THE RAILWAY COMPANIES ACT, 1867. 30 & 31 VICT. CAP. 127. An Act to amend the law relating to railway companies. [20th August, 1867.] PURCHASE OF LANDS. 36. Where after the passing of this Act a company Sect. 36. exercise the powers conferred on the promoters of the under- Amendtaking by section eighty-five of the Lands Clauses Consolida- ment (as tion Act, 1845, the following provisions shall have effect. to railway com panies) of (1.) The surveyor to be appointed, as in that section pro- section 85 vided, shall be appointed by the Board of Trade Vict. c. 18. instead of by two justices, and all the provisions of that Act relative to a surveyor appointed by two justices shall apply to a surveyor so appointed by the Board of Trade. (2.) The company shall give not less than seven days' notice of their intention to apply to the Board of Trade for the appointment of a surveyor to any party interested in or entitled to sell and convey the lands in question, and not consenting to the entry of the company. (3.) The valuation to be made by the surveyor so appointed shall include the amount of compensation for all damage and injury to be sustained by reason of the exercise of the powers conferred by the said section, as far as such damage and injury are capable of estimation. Sect. 36. (4.) The sureties to the bond to be given by the company under that section shall, in case the parties differ, instead of being approved by two justices, be approved of by the Board of Trade after hearing the parties. The sureties are only required to be approved by the Board of Trade, in case the parties differ, and if no objection to them is made by the landowner, the bond will not be void by reason of their not being approved by the Board of Trade. Loosemore v. Tiverton, &c., Railway Company, 22 Ch. D. 25, 40; 9 A. C. 480. A railway company cannot, since the above Act, enter under the provisions of section 85 of the Lands Clauses Act, 1845, without conforming to this section, and in a case where the valuation had been made prior to the passing of the Act, an entry subsequent to this Act was held wrongful. Field v. Carnarvon and Llanberis Railway Company, 5 Eq. 190. to common at West minster cases of compen under 41. Whenever in the case of any lands purchased or taken Sect. 41. otherwise than by agreement for the purposes of any public Company railway, any question of compensation in respect thereof, or may apply any question of compensation in respect of lands injuriously law judge affected by the execution of the works of any public railway, is under the provisions of "The Lands Clauses Consolidation to hear Act, 1845," to be settled by the verdict of a jury empannelled and summoned as in that Act mentioned, the company or the sation party entitled to the compensation may, at any time before 8 & 9 Vict. the issuing by the company [of a warrant(a)] to the sheriff c. 18. as by that Act directed, apply to a judge of any one of the superior Courts of Common Law at Westminster, who shall, if he think fit, make an order for the trial of the question in one of the superior Courts, upon such terms and in such manner as to him shall seem fit; and the question between the parties shall be stated in an issue to be settled in case of difference by the judge, or as he shall direct, and such issue may be entered for trial and tried accordingly in the same manner as any issue joined in an ordinary action at such place as the judge shall direct; and the proceedings in respect of such issue shall be under and subject to the control and jurisdiction of the Court as in ordinary actions therein, but so, nevertheless, that the jury shall, where the issue relates to the value of lands to be purchased and also to compensation claimed for injury done or to be done to lands held therewith, deliver their verdict separately in manner provided by the Sect. 41. forty-ninth section of "The Lands Clauses Consolidation Act, 1845."() Company instead of issuing warrant. (a) These words in brackets are not in the Act and have apparently been omitted inadvertently. See section 39 of the Lands Clauses Consolidation Act, 1845, ante, p. 85, and see per GROVE, J., in Tanner v. Swindon Railway Company, 45 L. T. 209. (b) Ante, p. 94. The judge of the High Court with a jury has no power to try any question of the claimant's right to compensation under this section. The power given by this section only enables the very same question, which could previously have been tried by a sheriff and a jury, to be tried by a judge of the superior Court with a jury of the superior Court. They can only find the amount of the compensation. See section 23 of the Lands Clauses Act, 1845, note "The same shall be so settled," ante, p. 57. The verdict and judgment so arrived at by the judge and jury is not a judgment of the High Court under its general jurisdiction, but a judgment arrived at under the limited jurisdiction given by the Lands Clauses Act as modified by this Act. The judgment can only be carried out, therefore, by bringing an action on it in the ordinary way. In re East London Railway Company, Oliver's Claim, 24 Q. B. D. 507. The Court of Appeal in that case also indicated an opinion that, notwithstanding the Judicature Acts and rules, a trial in the High Court under this section cannot be by a judge without a jury. On similar grounds, the High Court cannot order a new trial of an issue which has been directed under this section as the verdict and judgment of the Court are to have the same effect as the verdict and judgment of a sheriff and jury, which are final so long as they act within their jurisdiction. Birmingham Land Company v. London and North Western Railway Company, 22 Q. B. D. 435. ↑ In the case of New River Company v. Midland Railway Company, 36 L. T. (N.S.) 539, this point was not taken; the question there raised was whether the time for appealing from a verdict under this section was limited to twenty-one days, and by Order 58, rules 9 and 15, the Court held that it was not, but according to the principle laid down in the later cases above cited, no appeal lies. 42. Whenever a company is called upon or liable under may obtain the provisions of the Lands Clauses Consolidation Act, 1845, judge's order to issue their warrant to the sheriff in the case of any disputed compensation, and the company shall obtain a judge's order as in the last preceding section mentioned, the obtaining of such an order and notice thereof to the opposite party shall be a satisfaction of the company's duty in respect of the issue of the warrant. Where the landowner claims compensation under section 68 of the Lands Clauses Act, 1845, if the company desire to avail themselves of section 41 of this Act, they must not only take out the summons for an order under it within twenty-one days from receipt of the claim, but the VERDICT TO HAVE SAME EFFECT AS BEFORE SHERIFF. 493 summons should be returnable so that the order can be made before the Sect. 42. twenty-one days have expired, otherwise the claimant will be entitled to the amount claimed under section 68. Tanner v. Swindon Railway Company, 45 L. T. 209. of verdict of jury, ment of 43. The verdict of the jury and the judgment of the Power Court upon any issue authorised by this Act shall, as regards costs and every other matter incident to or consequent and judg thereon, have the same operation and be entitled to the same the Court. effect as if that verdict and judgment had been the verdict of a jury and judgment of a sheriff upon an inquiry conducted upon a warrant to the sheriff issued by the company under the Lands Clauses Consolidation Act, 1845.(a) (a) As to these costs, see sections 51-53, ante, pp. 100 et seq. tation of 44. In so far as any expression used in any of the three Interprepreceding sections of this Act has any special meaning certain assigned to it by the Lands Clauses Consolidation Act, 1845, expreseach such expression shall in this Act have the meaning so assigned to it. sions. masters questions sation. 45. Wherever under the provisions of the Lands Clauses Fees to Consolidation Act, 1845, or of any Act incorporating, altering, for deteror amending the same, the costs of any proceedings for deter- mining mining a question of disputed compensation are settled by one of of disputed the masters of the Court of Queen's Bench in England or Ireland, compenit shall be lawful for such masters to receive and take in respect of each folio in length of every bill of costs so settled a fee of one shilling and no more: and such fee shall be taken in money and not in stamps, and may be retained by the said masters for their own use and benefit. This section is repealed by the Lands Clauses (Taxation of Costs) Act, 1895, post, and see the Lands Clauses Act, 1860, p. 494. |