of his title.16 And it is here said that possession alone will not be regarded as ground of presumption of title in fee. And where the entire fee in the land is condemned to the use of the railway, and the money paid into court, it must be apportioned to the several owners of different interests in the land, as nearly as possible, as if it were the land itself. And the same result will follow where a permanent right of way is given in any form to a perpetual corporation.17

10. And where a tenant, who held the land for a term of years, with a strict clause against alienation or subletting, assigned a small portion to a railway, for a temporary purpose, the company not dealing with the landlord, or giving him any compensation for the use of the land, it was held, that he was entitled to maintain ejectment against the company, and his tenant, for the forfeiture incurred by this subletting.18

11. And the damages assessed are payable to the owner of the land at the date of the adjudication, and do not pass by deed to a subsequent purchaser.19 And where the company gave notice to treat for land to a tenant at will, and were allowed to take possession and complete their line, a person who had subsequently purchased an undivided portion of the land was not allowed to maintain a bill to restrain the company from the use of the land.20

SECTION XXII.

Arbitration.

1. Attorney, without express power, may re- | 2. Award binding, unless objected to in fer disputed claim.

court.

§ 84. 1. It was held that an attorney, who had no authority under seal, either to defend or refer suits, might nevertheless make a valid reference of a disputed claim against the company, under a judge's order.1

16 Robbins v. Milw. & Horricon Railw. Co., 6 Wisc. R. 636.

17 Ross v. Adams, 4 Dutcher, 160.

18 Legg v. Belfast & Bellamy Railw., 1 Irish Law (N. s.), 124, n.

19 Lewis v. Wilm. & Manchester Railw., 11 Rich. Law, 91.

20 Carnochan v. Norwich & Spalding Railw., 26 Beav. 169.

1 Faviell v. The Eastern Counties Railw., 2 Exch. 344. It is held generally,

*

*2. And if the company object that the arbitrator awarded upon matters not submitted, he should have applied to the court to revoke the submission, or set aside the award, upon its return into court; but not having done so, the claim being set up and entertained by the arbitrator, the award is binding.1 The same principles would probably obtain in the American

courts.

SECTION XXIII.

Statute of Limitations.

1. General limitation of actions applies to | 3. Acquiescence of forty years by land-owner,

land claim.

2. Filing petition will not save bar.

effect of.

4. The estoppel will take effect if the use is clearly adverse.

§ 85. 1. Where neither the general statutes or the special act contain any specific limitation, in regard to claims upon railway companies for land damages, it has been held that the general statute of limitation of actions, for claims of a similar character, will apply. And where the claim was for an injury to an island, caused by the erection of a railway bridge, and to the award of the viewers, the company plead actio non infra sex annos, the plea was held good.1

2. And where the statute provides, that no process to recover compensation for land or property taken by a railway shall be sustained, unless made within three years from the time of taking the same,” a mere filing of an application with the clerk of the county commissioners, without bringing it to the notice of the commissioners, or any action of theirs thereon until the three years have elapsed, will not save the bar of the statute.2

in the English courts, that an attorney should be appointed under seal to prosecute and defend suits, on the part of corporations. Thames Haven Dock & Railw. Co. v. Hall, 5 Man. & G. 274; Arnold v. The Mayor of Poole, 4 Id. 860. But when, by the incorporation of a railway company, the directors were empowered to appoint and displace any of the officers of the company, the appointment of an attorney, by the company, need not be under seal. See post, § 141. 1 Forster v. The Cumberland Valley Railw., 23 Penn. St. 371.

2 Charles River Railw. v. County Commissioners of Norfolk, 7 Gray, 389.

The land-owner may also traverse the right of the company to take the land, either originally, for the location and construction of their road, on the ground that it does not come within their line, or the line of deviation from the prescribed route, or that they have not taken the proper preliminary steps, or for any other cause; or, when the company propose to change their route, or to enlarge their accommodation works, on the ground of having made their exclusive election in one case, or the want of necessity in the other.3

3

3. Where the land-owner had allowed the company, upon an appraisal in the alternative stating both the value of the land and of the annual use, to occupy the same for the purposes of a canal, for more than forty years, paying an annual sum about the same which had been awarded, the award being defective in law, in that no person had been made a party to the proceeding who was authorized to represent the land-owner, who was an infant, as it was held that this was no ground of presuming a contract on the part of the land-owner to convey the land in fee in consideration of a rent charge. But it was held that an ejectment on the part of the land-owner, and the erection of a bridge by him, ought to be restrained by injunction, on the ground of acquiescence, the company undertaking to put in force their parliamentary powers which had not expired, and thus obtain the land.

