tion, 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.8

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.8 And embankments made by them for the purpose of carrying * 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 any thing 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

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

• In re Swansea Harbor Trustees, 6 Jur. N. S. 979; s. c. nom. Beaufort v. Swansea Harbor Trustees, 8 C. B. N. S. 146.

10 Caledonia Railw. Co. v. Lockhart, 3 McQu. Ho. Lds. 808; s. c. 6 Jur. N. S. 1311, in the House of Lords.

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 land-owner. 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."1

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

§ 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, 5 Bell Ap. Cas. 184; s. c. 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 says: "Now as to the effect of plans exhibited previous to the contract being made, or previous to the act of parliament being obtained,

*2. The question in this last case1 was in regard to the right to intersect an approach, leading to a mansion-house, at a* difit does seem, from cases which have occurred, both in Scotland and this country, that the rule of the courts in this country, and in the other, is no longer a matter of any doubt or dispute. If a contract or an act of parliament refer to a plan, to the extent that the act refers to the plan, and for the purpose for which the act or contract refers to the plan, undoubtedly it is part of the contract or part of the act. As to that there is no dispute. A contract, or an act of parliament, either does not refer to a plan at all, or it refers to it for particular purposes. It has been contended, both in Scotland and in England, that the defendant in the suit, or those who claim the benefit of the provisions of an act of parliament, previous to this enactment being made, or the contract being concluded, have represented that the works are to be carried on in a particular mode, upon a plan shown previous to the powers being obtained under the act, or the contract being concluded, and that the party obtaining the act, or obtaining the contract, is bound by such representation. There was a case very much considered in Scotland, the case of The Feoffees of Heriot's Hospital v. Gibson, 2 Dowl. 301; and several cases have occurred in the courts of equity in this country. It was my fortune to have to consider the matter very minutely in the case of Squire v. Campbell, 1 My. & Cr. 459, in which I thought it my duty to review all the cases that had occurred in the one country and in the other, for the purpose, if possible, of establishing a rule which might be a guide on future occasions when similar cases should occur; and I found that, certainly, what had been very much the opinion of the profession in this country, namely, that the parties were bound by the exhibition of such plans, had met with a very wholesome correction by the doctrine laid down by Lord Eldon, and Lord Redesdale, in the case of Heriot's Hospital, decided by this House. Under the authority of that case, in which the point was very distinctly raised, and deliberately decided upon, I came to the conclusion that there was no ground for equitable interposition. Now, my Lords, not relying upon the authority of Squire v. Campbell, but relying, as we are bound to do, upon the case of The Feoffees of Heriot's Hospital, I consider that to be the rule to which the courts of this country, and the Court of Sessions in Scotland, and this House, must hereafter adhere. Taking that, then, to be the rule in examining the facts of this case, and the act of parliament upon which the question turns, we are not to look at what was represented upon the plan, except so far as its representation is incorporated in, and made part of, the act of parliament; and the real question, therefore, turns upon this, whether the acts of parliament do or do not make the datum line, and line of railway with reference to that datum line, the subject-matter of these enactments, and the rule by which the rights of the parties are to be regulated, or whether it also includes the surfaces which, in this instance, accidentally, no doubt, had been very much misrepresented upon the plan.

"I say, then, that a case does arise upon these provisions of the act, in which the plan indeed is referred to, but is, in the terms of the act of parliament, referred to only for the purpose of ascertaining the line of the railway, with reference to the datum line. It is not referred to with reference to any surface level. The plan, therefore, is entirely out of the enactment, and is not to be looked at

ferent level from that laid down in the parliamentary plans, in which it appeared as a cutting of fifteen feet, and the way raised for the purpose of construing the enactment as to any part of it, except so far as it is referred to and incorporated in the act. Arriving at that construction of the rule upon the provisions of the two acts to which I have referred, and applying it to the principle which has been established in the cases I have mentioned, we have no difficulty in coming to the conclusion, that the application of that principle will necessarily lead to the construction of the clauses to which I have referred. The plan is binding, to the extent of determining the datum line, and the line of railway measured with reference to that datum line, but not with reference to the surface levels of the land, because the act does not apply it for that purpose, but cautiously confines the enactment to the other plans to which I have referred.

Acting, therefore, upon the principle so established, and with reference to the construction, or what I conceive to be the construction, to be put upon these sections, although we cannot but greatly lament the hardships which, in all probability, these circumstances have imposed upon the respondent, in having his land interfered with in a manner which he did not at all anticipate; yet, when we are called upon to consider whether the Court of Sessions is correct or not, we are bound to look to see what are the powers which these acts vest in the company; and for the reason I have explained, I come to the conclusion that the company have not exceeded those powers, and do not propose to exceed those powers, in the plans that they have formed, and that the Court of Sessions has been in error in granting the interdict."

Lord Campbell. — “I acknowledge that I come to the conclusion at which I have arrived with very great reluctance. It seems to me to be a case of very great hardship upon the respondent. But when we come to consider what the law upon the subject is, I feel bound to concur in the opinion which has been expressed. What is the legal construction of the act of parliament? Does the company, or does it not, propose to exceed the powers which the acts of parliament confer upon it? Now it is admitted, that if the deviation is to be calculated from the datum line alone, they (the company) do not propose, either vertically or laterally, to exceed the powers of deviation which are conferred upon them. Well, then, that raises the question whether those powers of deviation are to be calculated from the datum line alone, or whether the surface-level is to be taken into consideration, and my opinion is, that the act does refer every thing to the datum line. I think it is evident that the 11th section clearly makes the datum line alone that which is to be regarded. The word ‘levels,' in the plural number, really does not at all include the surface-levels. It means merely the levels of the datum line, which point out the course the railway is to go. If that be so, the company do not propose to do any thing that they are not authorized to do, according to the letter of the act of parliament.

"There certainly was a representation made here on the part of the company, when they proposed to bring in the act, by which they intimated that, at that time, the intention was that the railway should be fifteen feet four inches below the surface of the respondent's property at the point of intersection; and that the bridge by which his approach should pass over the railway, would not be