"A notice to treat given by a company is perfectly good as long as the company are empowered to carry into effect their works under the Act of Parliament, and no longer. It may be given the day before the compulsory powers to take the land expire, and then it will last until the time for which that land is wanted, namely the time for making the works, has also expired, but no longer." Kemp v. S. E. Ry. Co., L. R. 7 Ch. 364, per Lord Hatherley at p. 372; Loosemore v. Tiverton etc. Ry. Co., 22 Ch. D. 25, 51. See, ante, p. 38. In Thicknesse v. Lancaster Canal Co., 4 M. & W. 472 (decided before the L. C. C. Act, 1845), it was held that when a company had obtained an Act of Parliament for carrying into effect certain works without a limit of time, it could exercise compulsory powers at any time-in that case thirty years after the passing of the Act. If no time is limited by the Special Act the time specified in the above section applies: Seymour v. L. and S. W. Ry. Co., 5 Jur. (N.S.) 753. When the time limited by the Special Act for completing the works has expired, the company cannot be compelled to perform a contract which presupposes the continuance of their authority to take land: Scottish N. E. Ry. Co. v. Stewart, 3 Macq. 382; but where the Special Act renders it obligatory on the company to construct the line at any time previous to the expiration of their compulsory powers, a mandamus will lie to compel a railway company to complete their line: Reg. v. York etc. Ry. Co., 16 Q. B. 886; Reg. v. Lancashire and Yorkshire Ry. Co., 6 Ry. Cas. 654. Cf. Monroe v. Newry etc. Ry. Co., 2 Ir. Ch. R. 260; Cork & Youghal Ry. Co. v. Harnett, Ir. R. 5 Eq. 308. The case is different where there is no duty cast upon the promoters to complete their undertaking: York and N. Midland Ry. Co. v. the Queen, 1 E. & B. 858; G. W. Ry. Co. v. Reg., ibid, 874. Compare Blakemore v. Glamorganshire Canal Co., 1 My. & K. 154, 162; Lee v. Milner, 2 Y. & C. Ex. 611, 618, on the construction of compulsory powers given by Special Acts. The expiration of the three years under this section has not the effect of rendering impossible proceedings for ascer taining the amount of compensation where the land has been rightfully entered upon and taken within the three years under section 85: Doe. d. Armistead v. N. Staffordshire Ry. Co., 16 Q. B. 526; Worsley v. S. Devon Ry. Co., 16 Q. B. 539, 545. The limitation in time does not apply against a landowner who, having within the three years received a notice that his 8 Vict. c. 18, s. 123 8 Vict. c. 18, s. 123. 8. 124. Promoters of the undertaking empowered to purchase interests in lands the purchase whereof may have been omitted by mistake. land is required by the promoters, and having within the three years regularly served them with notice that he requires the amount of compensation to be determined by a jury, and wishing to complete the sale of his land applies for a mandamus to compel the company to issue a warrant for summoning a jury. The powers which he wishes to put into exercise are not "powers. . . for the compulsory purchase and taking of lands:" Reg. v. Birmingham and Oxford J. Ry. Co., 15 Q. B. 634, 647 (n); Marquis of Salisbury v. G. N. Ry. Co., 17 Q. B. 840; Sparrow v. Oxford etc. Ry. Co., 9 Hare 436. AND WITH RESPECT TO INTERESTS IN LANDS WHICH HAVE BY MISTAKE BEEN OMITTED TO BE PURCHASED, be it enacted as follows: CXXIV. If, at any time after the promoters of the undertaking shall have entered upon any lands which under the provisions of this or the Special Act, or any Act incorporated therewith, they were authorized to purchase, and which shall be permanently required for the purposes of the Special Act, any party shall appear to be entitled to any estate, right, or interest in or charge affecting such lands which the promoters of the undertaking shall through mistake or inadvertence have failed or omitted duly to purchase or to pay compensation for, then, whether the period allowed for the purchase of lands shall have expired or not, the promoters of the undertaking shall remain in the undisturbed possession of such lands, provided within six months after notice of such estate, right, interest, or charge, in case the same shall not be disputed by the promoters of the undertaking, or in case the same shall be disputed then within six months after the right thereto shall have been finally established by law in favour of the party claiming the same, the promoters of the undertaking shall purchase or pay compensation for the same, and shall also pay to such party, or to any other party who may establish a right thereto, full compensation for the mesne profits or interest which would have accrued to such parties respectively in respect thereof during the interval between the entry of the