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Appndx. carried to its legitimate result would lead to this, that the company should get the ground for nothing, or for little more than nothing. The bank and corporation between them have the full proprietary rights in the ground. The company, however, say to the corporation-you have no right of any value, for you can only insist on the ground being kept for ornamental purposes. Against the bank they might similarly plead in answer to their claim. You have but a bare title to the ground, and no interest in it of any value, for the corporation has you bound to keep it as ornamental ground in all time coming. It is to my mind clear that this reasoning leading to such a result is fallacious and unsound. If the interest be joint, and the parties interested find that the particular arrangement they have made can be pleaded so as to give the company the ground under its true value (which I think cannot be), they could at any time alter that arrangement. The true value of the ground must be paid to those owning or interested in it. The question of the division of this value as between them is a separate matter, and this, I think, would be clear if the corporation and the bank were here as joint claimants. I am disposed to think the corporation's interest is rather the more valuable of the two; but the fair mode of division will be to take the corporation as interested to the extent of one-half and the bank to the extent of the other half.

There is still another piece of ground in a very special and involved condition as regards the parties interested in it, and which must be separately dealt with. I refer to the ground in West Princes' Street Gardens which is vested in the Crown as regards title, but which was leased to the West End Princes Street proprietors in 1818, and to which the corporation have now right under the statute and assignation and conveyance of 1876. By the lease the Crown, on the narrative that the west end proprietors (who were then in possession of the gardens generally under the lease they had obtained from the corporation) had applied to them for the ground thereby let " for use and occupation for the purpose of draining and improving" it, granted the lease to the lessees" and their successors to endure "henceforth for and during and until the ground shall be wanted for the public service," the rent stipulated being £32 a year, being the grazing rent which the Crown had previously received. The ground let was described as the north back of Edinburgh Castle, and the south and west banks of the castle, and

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included marsh ground, requiring to be drained, adjoining Appndx. what was then known as the North Loch. The lessees took possession, and at considerable expense, on the faith of the endurance of the lease, drained the ground, and incorporated it with the West Princes' Street Gardens, and laid it out as pleasure-ground, and it has ever since been so possessedi.e., for a period of seventy-six years. The corporation acquired right to the lease in 1876, and since that time has had the beneficial possession, using the ground as part of the gardens, planting it, and maintaining it as pleasure-ground, and has paid the rent and public burdens in respect of it annually. Of this ground 2,366 square yards have been taken by the company, and it has become necessary to fix the compensation to be given to the corporation for their interest in it. In my opinion the total value of the ground so taken, with the addition of a rate for compulsory sale, is 4,000l. All of the witnesses have again taken a feuing value as a means of ascertaining the value of this ground as garden ground, on the supposition that in some way, by arrangement between the Crown and the corporation, it might have been fued. It is a matter of great difficulty to determine what proportion of the total value of the ground taken ought to be paid to the corporation in respect of their interest. The claimants' witnesses suggest that the whole should be so paid, because they regard the Crown as having granted what is in substance a perpetual lease. There is, no doubt, a reservation of right to resume possession "for public purposes" if the ground should be so required; but no proposal to resume has been made, though the lease has subsisted for nearly eighty years, and none of the witnesses has been able to suggest any public purpose for which the War Department could require it. The land, or at least the greater part of it, unless it were combined with ground belonging to the corporation, seems to be altogether unsuited from want of access and otherwise for buildings of any kind, and even were this not so, and it could be represented that a barrack or other similar building would be useful there, public opinion would, in my view, be so strong against any such use of the ground as to prevent any public department from attempting it. The contingency of resumption of the ground cannot, therefore, I think, be regarded as at all serious, and as the lease in that view is one in perpetuity, and which excludes the possibility of feuing for profit, and as the Crown's substantial interest is limited to a rent of 321. a year for the

