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pay the amount claimed, the same shall be settled by arbitration, in the manner pointed out in the statute; or, if the party desire to have the same settled by a jury, he shall so state in his notice of claim, and unless the company agree to pay the sum claimed, in the manner stated above, they shall within twenty-one days issue their warrant to the sheriff to summon a jury to settle the same, in the manner pointed out in the act, and in default thereof they shall be liable to pay the amount claimed, to be recovered in the superior courts.1

SECTION IV.

The Onus of carrying forward Proceedings.

1. Rests upon claimant after company have | 3. Proceedings cannot be had unless actual taken possession. possession is taken or injury done.

2. Miscellaneous provisions.

§ 96. 1. It has been held, under the English statutes, that after the company have taken possession of land, either by right or by wrong, the onus of taking the initiative steps to have the purchase-money or compensation assessed, lies upon the claimant. It was *considered in this case, that the remedy under the 68th section2 applied to all cases where the company took possession of the land under the 85th section.3

2. But if questions in equity are pending, they must be disposed of before the common-law remedy can be pursued. This was a case where the determination of the matters pending in equity was necessary to enable the parties to know what was to be submitted to the assessors. In proceedings under the 68th

1 8 & 9 Vict. ch. 18, § 68.

1 Adams v. The London & Blackwall Railw. Co., 6 Railw. C. 271, 282. The opinion of the Lord Ch. on appeal. It was also considered, in this case, that if the company failed to perform their duties in the proceedings, the more appropriate remedy was by mandamus, and not by application to the courts of equity for decree of specific performance.

2 See ante, § 95.

3 See ante, §§ 93, 94. Doe d. Armistead v. North Staffordshire Railw. Co., 4 Eng. L. & Eq. 216.

* Southwestern Railw. Co. v. Coward, 5 Railw. C. 703.

section, it is not necessary for the company to give the claimant notice of their issuing a warrant to the sheriff to summon a jury, ten days before they issue it, as is required in proceedings under the other sections.5 It was held, that if the claimant recover a larger sum than was offered by the company, he is entitled to recover costs under section 68, as well as under other sections.5

3. It is considered that the land must be actually taken, or actually injuriously affected by the company, before the claimant can take proceedings under section 68. Hence if the company give notice of their intention to take lands, but do not afterwards actually take possession or injuriously affect them, the claimant can only proceed by mandamus. It has been decided that the claimant in such case cannot make a demand of a certain sum, and then recover it, if the company do not issue their warrant to the sheriff. 6

*SECTION V.

Equity will not interfere, by Injunction, because Lands are being Injuriously Affected, without notice to treat, or previous com pensation.

1. Claimant must wait until works are com- 3. How far equity interferes where legal pleted. claim of party is denied. 2. Even if appearance of land will be great- 4. Where a special mode of compensation ly altered. has been agreed upon.

§ 97. 1. It is said courts of equity will not interfere by injunction, because lands are being injuriously affected by the company's works, and no notice to treat or previous compensation has been made, if it appears the company are only exercising their statutory powers. The claimant should allow the

5 Railstone v. The York, Newcastle, & B. Railw. Co., 15. Ad. & Ellis (N. s.), 404. This case is somewhat questioned in Richardson v. Southeastern Railw., 6 Eng. L. & Eq. 426. But in this same case, in error, in the Exchequer Chamber, 9 Eng. L. & Eq. 464, the question as to costs is affirmed, and the court say, it is not necessary to say whether they consider the case of Railstone v. The York, N. & B. Railw. Co. sound or not, as it does not necessarily affect the question before the court.

• Burkinshaw v. Bir. & Oxford J. Railw. Co., 5 Excheq. 475.

works to be completed, and then take his remedy under the statute.1

2. It was objected, in one case, that the company would be likely to greatly alter the appearance of the land which they had entered upon, and that a jury could not understandingly assess. the value after the damages were sustained, but the court said it was no ground for the interference of a court of equity.2

3. The courts in England hold, that in this class of claims it is proper to wait till the full extent of the injury is known.3 And equity will not enjoin the party from proceeding under the statute, in a case where it is alleged that he has no legal claim under the statute, as in such case the company may defend against the award, and this seems to be the course finally determined. But some actions at law have been brought and sustained to try the right, by order of the courts of equity.5

4

4. So, too, where the bill alleges that the party has upon consideration agreed to receive compensation in a particular mode, equity will enjoin him from taking proceedings under the statute.6

1 8 & 9 Vict. ch. 18, § 68.

