1851.-In re The East Lincolnshire Railway Act. to treat, or should not agree, with the company, for the sale of their estates or interests; or should, by reason of absence, be prevented from treating, or should, by reason of any [*269] *impediment or disability, whether provided for by the act or not, be incapable of making such agreement, conveyance or release as should be necessary or expedient for the purpose of enabling the company to take such lands or to proceed in making the railway, or, in any other case where an agree. ment for the purchase of lands could not be made, then, and in every such case, the company should and were thereby required to issue a warrant to the sheriff, commanding him to summon a jury to inquire as to the sum of money to be paid for the purchase-money of the land to be taken. It is quite clear, therefore, that, when the company wanted the lands of any person who was incapable of agreeing for the sale of them, it was their duty to have the sum to be paid for them ascertained by a jury. Then section 44 enacts, "That if any money shall be agreed or awarded to be paid for the purchase of any lands to be taken or used by virtue of the powers of this act, or of any interest therein, or for any compensation or satisfaction under this act, which any corporation, trustee, or feoffee in trust, or any person whomsoever having no power to convey the premises in respect of which the same may be payable, otherwise than by virtue of this act, shall be entitled unto or interested in such money, shall, in case the same shall amount to or exceed the sum of 2007., with all convenient speed, be paid into the Bank of England, in the name and with the privity of the Accountant-General of the Court of Exchequer, to be placed to his account there, ex parte "The Midland Counties Railway Company;" and shall, when so paid in, there remain until the same shall, by order of the said court made in a summary way upon petition to be presented to the said court by the party [*270] who would *have been entitled to the rents and profits of the said lands, be applied either in the purchase or redemption of the land tax, or in or towards the discharge of any debt or other incumbrance affecting the said lands, or affecting other lands standing settled therewith to the same or the like 1850.-In re The East Lincolnshire Railway Act. uses, trusts, intents, or purposes, as the said Court of Exchequer shall authorize to be purchased or paid, or such part thereof as shall be necessary; or until the same shall, upon the like application, be laid out, by order of the said court made in a summary way as aforesaid, in the purchase of other lands, which shall be conveyed, limited, and settled to, for, and upon such and the like uses, trusts, intents and purposes, and in the same manner as the lands which shall be so purchased, taken, or used as aforesaid, or in respect of which such compensation or satisfaction shall be paid, stood settled or limited, or such of them as, at the time of making such conveyance and settlement, shall be existing, undetermined or capable of taking effect; and, in the meantime and until such purchase can be made, the said money may, by order of the said court, upon application thereto, be invested by the said Accountant-General, in his name, in the purchase of £3 per Cent. Consolidated or £3 per Cent. Reduced Bank Annuities, or in government or real securities; and, in the meantime and until such annuities or securities shall be ordered, by the said court, to be sold for the purposes aforesaid, or shall be called in or cancelled, the dividends or interest and annual produce thereof shall, from time to time, by order of the said court, be paid to the party who would for the time being have been entitled to the rents and profits of such lands so to be purchased and settled." That is an express provision that, when any person has his lands taken under the #powers of the act, the money paid for [*271] them shall be reinvested in the purchase of land. Therefore, the decision to which Vice-Chancellor Knight Bruce came in that case, was right under the express terms of the local act. But the language of the general act is, as I have pointed out, very different; and so I do not feel myself pressed by that decision. I must treat the money as being paid in by a party seized in fee and competent to sell: and, therefore, I shall order it to be paid out to the executrixes of Cross. The costs which the company are liable to must be paid by them, and the extra costs must come out of the fund. 1851.-Webster v. The South-Eastern Railway Company. [272] *SIR GODFREY WEBSTER V. THE SOUTH-EASTERN RAILWAY COMPANY. Anjunction.-Railway Company. 