8 Vict. on the day with respect to which the matter is to be decided; These sections are not restricted to cases where land has The promoters have not the ordinary rights of proprietors, but have limited rights which can only be exercised for the special purposes of their Act: Bostock v. N. Staffordshire Ry. Co., 3 Sm. & G. 283, 4 E. & B. 798. Cf. Bonner. v. G. W. Ry. Co., 32 W. R. 190. See also the notes to section 6, ante, p. 19, as to the construction of the words "required for the purposes thereof," and Reg. v. Greenlaw Road Trustees, 4 Q. B. D. 447. Evidence of lands being superfluous. Whether the lands are superfluous or not is one of the most difficult questions of mixed law and fact. What amount of user or quasi-user prevents it being superfluous land;-what amount of contemplated or fairly to be contemplated user prevents its being superfluous land, are all questions which are not entirely settled: Smith v. N. Staffordshire Ry. Co., 44 L. T. 85, per Jessel, M.R., at p. 86. If the fact of the land having been put up for sale by public auction is relied upon as evidence of such land not being required for the purposes of the Special Act, there must in addition be adduced legal proof that the sale was held by the authority of the promoters. It is not enough to prove that the auctioneer had received instructions from a director of the company and from the solicitor, who on previous sales had acted on behalf of the company: Moody v. L. B. and S. C. Ry. Co., 1 B. & S. 290. Lapse of time since the sale, the transaction having been left undisturbed in the meantime, will not be taken as evidence of acquiescence or of knowledge on the part of the promoter, S.C. The mere fact that the land is taken for the purposes of the undertaking and is not superfluous will not prevent a person acquiring a title by possession under the Statutes of Limitations, either as a wrongdoer or as a tenant at will, in the first instance: Bobbett v. S. E. Ry. Co., 9 Q. B. D. 424. The adjoining owners must show affirmatively that at the date mentioned in their claim the land had become within the meaning of the Act superfluous land, i.e. "land not required for the purposes of the railway company's undertaking." The mere circumstance that at one particular period the land was unbuilt upon or unused for the purposes of the railway will not be conclusive: Hooper v. Bourne, 5 App. Cas. 1. It is not necessary that at the end of the ten years there should have been the immediate possibility of, or necessity for, employing the pieces of land for additional works. The cases all proceed on the bona fides of the company in not taking more land than they want, and in intending to apply the land taken for the objects of the company. The onus of proof lies on the plaintiff: S.C. Land acquired by promoters of the undertaking may become superfluous land in one of four different ways. (1) It may be land originally taken upon a wrong estimate or calculation of the quantity of land required. (2) It may be land which the company may have been forced to take under section 92. (3) It may be land taken originally and required for permanent works which, by reason of the abandonment of those works, becomes land no longer required. Or (4) it may be land which has been taken by the company with the intention originally of its being used only for temporary purposes which have come 8 Viot. o. 18, s. 127. 8 Viot. o. 18, s. 127. to an end: G. W. Ry. Co. v. May, L. R. 7 H. L. 283, 292. If a piece of land is as a whole needed for the purposes of a railway, small portions of it which happen to be superfluous, do not vest in an adjoining owner: Betts v. G. E. Ry. Co., 3 Ex. D. 182. See also Hobbs v. Midland Ry. Co., 20 Ch. D. 418, 432. Issue how tried. The issue, whether or not lands are superfluous within this and the following sections, being one of mixed law and fact, should be tried by a judge without a jury, and an order to this effect may be made under Order XXXVI., rule 4 of the Rules of the Supreme Court 1883: Smith v. N. Staffordshire Ry. Co., 44 L. T. 85. Examples of what are and what are not superfluous lands.-Mines and minerals conveyed to a company by the same deed as the surface, but not acquired under the provisions of the Act, are not superfluous land, although the surface may be: Hooper v. Bourne, 3 Q. B. D. 258, 278, 284, 5 App. Cas. 1, 12. Granaries occupied by tenants of the company, subject to an expressly reserved right of taking possession at a future time, are not "superfluous:" Betts v. G. E. Ry. Co., 3 Ex. D. 182. A horizontal section of land (e.g., soil above a tunnel) is not within the operation of these sections: In re Metr. D. Ry. Co. and Cash, 13 Ch. D. 607. Superfluous land must be separated by a vertical boundary from the land required for the purposes of the company, S.C. Similarly land under a railway constructed on arches is not superfluous land, and consequently it is ultra vires the company to alienate it or to grant a right of way over it: Mulliner v. Midland Ry. Co., 11 Ch. D. 611. Where the boundary wall of a