4

4. But in another case, where the party had, by contract with the original land-owner, used the land of others for more than fifty years, first for a tram-way and subsequently for a railway in a different place across the same land, it was held that the present land-owner was concluded by the agreement, and that the change of one place for another would not defeat the estoppel.5 All the party can claim is, to have damages under the statute.5

3

South Carolina Railw. v. Blake, 9 Rich. 228; ante, § 72; post, § 105, n. 14.

* Somerset Canal Co. v. Harcourt, 2 De G. & J. 596.

5 Mold v. Wheatcroft, 29 Law J. Ch. ch. 11; s. c. 27 Beav. 510.

*184

*CHAPTER XII.

REMEDIES BY LAND-OWNERS UNDER THE ENGLISH STATUTE.

SECTION I.

Company bound to purchase the whole of a House, etc.

1. The company to take the accessories with the house.

W

take part, and pay special damage besides.

2. But the owner has an election in regard to 5. Where company desire part, not compella-
that.
ble to take whole unless they persist in
taking part.

3. A deposit of the appraised value means
the value of all the company are bound to 6.
take.

4. Company bound to take all of which they

Land separated from house by highway not part of premises.

§ 86. 1. By the English statute,1 railway companies are bound to purchase the whole of a house and lands adjoining, if required, when they give notice to take part; and also if the house or the principal portion of it be within fifty feet of the railway, and deteriorated by it. The act includes house, garden, yard, warehouse, building, or manufactory; but it was considered that this did not extend to a lumber-yard.2 Under a similar provision, in a special charter, it was held, that the company were not bound to take the entire premises, where the principal dwellinghouse only was within the prescribed limit.3

2. It has been considered that this statute gave an option to the land-owner, whether the company should take the whole or part of the house, so situated.4 And in this last case it was

1 8 & 9 Vict. ch. 18, § 92.

2 Stone v. Commercial Railw., 9 Simons, 621; s. c. 1 Railw. C. 375; Reg. v. Sheriff of Middlesex, 3 Railw. C. 396.

3

4

Reg. v. L. & Greenw. Railw. Co., 3 Railw. C. 138.

Sparrow v. The Oxford, Worcester, & Wolverhampton Railw. 13 Eng. L. & Eq. 33. By Lord Cranworth and Sir Knight Bruce, L. J. See also Barker v. N. Staffordshire Railw., 5 Railw. C. 401, 419, where Lord Cottenham, Chancellor, intimates an opinion, that certain parcels of land (and a brine-pit and steamengine upon one of tlrem) adjoining salt-works, are not a part of the manufac*667

VOL. I.

23

*

held, that a narrow strip of land adjoining an iron and tinplate factory, which had been used as a place of deposit for rubbish, and over which, a person had a right of way, was such a part of the manufactury, that the company were bound to take the whole.4

3. And the statute requiring a deposit of the appraised value of the land taken by a railway company, before entering upon the same, imports the value of the whole premises, in all cases where the company give notice of requiring part and the owner elects, according to the terms of the statute, that they shall take the whole.5

4. Where three adjoining houses had gardens laid out from the plat of land upon which they were built for the accommodatory. But his lordship gives a very satisfactory reason for denying the aid of the court, viz., "That a party having known his rights, and having had his claim, in respect of them, disposed of [upon the original bill, and by leave of court then filing a supplemental bill], if he then raises a new ground of equity, does not present his case in a form to entitle him to ask for the extraordinary interposition of this court.'

In Sparrow v. The Oxford, &c. Railw. Co., 13 Eng. L. & Eq. 33, Lord Cranworth, L. J., made some very significant suggestions in regard to the rights of land-owners to compensation. "The only remaining question," said his lordship, "is one which has been raised now for the first time, namely, that if they cannot take the land, they are now entitled to burrow under it, as it were to make a tunnel, which they say they are able and willing to do, without taking or touching any part of the surface. It was argued in this way, 'Suppose the manufactory were at the top of a hill, and you were burrowing under it, at the distance of a thousand feet, are they then taking part of the manufactory?' I do not feel myself called upon to answer that question, but if I were, I rather believe you are, on the principle of the maxim, Cujus est solum, ejus est usque ad inferos. Do you mean to say, that if you are an inch below the surface, you would not be taking any part of the manufactory? I am inclined to think that however deep below [the tunnel was made,] it would be within the enactment. If that has been a casus omissus, I think it ought to be construed in a way most favorable to those who are seeking to defend their property from invasion." In the case of Ramsden v. The Manchester S. Junction Railw., 1 Exch. 723, it withwas determined, that a railway company could not tunnel, even a highway, out first making compensation to the owner of the freehold, under the Land Clauses Act. The company are not bound to take property more than fifty feet from the centre line of the road, unless it is incapable of separation. Queen v. London & G. Railw., 3 Ad. & Ell. (N. s.) 166.

5 Underwood v. The Bedford & Cambridge Railw., 7 Jur. N. S. 941; Dadson v. East Kent Railw. Ib.