*SECTION II.

By Surveyors.

§ 103. The assessment of compensation by surveyors, under the English statutes, is merely provisional in most cases, as where the party is out of the kingdom, or cannot be found, two justices are required to nominate an able practical surveyor, who is, under certain solemnities, required to make a valuation of the land taken or injuriously affected, the amount of which the company are required to deposit in the bank, before proceeding with the works. And if such party be dissatisfied with the sum thus deposited, he may, before applying to Chancery for the money, require the question to be submitted to arbitration, as in other cases of disputed compensation. Surveyors are required to assess damages for severance of land, the same as justices of the peace.1

SECTION III.

By Arbitration.

1. May be claimed in cases exceeding juris- | 7. And land-owners may recover without wait

§ 104. 1. By the English statutes, if the amount of compensation claimed exceed the jurisdiction of two justices, any party claiming compensation may compel an arbitration, by taking

Hodges on Railways, 250, 251, 252.

the requisite steps in due time. Unless both parties concur in the same arbitrator, each party, upon the request of the other, is required to name one. The appointment of the arbitrator is to be under the hand of the party, and delivered to the arbitrator, and is to be deemed a submission by such party. submission is irrevocable, even by the death of the party.

Such

2. If either party neglect, for fourteen days, after request by the other party to name an arbitrator, one may be named by the other party, who shall decide the controversy. If either party name an arbitrator who is incompetent, the other party must retire from the arbitration, or he will be bound by his acquiescence.1 The secretary of a railway company, by the English statutes, would seem to have power to bind the company, by signing the submission, whether the arbitration is compulsory or not.2

3. It was held that the appointment of an arbitrator or referee implied the notification of such appointment to the other party within the time limited in the submission, or the doings of such referee were void. And not only so, but the notice must be explicit. It is not sufficient to say, “Take notice, that it is my intention to nominate S. M.," notwithstanding it was added, "if the company fail to appoint, I the said T. B. will appoint S. M. to act on behalf of both parties.” 4 And in this case it is said, it would seem that the appointment by the claimant of an arbitrator to act for both parties, is not valid, unless he has previously appointed an arbitrator, on his part, and notified such appointment to the company. There should be two separate appointments, although it may be of the same person, it is here suggested.5

1 In re Eliott, 2 De G. & Sm. 17.

2 Collins v. South Staffordshire Railw. Co., 21 Law J. (Ex.), 247; s. c. 12 Eng. L. & Eq. 565.

4

Tew v. Harris, 11 Q. B. 7.

* Bradley v. London & N. W. Railw. Co., 5 Exch. 769.

But where both parties petition for a jury to revise the damages, one warrant is sufficient. Davidson v. Boston & Maine Railw., 3 Cush. 91. And if two warrants are issued, the sheriff should execute, and return them as one. Id. And where there are several applications, which by statute are to be determined by one jury, the proper mode is to issue but one warrant to the sheriff, but if

4. The arbitrator has no power beyond the awarding of a pecuniary compensation for the land taken by the company, and cannot direct what right of way shall remain in the tenant to the portion of land not taken. Nor can he apportion the rent to the tenant.6

5. If the land-owner gives no notice of claim, in reply to the notice to treat, the company may treat it as a case of disputed compensation. If the compensation claimed be less than 501., it may be settled by two justices. But if more than 507. be claimed, or offered, and the claimant desire to have it settled by arbitration, it is at his option, and he must give notice of such desire before the company issue their warrant to the sheriff to summon a jury to assess the compensation, which they may do in ten days after giving the claimant notice that they shall do so, unless in the mean time he elect to have the matter settled by arbitration.7

*

6. And under the Massachusetts statute, giving railways the right to alter highways, upon giving notice to the selectmen of the towns where such highways are situated, and conforming to their requirements, or the decision of the county commissioners, in regard to the alteration of the highway, it was held, that if the selectmen give no notice to the company, as to what alterations they require, the presumption is, that they require none, but leave the whole matter to the company.

7. And to entitle adjoining land-owners to recover damages of the railway under the statute of Massachusetts, it is not necessary that the selectmen should have acted in the premises. The remedy in such case is not by an action against the town, but by proceedings under the statute against the company.s

8. In such case the company are estopped to deny, that the construction of their road, as in fact made, was done by their servants in compliance with the requirement of the charter. And embankments made by them for the purpose of carrying

8

several warrants issue irregularly, yet if the officer summon a single jury, who hear and determine each case, their verdicts will not be set aside for such irregularity. Wyman v. Lexington & West Cambridge Railw. 13 Met. 316. • Ware v. Regent's Canal Co., 25 Eng. L. & Eq. 444.

78 & 9 Vict. ch. 18, §§ 21, 22, 23, 38.

• Parker v. Boston & Maine Railw., 3 Cush. 107.

a highway over the railway, are to be regarded as a part of the railway.8

9. By a submission to arbitration it was provided that the arbitrator should determine what sum should be paid for the purchase of land, and what" other, if any, sum for severance damage, and the arbitrator after reciting" the submission, and that he had considered the matters so referred to him, awarded a certain sum to be paid for the purchase of the land, without saying anything about severance-damage. It was held that the award was final and good, that the arbitrator by his silence negatived any right to compensation on account of severance-damage.9

10. A submission to arbitration under the English statute for assessing land damages is not revoked by the death of the landowner.10 It was here considered that the award was valid although not made within the statute period of three months; that the arbitrator may employ an expert and consult men of science, if necessary; that the right to compensation extends to any land injured by the severance of that which was taken, or by the works which the company is authorized to construct, and may include damages likely to be caused to the tenants of the landowner. The right to compensation depends on cause and effect, and not on "proximity or distance."

11. The award of a gross sum for damages for drainage which lessened a waterpower upon which a mill had been erected, was held presumptively to apply to the damage to the mill, and not to the unemployed waterpower, which might be available for the proprietor of the other side of the river.11

• In re Swansea Harbor Trustees, 6 Jur. N. S. 979.

10 Caledonia Railw. Co. v. Lockhart, 6 Jur. N. S. 1311, in the House of Lords.

11 St. George v. Reddington, 10 Ir. Ch. 176.

*CHAPTER XV.

CONSTRUCTION OF RAILWAYS.

SECTION I.

Line of Railway. —Right of Deviation.

1. Manner of defining the route in English | 12. Grant of land for railway includes ac

5. Courts of equity will not enforce contract
against public security.

6. Right to construct accessory works.
7,8. Company may take lands designated,
in their discretion.

9. Equity cannot enforce contract not incor-
porated into the act.

10. Right of deviation lost by election.

11. Railway between two towns, extent of 20. Binding force of plans made part of grant.

charter.

§ 105. 1. THE English railway acts are granted altogether, after full surveys of the route and with reference to definite plans of the engineers, which, when referred to generally in the act, thus become so far a part of it as to be binding upon the company to the extent of determining the datum line, and the line of railway measured with reference to that datum line; and the level of the railway, with reference to the datum line; but not the surface levels, unless expressly so provided in the act.1 1 North British Railw. v. Tod, 4 Railw. C. 449. This was an appeal from the judgment of the Court of Sessions in Scotland. The opinions of Lord Lyndhurst, Chancellor, and of Lord Campbell, Ch. J., certainly exhibit the rule of the English law upon this subject very fully and very ably. Lord Lyndhurst "Now as to the effect of plans exhibited previous to the contract being made, or previous to the act of parliament being obtained, it does seem, from cases which have occurred, both in Scotland and this country, that the rule of

says: