then, with consent of the owner of the lands so jointly subject, it shall be lawful for the party entitled to such charge to release therefrom the lands required, on condition or in consideration of such other lands remaining exclusively subject to the whole thereof.

of refusal to

CXVII. Upon payment or tender of the compensation so Deposit in case agreed upon or determined to the party entitled to any such release. charge as aforesaid, such party shall execute to the promoters of the undertaking a release of such charge; and if he fail so to do, or if he fail to adduce good title to such charge, to the satisfaction of the promoters of the undertaking, it shall be lawful for them to deposit the amount of such compensation in the bank in the manner hereinbefore provided in like cases, and also, if they think fit, to execute a deed poll, duly stamped, in the manner herein before provided in the case of the purchase of lands by them, and thereupon the rent service, rentcharge, chief or other rent, payment or incumbrance, or the portion thereof in respect whereof such compensation shall so have been paid, shall cease and be extinguished.

CXVIII. If any such lands be so released from any such charge or incumbrance, or portion thereof, to which they were subject jointly with other lands, such last-mentioned lands shall alone be charged with the whole of such charge, or with the remainder thereof, as the case may be, and the party entitled to the charge shall have all the same rights and remedies over such last-mentioned lands, for the whole or for the remainder of the charge, as the case may be, as he had previously over the whole of the lands subject to such charge; and if upon any such charge or portion of charge being so released the deed or instrument creating or transferring such charge be tendered to the promoters of the undertaking for the purpose, they or two of them shall subscribe, or if they be a corporation shall affix their common seal to a memorandum of such release endorsed on such deed or instrument, declaring what part of the lands originally subject to such charge shall have been purchased by virtue of the special act, and if the lands be released from part of such charge, what proportion of such charge shall have been released, and how much thereof continues payable, or if the lands so required shall have been released from the whole of such charge, then that the remaining lands are thenceforward to

Charge to con

tinue on lands

not taken.

Where part

only of lands under lease

to be appor

tioned.

remain exclusively charged therewith; and such memorandum shall be made and executed at the expense of the promoters of the undertaking, and shall be evidence in all courts and elsewhere of the facts therein stated, but not so as to exclude any other evidence of the same facts.

And with respect to lands subject to leases, be it enacted as follows:

CXIX. If any lands shall be comprised in a lease, for a term of years unexpired, part only of which lands shall be taken, the rent required for the purposes of the special act, the rent payable in respect of the lands comprised in such lease shall be apportioned between the lands so required and the residue of such lands; and such apportionment may be settled by agreement between the lessor and lessee of such lands on the one part, and the promoters of the undertaking on the other part, and if such apportionment be not so settled by agreement between the parties, such apportionment shall be settled by two justices; and after such apportionment the lessee of such lands. shall, as to all future accruing rent, be liable only to so much of the rent as shall be so apportioned in respect of the lands not required for the purposes of the special act; and as to the lands not so required, and as against the lessee, the lessor shall have all the same rights and remedies for the recovery of such portion of rent as previously to such apportionment he had for the recovery of the whole rent reserved by such lease; and all the covenants, conditions, and agreements of such lease, except as to the amount of rent to be paid, shall remain in force with regard to that part of the land which shall not be required for the purposes of the special act, in the same manner as they would have done in case such part only of the land had been included in the lease.

Tenants to be compensated.

Compensation
to be made to
tenants at
will, &c.

CXX. Every such lessee as last aforesaid shall be entitled to receive from the promoters of the undertaking compensation for the damage done to him in his tenancy by reason of the severance of the lands required from those not required, or otherwise by reason of the execution of the works.

CXXI. If any such lands shall be in the possession of any person having no greater interest therein than as tenant for a year or from year to year, and if such person be required to give up possession of any lands so occupied by him before the expiration of his term or interest therein, he shall be entitled

to compensation for the value of his unexpired term or interest in such lands, and for any just allowance which ought to be made to him by an incoming tenant, and for any loss or injury he may sustain, or if a part only of such lands be required, compensation for the damage done to him in his tenancy by severing the lands held by him, or otherwise injuriously affecting the same; and the amount of such compensation shall be determined by two justices, in case the parties differ about the same; and upon payment or tender of the amount of such compensation all such persons shall respectively deliver up to the promoters of the undertaking, or to the person appointed by them to take possession thereof, any such lands in their possession required for the purposes of the special act.

