*SECTION IV.

Requisites of the Notice to Treat.

1. Notice to treat must, in terms or by refer- |3. New notices given for additional lands. ence, accurately describe land.

2. After notice to treat company compellable to purchase. Company cannot retract after giving notice to treat.

4. Power to take land not lost by former un

warranted attempt.

5. Lands may be taken for branch railway. 6. Effect of notice in case of a public park.

§ 89. 1. As by the English statute the notice to treat is made the act of purchase, it is of the first importance that it should describe the lands accurately. But even where the notice was indefinite, if it be accompanied with a plan which shows the very land proposed to be taken, it will be sufficient; 1 or reference may be made to the parliamentary plan. The company can only claim to use what their notice and the annexed plan shows clearly was submitted to the appraisers to value.2

1

2. It was held long ago in the English courts, under similar statutes for taking land by compulsion, that the notice to treat constituted the act of purchase, and that after giving it there remained no longer to the company any power to retract, and they will be compelled by mandamus to complete the purchase.3

3. And where the company had given notice to take twenty perches of land, they cannot subsequently give notice to restrict the land to one perch. But the company, having issued one notice, may issue a second, requiring additional lands.5 They

1 Sims v. The Commercial Railw., 1 Railw. C. 431; Hodges on Railways, 197. Kemp v. The London & Br. Railw. Co., 1 Railw. C. 495.

3 The King v. Hungerford Market Co., 4 B. & Ad. 327; Same v. Commissioners of Manchester, Id. 332, n.; Doo v. The London & Cr. Railw., 1 Railw. C. 257; Burkinshaw v. Birm. & Ox. Junc. Railw. Co., 5 Exch. 475; s. c. 4 Eng. L. & Eq. 489; Ed. & Dundee Railw. Co. v. Leven, 1 Macq. House of Lords Cases, 284; Stone v. The Commercial Railw. Co., 1 Railw. C. 375. When variance from notice will not vitiate precept, see Walker v. The London & Bl. Railw. Co., 3 Ad. & Ellis (N. s.), Q. B. 744; Reg. v. York & North Midland R. Co., 1 El. & Bl. 178–858; Reg. v. Ambergate & C. R. Co., Id. 372. See ante, § 88, and

notes.

* Tawney v. Lynn & Ely Railw. Co., 4 Railw. C. 615.

251.

Stamps v. Bir. Wolv. & Stour Valley Railw., 6 Railw. C. 123; s. c. 7 Hare,

are at liberty, by new notices from time to time, to take such additional lands as the progress of the work shows will be requisite.

4. Nor will the company be deprived of the power to take land for the necessary use of the works, when the emergency arises, by having previously attempted to take it for other purposes not warranted by their act.6

*5. And the company, having opened their main line for travel, but not completed the stations and works, are at liberty to take any lands within the limits of deviation for a branch railway.7

6. But it was held, that where the Commissioners of Woods and Forests gave notice of taking lands for a public park, as they were acting in a public capacity, the notice given by them did not constitute a quasi contract, enforcible by mandamus.s

SECTION V. ·

The Notice may be Waived, by the Party entering into Negotiation.

1. Notice must be set forth in proceedings. 2. Agreement to waive operates as estoppel.

3. Certiorari denied where party has suffered no injury.

§ 90. 1. It is a general rule, in regard to all summary and inferior jurisdictions, that the basis of their jurisdiction must appear upon the face of the proceedings.1 Hence in proceedings. to take land in invitum, under a notice to treat, the notice being regarded as essential to the jurisdiction, it has more generally been held indispensable to the jurisdiction that it should be set forth upon the proceedings.1

2. But where the land-owner enters into negotiation with the

• Webb v. Manchester & Leeds Railw., 1 Railw. C. 576; Simpson v. Lancaster & Carlisle Railw., 4 Railw. C. 625; Williams v. South Wales Railw. Co., 13 Jur. 443; s. c. 3 De G. & S. 354.

7 Sadd v. The Maldon, W. & Braintree Railw. Co., 2 Eng. L. & Eq. 410.

8 Queen v. The Comm. of Woods & Forests (Ex parte Budge), 15 Ad. & Ellis (N. s.), 761.

1 Rex v. Bagshaw, 7 T. R. 363; Rex v. Mayor of Liverpool, 4 Burrow, 2244; Rex v. Trustees of the Norwich Roads, 5 Ad. & Ellis, 563.

company, and agrees to waive the notice, he is afterwards estopped from taking the objection, that he never received notice." And it was held, that the party whose duty it was to give the notice, and who was shown by the returns to have appeared before the jury, cannot object to the inquisition upon the ground that it did not disclose a proper notice to treat.3

3. In another case, where application was made to the King's Bench to issue a certiorari, to bring up and quash an inquisition for land damages in a railway case, on the ground of some alleged defect, the court say, the granting the writ is matter of discretion, though there are fatal defects on the face of the proceedings which it is sought to bring up; and that it is almost an invariable rule to deny the writ, where it appears the party has suffered no injury or has assented to the proceedings below.a

SECTION VI.

Title of the Claimant must be distinctly stated.

1. Claimant's reply to notice should be clear 3. Where lands are held by receiver or com

and accurate.

2. Award bad, which does not state claimant's

interest.

mission for a lunatic. Expression “feesimple in possession.”

n. 3. Analogous American cases.

