* CHAPTER XIII.

ENTRY UPON LANDS BEFORE COMPENSATION IS ASSESSED.

SECTION I.

Lands taken or Injuriously Affected, without having previously made Compensation to the Parties.

1. No entry under English statutes without 3. What acts constitute taking possession unprevious compensation, except for pre

liminary survey.

2. Legal remedies against company offend

ing.

der statute.

§ 93. 1. THE eighty-fourth section of the English statute, The Lands Clauses, &c., provides, that no entry shall be made upon any lands by the company until compensation shall have been made under the act, or deposited in the Bank of England, except for the purpose of preliminary surveys, and probing or boring to ascertain the nature of the soil, which may be done by giving notice, not more than fourteen days or less than three days, and making compensation for any damage thereby occasioned to the owners or occupiers of such lands.

2. It has been considered that if the company enter upon lands without complying with the requisitions of the statute, they are liable in trespass or ejectment.1 And in some cases an injunction will be granted. But where the company entered to make preliminary surveys, without giving the requisite notice, the court refused to order the injunction, but reserved the question of costs.2

1

1 Doe d. Hutchinson v. The Manchester, Bury, and Rosendale Railw., 14 M. & W. 687.

2 Fooks v. The Wilts, Somerset, and Weymouth Railw. Co., 5 Hare, 199; s. c. 4 Railw. C. 210. In this case the injunction was denied, chiefly upon the ground that the alleged trespass was complete before the application. The court intimate that if the company should attempt to proceed further it might be proper to restrain them by injunction. The point of the company being in the wrong, is distinctly recognized by the court

3. And where the entry was regularly made upon the land, for *preliminary surveys, and afterwards the contractors, without the knowledge of the corporation, but with the consent of the occupying tenants, brought some of their wagons and rails and other implements upon the land, but did not commence the works or do any damage, and this was without the assent of the owner, and his agent thereupon filed a bill to obtain an injunction against taking possession of the lands until they had complied with the statute, the Vice-Chancellor said, that although the company were bound by the acts of their contractors, the acts done were not a taking possession within the meaning of the statute, and that the bill was improperly filed.3

4. But where the company agreed with the land-owner that the question of compensation should be settled by arbitration, and thereupon entered upon the land, by consent of the owner, and the arbitrator made an award, which became the subject of dispute, and the owner thereupon gave the company notice to quit, and brought ejectment, it was held he could not recover, although the company had not tendered the money awarded, or a conveyance, but that the owner's remedy was to proceed upon the award. The notice to quit under the circumstances did. not make the company trespassers.

5. By the eighty-fifth section, if the company find it necessary to enter upon land, for the purpose of carrying forward their works, before the amount of compensation can be settled, they may deposit in the bank the amount claimed, or in other cases. the appraisal, and also give the party a bond with surety, to be approved by two justices in a penal sum equal to the amount so deposited conditioned for the payment, or deposit of the amount finally fixed as the ultimate value and interest thereon, and then take possession of the land and proceed with their works. The company can obtain their money so soon as the condition of the bond has been complied with. But the vendor must join in the petition for the money to be paid the company, or else it must

Standish v. Mayor of Liverpool, 1 Drewry, 1; s. c. 15 Eng. L. & Eq. 255. • Doe d. Hudson v. The Leeds and Bradford Railw. Co., 6 Eng. L. & Eq. 283. The decision here goes chiefly upon the ground of the consent of the land-owner to the entry of the company, and to refer the compensation to an arbitrator.

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be shown that he has been served with a copy of the petition.5 It does not invalidate the bond, if it bear date before the date of the valuation.6

5 Ex parte South Wales Railw. Co., 6 Railw. C. 151. But in ex parte The Eastern Counties Railw. Co., 5 Railw. C. 210, the money was ordered to be paid to the company upon affidavits showing the claim settled. The land-owner has no lien upon the money deposited for costs, but the company are entitled to the money upon payment of the sum finally settled for the value of the land. The Great Northern Railw. Co. ex parte, 5 Railw. Cases, 269; London & South W. R. ex parte Stevens, 5 Railw. C. 437.

The bond must be given in the very terms of the statute. Hosking v. Phillips, 3 Exch. 168, opinion of Parke, B. And it will make no difference that the obligee is a gainer by the deviation from the statute. Poynder v. G. N. Railw. Co., 5 Railw. C. 196.

