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[1867.]

BRAND

V.

HAMMER

SMITH

and

the claimants' case would fall to the ground. But then recourse is had to The Railways Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 20., which, as well as The Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18., CITY contains a different form of expression and shews that Railway Company. compensation is not limited to mischief arising from the execution of the works, but after the execution of the works is completed, and while they are being used. Now sect. 6 of the former Act, on which this argument is based, is under the following heading:-"And with respect to the construction of the railway and the works connected therewith." One would therefore suppose that the clauses following meant to relate to the construction of the railway. Then that section says, "The Company shall make to the owners and occupiers of and all other parties interested in any lands taken or used for the purposes of the railway, or injuriously affected by the construction thereof, full compensation for the value of the lands so taken or used, and for all damage sustained by such owners, occupiers, and other parties, by reason of the exercise, as regards such lands, of the powers by this or the special Act, or any Act incorporated therewith, vested in the Company." This, it is clear, means the same as sect. 68 of The Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18., namely, compensation is limited to such damage to property as arise from the construction of the railway. Here the damages were not caused by that, but by the use of the railway by running trains on it, an act authorized by the statutes.

Judgment for the defendants.

The plaintiffs having brought error on this judgment, the case was argued, after Easter Term, May 10, 1866;

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before ERLE C. J., POLLOCK C. B., BYLES and KEATING JJ., and BRAMWELL, CHANNELL and PIGOTT BB. BYLES J. and PIGOTT B. left before the conclusion of the argument.

Mellish (Hawkins and Joseph Dixon with him), for the plaintiffs. The general intention of the Legislature in

The Railways Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 20., was to give compensation for every injury to real property arising from the powers conferred on Companies by that Act. [He referred to the preamble, and sects. 6, 16, 86.] The statute should be liberally construed, so as to repress the mischief and advance the remedy.

The other side contend that as sect. 6, which gives the right to compensation, is one of a group of sections with the heading, "With respect to the construction of the railway and the works connected therewith," the right to compensation must be limited to mischief caused by the construction of the works of the railway, and does not extend to any mischief arising from its use after completion. That is a narrow construction of the Act. [Channell B. Marriage v. The Eastern Counties and The London and Blackwall Railway Companies (a) is an authority that the provisions of every section in a group of sections with a general heading are to be construed with reference to that heading.] The Company virtually claim an easement in the claimants' property, for they claim a right to deprive them of the free enjoyment of the light and air in it; thus creating a servitude. [Bramwell B. Rex v. Pease (b) shews that a railway Company may be indicted for a nuisance to their neighbours unless authorized by the Legislature. Did (a) 9 H. L. C. 32. (b) 4 B. & Ad. 30.

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[1867.]

BRAND

V.

HAMMER

SMITH

and

CITY Railway Company.

the Acts in question give these Companies a right to create nuisances to their neighbours ?] If not, no railway could be constructed in the metropolis. These Companies are not restricted to their functions as carriers, for, by sect. 92, they may allow others to act as such. A railway Company authorized by the Legislature to use locomotive engines is not responsible for damage from fire occasioned by sparks emitted from engines travelling on their line, unless there has been negligence on their part; Vaughan v. The Taff Vale Railway Company (a).

The other side will rely on The Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18., but that Act only relates to the machinery for obtaining compensation, not the principle of compensation itself. [He referred to the preamble and the definition in sect. 2 of "the works" or "the undertaking."] The expressions "execution of the works" and "execution of the undertaking" are used indiscriminately throughout the Act: sects. 18, 22, 38, 49, 63, 68.

There is no case precisely in point. The language of Lord Campbell in Re Penny and The South Eastern Railway Company (b) is extrajudicial, the only decision in that case being that the railway Company had no right to overlook the claimant's premises, and the language of Crompton J. is rather at variance with that of Lord Campbell. Nor is Glover v. The North Staffordshire Railway Company (c) a direct decision, for there a considerable part of the obstruction to the claimant's right of way was caused by the user of the railway after it was made. In re The Stockport, Timperley and Altringham

(a) 5 H. & N. 679; reversing the judgment of the Exch., 3 Id. 743. (b) 7 E. & B. 660,

(c) 16 Q. B. 912,

Railway Company (a) is on a different question, and is an authority that where a portion of land has been taken by a Company and used in a manner to do injury to the remainder, the owner of the land is entitled to compensation. Chamberlain v. The West End of London and Crystal Palace Railway Company (b), Ricket v. The Metropolitan Railway Company (c), and the other cases that have been decided on these sections, have no bearing on the present. [Bramwell B. referred to Turner v. The Sheffield and Rotherham Railway Company (d), and Channell B. to The London and North Western Railway Company v. Bradley (e).]

Karslake (Horace Lloyd with him), for the defendants. -No negligence is alleged against the Company; no land has been taken by them from the claimants, and no structural damage has been done to their house; and whatever has been done was done, not by them, but by their lessees. The case falls within the principle of Rex v. Pease (f), that any inconvenience experienced from the use of locomotive engines on a railway must be endured when that use is legalized by statute; The Caledonian Railway Company v. Ogilvy (g). Ogilvy (g). Stats. 24 & 25 Vict. c. 70. and 28 & 29 Vict. c. 83. authorize and regulate the use of them even on turnpike and other roads. Nor is there any interference with an easement of the claimants; besides which the female plaintiff claims as owner in fee. Companies are required by these statutes to pay compensation for doing that which ordinary owners might

(a) 23 L. J. Q. B. 351; 10 Jur. N. S. 614.
(b) 2 B. & S. 605; affirmed on error, Id. 617.
(e) 5 Id. 149; reversed on error, Id. 156.
(d) 10 M. & W. 425.
(ƒ) 4 B. & Ad. 30.

(e) 3 Mac. & G. 336.

(g) 2 Macq. 229.

[1867.]

BRAND

v.

HAMMER

SMITH and CITY Railway Company.

[1867.]

BRAND

V.

HAMMER

SMITH

and CITY Railway Company.

do at their pleasure. Thus a private individual may set up a shop to the detriment of his neighbour, or may by dedication to the public convert his premises into a

highway, or he may construct a railway and run locomotives upon it, at least if the locomotives are not noisy ones. In order to render any thing a nuisance to property it must be appreciable, but if the other side are right every person living within the sound of the railway whistle would have a claim for compensation. There is this additional difficulty, that the compensation must be assessed on the supposition that the number of trains and the amount of noise occasioned by them each day will never alter, and that the premises will never change their character. The scheme of The Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18., is that compensation shall be claimed once and for ever. [He referred to the preamble, and sects. 6, 18, 63 and 68 of that Act, and to The Railways Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 20. ss. 16. 86. 108. 114.; and relied on The East and West India Docks Railway Company v. Gattke (a), Freemantle v. The London and North Western Railway Company (b), In re Penny v. The South Eastern Railway Company (c), the decision in Vaughan v. The Taff Vale Railway Company (d), and the language of Willes J. in Broadbent v. The Imperial Gas Company (e).] The report of Glover v. The North Eastern Railway Company (f) is not very clear.

Mellish, in reply.-It is true the damage here was

(a) 3 Mac. & G. 155.

(c) 7 E. & B. 660.

(b) 10 C. B. N. S. 89.
(d) 5 H. & N. 679.

(e) 7 De G. M. & G. 436, 458, set out ante, p. 16.

(f) 16 Q. B. 912.

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