Edinburgh St. Tram. Co. v. Lord Provost, &c., 1894, A. C. 486, 487.

and by my noble and learned friend Lord WATSON, I shall content myself with making very few additional observations.

The promoters are required to sell their "undertaking," or so much of the same as is within a defined district, and for that undertaking the local authority are required to pay. The clause proceeds, however, to say that the sale is to be made "upon terms" of payment, followed by a specification which expressly excludes certain elements or items from consideration, and expressly enumerates others, for which payment is to be made. The undertaking is to be sold "upon terms of paying the then value (exclusive of any allowance for past or future profits of the undertaking, or any compensation for compulsory sale, or other consideration whatsoever) of the tramway, and all lands, buildings, works, materials, and plant of the promoters suitable to and used by them for the purposes of their undertaking. In my opinion, the defined terms of payment for the undertaking does not include a capitalised rental of the tramway system as contended for by the appellants.

It must be observed that the promoters, unless in default from having ceased to work the tramways with advantage to the public, have the full benefit of twenty-one years' enjoyment of the exclusive user which the statute on very advantageous terms confers on them; but the notice by the local authority determines the right of the promoters to any continuance of that right of user, which is the sole right they have. Excepting under sect. 43, the promoters had no right to sell their undertaking. * They [* 487] have no power to assign their rights. The interest which belongs to the promoters, and may be transmitted or transferred by them, does not include a right either of property, such as a railway company has in the line which it owns, or even of user by the promoters, for that right was personal and in effect temporary, being subject to determination by a notice which has been given. It includes only, therefore, their tramway as laid upon the ground, and the houses, plant, and other property enumerated in sect. 43, used in connection with the working of it, and of which they are proprietors. It is true that the local authority by the purchase acquires a more extensive right—a right of a permanent nature. This might follow, as it appears to me, because of the direct right of property, or other direct interest, which the local authority has in the streets, and because having once ac

Edinburgh St. Tram. Co. v. Lord Provost, &c., 1894, A. C. 487, 488.

quired the undertaking the local authority is under no obligation thereafter to sell it, as the promoters were. The permanent right thus acquired is not, however, conferred by the promoters, or acquired from them, but is conferred by the special provision of the statute in sect. 43, which declares that " when any such sale has been made" all the rights of the promoters in respect of the undertaking sold shall be transferred to the local authority" in like manner as if such tramway was constructed by such authority under the powers conferred upon them by a provisional order under this Act, and in reference to the same shall be deemed to be the promoters.

These considerations appear to me to have a very material bearing on the meaning to be attached to the very specific terms of payment expressed in sect. 43 of the statute, and to exclude the contention that the value of the undertaking was to include a capitalised rental, or an estimate founded on profits, or any of the other items included in the parenthetical clause, viz. " (any allowance for past or future profits of the undertaking, or any compensation for compulsory sale, or other consideration whatsoever)." I think the terms of the section used were inserted with the purpose of making it clear that the company was to be paid the value of the property it possessed in the tramway and in connection with the working of the tramway, and for that property only, [* 488] but not for rights which they could not assign, * and

which they could only exercise for a defined period, and which were thereafter determinable on notice by the local authority. I agree with the learned Judges who have held that an allowance given as an estimate of rental past or future would be in truth an allowance for profits of the undertaking past or future, and that this is excluded by the statute; and I am further of opinion that the enumeration of subjects for the value of which payment is to be made" the tramway and all lands, buildings, works, materials, and plant of the promoters" includes exhaustively all that is to be paid for, and does not include any sum as for estimated rental value or estimated profits. The word tramway" throughout the statutory provisions by which the appellants acquired their rights is used as meaning the tramway lines or structure laid down. It is, in my judgment, used in the same sense in sect. 43, and does not include rental value of a subject which had been held in effect under a temporary right of user which came to an end by the notice to purchase.

Edinburgh St. Tram. Co. v. Lord Provost, &c., 1894, A. C. 488, 489. — Notes.

It has been said that if the Legislature intended to deprive the sellers of any estimate or allowance for such return as a tenant might give for the use of the tramway system, this would have been expressed in terms more clear in some such terms as are suggested by MATHEW, J., in his very able opinion. There is no doubt that the language used has left room for great discussion and great diversity of opinion. But there is an enumeration of the subjects for which payment is to be made which does not include profits of any kind, and an exclusion of items by language which does mention profits, and is otherwise of a very comprehensive kind an exclusion of " any allowance for past or future profits of the undertaking, or any compensation for compulsory sale, or other consideration whatsoever." It seems to me that these general and comprehensive words are at all events so clear that, if it had been intended to give the appellants what they now ask, the words" or other consideration whatsoever" would certainly have been qualified by such words of exception as "excepting an allowance for such return or rental as a tenant might give for the use of the undertaking."

*On these grounds I am also of opinion that the appeals [* 489] in both cases should be dismissed.

Lord HERSCHELL then (as to the case of the London Street Tramways Company) observed that, after carefully considering the distinctions which had been pointed out between this case and that of the Edinburgh Street Tramways Company, he thought, with the other Lords who heard the case, that there was no such difference as to lead to a different conclusion.

Lord ASHBOURNE observed that his judgment covered both cases, and that it was unnecessary to repeat his dissent.

Interlocutors appealed from affirmed, and appeals dismissed with costs.

Lords' Journals, 30th July, 1894.

