(19.) Where the incidence of the charge as between any Appndx. persons interested in the lands is regulated or As to affected by contract or covenant, the arbitrator shall existing have regard to such contract or covenant, and this contracts. Act shall not be deemed to alter the effect of such contract or covenant; "Lands" (20.) The expression "lands" in this section shall not not to include any main pipe or apparatus for supplying include gas or water or any culvert, pipe, tube, apparatus or pipes, &c. wire for electric lighting, telephone or hydraulic purposes, or any estate or interest in land in respect of any such main pipe, apparatus, culvert, tube or wire. (21.) The Arbitration Act, 1889, shall, subject to the pro- Arbitravisions of this section apply to the arbitrator and tion Act to apply. procedure before him, except that the award shall be final, and binding on all parties.(a) (a) These clauses were inserted in the London County Council (Tower Bridge Southern Approach) Bill, by a committee of the House of Commons, in the session of 1895. TIL NORTH BRITISH RAILWAY COMPANY. The following is the text of Lord Shand's proposed Finding(a) in the arbitration between the Corporation of Edinburgh and the North British Railway Company, as to the value of the land taken by the latter in Princes' Street Gardens. The corporation first made a claim for 80,000. The claim was increased to 150,000l.; and it was this sum that was put before the arbiters. Lord Shand finds that the fair value of the land taken was in all 26,500l.: PROPOSED FINDINGS IN ARBITRATION BETWEEN THE COR- Edinburgh, 25th October, 1892. Having fully considered the evidence, oral and written, and the arguments of counsel, and having also learned the views of the arbiters, orally and in writing, at a meeting with them, when they intimated that they were unable to agree to an award, and having repeatedly visited and inspected the ground, I propose to find that the sum due and payable to the claimants by the respondents, the North British Railway Company, as compensation to the claimants :— First. For their interest in the lands and hereditaments taken by the company by virtue of the provisions of the North British Railway (Waverley Station, &c.) Act, 1891, and Acts therewith incorporated under their notice and relative schedule referred to in the proceedings, and specified in the Joint Minute, No. 61 of Process, and for the damage or injury sustained, and to be sustained by the remaining lands belonging to the claimants, by or through the taking of said lands and hereditaments, amounts to the sum of twentythree thousand five hundred pounds. Second. For their (a) The "findings" are called "proposed findings," but they were acquiesced in. interest in the lands belonging to the Bank of Scotland Appndx. referred to in the said notice and relative schedule and joint minute amounts to the sum of one thousand pounds. And, Third, for their interest in the lands belonging to the Crown, also referred to in the said notice, and relative schedule and joint minute, amounts to the sum of two thousand pounds -making in all the total sum of twenty-six thousand five hundred pounds. I allow representations against these proposed findings to be lodged by either party within eight days from the date hereof. (Signed) SHAND. NOTE. I have had no difficulty in holding that the principle of fixing the compensation payable by the company on the basis of reinstatement is quite inapplicable to the circumstances of the case. Where a church or public building or business premises are taken or so seriously interfered with by a railway company that they can no longer be properly used for the purpose for which they were erected or occupied, the cost of reinstatement is, generally speaking, a fair mode of fixing the compensation due. Even in that case it has never been held that the sum payable is to be taken on the footing that immediately contiguous ground must be substituted as the site for new buildings, and the costs of this paid for, though it may involve the purchase and removal of other buildings, however valuable, on such contiguous ground. In such cases the cost of reinstatement is given by taking the most suitable and convenient ground which can be obtained without imposing any such extraordinary condition as that of purchasing adjacent ground, however great its value, and though already covered with expensive buildings. Again, reinstatement or the offer of a sum sufficient for the purpose, may often form a good answer to an extravagant claim, as, for example, in the case of an exorbitant claim under a fire insurance policy, or it might be even in a case like the present, where parts of a property have been taken. If the company could have pointed to garden ground which might be got on reasonable terms, and which, from its situation, would form a fair substitute for the ground taken, and as such might be added to the gardens, the cost of such reinstatement might form a just measure of the compensation to be paid for the ground appropriated. In this instance no such proposal can be made by the company, because the circumstances do not admit of it. Appndx. In the case which has