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.
Ordinarily pass under that word in a conveyance (s). Thus, where the company required only a small portion of the garden, they were compelled to take the whole property (t), even where the houses were unfinished, and in a ruinous state (u). So, also, where the company required greenhouses and ornamental pleasure ground connected with the residence, which was not touched, the rest of the land being used as a nursery garden.(x); so, also, where the garden was one of a series, and the one furthest removed from the house to which they were all attached, each of the series being separated from the other by a brick wall, but connected by doors and a gravel-walk leading to the house (y); so, too, where the company gave notice to take a piece of a paddock, used with a house and garden, but separated therefrom by a wall with a gate in it as a means of access (z).
The fact of two houses, which are used as one for business purposes by means of internal communication, being held under different leases, does not prevent their being one house within the meaning of s. 92 (a). But a cottage built upon land used as a market-garden and occupied merely for the more beneficial occupation of the land as a market-garden, does not with the land constitute a "house" within the meaning of the section (b). So, where the landowner was entitled under the same lease to a messuage and garden on one side of a public highway, and to a detached piece of pleasure ground on the opposite side, on which he was prohibited from building, and which alone the company was desirous of purchasing, it was held that the detached portion formed no part of the "house" within the meaning of the Act (c); so, also, where the portion, separated by the highway, was used for the purpose of pasturing horses and cows for the owner's establishment (d). So, in the case of two contiguous dwelling-houses, the mere continuity of the open space immediately under the roof and above the party-wall which separated the attics up to their ceiling, and the inter-communication of the drains and gutters, was held not to constitute the two dwellings a single "house" (e). And where a company proposes to take part of a private road leading to a house, merely for the purpose of bridging it at a point a quarter of a mile from the house, the owner cannot compel the company to purchase the whole property (f); though in one case, a vacant piece of land, not fenced off from the street, and separated from the house by a public foot-way, but forming the only means of approach for vehicles, was held to be part of the "house" within the meaning of the Act (g). The result of the cases seems to establish that what is necessary for the convenient use and occupation of the house, but not what is subsidiary to the personal use and enjoyment of the occupier, falls within the statutory meaning of the word.
(s) St. Thomas' Hospital v. Charing Cross R. Co., (1861) 1 J. & H. 400; 30 L. J. Ch. 395; and see Richards v. Swansea, etc. Co., (1878) 9 Ch. D. 425; Kerford v. Seacombe, etc. R. Co., (1888) 57 L. J. Ch. 270; 58 L. T. 445; Low v. Staines Reservoirs Committee, (1900) 16 T. L. R. 184.
(t) Cole v. West London R. Co., (1859) 27 Beav. 242; 28 L. J. Ch. 767; Grosvenor v. Hampstead R. Co., (1857) 1 D. & J. 446; 26 L. J. Ch. 731; King v. Wycombe R. Co., (1860) 28 Beav. 104; 29 L. J. Ch. 462.
(u) Alexander v. West End, etc. R. Co., (1862) 30 Beav. 556; 31 J,. J. Ch. 500.
(x) Salter v. Met. Dist. R. Co., (1870) 9 Eq. 432; 39 L. J. Ch. 567; and see Clifford v. Holt, 1899, 1 Ch. 698.
(y) Hewson v. L. & S. W. R. Co., (1860) 8 W. R. 467.
(z) Barnes v. Southsea R. Co., (1884) 27 Ch. D. 536.
(a) Siegenberg v. Met. Dist. R. Co., (1884) 32 W. R. 333.
(b) Falkner v. Somerset & Dorset R. Co., (1873) 16 Eq. 458; 42 L. J. Ch. 851.
Where the company requires to take part of a building formerly used as a manufactory, though such user has been discontinued for several years, they must not only take the whole, but also all the machinery and trade fixtures therein (h). Where part of a house is used as a manufactory, but the rest is let to a tenant and not so used, a company cannot take the latter part without taking the whole house, if required to do so by the owner (i). In Green v. Hackney Corporation (k) a local authority required the land covered by part of a factory for the purpose of widening a street. It was held that there was no power under Michael Angelo Taylor's Act to compel the owner to sell such part only, if the removal of that part would substantially injure the factory so that it could no longer be used and enjoyed as it was before. It seems clear that the same principle would apply where part of a factory is desired to be taken under the L. C. C. Act. So, where a railway company gave notice of their intention to take a mill-goit and weir, which occasionally supplied the motive power for the machinery, they were compelled to take the whole manufactory, though they proposed to carry the railway over bridges which would not interfere with the water supply (l).
What is a "manufactory" within the Act.
(c) Fergusson v. L. B. & 8. C. R. Co., (1863) 3 D. J. & S. 653; 33 L. J. Ch. 29; cf. Kerford y. Seacombe, etc. R. Co., (1888) 57 L. J. Ch. 270; 58 L. T. 445.
(d) Steele v. M. R. Co., (1866) 1 Oh. 275. Cf. Re Willis, 1911, 2 Ch. 563, 569.
(e) Harvie v. S. D. R. Co., (1875) 23 W. R. 202.
(f) Allhusen v. Ealing, etc. R. Co., (1896) 78 L. T. 396; 46 W. R. 483.
(g) Morton v. L. C. & D. R. Co., (1868) 6 Eq. 101; 37 L. J. Ch. 483; and see Grierson v. Cheshire Lines Committee, (1874) 19 Eq. 83; 44 L. J. Ch. 35; Wright v. Wallasey Local Board, (1887) 18 Q. B. D. p. 785.
Under the L. C. C. Act, a company may give a second notice to the same landowner in respect of land within the limits to which their compulsory powers extend, if, from unforeseen circumstances, the land taken under the first notice prove insufficient for the authorised purposes of the undertaking (m). Moreover, the compulsory power is not exhausted by a single notice to treat, even as regards the land to which the original notice extended. Hence, if on the receipt of a counter-notice the company validly withdraws its original notice, the company is in the same position as if no notice to treat had been given, and may give any, number of notices during the continuance of their compulsory powers, whether in respect of the whole land comprised in the first notice or not. But their validity is conditional on the valid withdrawal of all previous notices; hence the company is entitled and bound to proceed on the last notice not validly withdrawn (n). The company may not make use of their compulsory powers to attain a subsidiary object, not authorised for the purposes of their undertaking (o), and an attempt to do so will be restrained by injunction (p). Where a landowner is entitled by notice to require the company to purchase his interest in lands affected by the undertaking, the service of such notice constitutes the relation of vendor and purchaser (q); but it seems that a mere notice by a company, not followed up by entry or other proceedings, within the period limited for compulsory purchase, does not constitute such a contract as Equity will specifically enforce (n). In such a case the proper course for the landowner is by mandamus to compel the company to proceed with the other steps directed by their Act.