used, they cannot enter upon the lands [sec. 84] except for the purpose of surveying, taking levels, &c. [ibid.], or except under the provisions of sec. 85.

No party can be required to sell part of a house, building, or manufactory if he is willing and able to sell and convey the whole [sec. 92], unless the Special Act, as sometimes is the case, give the promoters power to take a part.

Preliminary Proceedings.

Before any of the powers relating to the compulsory purchase of lands can be exercised, the whole of the capital required for the undertaking must be subscribed [sec. 16], and the promoters must, before proceeding to exercise any such powers, arm themselves with the evidence prescribed by the statute of the above condition precedent having been performed. This evidence consists of the certificate of two justices, obtained on the application of the promoters, who may be called upon to furnish to the justices such evidence in support of their application as the latter may think proper and sufficient [sec. 17]. These preliminaries are not requisite where the promoters enter into an agreement for purchase independently of their compulsory powers. Nor are they a condition precedent to the mere giving of a notice to treat.

Notice to Treat.

The first step to be taken by the promoters is to make "diligent inquiry" as to who are the parties interested in the lands, &c., or the parties enabled by sec. 7 to sell and convey, and they must serve a notice to treat on all such parties who shall after "diligent inquiry" be known to them [sec. 18]. These notices must be dual in form.

I. They must demand from the persons interested in the land (a) the particulars of their estates and interests, and (B) the particulars of the claims made in respect thereof.

II. They must state (a) the particulars of the land required, (B) the willingness of the promoters to treat for the purchase of the lands, and (7) their willingness to treat as to compensation for damage that may be sustained by reason of the execution of the works [sec. 18].

Service of such notices is effected: (1) in ordinary cases either personally or by delivery "at the last usual place of abode," if such can after diligent inquiry be found; (2) in cases where any parties are absent from the United Kingdom; and (3) where any parties cannot after diligent inquiry be found, by delivery to the occupier of such land, as well as by delivery

e

at the last usual place of abode; (4) where the land is not occupied, by leaving the notice at the last usual place of abode, and also affixing it "upon some conspicuous part" of the land [sec. 19]; (5) upon a corporation aggregate by delivery at the principal office, or (if there be none such) by delivery of one notice to some principal member of the corporation, and of another to the occupier, or (if there be no occupier) by affixing the notice on some conspicuous part of the land [sec. 20].

A notice to treat, once given, is in general irrevocable, and cannot be abandoned except where the promoters are met by a counter-notice under sec. 92, or (in some cases) where the promoters are public commissioners restricted as to the price payable by them.

The service of a notice to treat, to a certain extent constitutes the relation of vendor and purchaser. The estates and interests of the several parties in the land are taken as at the date of the service, and cannot be altered by any subsequent act. But this relation of vendor and purchaser does not become complete until after the amount of the purchase-money or compensation has been definitely ascertained.

Particulars of Claim.

After service of the notice to treat, the claimant may (though, except in certain cases, he is not obliged to) deliver to the promoters particulars of his estate or interest in the lands comprised in the notice, and of the claims made by him in respect thereof [sec. 18]. Such particulars must comprise all claims which can be foreseen at the time of giving them, unless the Special Act contains a provision to the contrary.

The drawing up of particulars of claim is the business both of the surveyor and of the lawyer, for, while the latter must be consulted as to whether the claim is well founded in law, the former must advise as to the heads and amount of the claim. The legal principles which govern claims are given in the notes to sec. 68 (pp. 113 et seq.). The principles upon which the surveyor acts in determining the amount are shortly these. The value of the claimant's interest is taken at the value which it is to him at the date of service upon him of the notice to treat. On ascertaining such value, regard is had to the situation of the property, the purposes (if any) for which it is specially adapted, either at the date of the claim or in the immediate future, the value of similar property in the immediate neighbourhood, the state of repair, and the existence and nature of any incumbrances or liabilities affecting the property. These considerations determine the number of years' purchase at

which the valuation is to be made or the rate per cent. upon which it should be calculated. The value of any outstanding interest, similarly ascertained, is then deducted. To this net value a percentage of £10 per cent. is added for forced or compulsory sale. Where the property consists of trade premises, there are superadded items in respect of the loss to the claimant through enforced removal, whether by reason of injury to goodwill, or by damage to goods, trade-fixtures, &c., or by the expenses of reinstatement in new premises.

Settlement of disputed Compensation.

If for twenty-one days' after service of the notice to treat the claimant fail to state particulars or to treat, or if the promoters and the claimant do not agree as to the amount of compensation, such amount is to be settled in the manner by the Act provided for settling cases of disputed compensation [sec. 21].

"Cases of disputed compensation" relate solely to the amount of the compensation payable, assuming the right to it. Four different modes of settling such amount are prescribed, and the choice between them lies mainly with the claimant. These modes are as follows::

1. By justices [secs. 22 and 24], in cases where the claimant's demand does not exceed £50, or [sec. 121] where the interest in respect of which he claims is not greater than that of a tenant for a year, or from year to year.