ENGLISH NOTES.

The above decision of the House of Lords, being on a pure question. of law, was held conclusive in the subsequent case of The London Street Tramways Co. v. London County Council (H. L.), 1898, A. C. 375, 64 L. J. Q. B. 559. In the argument of this case it was at once admitted by Counsel for the Tramway Company, that the point of law raised was the same as that which was decided by the House

Edinburgh St. Tramways Co. v. Lord Provost, &c. of Edinburgh.

against the companies in the cases of the Edinburgh Street Tramways Co. and The London Street Tramways Co. (supra). The question therefore was argued whether the House was bound by its own decision upon the same point of law in another case. The House held that it was bound by the previous decision, and there was consequently no room for further argument.

In valuing the "undertaking" of a Tramway Company, when it is purchased under statutory powers subject to arbitration as to the price, it has been held that the liability to compulsory purchase under sect. 43 of the Tramways Act, 1890, must be taken into account by the arbitrator. Southampton Tramways and Southampton Corporation, 17 Nov. 1899, 81 Law Times, 652, 16 Times L. R. 38.

The observations of Lord WATSON (at p. 282, ante) as to the adoption of rental value being incompatible with the prohibition of making allowance for past or future profits are referred to by COLLINS, L. J., in Mersey Docks v. Assessment Committee of Birkenhead, 1900, 1 Q. B. 43 (affirmed in H. L. 1901, A. C. 175).

AMERICAN NOTES.

In the United States, municipalities have no power to levy taxes except as authorized by the state Legislatures; and as such authority must be given expressly, and cannot be implied from other authority given, as to provide for lights or water, this power depends chiefly upon statute. See 1 Dillon on Municipal Corporations (4th ed.), ss. 27, 74; Andrews v. National Foundry & Pipe Works, 61 Federal Rep. 782; Edgerton v. Goldsboro Water Co., 126 North Carolina, 93; Thrift v. Elizabeth City, 122 id. 31. Municipalities appear to have often been authorized here to build their own water-works, or electric light and power plants, but very rarely to construct, own, or purchase railroads or street railways. In an instructive article by Mr. William D. Crocker, city solicitor, Williamsport, Pennsylvania, in 37 American Law Register, N. S. 155, on "Limitations on Municipal Ownership in Pennsylvania," the relevant legislation of that state is reviewed, as to supplying water and gas or electric lights. As to street passenger railways, he says that no Act of Assembly confers upon any city or borough of that state the power either to construct such a railway or to purchase the lines of an existing company; and that, though the power exists in the Legislature, under the Constitution, to take the property and franchises of incorporated companies and subject them to public use, yet it has never been exercised with regard to street railway companies.

In New York it is held that a municipal corporation cannot constitutionally be compelled by the Legislature, without the assent of its taxpayers, to purchase or take stock in any such private enterprises as the construction of railroads. People v. Batchellor, 53 New York, 128; Horton v. Town of Thompson, 71 id. 513. See also Peabody v. Westerly Water Works, 20 Rhode Island, 176.

The general rule in this country as to "value," when one's property is

taken from him in invitum by eminent domain proceedings, is, that he is entitled to recover, as compensation, the actual market value of the property, at the time of the taking, or of the enactment of the statute which gives authority to take, for any lawful purpose to which it can be put, including incidental and special advantages. See Boom Co. v. Patterson, 98 United States, 403; Benedict v. New York, 98 Federal Rep. 789; Mowry v. Boston, 173 Massachusetts, 425; Cochrane v. Commonwealth, 175 id. 299; American Bank Note Co. v. New York Elevated R. Co., 129 New York, 252, 272; Harwood v. West Randolph, 64 Vermont, 41; Washington Ice Co. v. Webster, 68 Maine, 449; 2 Lewis on Eminent Domain (2d ed.), s. 479; Gould on Waters (3d ed.), 251. Where a toll-bridge was taken by a county for public use under legislative authority, the measure of damages was held, in an opinion by PAXTON, Ch. J., to be not the cost of the structure, with or without depreciation, but the value of the property to the owners, of which, as a bridge seldom has a market value, its earning capacity and the value of its capital stock are material evidence; and, upon proceedings for such a taking, the county is not entitled to show what it could have erected a new bridge for, nor is evidence relevant as to the cost of repairing and enlarging the piers, in connection with the rebuilding of the bridge, after its destruction by a flood. Mifflin Bridge Co. v. Juniata County, 144 Pennsylvania State, 365, 374, following Montgomery County v. Schuylkill Bridge Co., 110 id. 54.

66

TRUST AND TRUSTEE.

[See" ADMINISTRATION," 2 R. C. 56 et seq., passim ; " APPORTIONMENT," Nos. 2-4, 3 R. C. 287 et seq.; EXECUTOR," 12 R. C. 1 et seq., passim ; No. 3 of “ Interest,” 14 R. C. 565 et seq.; No. 20 of “ Landlord and TENANT," and notes 15 R. C. 455 et seq.; "PURCHASER For Value withOUT NOTICE," 21 R. C. 702 et seq., passim; “Settled LAND ACT," "Settlement, 24 R. C. 42 et seq.]

A TRUSTEE conducting the business of the trust in the same manner as an ordinarily prudent man of business would conduct his own, is not responsible for the miscon duct or insolvency of an agent of good repute temporarily entrusted with money or securities in the ordinary course