Section 5

By ss. 84 - 92 of the L. C. C Act, 1845, relating to, entry upon lands by the promoters of the undertaking it is, in effect, provided, that the promoters shall not, without the consent of the owners (that is, all persons having any interest, though not in possession,) (s) and occupiers, enter upon any land (except for the purpose of making surveys and other similar purposes specified in the Act) until they have paid or deposited the purchase-money or compensation for the same. If, however, before the amount of purchase-money or compensation has been determined by agreement, award, or a verdict, they are desirous of entering, they are enabled to do so, upon making such deposit and giving such bond by way of security as are specified in s. 85 of the Act, as modified by s. 36 of the Railway Cos. Act, 1867 (t). The valuation to be made by the surveyor appointed under these Acts is to include the amount of all damage and injury, so far as capable of estimation (u); and the security must be for the value of all the land comprised in the notice of purchase given by the promoters under s. 18, though the proposed entry be upon only a part of such land (x); and should be in the very terms of the Statute (y); and if the bond first given be informal or insufficient, a second may be substituted (2). By the Railway Cos. Act, 1867, s. 36, the company are bound to give to any party interested in, or entitled to sell and convey, the lands in question, and not consenting to the entry of the company, not less than seven days' notice of their intention to apply to the Board of Trade for the appointment of a surveyor: such a notice, however, does not amount to a contract binding them to take the property (a). The entry and deposit may be made at any time before the expiration of the period allowed for compulsory purchase (b). Where a company has entered under s. 85, before the expiration of such period, they may continue to hold the land afterwards (c); and a company which during such period has given a notice to treat may enter after it has expired (d); but an entry cannot be made upon a previous valuation under the L. C. C. Act, 1845 (e); nor are the company justified in proceeding under s. 85 of that Act, unless there is an urgent necessity for immediate entry on the land (f); and if they avail themselves of their powers under this and the following sections, they cannot also enforce specific performance of an agreement previously entered into with respect to the same lands (g), the service of a notice to treat and entry into possession under s. 85 being regarded as an abandonment by the company of their rights under the contract. It is conceived that if the company, having entered into a binding contract for the purchase of land, afterwards put in force their compulsory powers with respect to the same land, the landowner may, at his option, either enforce the contract, or allow the price to be determined by a jury or by arbitration, as he may deem most to his advantage. The rules applicable to the operation of this section extend also to streams taken by a Waterworks Company (h); as also to the powers given under various other Acts which incorporate the L. C. C. Act, 1845.

As to entry and possession by railway companies.

Upon making' deposit, and giving security by bond.

(r) See Magennis v. Fallon, sup.; Marker v. M., (1851) 9 Ha. 1; 20 L. J. Ch. 246; Webster v. Donaldson, (1865) 34 Beav. 451; 11 Jur. N. S. 404.

(s) Inge v. Birmingham, etc. R. Co., (1853) 3 D. M. & G. 658.

(t) The bond given under this section is to secure the purchase-money and compensation for the particular lands taken, and does not include sums payable as compensation for minerals under ss. 78 and 81, even though the submission to the arbitrator empowers him to assess the amount of compensation for minerals; Ex p. Neath & Brecon R. Co., (1876) 2 Ch. D. 201; 45 L. J. Ch. 196. As to what it does include, see Field v. Carnarvon, etc. R. Co., (1867) 5 Eq. 190; 37 L. J. Ch. 176. As to the principle upon which the amount of the deposit is to be calculated in a doubtful case, see Hill v. M. R. Co., (1882) 21 Ch. D. 143; 51 L. J. Ch. 774. In the case of a purchase under the Post Office Act, 1908, no sureties are required: s. 46 (2) (b).

(u) Railway Companies Act. 1867, s. 36.

29(2)

(x) Barker v. N. 8. R. Co., (1848) 2 De G. & S. 55; Hosking v. Phillips, (1848) 3 Ex. 168; 18 L. J. Ex. 1; Dakin v. L. & N. W. R. Co., (1849) 3 De G. & S. 414; 13 Jur. 579.

(y) Poynder v. G. N. R. Co., (1847) 2 Ph. 330; 16 L. J. Ch. 444; Langham v. G. N. R. Co., (1848) 1 De G. & S. 486; 16 L. J. Ch. 437; Willey v. 8. E. R. Co., (1849) 1 M. & G. 58; Cotter v. Met. R. Co.,. (1864) 10 Jur. N. S. 1014; 10 L. T. 777. The provision as to sureties to the bond has been altered by s. 36 (4) of the Railway Companies Act, 1867, in cases where the parties differ; see Loosemore v. Tiverton R. Co.,. (1882) 22 Ch. D. 25, 32; 52 L. J. Ch. 260.

(z) Willey v. 8. E. R. Co., (1849) 1 M. & G. 58.

(a) Grierson v. Cheshire Lines' Committee, (1874) 19 Eq. 83; 44 L. J.. Ch. 35.

(b) Worsley v. 8. D. R. Co., (1851) 16 Q. B. 539; 20 L. J. Q. B. 254.

(c) Doe v. N. 8. R. Co., (1851) 16 Q. B. 526; 20 L. J. Q. B. 249. (d) Marquis of Salisbury v. G. N. R. Co., (1852) 17 Q. B. 840; 21

L. J. Q. B. 185; and see generally on the section, Tiverton R. Co. v. Loosemore, (1884) 9 A. C. 480; 53 L. J. Ch. 812; which decides that, whether or not the railway can be completed within the prescribed period, an entry under this section is lawful at any time within it, and that the company may remain upon the land and finish the making of the railway after the expiration of the period; and see Batson v. London School Board, (1903) 67 J. P. 457.

(e) Field v. Carnarvon R. Co., (1867) 5 Eq. 190; 37 L. J. Ch. 176.

The deposit is to remain as a security for the performance of the bond, and is to be applied under the direction of the Court (i), and it will not generally be paid to the company without notice to the landowner, though the purchase may have been completed by agreement, and the purchase-money paid (k); and he is entitled to his costs of appearance (l). The landowner does not, however, seem to have . any lien upon the deposit for his costs payable by the promoters (m): nor can he oppose its repayment to the company, if he have repudiated the proceedings of which the original deposit formed a part (n). The Court will not require the company to prove that the purchase-money has been paid to the person really entitled before the deposit is repaid to them (o). The fund is not available for the payment off of a mortgage on the lands (p); the principle being that, upon fulfilment of the condition of the bond, the promoters are entitled to payment out without any deduction (q).