*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, a day before the efflux of the time limited, although they had not entered upon

inchoate purchase, and after that has been given, 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. Hill v. Great Northern Railw., 5 De G. M. & G. 66; s. c. 27 Eng. L. & Eq. 198, reversing the decision of one of the vice-chancellors 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.

2 Doe d. Armistead v. The N. Staffordshire Railw., 16 Q. B. 526; s. c. 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., 16 Q. B. 539; s. c. 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 De G. M. & 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. London Chatham & Dover Railw., 2 H. & C. 212.

3 The Marquis of Salisbury v. The Great Northern Railw. Co., 17 Q. B. 840; s. c. 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

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 any thing in pursuance of the notice.5 And this is espe

cially 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

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.

4 Carnochan v. Norwich & Spalding Railw., 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., 28 Beav. 109; s. c. 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. And a notice to take land will not enable the company to proceed and complete title after their powers for compulsory purchase have ceased. Richmond v. North London Railw., Law Rep. 5 Eq. 352.

6 Wood v.

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

§ 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.1 The company can only claim to use what their notice and the annexed plan show clearly was submitted to the appraisers to value.2

Nor

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. can the company after requiring the tenant to give up to them the possession of his land before the expiration of his term, afterwards surrender the same, especially where damage has accrued to the premises in consequence of the company taking possession. They must pay money into court.4

1 Sims v. The Commercial Railw., 1 Railw. C. 431; Hodges on Railways, 197. 2 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., 9 Sim. 621; s. c. 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.

4 Pope v. Great Eastern Railw., Law Rep. 3 Eq. 171. Notice to treat is not equivalent to requiring the tenant to surrender the possession. Queen v. Stone, Law Rep. 1 Q. B. 529.

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.5 But the company, having issued one notice, may issue a second, requiring additional lands. They 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.7

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.8

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.9

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

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

6 Stamps v. Bir. Wolv. & Stour Valley Railw., 6 Railw. C. 123; s. c. 7 Hare, 251.

7 Webb v. Manchester & Leeds Railw., 1 Railw. C. 576; Simpson v. Lancaster & Carlisle Railw., 15 Sim. 580; s. c. 4 Railw. C. 625; Williams v. South Wales Railw. Co., 13 Jur. 443; s. c. 3 De G. & S. 354.

Sadd v. The Maldon, W. & Braintree Railw. Co., 6 Exch. 143; s. c. 2 Eng. L. & Eq. 410.

9 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.

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

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2. But where the land-owner enters into negotiation with the company, and agrees to waive the notice, he is afterwards estopped from taking the objection, that he never received notice.2 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.1

SECTION VI.

Title of the Claimant must be distinctly stated.

1. Claimant's reply to notice should be clear and accurate.

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

3. Where lands are held by receiver or commission 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

Reg. v. The Committee for the South Holland Drainage, 8 Ad. & Ellis, 429. 3 Reg. v. The Trustees of Swansea Harbor, 8 Ad. & Ellis, 439. 4 Reg. v. The Manchester & Leeds Railw. Co., 8 Ad. & Ellis, 413.