This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
By the L. C. C. Act, 1845, the promoters of the undertaking authorized by the special Act are required, within the periods thereby prescribed, or, if no period is prescribed, within ten years after the expiration of the time limited for the completion of the works, to sell such lands as shall not be required for the purposes of the undertaking (i). Such superfluous lands, unless situated in a town, or built upon or used for building purposes, are to be first offered to the person then entitled to the lands, if any, from which the same were originally severed : and if he refuse, or for six weeks neglect to signify his wish to purchase the same, or cannot be found, then to the immediately adjoining owners (k) : and unless a sale is made either to such person, or adjoining owners, or some other person, the superfluous lands remaining unsold at the expiration of such period are to vest in, and become the property of, the owners of the land adjoining thereto, in proportion to the extent of their lands respectively adjoining the same (I). The vesting of such lands takes place by force of a conditional limitation and not of a forfeiture (//).
A sale by the company of superfluous land under s. 127 must be an absolute sale : and the company cannot reserve to itself a right of re-purchase (m). But the company may sell such lands in the manner most advantageous to itself, and may, with that object, impose conditions as to user (n). A covenant however by the purchaser to re-sell when required by the company will invalidate the sale of the land made subject to the covenant (o).
Mode of sale.
(g) Greenslade v. Dare, (1853) 17 Beav. 502.
(h) Fcret v. Sill, (1854) 15 C. B. 207; 23 L. J. C. P. 186.
(i) S. 127.
(k) S. 128.
(/) S. 127. The Metrop. Dist. R.
Co. are by their special Acts exempted from the obligations of these sections, and have an unrestricted power of sale ; see Tomlin v. Budd, (1874) 18 Eq. 368 ; 43 L. J. Ch. 627. (u) Miller v. Waterford Harbour Commrs., 1904,2 Ir. R. 421.
The test of land being superfluous is whether or not, at the expiration of the period of ten years, there is good reason to believe that by the ordinary development of the railway or neighbourhood, the land will be required for the purposes of the undertaking (p).
Test of land being superfluous.
The statutory provisions have been held to apply to lands of which the company has only acquired the reversion, subject to a term (q). The right of re-purchase is not merely personal to the original proprietors, but devolves upon future owners of the estate from which the superfluous lands were severed (r) : and may be exercised, within the prescribed period of ten years, if the company attempt to sell the lands to some other person (s). It would seem probable that, where the land is taken by the company for other than the authorized purposes, the landowner may, on re-payment of a proportionate price for the land, claim a re-conveyance (t).
Cases where the right of re-purchase arises.
(m) L. & S. W. B. Co. v. Gomm, (1882) 20 Ch. D. 562 ; 51 L. J. Ch. 530.
(n) Be Higgins and Hitchnan, (1882) 21 Ch. D. 95 ; 51 L. J. Ch. 772.
(o) Bay v. Walker, 1892, 2 Q. B. 88; 61 L. J. Q. B. 718; and see Re Thackwray and Young, (1888) 40 Ch. D. 34 ; 58 L. J. Ch. 72, as to whether company can reserve a lien for unpaid purchase-money.
(p) Belts v. G. E. B. Co., (1878) 3 Ex. D. 182 ; aff. 49 L. J. Ex. 197, following the principle laid down in G. W. B. Co. v. May, (1874) L. R. 7 H. L. 283 ; 43 L. J. Q. B. 233 ; and Hooper v. Bourne, (1880) 5 A. C. 1 ; see also Hobbs v. M. B. Co., (1882) 20 Ch. D. 418 ; 51 L. J. Ch.
(q) Moody v. Corbett, (1866) L. R. 1 Q. B. 510; 35 L. J. Q. B. 161.
(r) Lord Carington v. Wycombe B. Co., (1866) 2 Eq. 825 ; affd. (1868) 3 Ch. 377; but see Highgate Archway Co. v. Jeakes, (1871) 12 Eq. 9; 40 L. J. Ch. 408, a case under a special Act, where the former case was not cited.
(t) Lord Carington v. Wycombe B. Co., (1868) 3 Ch. 377, 381, per Lord Cairns. As to unauthorized user of the land, cf. Att.-Gen. v. Teddington Urb. Co., 1898, 1 Ch. 66 ; 67 L. J. Ch. 23; Att.-Gen. v. Eanwell Urb. Co., 1900, 2 Ch. 377 ; 69 L. J. Ch. 626.
Where, after service of notice to treat, the company-acquires the land for their ordinary purposes by agreement, the landowner does not lose his statutory right of re-purchase if the land becomes superfluous (u) ; but the right does not arise where the company has acquired the land by agreement for extraordinary purposes (x). Land which has been acquired and used for the purposes of the company will, on ceasing to be so used, become superfluous within the meaning of the Act; and, if not sold within the prescribed period, will vest in the adjoining landowners (y). If a sale is attempted by the company within the prescribed period, prima facie that leads to the inference that the land is superfluous (s); but it is not conclusive so as to relieve the Court from enquiring whether the land is in fact required or not. Thus, where one company sold land to another, it was held that, though the attempted sale was ultra vires, it was not a sale of the lands as "superfluous " ; and that therefore, on the sale being set aside, the adjoining landowner had no right to have the land conveyed to him (a). So, where land acquired by one company was subsequently within the prescribed period com-pulsorily purchased from them by another company, such sale was held not to afford a ground for inferring the land to be superfluous, so as to give the original owner a right of pre-emption (b). Whether land is or is not superfluous is a mixed question of law and fact (c).
An adjoining owner may acquire under the Statute of Limitations a good title to land purchased by the company, but not used for the purposes of its undertaking, and which has in fact become superfluous land (d). And this doctrine extends to land which has not become superfluous (e). The doctrine would seem naturally to follow from the rule that a railway company has the rights of an ordinary owner, and can do any acts necessary to prevent an easement being acquired over its land (/).