2. In all other cases, either by arbitration [secs. 23 and 25-37] at the option of the claimant, or

3. By a jury before the sheriff [secs. 38-57], or where the promoters are a railway company, before a judge of the High Court [Regulation of Railways Act, 1868, secs. 41-43].

4. By a surveyor appointed by two justices [secs. 58–67], in the case of a party who is absent, or cannot, after diligent inquiry, be found, or who has failed to appear at an inquiry before a jury.

We will now proceed to describe the various modes of procedure in each of the four above alternatives, with the details of the notices, &c., required in each case, under the headings Justices, Arbitration, Jury, Surveyor.

Justices.

[Secs. 22, 24, and 121.]

The jurisdiction of justices in settling questions of disputed compensation under the Act is confined to cases in which the claim does not exceed £50 [sec. 22], or to claims by persons

having no greater interest than as tenants for a year, or from year to year [sec. 121]. If, however, the claims of such lastmentioned persons be for injuriously affecting lands only, they are entitled to have the compensation assessed by a jury or settled by arbitration under sec. 68. It is the amount of compensation only, and not the right thereto, upon which the justices have to adjudicate.

Under sec. 22 the jurisdiction cannot arise unless the claimant has delivered particulars of his claim under sec. 21, and such claim does not exceed £50. Under sec. 121 the jurisdiction does not arise until the claimant has been required to give up possession.

The mode of setting the jurisdiction in motion is by applying to any one justice for a summons, which application may be made by either party. The summons must state (1) the time and (2) the place appointed for the inquiry. It is served upon the other party. Upon the hearing of the summons the justices (two of whom are necessary to form the tribunal, except in the metropolis, where the summons can be heard by any one police magistrate, under 2 & 3 Vict. c. 71, sec. 14) have power

1. To hear and determine the questions in dispute [sec. 24], i.e., to settle the amount of compensation "for lands taken or required for, or injuriously affected by, the execution of the undertaking, or any interest in such lands" [sec. 22], or to determine the amount of compensation "for the value of his (the claimant's) unexpired term or interest in such lands, and for any just allowance which ought to be made to him by an incoming tenant, and for any loss or injury he may sustain, or if a part only of such lands be required, compensation due to him in his tenancy by severing the lands held by him, or otherwise injuriously affecting the same " [sec. 121]. And

2. For that purpose to examine the parties and their witnesses [sec. 24].

In estimating the purchase-money or compensation the justices should have regard not only to the value of the land, but also to the damage by the severing or otherwise injuriously affecting the lands [sec. 63].

The claimant has all the rights and privileges of a plaintiff in an action [sec. 43]. The application is not within Jervis's Act.

If the party served with the summons does not appear, the hearing of the summons proceeds ex parte upon proof of due service [sec. 24].

The costs of the inquiry are in the discretion of the justices, who have to settle the amount thereof [ibid.].

The justices must be disinterested persons acting for the place where the matter arises. They must be assembled, and act together [sec. 3].

Arbitration.

[Secs. 23, 25-37.]

I. Where Arbitration is Applicable.-Resort to arbitration can only be had where the amount of compensation claimed or offered exceeds £50 [secs. 23 and 68], or where the interest in respect of which the claim is made is greater than that of a tenant for a year, or from year to year [sec. 121].

The option of having settlement by arbitration rests with the claimant alone; the promoters cannot demand it [sec. 23]. Such option is exercised by serving on the promoters a notice in writing, which must state:

1. The nature of the claimant's interest; and

2. The amount of his claim [sec. 23].

The option ceases to be exercisable as soon as the promoters have issued their warrant to the sheriff to summon a jury, but may be exercised at any time previous to the issue of the warrant [sec. 23].

By secs. 64-67 special provisions are made for ascertaining the amount of compensation by arbitration in cases where the same has been fixed by a surveyor, under secs. 58-62, and the person entitled is dissatisfied with the surveyor's valuation. As to these provisions see post, p. lxi.

When the claim is raised under sec. 68, the claimant likewise has an option to have his claim settled by arbitration. This option is exercised by a similar notice to the one required by sec. 23. After the receipt of this notice the promoters have twenty-one days allowed them for the purpose of entering into an agreement in settlement of the claim. In default of agreement the arbitration proceeds in the ordinary manner.

Under sec. 130 also the amount payable in the exercise of the right of pre-emption of superfluous lands is, in the event of dispute, to be settled by arbitration, though it is not expressly enacted, as in secs. 64 and 68, that such arbitration shall be conducted in the manner provided by the preceding sections of the Act (secs. 25-37), though this no doubt is intended.

II. Appointment of Arbitrators.-Both parties may concur in the appointment of a single arbitrator [sec. 25], and an attempt so to concur should in every instance be first of all made.