§ 91. 1. In reply to a notice to treat, the claimant may state the particulars of his claim and proceed to treat. In this case the statement should give a clear description of the claimant's interest in the land, as a defect here is liable to affect the validity of the after proceedings.

2. In one case where the claimant's answer to the notice to treat stated that, as trustees under a will, they claimed an estate in copyhold, and a certain sum as compensation for their interest in the lands, and appointed an arbitrator, and the other party appointing one, and an umpire being agreed upon, he awarded a certain sum as the value to be paid to the trustees, "for the purchase of the fee-simple, in possession, free from all incum

2

3

Reg. v. The Committee for the South Holland Drainage, 8 Ad. & Ellis, 429. Reg. v. The Trustees of Swansea Harbor, 8 Ad. & Ellis, 439.

4 Reg. v. The Manchester & Leeds Railw. Co., 8 Ad. & Ellis, 413.

brances"; the company applying to set aside the award, upon the ground that other persons claimed an interest in the lands, the court held the award bad, for not finding the interest of the claimants in the land, or that they had a fee-simple which it appraised. But the court did not set the award aside, but left the company to dispute it, when it should be attempted to be enforced.1

3. If the lands are in possession of a receiver, or the committee of a lunatic, a special application should be made to the Court of Chancery.2 The claimant cannot object that the award describes the land as a fee-simple in possession, whereas, the land is in possession of a tenant. Lord Denman, Ch. J., in giving judgment says, "The answer is that such assumption, if really made, is in favor of the claimant, and therefore no matter of complaint for him. But it does not appear clearly that any such assumption *was made. The expression fee-simple in possession,' in the claim, is used in contradistinction to fee-simple in reversion or remainder." 3

1 The North Staffordshire Railw. Co. v. Landor, 2 Exch. 235.

In re Taylor and York N. Midland Railw., 6 Railw. Cas. 741. In this case the Lord Chancellor said, "All the world ought to be aware, that the sanction of the Lord Chancellor is necessary to be obtained in the first instance, in cases like the present."

* Bradshaw and the East & W. I. Docks and Birmingham J. Railw. Co., 12 Ad. & Ellis (N. s.), 562. The vendor of land to a railway company does not waive his lien for damages by accepting a certificate of deposit made by the cashier of the company for the purchase-money, the money not being paid when called for. Mims v. Macon & W. Railw. Co., 3 Kelly, 333. Where a company received a grant of certain salt mines, subject to a condition which they did not comply with, but retained the lands for a different purpose, and afterwards, when the period for performing the condition had expired, a general grant of all unoccupied salt lands in the state, necessary to use, for constructing a railway, was made to a railway company, who proceeded and occupied the lands above-named, it was held that the first grantors had no interest or title enabling them to maintain an action for damages. "They had the lands set apart to their use, for making salt, and had no right to enter upon and occupy them for any other purpose," are the words of the court. Parmelee v. Oswego. & Syracuse R. R. Co., 7 Barb. 599.

The statute of Pennsylvania gives the right to construct lateral railways over intervening lands, to the owner of lands, mills, quarries, coal, or other mines, lime-kilns, or other real estate, in the vicinity of any railway, canal, or slackwater navigation. It was held, that one who was in possession of the land, on

* SECTION VII.

The Claim of the Land-owner must correspond with the Notice.

§ 92. In one case the claim of the land-owner described more land than the notice to treat, being intersected land, less than one half acre, which the company are bound to take if so required. But the claim did not properly designate the portion. which, it was claimed, the company should take under their notice, and that which they were required to take, as intersected land. The umpire received evidence as to the value of the intersected land, and awarded one entire sum as compensation for the whole. Held that the award was bad, there being no valid submission as to intersected lands.1

which a coal-mine was, at the commencement of the proceeding to recover land damages, and who had erected a two-story dwelling-house upon the land, was an owner of the coal-mine, within the act. Shoenberger v. Mulhollan, 8 Penn. St. 134. It is sufficient in such case that the petition be signed by the lessee and agent of the owner. Harvey v. Lloyd, 3 Penn. St. 331.

It is considered necessary that the mortgagee of land should become a party to the proceedings for condemning or granting land to a railway, in order to give good title to the company. Stewart v. Raymond Railw., 7 S. & Mar. 568. Or that he should give his consent, in writing, in the case, to the proceeding taken by the mortgagor. Meacham v. Fitchburg Railw., 4 Cush. 291; s. c. 1 Am. Railw. Cas. 584. But the mortgagor may recover the full amount of damage, without regard to mortgages. Breed v. Eastern Railw., 5 Gray, 470.

Where the state held land for a state prison, and granted the charter of a railway, in the usual form, authorizing the company to locate their road, so that it might pass over the land of the state, so held, but without any expression in the act of a design to aid the company in their undertaking, it was held the state might recover damages for the land taken. The court say, "The inquiry relates solely to the property of the Commonwealth, which it holds in fee in its capacity as a body politic. It appears to us the question is purely one of intention." “We think if the legislature had intended to aid the enterprise by an appropriation of money, land, or other means, such aid being unusual, the purpose to do so would have been in some way expressed." Commonwealth v. Boston & Maine Railw., 3 Cush. 25; s. c. 1 Am. Railw. Cas. 482, 496, 497. The N. Staffordshire R. Co. v. Wood, 2 Excheq. 244.

* 675