*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

SECTION X.

Disposition of Superfluous Lands.

1. Vest in adjoining owner unless disposed of 2. Former owner not excluded; effect of cotin ten years. tage in field.

§ 101 a. 1. By the English statute railways are required, where they have acquired more lands under their powers than are required for their purposes, to sell the same within ten years from the passing of the act, and that superfluous lands, then remaining unsold, should vest in the owners of adjoining lands, in proportion to the amount of their lands respectively adjoining the same. That time was by a subsequent act extended five years more. It has been held that the act embraced lands, the reversion of which had been bought by the company; and also that the superfluous land was to be divided among the owners of the adjoining property,

1 Monkland & Kir. Railw. v. Dixon, 1 Bell Ap. Cas. 347; s. c. 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.

in proportion to the frontage of each, meaning by that the length of the line of contact, without reference to the extent of the land in other directions, and that the later act did not defeat titles already vested under the former act.1

2. It has also been held that the former owner of the lands, from which they were severed, is entitled to share in the same under the statute, and that the fact that a cottage stands in the field, part of such superfluous lands, will not bring them within the exception of lands built on or used for building purposes.2

1 Moody v. Corbett, Law Rep. 1 Q. B. 510.

9 Carington v. Wycomb Railw. Law Rep. 2 Eq. 825.

* 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

ceed £50.

2. Mode of enforcing award.

severance to be considered.

§ 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.

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

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

§ 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 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. Such submission is irrevocable, even by the death of the party.

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 acHodges on Railways, 250, 251, 252.

1

quiescence. 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

*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 50, it may be settled by two justices. But if more than 501. be claimed, or offered, and the claimant desire to have it settled by arbitra1 In re Eliott, 2 De G. & Sm. 17.

2 Collins v. South Staffordshire Railw. Co., 7 Exch. 5; s. c. 21 Law J. (Ex.), 247; s. c. 12 Eng. L. & Eq. 565.

3 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. Ib. 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 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., 9 Exch. 395; s. c. 25 Eng. L. & Eq. 444. 78 & 9 Vict. ch. 18, §§ 21, 22, 23, 38.