoters of the undertaking in like manner as if such lord of the manor or such other party as aforesaid had been seised in fee simple of such lands at the time of executing such conveyance, and in default of such conveyance, it shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poll duly stamped in the manner herein before provided, in the case of the purchase of lands by them, and thereupon the lands in respect whereof such last mentioned compensation shall have been deposited as aforesaid, shall vest absolutely in the promoters of the undertaking, and they shall be entitled to the immediate possession thereof, subject nevertheless to the commonable and other rights theretofore affecting the same, until such rights shall have been extinguished by payment or deposit of the compensation for the same in manner hereinafter provided.

By section 101, the compensation for rights of common is to be determined by the promoters and a committee of the parties entitled to such rights.

By section 102, the promoters may convene a meeting of the parties entitled to rights of common by advertisement.

By section 103 the meeting so called are to appoint a committee not exceeding five in number.

By section 104 power is given to the committee so chosen to agree with the promoters for the compensation to be paid for the extinction of the commonable rights.

By section 105, if upon such committee being appointed they shall fail to agree with the promoters of the undertaking as to the amount of the compensation to be paid as aforesaid, the same shall be determined as in other cases of disputed compensation.

By section 106, if upon being duly convened by the promoters of the undertaking, no effectual meeting of the parties entitled to such commonable or other rights should take place; or, if taking place, such meeting fail to appoint such committee, the amount of such compensation shall be determined by a surveyor to be appointed by two justices, as herein before provided in the case of parties who cannot be found.

By section 107, upon payment or tender to such committee or any three of them, or if there shall

pany, but no proceedings were taken by them to ascertain the compensation, if any, due to Mr. Phillipps, and on the 15th of June, 1857, a notice was served on them by Mr. Phillipps requiring them forthwith to convene a meeting of the parties entitled to commonable rights upon Tooting Beck Common, in the manor of Tooting Beck, and to proceed, as directed by the Lands Clauses Consolidation Act, 1845, to ascertain the compensation to which the parties are entitled in respect of their commonable rights upon that portion of the common which had been taken by them for the purposes of their railway.

No meeting was convened in pursuance of this notice. On April 14, 1858, Mr. Phillipps served a notice of claim on the railway company describing his property, the nature of his interest in it, and containing the particulars of his claim, and on November 21, 1858, he obtained a rule calling upon them to shew cause why a mandamus should not issue, commanding them to convene a meeting under the Lands Clauses Consolidation Act, 1845, sect. 102.

6. Upon the service of this rule some correspondence took place between the parties, and the advertisement and notice mentioned in section 102 of the Lands Clauses Consolidation Act were published and served. A meeting was appointed by the advertisement, and notice given that it was to be held at Streatham on February 12, 1859, and Mr. Phillipps and several other persons met on that day at the place appointed, but no effectual meeting of parties entitled to commonable rights on the common took place. Soon after the meeting Mr. Jones, a surveyor appointed

be no such committee, then upon deposit in the bank in the manner provided in the like case of the compensation which shall have been agreed upon or determined in respect of such commonable or other rights, it shall be lawful for the promoters of the undertaking, if they think fit, to execute a deed poll duly stamped, in the manner thereinbefore provided in the case of the purchase of lands by them, and thereupon the lands, in respect of which such compensation shall have been so paid or deposited, shall vest in the promoters of the undertaking, freed and discharged from all such commonable and other rights, and they shall be entitled to immediate possession thereof.

by Mr. Phillipps, and Mr. Loat, one of the joint tenants of the Bell public-house; had several interviews with the surveyor of the defendants, in which the question of compensation was discussed, but no result was arrived at; the surveyor of the defendants at last telling Mr. Jones that he was not sufficiently instructed and he could not treat with him.

7. Afterwards a correspondence took place between Mr. Francis, as solicitor of Mr. Phillipps, on one side, and the surveyor and solicitors of the defendants on the other side, in which an arbitration on the claim was discussed. From this time until August 3, 1868, no proceedings were taken or letters written with respect to the claim. On that day a letter was written by the solicitors of Mr. Phillipps' trustees to the defendants, requiring the company to call a meeting pursuant to section 102 of the Lands Clauses Consolidation Act, to assess the amount payable in respect of the copyhold rights over the portion of Tooting Beck Common taken by the company for the purposes of their railway.

