SPARROW የ. THE to do, and that the matter should be left in statu quo till the cause was heard. We thought that such a prima facie case was OXFORD, &C. made out, and we granted an interim injunction; and at the same. RAILWAY COMPANY. [ *101 ] [102] time, *upon the application of the parties, we gave them facilities for having the cause heard speedily, both sides agreeing that, instead of examining witnesses, each party should make what affidavits he thought fit, and that those affidavits should be treated as evidence in the cause, so that the cause might be set down speedily to be heard before us. This was accordingly done, and the question is whether or not the plaintiffs have now on the hearing entitled themselves to the relief which they ask. There were two main questions for consideration; one a question of fact, the other a question of law. The question of fact was, whether that which the defendants proposed to take did, within the meaning of the Act, constitute a part of the manufactory. The question of law was, supposing the land to constitute part of the manufactory, were the defendants enabled to take it without taking the whole? The question of fact ought, perhaps, in strictness to be described as a mixed question of law and fact. What the defendants proposed to take was a certain piece of land, which, at the time the Act passed, was not covered with buildings though it was within the wall of that which is called the manufactory. Soon after the passing of the Act (the plaintiffs having made their purchase just before the Act passed) considerable additional buildings were put upon that piece of land, the greater portion of which was vacant at the time the Act passed. There can be no doubt but that these additional buildings constitute part of the manufactory in the strictest sense. But then it was contended that what was to be looked at was, not the state of matters when the Company proceeded to take the land, but the state of the property at the time when they gave the notice; and it was said, that at that time those buildings did not exist; that at that time it was *vacant groundwithin the wall, it is true, of the manufactory-but not having any manufacturing process carried on upon it, and therefore not constituting, within the meaning of the Act, part of the manufactory. We do not think it necessary to decide the question, whether the state of the property at the time the Act passed, or its state at the time when the land was taken by the Company, is to be regarded. We do not consider it necessary to discuss that question, because we are both of opinion that this was part of the manufactory at the v. THE OXFORD, &C. RAILWAY COMPANY. time when the Act received the Royal assent. In such questions SPARROW there may be nice distinctions; and it may be difficult sometimes to say on which side of the line a particular piece of land or a particular building lies. But we do not feel ourselves driven to any refined distinction in this case; because, looking at the model before us, which we assume to be an accurate representation, there seems to be very little of vacant space within the wall. I can easily believe what one or two of the witnesses say, viz. that they were always pressed for room, in order to have a place where they might deposit their rubbish and the scoriæ that came from the furnaces. The manufactory could not go on without that, any more than it could go on without the furnace itself. The piece of ground proposed to be taken was absolutely necessary as a place for the deposit of rubbish and scoriæ, and it seems to me, and to my learned brother, to be clear that, in this case, everything included within the wall constituted at the time of the passing of the Act part of the manufactory. This disposes of the question of fact in favour of the plaintiffs; and then arises the question of law, that is, assuming that the land proposed to be taken constitutes part of the manufactory, are the defendants, or are they *not, bound to take the whole of the manufactory? That depends upon the question of law whether or not the 92nd section of the Lands Clauses Consolidation Act was or was not, expressly or impliedly, incorporated into the special Act (11 & 12 Vict. c. 133). Now, the second clause of the special Act says, "Be it enacted, that the provisions of the Lands Clauses Consolidation Act, 1845, shall, so far as the same are applicable and are not inconsistent with the provisions hereinafter contained, bo incorporated with and form part of this Act." What was contended was, that the 92nd section was inconsistent with the provisions thereinafter contained; and it is upon that point that we have had the greatest pressure upon our minds, because it appears to have been the opinion of a Judge of the highest eminence, and for whom we both, and all the profession, feel the most profound respect, that the 92nd section was not incorporated in the special Act. Therefore we have felt very diffident as to the view which we have taken. But, with all respect for that opinion, we have come to the conclusion that there was nothing in any of the subsequent provisions inconsistent with the notion of the 92nd section being incorporated in that Act. I will proceed shortly to consider what are the grounds on [ *103 ] SPARROW v. [ *104 ] which it was contended here, and before the Vice-Chancellor, that the 92nd section is inconsistent with the special Act. They all appear to involve the assumption that the 92nd section is COMPANY. imperative, so that in all cases the Company must take the whole manufactory, if they take part of it. But, according to the 92nd section, they need only take it if the other party requires it to be taken. It would have been the height of injustice to enact that in all cases they must take it in invitum. The owners of the manufactory might say in many cases, "It is quite immaterial *whether you take the whole or not." In such cases the Company are not bound to take the whole. It seems to me, that the whole argument on the part of the defendants has proceeded on this fallacy; for when one looks at the different arguments which have been deduced from the 12th, 13th, and 14th sections of the special Act, and considers at the same time the 92nd section of the general Act as providing, not that, under all circumstances, the land must be taken, but only that it must be taken if the owner of the manufactory requires it to be taken, all the difficulty seems to vanish, as will appear when we consider these arguments in detail. [ *105] The 13th section, which was mainly relied on, has