tion of each, and a railway company propose to take a strip o land from the gardens attached to two of the houses upon the side most remote from the houses, and the owner elected to have the company take the houses, which they declined to do, but took the land; the company were held liable to purchase the whole of the two houses, the gardens being part of the houses to which they were attached, and that they were also liable to make compensation for any injury sustained in respect of the other house.6

5. It has also been determined, that the railway, after giving notice to purchase part of a house, &c., and being required by the owner to take the whole, cannot be compelled by mandamus to take the whole, as the act of parliament imposes no such obligation. The statute is intended to protect the owner from being compelled to sell a part, but does not compel a company, wanting a part only, to take the whole, if they chose to waive their claim altogether, and the mandamus having claimed the whole, could not go for a part only.7

6. The plaintiff was an owner in fee of a house on one side of

* Cole v. Crystal Palace Railw., 5 Jur. N. S. 1114; s. c. 27 Beav. 242. The term "house" in the statute includes all that would pass by the same word in an ordinary conveyance. Hewson v. London & S. W. Railw. Co., 8 W. R. 467; Ferguson v. Brighton & S. C. Railw., 9 L. T. N. S. 134; s. c. 30 Beav. 100. It will therefore embrace all of a series of gardens connected by a gravel walk passing through the walls of the different gardens. Ib. See King v. Wycombe Railw., 6 Jur. N. S. 239; s. c. 28 Beav. 104. A hospital may compel a railway company to take the whole of the hospital if they insist upon taking one wing used for the same purposes as the rest of the building, although connected only by a wall. St. Thomas Hospital v. Charing-Cross Railw. Co., 7 Jur. N. S. 256. Houses in the course of construction come within the statute. Alexander v. Crystal Palace Railw., 8 Jur. N. S. 833; s. c. 30 Beav. 556. See also Chambers v. London, Chatham, & Dover Railw., 8 L. Times, N. S. 235. Land used for purposes of pastime, as archery and dancing, but chiefly as a pasture for cows, although important to the enjoyment of the house, is not so a part of the same premises as to require the company to take it with the house or the house with that. Pulling v. London, Chatham, & Dover Railw. Co., 10 Jur. N. S. 665; s. c. 33 Beav. 644.

Queen v. The London & S. W. Railw. Co., 5 Railw. C. 669. The remark of Lord Denman, in closing his opinion in this case, is applicable to similar cases everywhere. "We have to lament the waste of time that has occurred, from the obscurity thrown about the case by the superfluous matter foisted into the record."

a high road, where he had resided for a great number of years. Some years ago he purchased six acres of land on the other side of the road, upon part of which there were built three houses. Two of the houses were let to tenants, the third house was occupied by the plaintiff's groom, and other servants, the rest of the land which lay beyond the houses was used by the plaintiff for pasturing his cows, horses, &c. The plaintiff alleged that the six acres were indispensable to the enjoyment of the houses by him. A railway wanting part of the six acres which lay about 250 yards from the plaintiff's house, the plaintiff sought to compel the company to take the house also, on the ground that the land formed part of his house, within the 92d section of the Act. But the motion for injunction having been denied by the Vice-Chancellor, Wood, his judgment was affirmed in the Court of Chancery Appeal, Lord Justice Knight Bruce dubitante.s

8

* SECTION II.

The Company compellable to take intersected Lands, and the Owner to sell.

1. When less than half an acre remains on | 2. Owner must sell where land of less value either side, company must buy. than railroad crossing.

3, 4. Word "town" how construed.

§ 87. 1. By the 93d section of the English statute the company is compellable to take lands, not in a town, or built upon, which are so intersected by the works as to leave either on one or both sides a less quantity of land than half a statute

acre.

2. And by section 94, if the quantity of land left on either side of the works 1 is of less value than a railway crossing, and the owner have not other lands adjoining, and require the promo

• Steele v. Midland Railw., 12 Jur. N. S. 218.

1 8 and 9 Vict. ch. 18, § 93 and 94; Falls v. Belfast & B. Railw., 11 Irish L. R. 184. This statute does not apply to lands in a town or built upon. Marriage The Eastern Co's. R. and the London & B. Railw., 30 Law Times, 264; s. c. 9 Ho. Lds. 32, where the judgment of the Excheq. Ch. 2 H. & N. 649 is reversed, and the statute held to apply to all intersected lands, whether in a town or not.

ters to make the crossing, the owner may he compelled to sell the land.

3. It was held, that the term "town," in a turnpike act, imported a "collection of houses," and that the extent of the town was to be determined by the popular sense of the term, and to include all that might fairly be said to dwell together.2

4. And in another case, it is said, that the term includes all the houses, which are continuous, and that this includes all open spaces occupied, as mere accessories to such houses.3

SECTION III.

Effect of Notice to Treat for the purchase of Land.

1. Important question under statute of limita- | 5. Subsequent purchasers affected by notice

tions.

2. Company compelled to summon jury.

3. Ejectment not maintainable against com

pany.

4. Powers to purchase or enter, how saved.

§ 88. 1. Inasmuch as the time for taking land, by the English statute, is limited to three years, an important question has arisen there, in regard to the effect of instituting proceedings, by giving notice to treat, within the time limited, although not in season to have the matter brought to a close before its expiration.

