THE LANDS CLAUSES CONSOLIDATION 32 & 33 VICT. CAP. 18. An Act to amend the Lands Clauses Consolidation Act. [24th June, 1869.] [Whereas it is expedient that the provisions contained in “The Lands Clauses Consolidation Act, 1845," should be amended: Be it therefore enacted and declared by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:] The above has been repealed by the Statute Law Revision Act (No. 2), 1893 (56 & 57 Vict. c. 54). 1. Where in England under " The Lands Clauses Consolidation Act, 1845," or any Act incorporating the same, any question of disputed compensation is determined by arbitration, the costs of and incidental to the arbitration and award shall, if either party so requires, be taxed and settled as between the parties by any one of the taxing masters of the superior Courts of law; and such fees may be taken in respect of the taxation as may be fixed in pursuance of the enactments relating to the fees to be demanded and taken in the offices of such masters, and all those enactments, including the enactments relating to the taking of fees by means of stamps, shall extend to the fees in respect of the said taxation. This section, which amends section 34 of the Lands Clauses Act, 1845, ante, p. 73, has been repealed by the Lands Clauses (Taxation of Costs) Act, 1895, post, and in effect re-enacted thereby. A somewhat similiar provision is made in the case of assessments by juries, by section 52 of the Lands Clauses Act, 1845, ante, p. 102. The Act of 1895 was passed because there was a difference between the systems for the payment of fees for taxing costs under these two sections. Fees under section 52 and also under section 45 of the Regulation of Railways Act, Sect. 1. 1868, ante, p. 493, were paid in cash, and under this section by stamps. The two systems are now assimilated, the system of payment by stamps being the one adopted. As the cases decided under this section will still be applicable they are here referred to. A mandamus will lie to compel a master to tax the costs, if he refuse jurisdiction altogether. Fitzhardinge v. Gloucester and Berkeley Canal Company, L. R. 7 Q. B. 776 ; Gray v. North Eastern Railway Company, 1 Q. B. D. 696; Sandback Trustees v. North Staffordshire Railway Company, 3 Q. B. D. 1; Metropolitan District Railway Company v. Sharpe, 5 A. C. 425, p. 444. But if a master exercise his jurisdiction, although wrongly, a writ of certiorari will not issue to quash the taxation because the master has jurisdiction. Sandback Trustees v. North Staffordshire Railway Company, supra. Nor has the Court jurisdiction to review the master's taxation because he is not acting as an officer of the Court, to whom the Court has delegated the office of taxing costs as in ordinary cases, but under this Act he is not acting as master but as a person designated by the Act. S. C., following the principle laid down in Owen v. London and North Western Railway Company, L. R. 3 Q. B. 54, a case under section 52 of the Lands Clauses Consolidation Act, 1845. If the master allows costs to one of the parties where the statute does not give them, or disallows them where the statute gives them, the Court could probably interfere by certiorari or mandamus. Owen v. London and North Western Railway Company, supra. This section does not apply to taxing the costs of arbitrations which embrace matters that could not be the subject of arbitration under the Lands Clauses Act, 1845, except by agreement, and it does not apparently apply to agreements entered into before the passing of this statute. Doulton v. Metropolitan Board of Works, L. R. 5 Q. B. 333. LUSH, J., in that case, said that this section "can only be taken to apply to arbitrations pure and simple begun and carried out under the Lands Clauses Acts." This must, however, be taken subject to the qualification laid down in Metropolitan District Railway Company v. Sharpe, 5 App. Cas. 425, that the arbitration clauses of the Lands Clauses Acts apply to arbitrations under special Acts, even where the special Act provides another method of arbitration, but otherwise incorporates the Lands Clauses Acts. An action can be brought to recover the costs although the amount of such costs has not been previously ascertained by taxation, and an order for taxation on giving judgment for the plaintiff in such an action is valid. Metropolitan District Railway Company v. Sharpe, 5 A. C. 425. In a case where after the arbitrators and umpire had been appointed, but before the award, the parties agreed that the promoters of the undertaking should have immediate possession, and that they should pay all the costs of the landowner of and incidental to the agreement, the reference, and the conveyance, including valuer's, surveyor's, and solicitor's charges, as between solicitor and client, it was held that the parties had contracted themselves out of the 1869 Act, but that the costs under the agreement might be taxed under the Attorneys and Solicitors Act, 1843 (6 & 7 Vict. c. 73), s. 38. Wombwell v. Corporation of Barnsley, 36 L. T. (N.s.) 708. Section 2 of the Arbitration Act, 1889, incorporates into all submissions, unless a contrary intention is expressed, the provisions in In case Sect. 1. Schedule I. Proviso (i) of that