railway had been constructed wider at the foundation than at the surface, the portion of the surface lying between the wall and a perpendicular line drawn from the foundation to the surface was held not to be superfluous land: Ware v. L. B. and S. C. Ry. Co., 52 L. J. Ch. 198. Land originally taken for the purpose of constructing an embankment, but in the result used for the purpose of accommodation works within the powers of the company, is not superfluous land: Lord Beauchamp v. G. W. Ry. Co., L. R. 3 Ch. 745. Land which had been used for the purpose, but discontinued prior to the expiration of the ten years, of depositing "spoil" and erecting a spoil bank was held to be superfluous land : G. W. Ry. Co. v. May, L. R. 7 H. L. 283. Where a post and rail fence had been put up by a railway company and had been superseded by a quickset hedge planted at a distance of four feet six inches from the fence, which was then allowed to fall into decay, the strip between the hedge and the site of the fence was held to have vested in the adjoining owner as superfluous land: Norton v. L. and N. W. Ry. Co., 13 Ch. D. 268. Land acquired by a company for the purpose of completing a prior contract with a third party, and not required directly for the purposes of the undertaking is superfluous land: Lord Carington v. Wycombe Ry. Co., L. R. 3 Ch. 377. Mode of sale and title of the purchaser.-Promoters selling under this section may impose any restrictive covenants on the purchaser, as they are in the same position as an ordinary vendor: In re Higgins and Hitchman's Contract, 21 Ch. D. 95. The purchaser of superfluous lands acquires the right of support for the surface thereof as against the owner of subjacent mines: Pountney v. Clayton, 47 L. T. 731. "Owners of the lands adjoining thereto."-Persons entitled to the grass and herbage on the road opposite their land are not adjoining owners, but the adjoining owners are the persons to whom the soil belongs: Hooper v. Bourne, 3 Q. B. D. 258, 279, in which case the lord of the manor was held to be the person entitled to the right of pre-emption. The erection of a party wall to be maintained at the joint expense of the company and a purchaser from the company, does not prevent the latter from putting in a claim as the owner of adjacent land: L. and S. W. Ry. Co. v. Blackmore, L. R. 4 H. L. 610 nor does the construction of a road: Hobbs v. Midland Ry. Co. 20 Ch. D. 418. Inasmuch as an "owner" is by sec. 3, ante, p. 5, defined to be a person who can sell to the company, lessees of lands are owners within this section: Coventry v. L. B. and S. C. Ry. Co., L. R. 5 Eq. 104, and none the less so by reason that a private road over which they have an easement intervenes between their land and the railway: S. C. There is a plain and obvious distinction between the person who is mentioned in this section as the person entitled at the expiration of the prescribed period and the person mentioned in the 128th sect. as "the person then entitled to the lands 8 Viot. o. 18, s. 127. 8 Viot. 0. 18, s. 127. s. 128. Lands to be offered to owner of lands from which they were originally taken or to adjoining owners. (if any) from which the same were originally severed:" Hobbs v. Midland Ry. Co., 20 Ch. D. 418, 428. See as to the special provisions of the Metr. District Ry. Act, 1868, with regard to superfluous lands: Tomlin v. Budd, L. R. 18 Eq. 368. Vesting of lands when there are several adjoining owners.—Where there are several adjoining properties in contact with the superfluous land in question it should be divided among the owners of such adjoining properties in proportion to the frontage of each, i.e. the length of the line of contact of each, if such line was made straight from the point of intersection of the boundaries on the one side to the point of intersection of the boundaries on the other side: Moody v. Corbett, L. R. 1 Q. B. 510. CXXVIII. Before the promoters of the undertaking dispose of any such superfluous lands (a) they shall, unless such lands be situate within a town, or be lands built upon or used for building purposes, first offer to sell the same to the person then entitled to the lands (if any) from which the same were originally severed; or if such person refuse to purchase the same, or cannot after diligent inquiry be found, then the like offer shall be made to the person or to the several persons whose lands shall immediately adjoin the lands so proposed to be sold, such persons being capable of entering into a contract for the purchase of such lands; and where more than one such person shall be entitled to such right of preemption such offer shall be made to such persons in succession, one after another, in such order as the promoters of the undertaking shall think fit, (a) Sec. 127. "Dispose of."-These words refer to disposal by sale, and not to disposal for other purposes of the company not originally contemplated: Astley v. Manchester etc. Ry. Co., 2 De G. & J. 453. The promoters in disposing of superfluous lands are bound to sell it out-and-out, without reser |