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.
Apptication, etc., of deposit.
(f) 8. C. But qucere, see Willey v. 8. E. B. Co., (1849) 1 M.&g. 58. For a full discussion of s. 85, see Tiverton B. Co. v. Loosemore, sup.
(g) Bedford & C. B. Co. v. Stanley, (1862) 2 J. & H. 746; 32 L. J. Ch. 60.
(h) Waterworks Cl. Act, 1847, s. 6; and see Ferrand v. Corp. of Bradford, (1855) 21 Beav. 412; 2 Jur. N. S. 175; Stone v. Corp. of Yeovil, (1876) 2 C. P. D. 99; 46 L. J. C. P. 137.
(i) S. 87. If the condition of the bond is broken, the landowner may present a petition for payment out to him adversely to the company; Be Mutlow's Estate, (1878) 10 Ch. D. 131; 48 L. J. Ch. 198. Where the amount of the deposit does not exceed 1,000l., the application must be made by summons; see Ann. Pr. R. S. C. 1883, Ord. LV. r. 2 (2); Ex p. Maidstone B. Co., (1883) 25 Ch. D. 168; 53 L. J. Ch. 127.
(k) Ex p. 8. W. B. Co., (1850) 6 R. C. 151. The consent in writing of the landowner to the prayer of the petition is sufficient; Ex p. Mayor of Huddersfield, (1882) 46 L. T. 730; or the production of an affidavit showing the purchase is completed, the price paid and the landowner'c
It has been held that the making of a permanent tunnel through the soil without disturbing the surface, is an entry upon or user of the land within s. 85 of the L. C. C. Act, 1845 (r); so also is throwing an arch over the land (s). Placing waggons, rails, etc., on the land, with the consent of the tenant, has been held to be no entry (t). If permanent injury is done, though the entry is with the tenant's consent, diem (b); but the penalties are not incurred by an entry after payment or deposit made to or in favour of parties who were believed to be, but were not actually, entitled (c); and an unlawful entry may be restrained by injunction (d). In case of an unlawful refusal by the landowners or occupiers to give up possession or permit an entry, the promoters of the undertaking can claim the assistance of the sheriff (e): and a landowner who has by his silence and conduct encouraged a company to carry on their works, upon the supposition that they were entitled to enter and take the land in question, and who subsequently disputes the terms of the contract, is not entitled to an interlocutory injunction to restrain them from so entering (f). If a company has entered irregularly with the consent of the landowner, the landowner cannot revoke 6uch consent so as to make the company a trespasser (g). Where a company, on a purchase, are given an option to purchase additional land at a stated price, they may exercise such option at any time within the statutory period for the completion of the works, though their compulsory powers have expired (h).
Entry, what is.
Costs satisfied; Ex p. Windsor S. & S. W. R. Co., (1849) 13 Jur. 760; and the fact of the bond being in the possession of, and produced by, the promoters is sufficient evidence of the fulfilment of the conditions of the bond; Re L. & N. W. R. Co., (1872) 26 L. T. 687. If the application is not made until many years after conveyance to the company, service may be dispensed with; Ex p. Lanes, and T. R. Co., (1886) 55 L. T. 58; Ex p. Mid. R. Co., (1894) 38 Sol. J. 289.
(l) See Ex p. Stevens, (1848) 2 Ph. 772; 13 Jur. 2; see, however. Re Tottenham R. Co., (1866) 14 W. R. 669.
(m) Ex p. Stevens, (1848) 2 Ph. 772; 13 Jur. 2.
(n) Re Fooks, (1849) 2 M. & G. 357.
(o) Ex p. Mid. R. Co., 1904, 1 Ch. 61; 73 L. J. Oh. 64.
(p) Martin v. L. C. & D. R. Co., (1866) 1 Oh. 501; 14 L. T. 814. Cf. Cooke v. L. C. C, 1911, 1 Oh. 604.
(q) Re Neath & Brecon R. Co., (1874) 9 Ch. 263; 43 L. J. Oh. 277.
(r) Ramsden v. Manchester & Altrincham R. Co., (1848) 1 Ex. 723; 12 Jur. 293; and easements generally are within the section where there is express power to take them; Hill v. M. R. Co., (1882) 21 Ch. D. 143, 147; 51 L. J. Ch. 774; see Re City & S. London R. and St. Mary Woolnoth, 1903, 2 K. B. 728; 72 L. J. K. B. 936; and see Farmer v. Waterloo & C. R. Co., (1894) 11 T. L. R. 210, where there was a power to appropriate and use the subsoil.
(s) See Pinchin v. Blackwall R. Co., (1854) 1 K. &. J. 35; 24 L. J. Ch. 417.
(t) Standish v. Mayor, etc. of Liverpool, (1852) 1 Dr. 1.
The owner may obtain an injunction (u). Where the entry was merely for surveying and setting out the line, and the company were no longer in possession, the Court refused an injunction (x).
Where the land is in mortgage, the deposit and bond should be sufficient to cover all claims which the mortgagee may be entitled to enforce; and in one case where the company had notice that land was subject to a mortgage, not payable till a future day, and paid the purchase-money into Court upon the ordinary valuation to the credit of the mortgagor, without communicating with the mortgagee, they were restrained from proceeding with their works, though not from retaining possession of the land(y). So, where equitable mortgagees were not parties to the inquiry to assess damages, and the compensation awarded fell short of what was due on their security, it was held that they were not bound, and that, in default of payment, they were entitled as against the company and the landowner to a conveyance of the land comprised in their security (z).
Where land in mortgage, deposit should coyer enforceable claims of mortgagee.