But where the company choose to treat for the claimants' title only, it is sufficient if the bond follow the statute, so far as it applies to that particular case. Willey v. Southeastern Railw. Co., 6 Railw. Cas. 100. Opinion of Lord Chancellor, 107, 108. If the company enter by consent of the tenant, and do permanent damage to the land, the owner may nevertheless obtain an injunction and compel them to make a deposit and give a bond as required by the statute. Armstrong v. Waterford & Limerick Railw. Co., 10 Irish Eq. 60. If there is a mortgage upon land, the company must treat with the mortgagee, or provide for the expense of reinvestment for his benefit, or their entry will be regarded as unlawful. Ranken v. East and West India Docks & Bir. J. Railw., 12 Beavan, 298; 19 L. J. Ch. 153.

Under the general statutes, in many of the American states, where there are conflicting claims to the land required by a railway company, the company are required to make application to the Court of Chancery, and deposit the money, in bank, subject to the final order of that court. In such case it has been considered that the company had no interest in the controversy, after depositing the money for the price of the land. Haswell v. Vermont Central Railw., 23 Vt. R. 228.

6

Stamps v. Birmingham, Wolverhampton, & Stour Valley Railw., 6 Railw. C. 123.

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SECTION II.

The proceedings requisite to enable the Company to enter upon

Land.

1. Provisional valuation under English stat- 4. Entry after verdict estimating damages,

utes.

2. Irregularities in proceedings.

3. Penalty for irregular entry upon lands.

but before judgment.

5. Mode of assessing damages provided in charter not superseded by subsequent general railway act.

§ 94. 1. In some cases specified in the English statute, it is necessary to have a provisional valuation of land, by a surveyor appointed by two justices, to determine the amount of the security to be given before the entry of the company upon the land. Where in such cases the justices appointed a surveyor, who had all along acted for the company, to appraise the value, it was held no sufficient reason to interfere, by injunction, but the court reprobated such a practice. The court also declined to interfere, by injunction, on the ground that the sureties on the bond were the company's solicitors, and were upon similar bonds to a large amount.1

1

*2. In the same case it was considered that depositing money and executing a bond to tenants in common, in their joint names, was irregular. It was held that the proceedings under the 85th section of the English act, to obtain possession of the land before the amount of compensation is settled, may be ex parte, and altogether without notice.2

3. The English statute subjects the company to a penalty for entering upon lands before taking the steps required by the

1

Langham v. Great Northern Railw. Co., 5 Railw. C. 265, 266. This case was in favor of five plaintiffs, three tenants in common, and two devisees in trust for the sale of the lands, and it was queried, whether there was not a misjoinder.

2

2 Bridges v. The Wilts, Somerset, and Weymouth Railw. Co., 4 Railw. C. 622. This is a decision of the Lord Chancellor affirming that of the Vice-Chancellor · of England. Poynder v. The Great N. Railw. Co., 5 Railw. C. 196. In this case the bond was held to be informal, for being made to be performed “on demand," the Lord Chancellor refused a perpetual injunction, but allowed it till the bond was corrected.

statute, but provides, that the penalty shall not attach to any company, who have bona fide done what they deemed to be a compliance with the statute.3

4. If one enter upon lands after verdict estimating damages, but before judgment on the verdict, he is liable in trespass, but only for the actual injury, and not for vindictive or exemplary damages.4

5. It has often been made a question in this country, where the charter of a railway provides one mode of assessing land damages, and a subsequent general railway act provides a different mode, which the company are bound to pursue. It has been held the company might still pursue the course pointed out in their charter.5

*SECTION III.

Mode of obtaining Compensation under the Statute, for Lands taken, or injuriously affected, where no Compensation is offered.

1. Claimant may elect arbitration or jury 2. Method of procedure.

trial.

§ 95. 1. Where land is taken by the company, or injuriously affected by their works, and no compensation has been offered by the company, the claimant may, where the amount exceeds fifty pounds, have the same assessed, either by arbitrators or a jury, at his election.

2. If he desire to have the same settled by arbitration, he shall give notice to the company of his claim, stating his interest in the land and the amount he demands, and unless the company within twenty-one days enter into a written agreement to

3 Hutchinson v. The Manchester, Bury, and Rossendale Railw. Co., 15 M. & W. 314. Pollock, Ch. B., thus lays down the rule of construction of this statute: "A penal enactment ought to be strictly construed, but a proviso, which has the effect of saving parties from the consequences of a penal enactment, should be liberally construed."

5 Visscher v. Hudson River Railw., 15 Barbour, 37; Hudson River Railw. v. Outwater, 3 Sand. Sup. Ct. 689; ante, § 72, n. at the end.

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