Appndx. whole, it may fairly be said that at least much the larger share of the compensation ought to go to the corporation. On the other hand, it has to be kept in view that, under the authority of the legislature, the ground has been taken for a purpose which was not contemplated or provided for by either of the parties to the lease, that the ground taken can no longer be occupied for the purposes of the lease, and that the title to it is vested in the Crown. These considerations lead me to hold that here, again, as in the case of the Bank of Scotland's ground, the divided interests should lead to an equal division of the amount to be paid as compensation, and I have accordingly allowed to the corporation for this ground the sum of 2,000l. The one-half of the value seems to be a reasonable share to be given to a party who, though in the beneficial possession, could have given no title of property to the company, especially if the medium of reaching the value be by regarding the ground as part of a feuing subject, while the corporation had no power from the Crown to feu it. On the other hand, the Crown obtains a substantial advantage from having the ground treated as part of the gardens occupied by the corporation as pleasure ground, being in their hands its most advantageous use; and from the circumstance that owing to this feuing value has been the medium of striking the compensation; and it appears to me to be clear that the ground belonging to the Crown, and particularly the ground taken, could not have been feud unless under a joint scheme agreed by the corporation, through whose ground the necessary access, certainly on the north side, must pass.

It is unfortunate that the valuation of the corporation's interest both in the Bank of Scotland's property and in the property of the Crown have to be assessed in a proceeding to which neither the bank nor the Crown are parties; but it is, I hope, at least possible that the views to which I have given effect may save the necessity for further expensive proceedings. I should imagine that all the evidence available on the question of value of the land belonging to the bank and the Crown has been laid before me, and if the parties do not think that any other tribunal would seriously augment or diminish the amount I have allowed, the bank and the Crown have, in what I have said, the means of judging what is the fair and proper mode of dividing the compensation between them and the corporation.

I confess I have had great difficulty in the case, both as regards the principles involved in the inquiry and the esti

mates to be put on the different parts of the lands taken, and Appndx. the injury thereby done to the remainder. It has been my aim to do justice between the parties to give full compensation on the one hand, and on the other to avoid anything like the infliction of a penalty for the taking of land which the legislature after full discussion has authorised the respondents to acquire within defined limits. If it should appear to some members of the corporation that the amount assessed is less than they anticipated, they have the satisfaction of knowing that the ground is to be so used as to materially benefit the city by removing the cause of a frequent blocking of trains, to the inconvenience and annoyance of travellers on a most important line of communication. If, on the other hand, the respondents should think they have been hardly dealt with, it must be kept in mind that any railway company which has its line and its main station in the centre of a great city can only obtain additional accommodation by paying, it may be, a very high price; and that in this case the compensation must be large, because the line and the station are in a situation where many persons will agree with me in thinking they should never have been allowed to be placed.

While the parties have been allowed eight days in order to make any representation which they may desire to do against any proposed judgment, I do not invite any further argument. The views of both parties were fully stated by Mr. Murray and the Solicitor-General in their able pleadings at the close of the evidence, and have had my best consideration. (Initialed S.)

Appndx.

SPECIAL ADAPTABILITY.

The question whether the "adaptability" of the land taken to the purposes for which it is to be used, is to be taken into consideration as an element of value in compensating the owner, is so frequently used in arbitrations, that it is a matter of some importance to have the full text of the only judgments which have been delivered as to this matter. "Adaptability" as enhancing the value of the land taken was raised by the claimant in the arbitration between the Countess Ossalinsky and the Manchester Corporation. After the award had been made the matter came before the High Court of Justice on the 13th April, 1883, and, so far as we know, the case in the High Court of Justice has not found its way into any of the law reports. Under the circumstances we have set out the judgments of GROVE and STEPHEN, JJ., in extenso. We are indebted to the town clerk of Manchester for the transcript from the shorthand notes from which these judgments are taken.

IN THE MATTER OF AN ARBITRATION BETWEEN THE COUNTESS
MARY OSSALINSKY

AND

THE MAYOR, ALDERMEN, AND CITIZENS OF THE CITY OF

MANCHESTER.

Judgment.

GROVE, J.-In this case a rule was obtained by the Attorney-General to set aside an award in the matter of an arbitration between the Countess Ossalinsky and the Corporation of Manchester. The arbitration was for the arbitrator to settle the value of certain land belonging to the Countess Ossalinsky, the greater part of it bounding Lake Thirlmere. She has in her land a long strip extending to nearly two-thirds along one side of the Lake Thirlmere, another portion of land upon the south side of Lake Thirlmere, and another small portion upon the east side; two other detached portions a small distance off, within a certain line which is

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