A tenant of premises under an agreement for a lease for the residue of a term of seventeen years, though at law a mere tenant from year to year, is not a person having no greater interest therein than as tenant for a year, or from year to year." Sweetman v. Metropolitan Railway Co., 1 H. & M. 543; 10 L. T., N. S. 156.

A tenant who had a verbal agreement with his landlord under which he was to hold for any term he wished, not exceeding his landlord's own interest, has been held entitled to a right in equity to have that agreement acted on, and, therefore, is not merely a tenant from year to year (Re East London Railway Co., Ex parte King, L. R., 16 Eq. 521; 21 W. R. 881; 29 L. T., N. S. 288); and that an interest in land will be precarious that will affect the quantum of, rather than the right to, compensation. Holt v. Gaslight and Coke Co., L. R., 7 Q. B. 728; 41 L. J., Q. B. 351; 27 L. T., N. S. 442.

A tenant for a term of which less than a year has yet to run is within this section. Reg. v. Great Northern Railway Co., L. R., 2 Q. B. Div. 151; 46 L. J., Q. B. 4.

When a tenant from year to year has received legal notice to quit he is not entitled to compensation. Ex parte Merrett, re Portsmouth Railway Co., 2 L. T., N. S. 471; and see also R. v. London and Southampton Railway Co., 10 A. & E. 3; 1 Rail. Cas. 717.

As to the rights inter se of landlord and tenant under the 121st section, see Ex parte Carey, 10 L. T. 37.

See R. v. Manchester, &c. Railway Co., 4 E. & B. 88; 23 L. T. 287; 1 Jur., N. S. 419; and R. v. Sheriff of Middlesex, 31 L. J., Q. B. 261, cited ante, p. 638; Somers v. Metropolitan Railway Co., 31 L. J., Q. B.

261.

In considering whether the case of any tenant is within this section, his interest at the time the notice to treat is given by the company, and not at its expiration, is to be looked to. Tyson v. Mayor, &c. of London, L. R., 7 C. P. 18; 41 L. J., C. P. 6; 20 W. R. 112; 25 L. T., N. S. 640. A tenant whose tenancy is created after the company has served a notice to treat on the owner is not entitled to compensation. Re Marylebone (Stingo Lane) Improvement Act, Ex parte Edwards, L. R., 12 Eq. 389; 40 L. J., Ch. 697; 19 W. R. 1047; 25 L. T., N. S. 149. Unless the lands have been injuriously affected (as to which see Re Edmundson, 17 Q. B. 67), the six months' limit under 11 & 12 Vict. c. 43, ss. 1 & 11, does not apply to an application to justices under this section. Reg. v. Hannay, 31 L. T., N. S. 702; 23 W. R. 164.

Where greater interest claimed than from year to year, lease to be produced.

Limit of time

purchase.

Section 121 applies only to cases where the tenant has been required to give up possession of his land, and a notice to treat under sect. 18 is not equivalent to requiring possession. R. v. Stone, L. R., 1 Q. B. 529; 35 L. J., M. C. 208.

As to loss of trade profits in the case of a publican, claimed under this section, see Reg. v. Vaughan and Metropolitan District Railway Co., L. R., 4 Q. B. 190.

CXXII. If any party, having a greater interest than as tenant at will, claim compensation in respect of any unexpired term or interest under any lease or grant of any such lands, the promoters of the undertaking may require such party to produce the lease or grant in respect of which such claim shall be made, or the best evidence thereof in his power; and if, after demand made in writing by the promoters of the undertaking, such lease or grant, or such best evidence thereof, be not produced within twenty-one days, the party so claiming compensation shall be considered as a tenant holding only from year to year, and be entitled to compensation accordingly.

CXXIII. And be it enacted, that the powers of the profor compulsory moters of the undertaking for the compulsory purchase or taking of lands for the purposes of the special act shall not be exercised after the expiration of the prescribed period, and if no period be prescribed, not after the expiration of three years from the passing of the special act.

