1866. April 23. SIR CHARLES TAYLOR, Bart., v. THE CHICHESTER AND MIDHURST RAILWAY COMPANY. DECLARATION. For that, by certain articles of By articles of agreement made and entered into the 17th day of February, A. D. 1865, between the defendants of the one part, and the plaintiff of the other part, after reciting that the plaintiff was the owner of or otherwise entitled to an estate situate in the county of Sussex, and that the defendants had given notice of their intention to apply in the then present session of parliament for an Act to enable them to make a railway in the said articles of agreement described and mentioned, and had deposited a bill in parliament for that purpose: and reciting that, inasmuch as the line of the said proposed railway would pass through the said estate of the plaintiff in such a manner as to intersect and seriously damage the same, the plaintiff had intimated to the defend ants his intention to oppose the passing of the said bill into an Act and reciting that the plaintiff had agreed to withhold his said intended opposition upon the terms and conditions thereinafter contained, it was, among other things, agreement between a railway Company and the plaintiff, after reciting that the Company intended to apply to parliament for an Act to make a rail way which would pass through the plaintiff's estate, and that he had agreed to withhold his opposition upon the conditions terms and thereinafter contained, it was agreed: 1. That if the Company the bill passed, would con struct the railway so that it should pass through the plaintiff's estate at certain defined points. 2. That the Company would purchase from the plaintiff, and he would sell to them, at the price of 2000, certain portions of his estate required for the railway. 3. That the Company would, in addition to the said sum of 2000, and within three calendar months after the passing of the bill, pay the plaintiff the further sum of 20007, as and for a personal compensation for the annoyance, inconvenience and disturbance, damage, loss and injury which he had sustained, and might or would sustain, in respect of the sporting and preservation of game upon his estate, by or in consequence of the construction of the railway, and of the parliamentary and other surveys and other works connected therewith and incidental thereto. The bill having passed, to an action by the plaintiff for not paying the compensation, the defendants pleaded: first, that the railway was never constructed, and that they had not required or taken the plaintiff's land. Secondly that the plaintiff did not sustain annoyance, inconvenience, disturbance, damage, &c., in respect of the sporting and preservation of game upon his estate in consequence of the construction of the railway or of the parliamentary or other surveys, &c. On demurrer to the pleas : Held. First that the pleas were bad, inasmuch as the defendants had absolutely contracted, upon a given event, to pay the 20007. Secondly, that it did not appear upon the face of the pleadings that the contract was ultra vires. Thirdly, that if no damage had been in fact sustained and the agreement was merely colourable, that fact should have been alleged, and would have afforded a good defence: Per Bramwell, B., and Pigott, B. 1866. TAYLOR v. CHICHESTER AND MIDHURST agreed between the plaintiff and the defendants, that in the event of the said bill, in its then or any amended, modified or altered form, with the like objects, being passed into an Act during the then present session of parliament, RAILWAY Co. the defendants would, within the space of three calendar months next after the passing of the said bill, pay to the plaintiff the sum of 20007. as and for a personal compensation to the plaintiff for the annoyance, inconvenience and disturbance, damage, loss and injury which the plaintiff had sustained, and might or would sustain, in respect of the sporting and preservation of game upon bis said estate by or in consequence of the construction of the said intended railway, and of the parliamentary and other surveys and other works connected therewith and incidental thereto. Averments: that the said bill was passed into an Act in the then session of parliament, and that more than three months elapsed between the passing of the said bill into an Act and the commencement of this suit, and all conditions were performed, &c., necessary to entitle the plaintiff to a performance of the said agreement by the defendants and to maintain this action.-Breach: nonpayment. Pleas. First: That the said articles of agreement were and are to the tenor following, that is to say :-The plea then set out the articles of agreement in hæc verba, which, after recitals to the effect stated in the declaration, contained the following clauses:: 1. In the event of the said bill, in its present or any amended, modified or altered form, with the like objects, being passed into an Act during the present session of parliament, the Company will make and construct the said proposed railway so that the same shall enter and pass through the said estate of the said Sir Charles Taylor at the point and in the line or within the limits of deviation, marked and EASTER TERM, 29 VICT. 1866. TAYLOR V. CHICHESTER AND MIDHURST shewn on the plan hereunto annexed, or in some modified line