Abbildungen der Seite
PDF
EPUB

8 Vict. c. 18, s. 16.

Purchase of lands otherwise

than by agreement. Capital to

be subscribed before compulsory powers of purchase put in

force.

XVI. Where the undertaking is intended to be carried into effect by means of a capital to be subscribed by the promoters of the undertaking (a), the whole of the capital or estimated sum for defraying the expenses of the undertaking shall be subscribed under contract (b) binding the parties thereto, their heirs, executors, and administrators, for the payment of the several sums by them respectively subscribed, before it shall be lawful to put in force any of the powers of this or the Special Act, or any Act incorporated therewith, in relation to the compulsory taking of land for the purposes of the undertaking.

[blocks in formation]

Compulsory Powers of Purchase.-The exercise of the powers for purchasing lands compulsorily is confined to the period mentioned in the Special Act, or if none is therein mentioned, to three years. Section 123, post, p. 238.

The 16th section makes it a condition precedent to the exercise of the powers conferred by the Act, that the entire capital contemplated should first be subscribed: Guest v. Poole and Bournemouth Ry. Co., L. R. 5 C. P. 553; but it is not illegal for a company to enter into contracts for the purchase of lands independently of their compulsory powers even before the subscription of the entire capital: S.C. Cf. Kent Coast Ry. Co. v. L. C. & D. Ry. Co., L. R. 3 Ch. 656.

Acquiring an easement is not a compulsory taking of lands within this section: G. W. Ry. Co. v. S. & C. Ext. Ry. Co., 52 L. J. Ch. 306.

Although promoters have obtained compulsory powers of purchasing lands it is not obligatory upon them to take such lands York & N. Midland Ry. Co. v. Reg., 1 E. & B. 858; G. W. Ry. Co. v. Reg., Ibid. 874. Cf. In re Bristol and N. Somerset Ry. Co., 3 Q. B. D. 10; Weld v. L. & S. W. Ry. Co., 32 Beav. 340; Reg. v. Ambergate, etc., Ry. Co., 1 E. & B. 372.

Powers in relation to the compulsory taking of land. This section was designed solely for the protection of those against whom the compulsory powers of the Act are to be exercised. It was not enacted either for reasons of

public policy or for the benefit of the shareholders: Guest v. Poole and Bournemouth Ry. Co., L. R. 5 C. P. 553, 556.

The mere giving of a notice to treat is not putting in force any of the powers in relation to the compulsory taking of land within this section: S. C. The above words can only refer to following up a notice in default of an agreement being come to between the promoters and the owner. See also per Brett, J., at p. 560 :—“A notice to treat assented to by the landowner would not be an exercise of the compulsory powers. But a notice to treat not assented to-in which case the company would be placed in a situation of hostility to the landowner-would be." See also Loosemore v. Tiverton, etc., Ry. Co., 30 W. R. 638.

8 Vict.

c. 18,

s. 16.

s. 17.

A Certificate of two

justices to

be evi

dence that

XVII. A certificate (a) under the hands of two justices (b), certifying that the whole of the prescribed sum has been subscribed (c), shall be sufficient evidence thereof, and on the application of the promoters of the undertaking, and the production of the capital such evidence as such justices think proper and subscribed. sufficient, such justices shall grant such certificate accordingly.

has been

(a) Form 5.

(b) Sec. 3.

(c) Sec. 16.

The certificate is conclusive on the landowner so long as it has not been obtained by fraud: Ystalyfera Iron Co. v. Neath and Brecon Ry. Co., L. R. 17 Eq. 142.

s. 18.

Notice of

intention

to take

XVIII. When the promoters of the undertaking shall require to purchase or take any of the lands (a) which by this or the Special Act, or any Act incorporated therewith, they are authorized to purchase lands. or take, they shall give notice (b) thereof to all the parties interested in such lands, or to the parties enabled by this Act to sell and convey or release the same, or such of the said parties as shall, after diligent inquiry (c), be known to the promoters of (a) Sec. 3. (b) Form 6; secs. 19 & 20. (c) Sec. 58.

8 Vict. 0. 18,

s. 18.

the undertaking, and by such notice shall demand from such parties the particulars of their estate and interest in such lands, and of the claims made by them in respect thereof; and every such notice shall state the particulars of the lands so required, and that the promoters of the undertaking are willing to treat for the purchase thereof, and as to the compensation to be made to all parties for the damage that may be sustained by them by reason of the execution of the works.

"Require to purchase or take."-The decisions upon the proper interpretation of these words will be found collected in the notes to section 6, ante, p. 19. Compare also the analogous decisions under section 127, post, p. 243. Spencer v. Metr. Bd. of Works, 22 Ch. D. 142.

"Lands"-what included in this Section.-This section applies only to "lands" in the sense of corporeal hereditaments, which can be the subject of tenure: Pinchin v. London and Blackwall Ry. Co., 5 De G. M. & G. 851, 862. A notice to treat for a right of way or another easement is not a good notice, S. C. In giving the notice to treat, the promoters are not restricted to taking such lands only as were mentioned in the notice to the landowner given before the application to Parliament; but may include in the notice to treat, any land by their Act authorised to be taken and required for their works: In re Corporation of Huddersfield and Jacomb, L. R. 10 Ch. 92. See also the definition given in section 3, ante, p. 6.