This letter led to a lengthened correspondence between the same parties, but no arrangement for settling the claim for compensation being arrived at on the 24th of June, 1869, this action was com menced.

8. The construction of the railway across the common was completed in the lifetime of Mr. Phillipps. He took no proceedings to oppose but gave no formal consent to its construction.

9. Unless the conveyance by the lord and lady of the manor on December 28, 1855, mentioned in paragraph 3, is in itself an approvement of the 4a. 3r. 7p., there has been no approvement by them of this part of the common.

10. The injury done to the plaintiff's right of common by the mere taking by the railway company of the 4a. 3r. 7p. is too small to be appreciable, but the construction of the line in the particular direction severs a triangular piece on the north side of the railway from the rest of the common, and the effect of this is, although there is access to it from the rest of the common by an archway under the railway, that a commoner is deprived of

the use of the pasture of this triangular piece to the same extent to which he enjoyed it before the railway was made. Subject to any question of law arising on the case the loss to the plaintiff of the enjoyment to the same extent as before the railway was made, of this triangular piece as well as of the 4a. 3r. 7p., entitles the plaintiff to a verdict for more than nominal damages.

The Court is to be at liberty to draw inferences of fact.

The questions for the opinion of the Court are

First, Whether, upon the facts stated in this case, the plaintiff is entitled to maintain this action.

Second, If it cannot be maintained, whether the plaintiff is entitled to recover compensation by any other proceeding.

Prentice (Murphy with him), for the plaintiff. The action is maintainable, for the West London Railway Company have interfered with the plaintiff's rights of common, without having taken the steps prescribed by the Land Clauses Act for the extinction of the commonable rights, and the defendants now represent the West London Railway Company. It is evident, from the language of sections 104, 105, and 106 of the Act, that if the compensation for commonable rights cannot be settled by the promoters and a committee of commoners, it is the duty of the promoters to take the next step of applying to justices to appoint a surveyor, for if the duty were cast upon the commoners, it might be impossible for them to agree upon a representative to make the application.

[COCKBURN, C.J. Cannot the commoners apply for a mandamus against the company?]

There would still be a difficulty, where the commoners are not agreed upon the course to be adopted. It appears, upon reference to sec. 107, that it is only upon payment of the compensation, that the land is to vest in the promoters, freed and discharged from all commonable rights; and until these righ s are extinguished, the plaintiff is entitled to his common law remedy in respect of them.

Pollock (Warton with him), for the defendants. The plaintiff's remedy is

not by action at law. The company were justified, according to sec. 100, in entering upon the land so soon as they had obtained a conveyance from the lord of the manor. It is true that the section provides that they are to hold possession subject to the commonable rights, but this means, subject to the liability to make compensation for these rights. The failure in the proceedings under the Lands Clauses Act, for assessing the compensation for the commonable rights, arose entirely from the laches of the person through whom the plaintiff claims, and the only remedy, if any, now available for the plaintiff, is in a Court of Equity. It was the policy of the legislature, in framing the Lands Clauses Act, to take away all rights of action in respect of property acquired by the promoters, and to substitute for them a right to compensation-Glover v. The North Staffordshire Railway Company (2).

COCKBURN, C.J.-I do not think that we need call upon you to reply, Mr. Prentice. We are all agreed that an action will lie. The company acquire the waste of the manor with rights of common over it, and in order to get full and entire property and possession they must settle both with the lord, and with the commoners. With regard to the compensation, the Act of Parliament says that when they have done certain things and have made compensation, they shall be entitled to possession, but subject to the commonable rights of the commoners; in other words, that they shall stand in the place of the lord. If it rested there, it would come to this, that just as the lord is liable for disturbing the rights of the commoners, the company standing in his shoes would also be liable to have an action brought against them for disturbing these rights. The statute then goes on to make provision for extinguishing the rights of the commoners, and a certain course is pointed out, which may be pursued in order to ascertain what the commonable rights are, and to secure the making of compensation. It is only

(2) 16 Q.B. Rep. 912; s. c. 20 Law J. Rep. (N.S.) Q.B. 376.

1

1

1

« EelmineJätka »