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.
When a railway or other company has, under their compulsory powers, entered into a valid statutory contract to take lands, the Court will, if necessary, enforce by mandamus the completion of the purchase. For instance, if before the expiration of the period (n) limited for the exercise of their compulsory powers, the company serves the usual notice on the landowner, and then fails to proceed, he may thus summarily compel an assessment of value by jury; even after the expiration of the limited period ; at least, if he has, within that period, served them with notice of his desire to have the price ascertained by a jury (o) : and an action for mandamus will lie, even though no actual damage has been sustained (p).
Remedy by mandamus against railway companies, etc.
Mandamus to complete granted against company which has given notice to take land ;
The service of a notice to treat by a railway company, though not of itself constituting a contract (q), creates a quasirelation of vendor and purchaser which is binding on both parties (r) ; but the notice, if not acted on by the company within a reasonable period, may be treated as abandoned (s). Until the terms have been agreed upon between the landowner and the company, or the price has been fixed by arbitration, there is no contract which is capable of being enforced in Equity (t). But, where a company is entitled to take land compulsorily under an Act of Parliament, notice of their intention to take the land, is an exercise of their option from which they cannot recede (u) ; and in such a case the proper remedy of the landowner is by mandamus to compel the company to proceed with the other steps directed by their Act (x). But immediately the price is ascertained, the agreement is complete, and if broken, the ordinary remedies for a breach are available (y).
Or has not entered into an agreement with the landowner ;
(l) Baily v. De Crespigny, (1869) L. R. 4 Q. B. 181; 38 L. J. Q. B. 98. And see generally, on impossible agreements, Pollock on Contract, 7th ed. Ch. VIII.
(m) Kirby v. Sch. Bd. for Harrogate, 1896, 1 Ch. 437 ; 65 L. J. Ch. 376. See also Manchester, Sh. & L. B. Co. v. Anderson, 1898, 2 Ch. 394 ; 67 L. J. Ch. 568.
(n) Viz., three years, unless a different period is specified in the special Act. See L. C. C. Act, s. 123.
(o) See B. v. Birmingham § Oxford B. Co., (1850) 15 Q. B. 634, 647; 19 L. J. Q. B. 453; and see Pinchin v. L. § Blackivall B. Co., (1854) 5 D. M. & G. 851, 864 ; 24 L. J. Ch. 417. And see B. v. Ir. S. E. B. Co., (1850) 1 Ir. C. L. R. 29. It has been held that a company cannot, under the L. C. C. Act, s. 7, buy up a lessee's interest without also purchasing the estate of the reversioner ; Legg v. Belfast B. Co., (1850) 1 Ir. C. L. R. 124, n. ; Reg. v. L. § N. W. B. Co., (1854) 3 E. &
B. 443 ; 23 L. J. Q. B. 185. Costs were refused where the sum assessed by the jury was less than the price previously offered by the company ; Beg. v. Waterford B. Co., (1849) 13 Ir. L. R. 272. So also where assessment was by arbitration ; Lascelles v. Swansea Sch. Bd., (1900) 69 L. J. Q. B. 24. See now, as to the appointment of surveyor under s. 85 of the L. C. C. Act, the Railway Companies Act, 1867, s. 36, and see sup. p. 648 et seq.
(p) Fotherby v. Metr. R. Co., (1866) L. R. 2 C. P. 188 ; 36 L. J.
C. P. 88
(q) See sup. pp. 276 et seq.; and consider Haynes v. R., (1861) 1 Dr. & S. 426 ; 30 L. J. Ch. 578.
V). Vol. II
If, after the usual notice by the company, the landowner desires the price to be settled by arbitration, and the reference proves abortive, owing to the non-appointment of an umpire, the landowner may, after the time has expired within which the Board of Trade can make an appointment, apply for a mandamus to compel an assessment by jury (2). So, where the price is to be settled by arbitration, a prerogative writ of mandamus (a) will be granted to compel the company, at their own expense, to take up the award (b). or where the price is to be settled by-arbitration ;
(r) Marquis of Salisbury v. G. N. R. Co., (1852) 17 Q. B. 810; 21 L.J. Q. B. 185 ; Tiverton It. Co. v. Loose-wore, (1884) 9 A. C. 480, 493 ; 53 L. J. Ch. 812.
(s) Richmond v. N. L. It. Co., (18G8) 5Eq. 352; 37 L. J. Ch. 273.
(t) Haynes v. II., sup. ; lie Arnold, (1863) 32 Beav. 591, and see sup., p. 278; Sug. 14th ed. 79, 80.
(u) It. v. Hungerford Market Co., (1832) 4 B. & Ad. 327(x) lb.; Fotherby v. Metr. It. Co., (1866) L. R. 2 C. P. 188 ; 36 L. J. C. P. 88 ; Morgan v. Metr. It. Co., (1868) L. R. 4 C. P. 97; 38 L. J.
C. P. 87
(y) Harding v. Metr. R. Co., (1872) 7 Ch. 154 ; 41 L. J. Ch. 371.
(z) Re South Yorkshire R. Co., (1850) 14 Jur. 1093 ; 18 L. J. Q. B. 333.
(a) This is the proper remedy in such a case, not an action of mandamus; R. v. L. § N. W. R. Co., 1894, 2 Q. B. 512, 518, 519; 63 L. J. Q. B. 695.
(A) R. v. 8. Devon R. Co., (1850) 15 Q. B. 1043; 20 L. J. Q. B. 145 ; L. & N. W. R. Co. v. Walker, 1900, A. C. 109 ; 1903, A. C. 280 ; 69 L. J. Q. B. 367 ; 72 ib. 678.