Promoters of

the undertaking em

If the notice to treat be given within the period limited, the steps necessary to complete the purchase may be taken after the expiration of such period. Marquis of Salisbury v. Great Northern Railway Co., 17 Q. B. 840; 21 L. J., Q. B. 185; 7 Rail. Cas. 175; and see Sparrow v. Oxford, &c. Railway Co., 9 Hare, 436; 21 L. J., Ch. 731; 7 Rail. Cas. 92; Doe d. Armistead v. North Staffordshire Railway Co., 16 Q. B. 526; 20 L. J., Q. B. 249; and Rangely v. Midland Railway Co., L. R., 3 Ch. App. 306. Where the powers of a company for the compulsory purchase of lands have expired, a mandamus will not be issued to compel the company to purchase lands and complete the works. R. v. London and North Western Railway Co., 20 L. J., Q. B. 399; 16 Q. B. 864; 6 Rail. Cas. 634; 15 Jur. 873; R. v. South Devon Railway Co., 20 L. J., Q. B. 145; 15 Q. B. 1043. Sed quære, whether mandamus would lie to compel the completion in any case, ib.; and see R. v. Lancashire and Yorkshire Railway Co., 1 E. & B. 228; 22 L. J., Q. B. 57; R. v. Great Western Railway Co., 22 L. J., Q. B. 65; R. v. York and North Midland Railway Co., 1 E. & B. 178; 22 L. J., Q. B. 41. But see R. v. Birmingham and Oxford Junction Railway Co., 15 Q. B. 634; 19 L. J., Q. B. 453; 20 L. J., Q. B. 304; R. v. Birmingham and Gloucester Railway Co., 2 Q. B. 47; R. v. York, Newcastle, &c. Railway Co., 16 Q. B. 886; 20 L. J., Q. B. 503.

And with respect to interests in lands which have by mistake been omitted to be purchased, be it enacted as follows: CXXIV. If at any time after the promoters of the undertaking shall have entered upon any lands which under the

chase whereof

provisions of this or the special act, or any act incorporated powered to therewith, they were authorized to purchase, and which shall interests in purchase be permanently required for the purposes of the special act, lands, the purany party shall appear to be entitled to any estate, right, or may have been interest in or charge affecting such lands which the promoters mistake. omitted by of the undertaking shall through mistake or inadvertence have failed or omitted duly to purchase or to pay compensation for, then, whether the period allowed for the purchase of lands shall have expired or not, the promoters of the undertaking shall remain in the undisturbed possession of such lands, provided within six months after notice of such estate, right, interest, or charge, in case the same shall not be disputed by the promoters of the undertaking, or in case the same shall be disputed then within six months after the right thereto shall have been finally established by law in favour of the party claiming the same, the promoters of the undertaking shall purchase or pay compensation for the same, and shall also pay to such party, or to any other party who may establish a right thereto, full compensation for the mesne profits or interest which would have accrued to such parties respectively in respect thereof during the interval between the entry of the promoters of the undertaking thereon and the time of the payment of such purchase-money or compensation by the promoters of the undertaking, so far as such mesne profits or interests may be recoverable in law or equity; and such purchase-money or compensation shall be agreed on or awarded and paid in like manner as according to the provisions of this act the same respectively would have been agreed on or awarded and paid in case the promoters of the undertaking had purchased such estate, right, interest, or charge before their entering upon such land, or as near thereto as circumstances will admit.

As to what amounts to "mistake or inadvertence," see Hyde v. Manchester, 5 De G. & S. 249; 16 Jur. 189; Webster v. South Eastern Railway Co., 6 Rail. Cas. 698; 20 L. J., Ch. 194; 15 Jur. 73; Martin v. London, Chatham and Dover Railway Co., L. R., 1 Ch. App. 501; 35 L. J., Ch. 795; 12 Jur., N. S. 775; and Stretton v. Great Western Railway Co., 40 L. J., Ch. 50; 23 L. T., N. S. 379.

CXXV. In estimating the compensation to be given for any such last-mentioned lands, or any estate or interest in the same, or for any mesne profits thereof, the jury, or arbitrators, or justices, as the case may be, shall assess the same

How value of such lands to

be estimated.