SECTION VII.

The extent of Compensation to Land-owners, and other Incidents by the English Statutes.

1. Liberal compensation allowed.

2. Decisions under English statutes.

4. Whether claim for damages passes to the devisee or executor.

3. Limit of period for estimating dam- 5. Vendor generally entitled to damages ac

ages.

cruing during his time.

§ 99. 1. In one of the early cases1 upon this subject, Lord Denman, Ch. J. said, we think it not unfit to premise, "that where such large powers are intrusted to a company to carry their works through so great an extent of country, without the consent of the owners and occupiers of land through which they are to pass, it is reasonable and just that any injury to property, which can be shown to arise from the prosecution of those works, should be fairly compensated to the party sustaining it." But this must be received under some limitations. For it is supposable, that possible remote injuries may accrue to property, of a general and public character, which it was never intended to compensate.

2. Some points arising under the English statute may be here referred to. It was held, that where the powers conferred upon a *canal company were unlimited as to time, no limitation as to their exercise could be assigned, so as to require their exercise within a reasonable time,2 and, consequently, that the works might be resumed at any period.2 Future damages to accrue to land-owners cannot be estimated properly until after the completion of the works. The compensation when given, fixes

3

3

1 Reg. v. Eastern Counties Railw., 2 Ad. & Ellis (Q. B.), 347.

2 Thicknesse v. The Lancaster Canal Co., 4 M. & W. 472. Lord Abinger, Ch. B. intimates an opinion here, that possibly, after a long delay of the company to proceed with their works, and the erection of fences and buildings, by the land-owners, in faith of the abandonment of the works by the company, a court of equity might restrain the company from completing their enterprise, notwithstanding the grant of power to do so, by parliament; but a court of law could do no such thing. p. 490, 491.

3 Lee v. Milner, 2 M. & W. 824.

the rights of the parties, upon the basis of its estimation, as, if the estimation is had upon the footing of an entire severance of the land, the land-owner has no right to cross the track.4 And where this did not sufficiently appear, by the record of the verdict, that not having been made, held that parol evidence might be given of the finding, and of the grounds upon which it proceeded.4

3. Where consequential damages to existing works, by the erection of new ones, are required to be compensated, the period for estimation is limited to the yearly value of the works, antecedent to the passing of the act.5

4. The devisee is entitled to claim consequential damages and not the executor.6 But where one contracted to sell freehold estates and died before the money was paid; under the London Bridge Improvement Act, it was held the money should go to the executor. But the cases are not uniform upon this subject, and the usual course seems to be, that the money for consequential damage goes to the party interested in the inheritance, or else is divided according to the interest of the several, estates.8 In one case it was held, that the vendee was entitled to compensation, which * accrued during the time of the vendor's title, but not liquidated till after the conveyance.9

5. But in general the vendor is entitled to land damages accruing during his time, although not collected, and often where the works are not completed till after the conveyance.10 The presumption is, if the jury assess compensation to one person, that it is only for his interest in the premises.11

Manning v. The Eastern Counties Railw., 12 M. & W. 237. But unless it appeared by the record upon what basis the assessment was made, it seems questionable, whether, upon general principles, oral evidence is admissible to show that basis. Ante, § 74, n. 7.

Manning v. The Commissioner under the W. I. Dock Act, 9 East, 165.

• The King v. The Comm. under London Dock Acts, 12 East, 477.

• Ex parte Hawkins, 3 Railw. C. 505, and note. No other party seems to have had a counter interest in this case.

8 The Midland Counties Railw. Co. v. Oswin, 3 Railw. C. 497; Danforth v. Smith, 23 Vt. R. 247.

0 King v. Witham Nav. Co., 3 B. & Ald. 454.

10 Rand v. Townshend, 26 Vt. R. 670.

"Rex v. Nottingham Old Waterworks, 6 Ad. & Ellis, 355.

SECTION VIII.

Right to temporary use of Land to enable the Company to make Erections upon other Lands.

1. Right to pass another railway by a bridge

gives temporary use of their land, but no right to build abutments upon it.

2. Right to construct a bridge across a canal

3.

gives right of building a temporary bridge.

And if thus erected bonâ fide may be used for other purposes.

§ 100. 1. Where one railway act gives the company power to pass another railway, by means of a bridge, provided the width between the abutments of the bridge is not less than twenty-six feet, and at the points where the bridge is to be built, the land of the second company is forty-seven feet wide, the first company have no right to build the abutments of their bridge upon the land of the second company, but having purchased adjoining land for that purpose, they have a right at law to the temporary use of the land of the second company, for the purpose of building, and this right was in effect secured to the first company by an injunction out of chancery.1

2. So, too, where a railway company had permission to carry their road over a canal, by means of a bridge of a given description, it was held that they might, as incident to the right of erecting the bridge, make a temporary bridge over the canal, supported partly on piles driven into the bed of the canal, to enable them to transport earth across the canal to build the necessary embankment, in the construction of the permanent bridge.2

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3. And such a temporary bridge having been erected for the bona fide purpose of building the permanent bridge, might also be used for other purposes, for which alone it could not have been erected.3

1 Great North of England, Clarence & Hartlepool Junction Railw. v. The Clarence Railw., 1 Collyer, 507.

2 London & Birmingham Railw. v. Grand Junction Canal Co., 1 Railw. Cas.

Priestley v. The Manchester & Leeds Railw., 2 Railw. C. 134.

SECTION IX.

Reservations to Land-owners to build private Railway across public Railway.

§ 101. Where the special act of a railway company provided, that nothing in the act contained shall prevent any owner or occupier of any ground through which the railway may pass from carrying, at his or their own expense, any railway, or other road, any cut, or canal which he or they may lawfully make in their own land, across the said main railway, within the lands of such owner or occupier, it was held, that this provision was not confined to the owners or occupiers of such land, at the time, but was intended to apply to all future time, so long as such principal railway shall continue, and extended to all persons owning or occupying lands adjoining the railway, upon opposite sides, whenever the title was acquired, even where they purchased the land upon opposite sides at different times.1

1

1 Monkland & Kir. Railw. v. Dixon, 3 Railw. C. 273. The Court here (H. of L.) denied an interdict against such owner or occupier prolonging his railway for the benefit of any persons with whom he might make an agreement for that purpose.

*CHAPTER XIV.

THE MODE OF ASSESSING COMPENSATION UNDER THE ENGLISH STATUTES.

SECTION I.

By Justices of the Peace.

1. Where compensation claimed does not ex-|3. Value of land and injury accruing from severance to be considered.

ceed £50.

2. Mode of enforcing award.

§ 102. 1. By the English statute, where the compensation claimed shall not exceed £50, the same is to be settled by two justices. So, also, as to damages claimed for lands injuriously affected. So, too, if the company enter upon any private road or way. And justices may fix the compensation, in certain cases, for the temporary use of land. And the compensation to tenants for a year, or from year to year. They may apportion the rent, too, where the whole land is not taken. In some of these cases their jurisdiction extends beyond £50.

2. The mode of enforcing payment of money awarded by such justices, is to obtain an order, which may be enforced by distress, upon the goods and chattels of the party liable. The certiorari is taken away in such cases, but an order of such justices may still be brought up, to be quashed, for want of jurisdiction.1

3. The justices are to take into consideration the value of the land, and any injury which may accrue from severance.

1 See the subject discussed post, §§ 202, 203.

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