So, where a company, not being a railway company (c), within the limited period, enter upon land under s. 85 of the L. C. C. Act, 1845, making the deposit and giving the bond required by that section, and retain possession until after the expiration of that period, the landowner may, and it rests with him to, take steps to have the amount of compensation settled under s. 68 : he is to state what sum he claims; and if the company within twenty-one days enter into a written agreement to pay that sum, the question of compensation is settled ; but if they dispute the amount, it is then to be settled by arbitration; or, if the owner gives notice of his wish to have a jury, then by a jury, which the company are required to summon within twenty-one days, and in default thereof are liable to pay the sum claimed (d) ; or he may sue them upon the bond. Where the company appointed an arbitrator under protest, and to a mandamus to compel them to take up the award made a return that the prosecutor had not been injuriously affected and was not entitled to compensation, the return was held good (e). A bond conditioned for payment "at any time hereafter," is not a proper bond within the Act(f). Where the company has not entered and proceed to summon a jury under s. 38 (g), giving the requisite notice and stating the sum they are willing to give for the interest in the lands sought to be purchased, the landowner is entitled at any time before the verdict of the jury to accept the sum offered (h).
In the case of a railway company entering upon land under or where the company has entered on land under L. C. C. Act.
Return to mandamus.
(c) As to which, see next paragraph.
(d) See Doe v. N. S. B. Co., (1851) 16 Q. B. 526; 20 L. J. Q. B. 249 ; Barker v. N. S. B. Co., (1848) 2 De G. & S. 55 ; as to the hasis of assessment of compensation, see Jepson on L. C. Acts, 2nd ed., p. 10; and Jervis v. Newcastle, §c. Water Co., 1897, 13 T. L. R. 312.
(c) Reg. v. Cambrian B. Co., (1869) L. R. 4 Q. B. 320 ; 38 L. J. Q. B. 198 ; and see L. &N. W. B. Co. v.
Wallrr, 1900, A. C. 109 ; 69 L. J. Q. B. 367 ; and see 1903, A. C. 280 ; 72 L. J. K. B. 578.
(f) Cotter v. Met,-. B. Co., (1864) 12 W. R. 1021 ; and see Jepson on L. C. Acts, 2nd ed. 264, 265.
(g) See notes to the section in Jcpson's L. C. Acts, 2nd ed. ; Las-celles v. Swansea School Board, 1900, 69 L.J. Q. B. 24.
(h) D. v. High Bailiff of Westminster, 1903, 2 K. B. 189 ; 72 L. J. K. B. 600.
S. 85, the surveyor must now be appointed by the Board of Trade and not by two justices, and the company are to give not less than seven days' notice of their intention to apply to the Board for his appointment; the valuation is to include compensation for all damage, so far as it can be estimated, to be sustained by the exercise of the statutory powers ; and the sureties to the bond are to be approved by the Board of Trade, after hearing the parties, instead of by two justices (i).
And even where there has been neither notice given nor entry made, the Court, in cases where the duty of constructing the line is imposed upon the company, will, upon the application of a landowner over whose land the line is to be made (k), though he is a shareholder (7), compel the company to proceed to complete their railway, and to purchase the necessary land for the purpose (m) : and the near expiration of the time limited for the compulsory purchase of land, is no answer to the application, unless it is shown that there is not time to take the necessary steps to entitle the company to the requisite land (n) : nor is it sufficient to show that the company have no funds in hand(o). But the application will be refused if the company show their actual inability to construct the line (p); and will only be granted where there are words in the special Act which make it imperative on the company to make or maintain, not where the words are merely enabling, e.g., " it shall be lawful, etc." (q). And the Court will not thus interfere against commissioners under a public Act (r).
Mandamus to complete line and make necessary purchases.
The practice relating to actions of mandamus is governed by Order 53 of the R. S. C. 1883, while the practice as to the prerogative writ of mandamus is regulated by the Crown Office Rules, 1886 (s), A prerogative writ of mandamus can only be obtained in the King's Bench Division; and the Judicature Acts do not seem to have enlarged the jurisdiction of the Chancery Division, so as to enable it to usurp the jurisdiction of the old Courts of Law to compel a public body to do its duty (t); although it has ample jurisdiction, as has every Division of the High Court, to grant a mandatory injunction (u).
Actions of maudamus.
(i) Railway Companies Act, 18G7, 8. 36 ; Field v. Carnarvon R. Co., (1867) 5 Eq. 190; 37 L. J. Ch. 176.
(k) R. v. York R. Co., (1851) 20 L. J. Q. B. 503.
(0 R. v. Ambergate R. Co., (1851) 15 Jur. 993.
(m) R. v. York R. Co., sup.
(o) R. v. L. and Y. R. Co., (1851)
20 L. J. Q. B. 507, n.
(p) R. v. G. IF. R. Co., (1853) 1 E. & B. 774, 874.
(q) York and N. M. R. Co. v. Reg., (1853) 1 E. & B. 858 ; R. v. G. W. R. Co., (1893) G2 L. J. Ch. 573.
(r) R. v. Conunrs. of Woods and Forests, (1850) 15 Q. B. 761 ; 19 L. J. Q. B. 497.
(s) Rules 60 et seq.; see notes in An. Pr. to R. S. C, Ord. LIII. (t) Glossop v. Eeston Local Board, (1879) 12 Ch. D. 102, 115. (u) lb. 122.