here occurred, of gardens or pleasure ground with an existing railway passing through them, as it has done for nearly half a century, it is impossible to suggest that, in consequence of the ground taken, the gardens have been now made unfit for the use to which they have been hitherto dedicated, or have been so seriously injured that substituted ground adjoining is required to render them useful and suitable for the purpose they now serve. Accordingly, the view presented by the first two witnesses for the claimants (resulting in a valuation of upwards of 150,0007.), that the company must must pay for the two acres appropriated, and which have been taken in strips of varying breadth from different parts of the banks of the gardens adjoining the existing line, at the estimated rate which it would cost the company to acquire land in Princes' Street, to be substituted by way of reinstatement, is so extravagant that it required only to be stated to be at once rejected. If the principle were sound, it must go the length in its application of giving the corporation right to a sum which would not only pay, as the witnesses suggested, the enormous estimated value of the valuable sites. or stances on which buildings now exist, but would also pay for the cost (under an Act of Parliament, which the legislature would never grant) of throwing Princes' Street considerably further to the north, and taking down the valuable buildings on its present frontage, an amount which no one could possibly estimate or predict. Reinstatement being out of the question, how, then, is the ground to be valued? All of the witnesses on both sides were agreed that it was most difficult to find a clear means of putting a value in money on the land as now used. They concurred in thinking that the ground of Princes' Street Gardens, east and west, was in its present condition as garden and pleasure ground of much greater value to the city and the corporation than it would be if applied to any other purpose. There is no doubt of the truth of this, and the history of the gardens shows that the corporation have been all along, or at least for very many years, alive to the great importance of maintaining the deep and picturesque valley at the bottom of the Castle Rock, and of the green sloping banks on its southern sides, forming the separation between the new town and the old, as garden or pleasure ground, for this valley is the distinguishing feature of the centre of the city, which gives it so great beauty. As explained by Mr. Adam, the City Chamberlain, by various Acts of Parliament in the beginning and middle of last century, the corporation acquired Appndx, what was then known as the North Loch, and the north bank of the Loch, and in a series of statutes, certainly from 1816 downwards, promoted and obtained by the corporation themselves, provisions were inserted to secure the preservation, in all time coming, of the ground for the purposes for which it is now used. By a statute passed in that year Parliamentary authority was given for the erection of St. John's Chapel at the west end of Princes' Street; but in the interests of the city, the statute prohibited the erection of any other buildings on any part of the ground belonging to the community of the city on the south side of Princes' Street, excepting a gardener's or keeper's lodge, or hot-houses or conservatories," and thus secured that the ground now forming east and west Princes' Street Gardens, in so far as in the possession of the corporation, should remain an ornamental garden, park or pleasure ground in all time coming. Under powers conferred by the statute, the corporation in 1816, leased the Gardens west of Hanover Street to the west end proprietors of Princes' Street, but only for the purpose of having the ground laid out as "a garden, nursery for trees, or pleasure ground, or under grass, or otherwise embellishing and enclosing the same." These proprietors not only carried out expensive operations by drainage, and the laying out and planting the grounds and otherwise, but themselves acquired by purchase part of St. Cuthbert's glebe, and also obtained a lease from the Crown of a considerable extent of ground adjoining the Castle Rock, all of which was added to the gardens; and they further paid the annual expense of maintenance of the whole till the year 1876. In that year the corporation not only resumed possession of the ground, but also obtained right to the additional ground which the west end proprietors had acquired. The statute of 1876, promoted by the corporation, provided "that the corporation, after acquiring the rights of the Princes' Street proprietors, shall maintain the ground in such a way as to preserve the amenity of the district," and "shall enforce such regulations as shall prevent any use thereof which would be detrimental to the grounds as ornamental gardens." Since 1876 the corporation. has borne not only the whole taxes and public burdens and expense of maintenance of the gardens (being about 1,500l. a year for both East and West Gardens), but on resuming possession expended a sum of capital expenditure-about 20,0001.-in laying them out to the best advantage. Of the |