The "Notice."-The promoters will be restrained from proceeding to assess the compensation until they have given a notice under this section, commonly called a notice to treat: Richmond v. North London Ry. Co., L. R. 5 Eq. 352; 3 Ch. 679; see also Inge v. Birmingham etc. Ry. Co., 3 De G. M. & G. 658; but although a notice to treat is usually given to persons having no greater interest than as tenant for a year, or from year to year, yet the judgment of Jessel, M. R., in the case of Syers v. Metr. Bd. of Works, 36 L. T. (N. S.) 277, shows that in his opinion a notice in such a case is unnecessary See also post, p. 40, and section 121, post, p. 233.

A notice to treat is unnecessary where the parties agree to refer the amount of compensation to arbitration: Collins v.

S. Staffordshire Ry. Co., 7 Ex. 5; In re S. Yorkshire etc. Ry. Co. 7 D. & L. 36. The notice may be waived: Reg. v. S. Holland Drainage Committee, 8 A. & E. 429, and the want of it cannot be relied upon by the party whose duty it is to give the notice: Reg. v. Trustees of Swansea Harbour, 8 A. & E. 439. The giving of the notice is a neutral proceeding which may or may not be followed by an agreement between the parties; it may be a step towards the exercise of compulsory powers; but is not per se an exercise of compulsory powers: Guest v. Poole and Bournemouth Ry. Co., L. R. 5 C. P. 553. See also Sparrow v. Oxford etc. Ry. Co. 9 Ha. 436; and ante, notes to sec. 16.

Where the company before the passing of their Special Act had entered into an agreement with the owner for future purchases of land at a fixed rate, and after the passing of such Act served upon the owner, by mistake, a notice to treat for the purchase of the land, the notice to treat was held not to supersede the agreement, so as to entitle the claimant to have the compensation settled under the L. C. C. Acts, Kemp v. S. E. Ry. Co., L. R. 7 Ch. 364, cited ante, p. 17; Wood v. N. Staford. Ry. Co., 3 De G. & Sm., 368; otherwise where they had not only given a notice to treat, but had also entered into possession under s. 85, post, p. 189: Bedford and Cambridge Ry. Co. v. Stanley, 2 J. & H. 476.

If after service on him of a notice to treat the owner serves a counter notice under sec. 92, post, p. 202, he cannot afterwards rely upon the invalidity of the original notice for the purpose of having the proceedings of the company restrained by injunction: Pinchin v. London and Blackwall Ry. Co., 5 De G. M. & G. 851.

Where the promoters desire to have distinct inquiries as to the values of different pieces of land belonging to the same owner, they should give separate notices to treat for each separate piece, for where there is one entire notice to treat all the proceedings subsequent to that must have relation to the whole matter comprised in such notice to treat: Stone v. Commercial Ry. Co., 4 My. & Cr. 122; Ecclesiastical Commissioners v. Commissioners of Sewers, 14 Ch. D. 305. The giving of a notice to treat for certain lands is no bar to the giving of a further notice to take additional lands within the prescribed limits, Simpson v. Lancaster and Carlisle Ry. Co., 15 Sim. 180; Stamps v. Birmingham etc. Ry. Co., 7 Hare, 251; 2 Ph. 673.

8 Vict.

0. 18,

s. 18.

8 Viot. o. 18, s. 18.

Abandonment of the Notice.-Once a notice to take certain lands has been given, the promoters cannot abandon that notice, and serve another notice of their intention to take a smaller portion of the same land: Barker v. N. Staffordshire Ry. Co., 5 Ry. Cas. 401. See also as to this, Tawney v. Lynn and Ely Ry. Co., 4 Ry. Cas. 615.

In general the notice to treat when given is irrevocable. It is binding on the promoters, and cannot be countermanded, Rex v. Hungerford Market Co., 4 B. & A. 1, 327; Morgan v. Metr. Ry Co., L. R. 4 C. P. 97; except (a) where the promoters are public commissioners, having a limited power of taking land provided that the required quantity can be obtained for a given sum: Reg. v. Commissioners of Woods and Forests, 15 Q. B. 761; Steele v. Corporation of Liverpool, 7 B. & S. 261; and (b) where the promoters are met by a counternotice under section 92, post, p. 202.

сабе.

But the owner may insist that the notice has been abandoned by lapse of time. What lapse of time will be evidence of the abandonment by the promoters of a notice to treat depends mainly upon the facts of each individual In Richmond v. N. London Ry. Co., L. R. 5 Eq. 352, Lord Romilly, M. R., limited the time within which after giving the notice to treat the promoters must come to an agreement with the landowner, or must ascertain the price to be paid to him, to the period fixed by the Legislature for the completion of the undertaking. Lord Cairns, L. C., expressly abstained from laying down any such general rule (S. C. L. R. 3 Ch. 679), though he did not differ from Lord Romilly's opinion: and the rule has since been followed by the present M. R. in the case of the Ystalyfera Iron Co. v. Neath and Brecon Ry. Co., L. R. 17 Eq. 142. In Richmond v. N. London Ry. Co., ubi supra, the time for the exercise of the compulsory powers was limited to four years, and the time for the completion of the line to five years, a notice to treat was given within the four years, but not acted upon until after the expiration of the five years, and the company were restrained by injunction from proceeding on the notice, the M. R. basing his decision on the ground that the before-mentioned limit had been exceeded, while the L. C. based his judgment on the ground that (inasmuch as the land comprised in the notice to treat was scheduled to an Act conferring extended powers which had been obtained subse

« ZurückWeiter »