But where a person claims under a title altogether adverse to that of the parties with whom the company have contracted, Equity will not interfere, at his suit, to restrain the company from committing waste (a); his remedy is by an action of trespass or ejectment.
Where land claimed under an adverse title.
Any wilful entry by the promoters, without consent and before payment or deposit, is made the subject of a 10l. penalty: and the retention of possession after conviction in such penalty, renders them liable to a penalty of 25l. per
Penalty on unlawful entry.
(u) Armstrong v. Waterford & Limerick R. Co., (1846) 10 Ir. Eq. R. 60.
(x) Fooks v. Wilts, S. & W. R. Co., (1846) 5 Ha. 199; 4 Ry. Ca. 210.
(y) S. 108; Ranken v. E. & W. India Bocks R. Co., (1849) 12 Beav. 298; 19 L. J. Ch. 153; but see Williams v. S. W. R. Co., (1849) 3 De G. & S. 354; 13 Jur. 443, where no difficulty appears to have been felt as to the jurisdiction to restrain the company from keeping possession.
(z) Martin v. L. C. & D. R. Co., (1866) 1 Ch. 501; 14 L. T. 814.
(a) Webster v. 8. E. R. Co., (1851) 1 Si. N. S. 272; 20 L. J. Ch. 194; Alston v. E. C. R. Co., (1855) 1 Jur. N. S. 1009; 26 L. T. (O. S.) 51.
Remedy against landowner refusing possession.
In Richmond v. N. L. R. Co. (i), the defendant company, after the compulsory powers of their original Act had expired, obtained another Act authorising additional works; it was held that a notice to treat, given under the former Act, was not available for the taking of land subject to the compulsory powers of both Acts. In his observations on this case in Tiverton N. R. Co. v. Loosemore (k), Earl Cairns said: - "Were such a case now to arise, I should be disposed to think, as I was disposed to think in Richmond v. N. L. R. Co., that if nothing more was done, and the company have slept upon their rights, and certainly if the delay cannot be explained, they should be held to be disabled from going on with any compulsory purchase, and in such a case the landowner should, as I think, be held to be disabled also. Both parties have been content to let the time run out. There is no rei intenventus, no change of the status quo ante, nothing which requires to be undone. The whole matter has been a project merely; and as a project it has come to an end." In the case before the House of Lords, the company had, a few days before the expiration of the period of three years limited for their exercise of compulsory powers of purchase, served on a landowner a notice to treat for part of his land. No agreement was come to between the parties, nor was the compensation assessed, and nothing more was done until thirteen days before the expiration of the period of five years prescribed for the completion of the railway, when the company entered under s. 85; the entry was held to be lawful, and the company entitled to remain and complete the works after the expiration of the five years.
Whether compulsory powers can be exercised after time limited for completion of works has expired.
(b) S. 89. Hutchinson v. Manchester R. Co., (1846) 15 M. & W. 314; 15 L. J. Ex. 293; and Hutchinson v. E. L. R. Co., (1846) 3 R. C. 748.
(c) See last note, and Steele v. M. R. Co., (1869) 21 L. T. 387.
(d) Armstrong v. Waterford R. Co., (1846) 10 Ir. Eq. R. 60.
(e) S. 91. Apparently the section imposes no obligation on the company to call in the assistance of the sheriff, excepting where the entry would be forcible; Loosemore v. Tiverton R. Co., (1882) 22 Ch. D. 25, 41; (1884) 9 A. C. 480; and see Re Schmarr, 1902, 1 Ch. 326; 71 L. J. Ch. 219, where the sheriff's costs were allowed.
(f) Greenhalgh v. Manch. & Birm. R. Co., (1838) 3 M. & C. 784; 8 L. J. N. S. Ch. 75; Swaine v. G. N. R. Co., (1864) 3 N. R. 109. 399; 33 L. J. Ch. 399.
(g) Knapp v. L. C. & D. R. Co., (1863) 2 H. & C. 212; and see Tower v. E. Counties R. Co., (1843) 3 Ry. Ca. 374.
(h) Rangeley v. M. R. Co., (1868) 3 Ch. 306; 37 L. J. Ch. 313.
(i) 3 Ch. 679; 37 L. J. Ch. 886; Browne & Theobald, 4th ed. 151.
A company which has duly entered under s. 85 cannot be ejected by the landowner at the expiration of the time limited by the special Act for the exercise of their compulsory powers, though the amount of purchase-money remain unascertained, and the land is not conveyed (l); it is for the landowner to take the initiative under s. 68 in order to have the amount ascertained (m).
Company after lawful entry cannot be ejected.
(k) (1884) 9 A. C. 480, 489.
(l) Doe x. N. S. B. Co., (1851) 16 Q. B. 526; 20 L. J. Q. B. 249; Doe v. Leeds & Bradford B. Co., (1851) 16 Q. B. 796; 20 L. J. Q. B. 486; Worsley v. 8. D. B. Co., (1851) 16 Q. B. 539; 20 L. J. Q. B. 254.
(m) Adams v. Blackvmll B. Co., (1850) 2 M. & G. at p. 130; 19 L. J. Ch. 557.
The owner of land of which a railway company has taken possession, whether under s. 85 or by agreement, has a lien upon the land for his unpaid purchase and compensation moneys, which the Court will enforce by sale, even though the railway is actually made and ready for traffiic (n).
Lien on railway for unpaid purchase-money.
(n) Wing v. Tottenham S. Co., (1868) 3 Ch. 740; 37 L. J. Ch. 654; Walker v. Ware R. Co., (1866) 1 Eq. 195; 35 L. J. Ch. 94; and see Allgood v. Merrybent R. Co., (1886) 33 Ch. D. 571; 55 L. J. Ch. 743; and inf. pp. 614, 953, 954.
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