to be mutually agreed upon between the parties hereto; and will not, without the express consent in writing of the said Sir Charles Taylor, make that portion of the said proposed railway for which the said deviation line is intended RAILWAY Co. as a substitute, in the line shewn upon the plans deposited with the clerk of the peace of the said county of Sussex for the purposes of the said bill. 2. In the like event the Company will purchase from the said Sir Charles Taylor, his heirs or assigns, and the said Sir Charles Taylor will sell to the Company and their successors, at the price of 20007., the several pieces or parcels of land, being portions of the said estate which will be required for the construction of the railway and station, containing in the whole twenty acres or thereabouts. 3. In the like event the Company will, in addition to the said sum of 20007., and within the space of three calendar months next after the passing of the said bill, pay to the said Sir Charles Taylor the further sum of 20001. as and for a personal compensation to him, the said Sir Charles Taylor, for the annoyance, inconvenience and disturbance, damage, loss and injury which the said Sir Charles Taylor has sustained, and may or will sustain, in respect of the sporting and preservation of game upon his said estate, by or in consequence of the construction of the said intended railway, and of the parliamentary and other surveys, and other works connected therewith and incidental thereto. Averments. That the said railway in the said articles of agreement mentioned hath not, nor hath any part thereof, nor hath any works been made or constructed; and that the defendants have not required or taken for the purposes of the said railway, or otherwise, any part of the plaintiff's said land or estate in the said articles of agree 1866. TAYLOR V. CHICHESTER AND MIDHURST ment mentioned, or any lands, tenements or estate of the plaintiff whatever; nor have they ever given any notice of requiring or taking the said land or estate in the said articles of agreement mentioned, or any part thereof, or RAILWAY CO. any lands, or tenements, or estate of the plaintiff; nor have they ever agreed with the plaintiff, or any person or persons, for the purchase or taking of any such lands, tenements, or estate, otherwise than by the said articles of agreement. Second plea. The defendants repeat the allegations in the said first plea made, and further say that the plaintiff did not sustain annoyance, inconvenience, disturbance, damage, loss or injury in respect of the sporting and preservation of game upon his said estate in consequence of the construction of the said railway, or of the parliamentary or other surveys, or other works connected there with or incidental thereto; and that the said land or estate, or the plaintiff's interest in the same, never was injuriously affected, by the execution of any works of the said railway or Company. Demurrer to each plea, and joinder therein. Manisty (Gadesden with him), in support of the demurrer. Two questions are raised by these demurrers: first, whether the liability on the part of the defendants to pay the 20001. is conditional on their requiring or taking the plaintiff's land for the purposes of their railway: secondly, whether the agreement is ultra vires. The first question depends on the construction of the agreement. [Bramwell, B.-Should not the breach have been that the defendants would not purchase the plaintiff's land: Laird v. Pim (a)? Martin, B.—The defendants have contracted to pay the further sum of 2000l. upon an event which has (a) 7 M. & W. 474. happened, and whether or not they have taken the plain- Bovill, to support the pleas.-First, the defendants are not liable to pay the plaintiff this 20007. The agreement was made upon the assumption that if the bill passed the defendants would take the plaintiff's land; and by the third clause they contracted to pay the plaintiff, in addition to 2000l., the price of the land, a further sum of 20007. as a personal compensation for the damage he might sustain in respect of the sporting and preservation of game upon his estate in consequence of the construction of the railway. But the pleas clearly shew that the plaintiff has sustained no damage whatever, because the railway has never been constructed, and the defendants have never required or taken the plaintiff's land. Secondly, the agreement is ultra vires. The defendants not having taken the plaintiff's land, there is no consideration for the payment of this 20007., except the withdrawal by the plaintiff of his opposition to the bill, and the case is within the principle of the decision in Lord Shrewsbury v. The North Staffordshire Railway Company (b). There Kindersley, V. C., after reviewing all the authorities, held that a contract by the promoters of a railway Company to pay an influential landowner 20,000%. in consideration of obtaining his countenance and support, was ultra vires and void. [Martin, B.-Ought not the defence to have been specially pleaded by way of confession and avoidance ?] As the objection appears upon the record, the defendants may avail themselves of it withcut plea. The money of the Company ought not to be (a) 9 Cl. & F. 61. (b) 35 L. J. Chan. 156. 1856. TAYLOR v. CHICHESTER AND MIDHURST RAILWAY Co. |