Schedule deals with costs, and enables the arbitrator to settle them, which he must do in the award. he does not, they will be liable to be taxed in the usual course. Prebble and Robinson [1892], 2 Q. B. 602. The arbitrator's own fees in such a case are liable to be taxed. S. C. Repeal of 31 & 32 Vict. c. 119, s. 33. Provision respecting lands in minster. If the claimant, during arbitration proceedings under the Lands Clauses Acts, employs a person to act as solicitor who is not duly qualified, neither the person so acting nor the claimant can recover his costs and disbursements from the promoters, who would otherwise be liable, and it does not matter whether the claimant knew of the want of qualification or not, as the provision in the Attorneys and Solicitors Act, 1874 (37 & 38 Vict. c. 68), s. 12, is clear that no such costs or disbursements "shall be recoverable in any action, suit, or matter, by any person or persons whomsoever." The Court, therefore, in such a case, refused to make absolute a rule nisi obtained to compel the taxing master by a mandamus to tax the costs. Fowler v. Monmouthshire Railway and Canal Company, 4 Q. B. D. 335. The master will not be compelled to tax the costs in a case where the claimant is not entitled to them, as, for example, in a case where the arbitrator has awarded less than the amount offered by the promoters. Fitzhardinge v. Gloucester and Berkeley Canal Company, Ľ. R. 7 ̊Q. B. 776. 2. Section thirty-three of the Regulation of Railways Act, 1868, is hereby repealed, and any proceedings commenced in pursuance of that section may be continued under this Act as if they had been commenced under it. This section has been repealed by the Statute Law Revision Act, 1883 (46 & 47 Vict. c. 39), but the repeal does not affect the repeal of section 33 of the Regulation of Railways Act, 1868. 3. Where any lands by the special Act authorised to be taken are situate within the city and liberty of Westminster, West- then, with respect to those lands, in every case in which any question of disputed compensation is required by the Lands Clauses Consolidation Act, 1845, or any Act amending the same, to be determined by the verdict of a jury, the high bailiff of the city and liberty of Westminster, or his deputy, shall be deemed to be substituted for the sheriff throughout such of the enactments of the Lands Clauses Consolidation Act, 1845, and any Act amending the same as relate to the reference to a jury. This section refers more particularly to sections 38-57 of the Lands Clauses Act, 1845. As to meaning of "sheriff" see sections 3, 39, and 40, ante, pp. 5, 85, and 88, and as to "deputy" see the cases in the note to section 39 of the Lands Clauses Act, 1845. This enactment refers only to lands authorised to be taken, and would Sect. 3. appear not to affect the case where the lands injuriously affected are within Westminster, but as to this see R. v. Great Northern Railway Company, 14 Q. B. 25. tion of 4. This Act may be cited as "the Lands Clauses Consoli- Short title. dation Act, 1869," and shall be construed as one with the ConstrucLands Clauses Consolidation Act, 1845, and the Lands Acts. Clauses Consolidation Acts Amendment Act, 1860, and these Acts and this Act may be cited together as the Lands Clauses Consolidation Acts, 1845, 1860, and 1869. By the Interpretation Act, 1889 (52 & 53 Vict. c. 43), s. 23, the expression "Lands Clauses Acts" in future Acts shall as regards England and Wales include the above Acts and the Lands Clauses (Umpire) Act, 1883, and the Lands Clauses (Taxation of Costs) Act, 1895, and any Acts for the time being in force amending the same. Sect. 10. tion of THE GAS AND WATER WORKS FACILITIES 33 & 34 VICT. CAP. 70. An Act to facilitate in certain cases the obtaining of powers for the construction of gas and waterworks and for the supply of gas and water. [9th August, 1870.] This Act was passed in order to enable local authorities to obtain provisional orders to empower them to construct and maintain gas works and waterworks; it is in part amended by the Gas and Water Works Facilities Act, 1870, Amendment Act, 1873 (36 & 37 Vict. c. 89), in respect of the procedure to obtain such orders. The public general Acts dealing with gas works do not enable local authorities or gas companies to take land compulsorily for the purposes of constructing gas works. This Act provides as follows: 10. The provisions of the Lands Clauses Acts shall be Incorpora incorporated with every Provisional Order under this Act, save where the same are expressly varied, or excepted by any such Provisional Order, and except as to the following provisions, namely— general Acts in provisional order. (1.) With respect to the purchase and taking of lands otherwise than by agreement. (2.) With respect to the entry upon lands by the promoters of the undertaking. Where a Provisional Order authorises a gas undertaking the provisions of "The Gasworks Clauses Act, 1847,” shall be incorporated with such Provisional Order, save where the same are thereby expressly varied or excepted. Where a Provisional Order authorises a water undertaking the provisions of "The Waterworks Clauses Act, 1847," and of" The Waterworks Clauses Act, 1863," shall be incorporated |