enactments to this effect. It appears that a gentleman of the name of Crane was the owner of land adjoining to this manufactory, and that by arrangement between the plaintiffs and Mr. Crane, for their common convenience, there was to be a side line or private railway, that was to run on for a considerable way down to the west, so as to join not this railway, but the Stour Valley Railway. The 13th section enacted, that such part of the railway, by that Act authorized to be made, as should pass through any of the several plots, pieces, or parcels of land in the parish of Wolverhampton, &c., numbered 159, 160, 161, and 162, on the plan, and so much of the piece of land numbered 158, as was thereinafter defined (that is, those pieces of land, for which this side line or private railway, was to be formed,) should be arched or covered over; and that such arching or covering should be continued in such manner and of such strength as should make it sufficient to bear and carry over and upon the same a branch railway, or branch railways to be worked by horse power; and in case the owner or owners for the time being, and other parties interested in the said plots, pieces, or parcels of land, and the said Company, should differ as to the manner of constructing, or as to the strength of such arching or covering, the same should be settled by arbitration, in manner prescribed by the Railways Clauses Consolidation Act, 1845, with respect to the settlement of disputes by arbitration. Now the argument was, that that provision is inconsistent with the notion that the Company should take the whole of the manufactory, because in that case the side railway would in truth be their own railway, and they might deal with it as they thought fit. But there are two answers to that argument; first, that the Railway Company might not be called upon to take the whole manufactory, in which case this provision would secure to the plaintiffs the benefit proposed; and secondly, that this side line or private railway was not for the exclusive benefit of the plaintiffs, one other proprietor at least, namely, Mr. Crane, being interested in it. Whether any other persons were or were not, is immaterial, because the provision in the 13th section was absolutely necessary to secure Mr. Crane's rights. Therefore it seems to me that there is nothing whatever inconsistent with the 13th section of the special Act in supposing that the 92nd section of the general Act was to have its full operation. With regard to the 14th section, it is thereby enacted, "that the owner or owners for the time being of the said several plots, pieces or parcels of land, lastly hereinbefore mentioned, and all other persons interested therein, shall have and enjoy the same powers, rights, privileges, easements, and authorities over, above, and upon the upper surface of the said arching or covering, including the power of making, maintaining, and working the said branch railway or railways, to be worked by horse power as aforesaid, over and upon the said arching or covering, as the said owner or owners, or other persons, now have *and enjoy, in, upon, and over the said several plots." "Provided always, that the said owner or owners, or other persons, shall not be at liberty to erect upon the said arching or covering any buildings, without the consent in writing of the said Company." Now it is argued that this 14th section shows it to be impossible to consider the 92nd section of the general Act incorporated into the special Act for this reason. The private railway, it is said, would run over the Company's railway; and therefore the Company were interested in seeing that nothing should be done to damage them. But, it is asked, why stipulate for that, if the Company itself is to become the proprietor of the manufactory, as an adjunct to which the private railway is to be erected? The same answer applies to this as to the argument on the 13th section. It is true that the SPARROW v. THE Company may become the proprietors of the private railway, and in that case this clause would become superfluous. But in the OXFORD, &C. event of their not being required to take the whole manufactory, then such a stipulation is necessary. RAILWAY COMPANY. [ *107 ] Then again Mr. Willes has particularly directed our attention to the 12th section, which he says is inconsistent with the notion that the 92nd section of the general Act was part of this Act. The 12th section relates to certain properties, numbered respectively 90, 91, 130, 131, and 140 (being, as I will assume for the present, all of them either houses or manufactories, or something that would come within the scope of section 92 of the general Act). It enacts, that the Company shall and they are thereby required to purchase all these properties, being all included within the line of deviation, but not, apparently, according to the Parliamentary plan properties that would be taken, unless there should be a deviation from the intended line of railway. It is asked, for what purpose was it necessary to enact that these particular manufactories should be taken, when the 92nd section, if incorporated into the Act, would have effected all that was required? The answer is, that the 92nd section only gives authority to the owner of a manufactory to insist upon the whole being taken, if any part is taken; whereas this enactment positively stipulates that the whole of the properties numbered 90, 91, 130, 131, and 140 shall be taken. It is obvious, on looking at the plan, that as to a large portion of this property, the stipulation must have been introduced to prevent opposition on the part of the owners of these properties, because they cannot all be used for the purpose of the railway. They are all out of the line that was contemplated, though within the line of deviation. It is sufficient for the purposes of the present argument to say, that it is a perfectly different enactment from the 92nd section of the general Act, which does not say that you shall take every manufactory that is within your line of deviation; but only that if you take a part of the manufactory, you shall, if the owner wishes it, take the whole of the manufactory. What is enacted by this 12th section is different; namely, that with regard to several manufactories within the line of deviation, but not probably in the line that will be touched by the railway, you shall take and pay for those, whether you use them or not. This therefore also wholly fails, as a reason for inducing us to suppose that the 92nd section is inconsistent with the provisions of this Act. |