1851 21st and 25th January. After a railway company had purchased a piece of land from A., who was mentioned in the book of reference to be the owner of it, B., a neighboring land-owner, part of whose land the company had also taken, claimed to be owner of the piece of land, and filed a bill for an injunction to restrain the company from continuing in possession of it, and from committing waste on it. But the court refused the injunction. THE bill, which was filed on the 20th December, 1850, and the affidavit in support of it, stated that in July, 1836, the plaintiff became seized, for his life, amongst other hereditaments in the parish of Battel in Sussex, of a piece of land containing about a quarter of an acre, bounded as therein mentioned, and that he had ever since continued and still was seized thereof or otherwise entitled thereto: that, on the 18th of July, 1846, the defendants obtained an Act of Parliament for making a railway from Tonbridge Wells, to join the Rye and Ashford extension of the Brighton, Lewes and Hastings Railway, near Hastings, with which act the Lands Clauses Consolidation Act, 1845, was incorporated: that, in May and June, 1849, during the plaintiff's absence abroad in her Majesty's service, the defendants left notices, at Battel Abbey, of their intention to take certain pieces of land, part of the plaintiff's Battel Abbey estate, for the purposes of the said railway; and in June they appointed a valuer thereof, and he valued them at 6,9877., and, on the 2d of November, 1850, the defendants paid that sum into court: that the plaintiff, being dissatisfied with the valuation, served the defendants, on the 30th of December, 1850, with a notice, pursuant to the 64th sect. of the Lands Clauses Act, stating that he had appointed a person therein named, to arbitrate, on his behalf, as to the sufficiency of the valuation, and requesting the defendants to name an arbitrator on their behalf: that the 1851.-Webster v. The South-Eastern Railway Company. first-mentioned *piece of land was not comprised either [*273] in the notices left at Battel Abbey, or in the valuation: that, on the 13th of December, 1850, the defendants wrongfully took possession of that piece of land for the purpose of the said railway, and had felled trees thereon, but had not offered to make the plaintiff any compensation for it: that the plaintiff was absent from Battel Abbey on the 13th of December, 1850, and was not informed that the defendants had taken possession of the piece of land until three or four days afterwards: that the defendants had not served on him, or on any person on his behalf, any notice of their intention to take the piece of land; and that their compulsory powers for taking land expired on the 18th of June, 1849. The bill prayed for an injunction to restrain the defendants from keeping possession of the piece of land, and from digging, using, interfering, or in any manner meddling with the same, and from committing any waste or spoil thereon. The defendants having been served with notice of a motion. for the injunction, affidavits were made on their behalf, stating that the piece of land in question was an integral part of a field belonging to the deanery of Battel: that the defendants had purchased the whole of the field from the dean: and that, if the piece of land did, in fact, belong to the plaintiff, it was not necessary or material for the enjoyment of any of his other lands, nor would they be damaged by the execution of the defendants' works on the piece of land. Affidavits in reply were made by the plaintiff and two gentlemen named Ticehurst and Soan, in support of the plaintiff's title to the piece of land. Mr. Malins and Mr. Schomberg, in support of the *motion, cited Brocklebank v. The Whitehaven Junction [*274] Railway Company(a) and three unreported cases: Kinnersley v. The North Staffordshire Railway Company, Baker v. The same, and Shaw v. The London and North-Western Railway Company. (a) 15 Sim. 632; and 38 Eng. Ch. R. 631, Am Ed. 1851.-Webster v. The South-Eastern Railway Company. Mr. Bethell, Mr. Roundell Palmer and Mr. Baily, contra, cited Davenport v. Davenport, (a) and The London and North-Western Railway Company v. Smith.(b) Mr. Malins replied. At the conclusion of the argument, the VICE-CHANCELLOR made the following observations: I cannot decide this case without looking at the affidavits and at the cases that have been cited. The authorities go to this extent, and to this extent only: that, as the court will prevent individuals from cutting down timber or committing any other kind of waste on an estate which they have contracted to purchase, until the contract is completed; so it will restrain companies from doing anything to the detri ment of parties, by virtue of the statutory powers given to them, until those powers have been duly complied with. But this is a case of a very different nature. The company, either rightly or wrongly, supposed that they were dealing with the rightful owner of the piece of land in question, when they were dealing with the Dean of Battel; and, in that belief, they paid the purchase-money either to him, or into court to his credit: and what they contend against the plaintiff is that they have [*275] rightful possession of the piece of land *under their contract with the dean. The plaintiff meets that by showing, or attempting to show, that he is in truth the owner of the piece of land. It seems to me to be very doubtful whether that is a matter which this court can enter into: and, if I wanted to have my doubts excited about it, they would be raised by the very vague and loose evidence given by Mr. Ticehurst and Mr. Soan. These gentlemen state matters that, when coupled with other facts, might induce a jury, in an action of ejectment, to come to the conclusion that the plaintiff was the owner or had been in possession of the piece of land. But, supposing that to be so, how do I know that, if the company were to agree with the plaintiff for the purchase of the piece of land, some one else (a) 7 Hare, 217; and 27 Eng. Ch. R. 217, Am. Ed. |