*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.

2, 3. Statement of recent case.

4. In most American states assessment is final.

5. Plaintiff will recover damages assessed if he suffered any legal injury.

§ 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, 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,

1

Regina v. Metropolitan Comm. of Sewers, 1 El. & Bl. 694; s. c. 18 Eng. L. & Eq. 213.

2 Regina v. The London & Northwestern Railw. Co., 3 El. & Bl. 443; s. c. 25 Eng. L. & Eq. 37. And the same rule is extended to the finding of arbitrators that premises were injuriously affected by the narrowing of a way of approach, by means of the company's embankment; the award is not conclusive upon the point of the injurious effect. Beckett v. Midland Railw. L. R. 1 C. P. 241.

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 * execution 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 any thing, 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 recover to any extent.

3 Ante, § 72.

• Mortimer v. South Wales Railw. Co., 5 Jur. N. S. 784; s. c. 1 Ellis & Ellis, * 374

375.

*SECTION VII.

The extent of Compensation to Land-owners, and other Incidents by the English Statutes.

1. Liberal compensation allowed.

2. Decisions under English statutes.

3. Limit of period for estimating dam

ages.

4. Whether claim for damages passes to the devisee or executor.

5. Vendor generally entitled to damages accruing during his time.

§ 99. 1. In one of the early cases 1 upon this subject, Lord Denman, Ch. J. said, we think it not unfit to premise, "that where such large powers are intrusted to a company to carry their works through so great an extent of country, without the consent of the owners and occupiers of land through which they are to pass, it is reasonable and just that any injury to property, which can be shown to arise from the prosecution of those works, should be fairly compensated to the party sustaining it." But this must be received under some limitations. For it is supposable, that possible remote injuries may accrue to property, of a general and public character, which it was never intended to compensate.

2. Some points arising under the English statute may be here referred to. It was held, that where the powers conferred upon a canal company were unlimited as to time, no limitation as to their exercise could be assigned, so as to require their exercise within a reasonable time,2 and, consequently that the works might be resumed at any period.2 Future damages to accrue to land-owners cannot be estimated properly 3 until after the completion of the works. The compensation when given, fixes the rights of the parties, upon the basis of its estimation, as, if the estimation is had upon the footing of an entire severance of the land, the landowner has no right to cross the track. And where this did not Eastern Counties Railw., 2 Ad. & Ellis (Q. B), 347.

3

1 Reg. v.

2 Thicknesse v. The Lancaster Canal Co., 4 M. & W. 472. Lord Abinger, Ch. B. intimates an opinion here, that possibly, after a long delay of the company to proceed with their works, and the erection of fences and buildings, by the land-owners, in faith of the abandonment of the works by the company, a court of equity might restrain the company from completing their enterprise, notwithstanding the grant of power to do so, by parliament; but a court of law could do no such thing. pp. 490, 491.

3 Lee v. Milner, 2 M. & W. 824.

Manning v. The Eastern Counties Railw., 12 M. & W. 237. But unless it

sufficiently appear, by the record of the verdict, that not having been made, held that parol evidence might be given of the finding, and of the grounds upon which it proceeded.1

3. Where consequential damages to existing works, by the erection of new ones, are required to be compensated, the period for estimation is limited to the yearly value of the works, antecedent to the passing of the act.5

4. The devisee is entitled to claim consequential damages and not the executor. But where one contracted to sell freehold estates and died before the money was paid; under the London Bridge Improvement Act, it was held the money should go to the executor. But the cases are not uniform upon this subject, and the usual course seems to be, that the money for consequential damage goes to the party interested in the inheritance, or else is divided according to the interest of the several estates.8 In one case it was held, that the vendee was entitled to compensation, which accrued during the time of the vendor's title, but not liquidated till after the conveyance.9

5. But in general the vendor is entitled to land damages accruing during his time, although not collected, and often where the works are not completed till after the conveyance.10 The presumption is, if the jury assess compensation to one person, that it is only for his interest in the premises.11

appeared by the record upon what basis the assessment was made, it seems questionable, whether, upon general principles, oral evidence is admissible to show that basis. Ante, § 74, n. 7.

5

Manning v. The Commissioner under the W. I. Dock Act, 9 East, 165.

• The King v. The Comm. under London Dock Acts, 12 East, 477.

Ex parte Hawkins, 3 Railw. C. 505, and note. No other party seems to have had a counter interest in this case.

The Midland Counties Railw. Co. v. Oswin, 1 Coll. C. C. 74, 80; s. c. 3 Railw. C. 497; Danforth v. Smith, 23 Vt. 247.

9 King v. Witham Nav. Co., 3 B. & Ald. 454.

10 Rand v. Townshend, 26 Vt. 670.

11 Rex v. Nottingham Old Waterworks, 6 Ad. & Ellis. 355.

*SECTION VIII.

Right to temporary use of Land to enable the Company to make Erections upon other Lands.

1. Right to pass another railway by a bridge

gives temporary use of their land, but no
right to build abutments upon it.

2. Right to construct a bridge across a canal

3.

gives right of building a temporary bridge.

And if thus erected bonâ fide may be used for other purposes.

§ 100. 1. Where one railway act gives the company power to pass another railway, by means of a bridge, provided the width between the abutments of the bridge is not less than twenty-six feet, and at the points where the bridge is to be built, the land of the second company is forty-seven feet wide, the first company have no right to build the abutments of their bridge upon the land of the second company, but having purchased adjoining land for that purpose, they have a right at law to the temporary use of the land of the second company, for the purpose of building, and this right was in effect secured to the first company by an injunction out of chancery.1

2. So, too, where a railway company had permission to carry their road over a canal, by means of a bridge of a given description, it was held that they might, as incident to the right of erecting the bridge, make a temporary bridge over the canal, supported partly on piles driven into the bed of the canal, to enable them to transport earth across the canal to build the necessary embankment, in the construction of the permanent bridge.2

3. And such a temporary bridge having been erected for the bona fide purpose of building the permanent bridge, might also be used for other purposes, for which alone it could not have been erected.8

1 Great North of England, Clarence & Hartlepool Junction Railw. v. The Clarence Railw., 1 Collyer, 507.

* London & Birmingham Railw. v. Grand Junction Canal Co., 1 Railw. Cas. 224.

3 Priestley v. The Manchester & Leeds Railw., 4 Yo. & Col., Ex., 63; s. c. 2 Railw. C. 134.