Title in adjoining owner under of lands "used for building purposes";

(u) Lord Carington v. Wycombe R. Co., sup. ; Hooper v. Bourne, (1877) 3 Q. B. D. 258.

(x) City of Glosgow R. Co. v. Caledonian R. Co., (1871) L. R. 2 Sc. Ap. 100; Horne v. Lymington, (1874) 31 L. T. 167.

(y) G. W. R. Co. v. May, (1874) L. R. 7 H. L. 283 ; 43 L. J. Q. B. 233.

(z) L. & S. W. R. Co. v. Blackmore, (1870) L. R. 4 H. L. 610 ; 39 L. J.

Ch. 713 ; Lord Carington v. Wycombe R. Co., sup. ; Dunhill v. N. E. R. Co., 1896, 1 Ch. 121; 65 L. J. Ch. 178; Macfie v. Callander and Oban R. Co., 1898, A. C. 270 ; 67 L. J. V. C. 58.

(a) Hobbs v. M. R. Co., (1882) 20 Ch. D. 418; 51 L. J. Ch. 320.

(b) Dunhill v. N. E. R. Co., sup.

(c) Macfie v. Callander and Oban R. Co., 1898, A. C. 270 ; 67 L. J. P. C. 58.

Statute of Limitations.

Superfluous land must be land separated by a vertical, not a horizontal, boundary line from the land required for the purposes of the undertaking. Thus, land over a railway tunnel or arch is not superfluous (g), nor is land under a railway constructed on arches (h). But where a person is in possession of such land as a purchaser in good faith from the railway company, a fair sale by him to another will be upheld (i). The right of re-purchase does not, however, arise, where the company, having abandoned its original undertaking, uses the land for some new purpose, for which they have obtained the sanction of the Legislature (k) ; nor where the enterprise is entirely abandoned (/); in which case, under s. 218 of 6 Will. 4, c. 75, the abandoned railway, at the end of three years from the date of the abandonment, passes to the owners for the time being of the adjoining land on either side. Where the company used a narrow strip, part of land purchased from A. for the purpose of providing B. with a means of access to his severed lands, it was held that this was an accommodation work within the meaning of the Act, and that A. had no right of re-purchase as regards the narrow strip (m). It would seem that even though lands become superfluous, the mines and minerals under them do not, and that the company can deal with them independently of the provisions of these sections (n).

Cases where it does not arise.

(d) Norton v. L. § N. W. R. Co.,

(1879) 13 Ch. D. 268.

(e) Bobbett v. 8. E. R. Co., (1882) 9 Q. B. D. 424 ; 51 L. J. Q. B. 161 ; M. R. Co. v. Wright, 1901, 1 Ch. 738; 70 L. J. Ch. 411.

(/) Bonner v. G. W.R.Co., (1883) 24 Ch. D. 1 ; Bayley v. G. W. R. Co., (1884) 26 Ch. D. 434 ; Fosters. L. C. & D. R. Co., 1895, 1 Q. B. 711; 64 L. J. Q. B. 65.

(g) Re Metr. Dist. R. Co. and Cosh,

(1880) 13 Ch. D. 607 ; 49 L. J. Ch. 277 ; M. R. Co. v. Wright, sup.; and see Ware v. L. B. & S. C. R. Co., (1883) 31 W. R. 228.

(h) Mulliner v. M. R. Co., (1879) 11 Ch. D. 611; 48 L. J. Ch. 258; ef. Foster v. L. C. & D. R. Co., sup.

(0 Rosenberg v. Cook, (1881) 8 Q. B. D. 162 ; 51 L. J. Q. B. 170 ; and see Best v. Hamand, (1879) 12 Ch. D. 1 ; 48 L. J. Ch. 503.

(k) Astley v. M. S. & L. R. Co., (1858) 2 D. & J. 453; 27 L. J. Ch. 478.

(/) Smith v. S., (1868) L. R. 3 Ex. 282 ; 38 L. J. Ex. 37 ; Re Duffy's Est., (1897) 1 Ir. R. 307 ; and see as to abandoned lines, Abandonment of Railways Act, 1850, s. 27; and the Abandonment of Railways Act, 1869; Re Potteries R. Co., (1883) 25 Ch. D. 251 ; 53 L. J. Ch. 556 ; Re Ruthin R. Act, (1886) 32 Ch. D. 438; 56 L. J. Ch. 30.

The word "town" in s. 128 has been held to mean, the space on which the dwelling-houses are collected so near each other that they may he said to be continuous; so also, an open space, occupied as a mere accessory to the convenience of a dwelling-house, would seem to come within the term (o); but lands situate within the limits of a borough, but beyond the mass of houses forming the town, have been held not to be within the section (p).

Meaning of the word "town" in s. 128;

Lands actually laid out for building purposes, or, it would seem, let on building leases, are lands "used for building purposes" within s. 128; but land which is merely fit to be used for such purposes, even though it may be unsuited to any other purpose, is not within the term (q).

A lessee whose land was separated from the superfluous of "adjoining owners."

(m) Lord Bccmchamp v. G. W. R. Co., (1868) 3 Ch. 745 ; 38 L. J. Ch. 162.

(n) Hooper v. Bourne, (1877) 3 Q. B. D. at pp. 278, 284 ; (1880) 5 A. C. 12. It should be remembered that the purchaser of superfluous lands from a railway company acquires no greater right of support than the company itself had ; Pountney v. Clayton, (1883) 11 Q. B. D. 820; 52 L. J. Q. B. 566.

(o) Elliot v. South Devon R. Co., (1848) 5 It. C. 500; 17 L. J. Ex. 262 ; R. v. Cottle, (1851) 16 Q. B. 412 ; see Exp. Incumbent of Brompton, land by a private road, of which during his tenancy he had the exclusive right of user, has been held to be an immediately adjoining owner within s. 128 (r). Where there are several owners whose properties immediately adjoin the superfluous land, it is, under s. 127, divisible among them rateably, in proportion to the frontage of each property; that is, "the length of the line of contact of each property, if such line was made straight from the point of intersection of the boundaries on one side, to the point of intersection of the two boundaries on the other side" (s). The adjoining owner is prima facie the person to whom the soil belongs: e.g., the lord of the manor as opposed to the persons entitled to a right of herbage (t). And in connection with the expression, "adjoining owner," there is a plain and obvious distinction between the person in whom, under s. 127, the superfluous lands are, in default of sale, to vest, and the persons to whom the option of purchase is to be given under s. 128(u).

(1852) 5 De G. & S. 626.

(p) Lord Carington v. Wycombe R. Co., (1868) 3 Ch. 377; 37 L. J. Ch. 213. See, too, Coventry v. L. B. & S. C. R. Co., (1867) 5 Eq. 104; 37 L. J. Ch. 90, where land in a suburban district was held not to be in a "town." See, too, L. § S. W. R. Co. v. Black-more, (1870) L. R. 4 H. L. 610 ; 39 L. J. Ch. 713, where land at Ted-dington, close by the railway station, was held not to be in a "town." The exception is omitted from some of the private Acts.

(q) Country v. L. B. § S. C. R. Co., sup. ; L. § S. W. R. Co. v. Blackmore, sup.

The right of pre-emption above noticed would seem not to affect a contract entered into with a third party for the sale of superfluous land, if the offer to the parties entitled to preemption is made and rejected before the conveyance is executed (x).