Laugham v. Great Northern Railw., 5 Railw. C. 263. The counsel for defendant not called to answer this portion of plaintiff's argument.

• Hutton v. The London & Southw. Railw. Co., 7 Hare, 259.

East & West India Docks & Bir. J. Railw. Co. v. Gattke, 3 Eng. L. & Eq. 59; South Staffordshire Railw. Co. v. Hall, Id. 105. In this last case, the opinion of Lord Cranworth seems to overrule that of Lord Cottenham in The London & N. W. Railw. Co. v. Smith, 5 Railw. C. 716. The Sutton Harbor Improvement Co. v. Hitchins, 9 Eng. L. & Eq. 41; The London & N. W. See also Monchet v. G. W. Railw. Railw. Co. v. Bradley, 6 Railw. C. 551. But see the case of L. & Y. Railw. v. Evans, 19 Eng. L. case of L. & N. W. Railw. v. Smith is still further ques

Co., 1 Railw. C. 567. & Eq. 295, where the tioned.

• Glover v. The North Staffordshire Railw. Co., 5 Eng. L. & Eq. 335. • Duke of Norfolk v. Tennant, 10 Eng. L. & Eq. 237.

*SECTION VI.

Sheriff's Jury, or Arbitrator, cannot determine the Question of Right in the Claimant, but only the amount of Damages.

1. Later English decisions sustain this view. |5. Plaintiff will recover damages assessed 2, 3. Statement of recent case. if he suffered any legal injury.

4. In most American states assessment is final.

§ 98. 1. There has been some contrariety of opinion among the English judges in regard to the right of the company, before the sheriff's jury, to raise the question of the claimant's right to recover any compensation, under the sixty-eighth section, where lands are taken or alleged to be injuriously affected by the works of the company; and whether the jury can go into any inquiry beyond that of the value of the claimant's interest in the land. The latest decisions upon this point hold, that the jury is confined to the question of the amount of compensation.1

2. In the very latest English case upon this subject,2 the judges of the Court of Queen's Bench differed in opinion, and delivered opinions seriatim. Coleridge, J., and Lord Campbell, Ch. J., and Wightman, J., holding, that the jury had nothing before them but the quantum of damages, and that whether the company declined to issue their warrant to the sheriff, or did issue it in both cases, the right to recover any damage on account of a claim for the injuriously affecting of land, was to be tried upon the action, to recover the amount assessed, in the courts. The proceedings under the statute were held, by the majority of the court, to be merely for the purpose of fixing the amount of the claim. If, indeed, the company stood still upon the question of right, they were liable, in the event of the claimant's recovery, for the full amount of the claim made; but if they proceeded to a hearing before the arbitrator or a jury, whichever course the claimant should elect, they might not only contest the amount there, but the right of any recovery in the action which the claimant was compelled to bring, to obtain ex

1

1 Regina v. Metropolitan Comm. of Sewers, 18 Eng. L. & Eq. 213.

2

Regina v. The London & Northwestern Railw. Co., 25 Eng. L. & Eq. 37.

ecution against the company, but that it was improper to go into any inquiry before the arbitrator or the jury, in regard to the right to recover anything, inasmuch as this tended improperly to embarrass the mind of the triers in regard to the damages. And in this case, where the jury went into the question of right, and determined the claimant had no right, but added, if he had such right his claim should be valued at £150, the majority of the court determined that the former part of the verdict could not be rejected, and let the verdict stand as a good finding of the sum named, which last point seems rather too refined for common apprehension, even after reading attentively the elaborate opinion of the majority of the court by Coleridge, J.

3. Mr. Justice Erle dissented from the principal decision of the court, and held the verdict good in all respects. But this case must be regarded as settling the question of the right of the jury to pass upon the claim beyond its mere amount, at least under the English statutes.

4. In most of the American states the assessment of land damages, by whatever tribunal, becomes final, unless appealed from, and execution issues without resort to a future action, or, if an action is necessary upon awards of arbitrators, this will not justify a re-examination of the case, either upon the question of title, or amount of damages. But in some of the states, the proceedings are similar to those above named in the English courts.3

5. And under the English statutes, where the claim is for injuriously affecting land, the plaintiff must recover the entire amount of damages assessed to him for land taken by a railway, unless the defendant's pleas show that he had no right to recover1 to any extent.

3 Ante, § 72.

4 Mortimer v. South Wales Railw. Co., 5 Jur. N. S. 784; s. c. 1 Ellis & Ellis, 375.

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