2. This having been done, and the land-owner having intimated his desire that a jury should be summoned, but the company taking no further steps, the question was whether a writ of mandamus would lie, after the prescribed period had elapsed, to compel the company to proceed to summon a jury. It was determined in the affirmative.1

*

Reg. v. Cottle, 3 Eng. L. & Eq. 474; s. c. 16 Q. B. 412.

* Elliott v. South Devon Railw., 2 Exch. 725.

1 The Queen v. Birmingham & Oxford Junction Railw., 6 Railw. C. 628; Birmingham & Oxford Junc. Railw. Co. v. Regina, 4 Eng. L. & Eq. 276, where the judgment of the Q. B. was fully affirmed in the Exchequer Chamber. The "The notice to treat is an inchoate purchase, and after that has been

court say,

3. So, too, where the company have taken possession of land, by depositing the value of the land in the Bank of England, and executing a bond to the party to secure payment, subject to future proceedings, as they may do, and where the company took no further steps to ascertain the sum to be paid by them, as compensation, until the time limited for exercising their compulsory powers had expired, it was held, that having rightfully entered upon the land before the expiration of the prescribed period, an ejectment could not be maintained against them after that period. The proper remedy for the land-owner is by writ of mandamus.2

4. So, too, if they have made the deposit, and given a bond for the payment of the price, under this same section,3 a day begiven, in due time, it is competent for the land-owner to compel the completion of the purchase." But where an annuitant, having power to enter upon land and distrain for his security, was served with notice by a railway company of their intention to purchase, and the company subsequently purchased the property of a prior mortgagee, who had a power of sale, it was held the annuitant could not, in equity, compel the company to pay the owners of the annuity, he alleging no fraud or other improper conduct on the part of the company. v. Great N. R., 27 Eng. L. & Eq. 198, reversing the decision of one of the vicechancellors in s. c. 23 Eng. L. & Eq. 565. See also Met. Railw. Co. v. Woodhouse, 11 Jur. N. S. 296. If the land-owner lie by an unreasonable time, he cannot maintain mandamus, or where the company abandon their notice to take part of land upon the owner serving notice to take the whole. Quicke ex parte, 13 W. R. 924.

Hill

2 Doe d. Armistead v. The N. Staffordshire Railw., 4 Eng. L. & Eq. 216. The expression "deviation," which appears in the acts of parliament and in the English cases, is here determined to import the distance from the line of railway upon the parliamentary plans which are the basis of the charter, and one hundred yards "deviation" is commonly allowed, in the acts. Worsley v. The South Devon Railw. Co., Id. 223. See also Lind v. Isle of Wight Ferry Co., 7 L. T. N. S. 416. The courts will restrain the company within the limits of deviation allowed by the act, even where the plans deposited contain no limitation. Higley v. Lan. & Y. Railw. Co., 4 Gr. 352. The line of deviation controls the right rather than the delineations on the plan. Weld v. So. Western Railw. Co., 32 Beav. 340; Knapp v. L. C. & Dover Railw., 2 H. & C. 212.

* The Marquis of Salisbury v. The Great Northern Railw. Co., 10 Eng. L. & Eq. 344. The position is here distinctly assumed, that after the notice to treat the parties stand in the relation of vendor and purchaser, and the company are not at liberty to recede. All the after proceedings are merely for the purpose of ascertaining the price of the land. Sparrow v. Oxford & Worcester Railw. ·Co., 9 Hare, 436; 12 Eng. L. & Eq. 249.

fore the efflux of the time limited, although they had not entered upon the land, their powers to purchase or enter upon the lands are saved.3

5. And where a railway company gave notice to a tenant at will to take part of the lands, and the company was allowed to take possession and complete their line, and afterwards a person, who had, subsequently to the notice, purchased one ninth of the land, filed a bill merely praying an injunction to restrain the railway company from entering upon, continuing in possession of, or otherwise interfering with the land, the bill was dismissed with costs.4

6. But it seems to be considered that mere notice by a railway company of an intention to take land, may be withdrawn if done before the company have taken possession of the land, or done anything in pursuance of the notice. And this is especially true where the land consists of a house and appurtenances, and the notice only extends to taking a part of the land, and the owner requires the company to take the whole land with all the buildings.

7. It is no objection to a notice to take land for the use of a railway company that it does not declare the use for which it is proposed to be taken; nor will it affect the title of the company that it is taken for a station for the joint use of that and another company, which latter company could not have taken the land for their own use alone.6

* Carnochan v. Norwich & Spalding R. Co., 26 Beav. 169. But a notice to treat, in order to become the inception of title, must be followed up within a reasonable time, or it will be regarded as abandoned. Hedges v. The Metropolitan Railw. Co., 6 Jur. N. S. 1275.

5

King v. The Wycombe Railw. Co., 6 Jur. N. S. 239; s. c. 28 Beav. 104; Gardner v. Charing-Cross Railw. Co., 2 J. & H. 248; s. c. 8 Jur. N. S. 151. Where the company agree verbally to take the whole of a house and land, that is a valid waiver of notice under the statute, and will be enforced in equity. Binney v. Hammersmith & City Railw. Co., 9 Jur. N. S. 773. Tenant coming into possession of land after notice to treat, and before proceedings taken, is entitled to renewal of notice, so as to make him party. Carter v. Great Eastern R. Co., 9 Jur. N. S. 618.

Wood v. Epsom & L. Railw. Co., 8 C. B. N. S. 731.