promoters of the undertaking thereon and the time of the payment of such purchase money or compensation by the promoters of the undertaking, so far as such mesne profits or interest may be recoverable in law or equity; and such purchase money or compensation shall be agreed on or awarded and paid in like manner as according to the provisions of this Act (a) the same respectively would have been agreed on or awarded and paid in case the promoters of the undertaking had purchased such estate, right, interest, or charge before their entering upon such land, or as near thereto as circumstances will admit. (a) Secs. 22 and 24; secs. 23 and 25–37; secs. 38–57; secs. 58–67. The effect of this section is not to prevent a claimant from bringing ejectment to establish his title, but merely to authorize the Court to stay execution upon the judgment when obtained: Marquis of Salisbury v. G. N. Ry. Co., 5 C. B. (N.S.) 174; but ejectment cannot be brought unless the title is in dispute: Jolly v. Wimbledon and Dorking Ry. Co., 1 B. & S. 807; nor can an injunction be obtained to restrain the promoters from entering upon the lands: Kemp v. W. End and Crystal Palace Ry. Co., 1 K. & J. 681; Cf. Somersetshire Coal Canal Co. v. Harcourt, 2 De G. & J. 597; D. of Beaufort v. Patrick, 17 Beav. 60. In the case of a railway company's Act incorporating the R. C. C. Act, 1845, the proper course is to proceed under sec. 7 of the latter Act, post, p. 271, to have the omission rectified: Kemp v. W. E. and C. P. Ry. Co., supra. Where the promoters and all parties interested in the property taken had acted upon the mistaken belief that the compensation money would amount to a higher figure than that actually awarded, this was not a mistake or inadvertence within this section: Martin v. L. C. and D. Ry. Co., L. R. 1 Ch. 501, 509. See also Stretton v. G. W. and Brentford Ry. Co., L. R. 5 Ch. 751. 8 Vict. o. 18, 8. 124. R 8 Viot. o. 18, s. 125. How value of such lands to be estimated. 8. 126. Promoters ing to pay CXXV. In estimating the compensation to be given for any such last-mentioned (a) lands, or any estate or interest in the same, or for any mesne profits thereof, the jury (b), or arbitrators (c), or justices (d), as the case may be, shall assess the same according to what they shall find to have been the value of such lands, estate, or interest, and profits, at the time such lands were entered upon by the promoters of the undertaking, and without regard to any improvements or works made in the said lands by the promoters of the undertaking, and as though the works had not been constructed. CXXVI. In addition to the said purchase money, compensation, or satisfaction, and before the promoters of the undertaking shall become absolutely entitled to any such estate, interest, or charge, or to have the same merged or extinguished for their benefit, they shall, when the right to any such estate, interest, or charge shall have been disputed by the company, and determined in favour of the party claiming the same, pay the full costs and expenses of any proceedings at law or in equity for the determination or recovery of the same to the parties with whom any such litigation in respect thereof shall have taken place; and such costs and expenses shall, in case the same shall be disputed, be settled by the proper officer of the Court in which such litigation took place. The "full costs and expenses " here mentioned are costs as between solicitor and client: Hyde v. Mayor of Manchester, 12 C. B. 475. 8 Vict. c. 18, s. 127. AND WITH RESPECT TO LANDS ACQUIRED BY THE PRO- CXXVII. Within the prescribed period, or if no (a) Sec. 18. (b) Sec. 123. Period for sale. The policy of the Act is to take a period of ten years, or of a few years more or less dating from the creation of the parliamentary powers, and to appoint that period as the point of time at which a survey should be taken of the then position of the company and of its works for the purpose of determining what land is at that moment superfluous: G. W. Ry. Co. v. May, L. R. 7 H. L. 283, 294. At this period there is an absolute complete parliamentary vesting of the superfluous land in the owner of the adjoining land not dependent in any way upon his consent or acceptance: S.C., p. 298. Therefore as soon as the company have done any act indicating that land is superfluous land without doing anything to rebut the presumption, there is a possession within the Statute of Limitations: Norton v. L. and N. W. Ry. Co., 13 Ch. D. 268 (overruling Searley v. Tottenham Ry. Co., L. R. 5 Eq. 409); Bobbett v. S. E. Ry. Co., 51 L. J. Q. B. 161. "Required for the purposes thereof."-This expression includes three classes of cases, viz. (1) lands actually in use be sold, or in default to vest in owners of adjoining lands. |