BRAND and Wife against The HAMMERSMITH AND [Friday, CITY Railway Company. On the execution of an inquiry before the sheriff and a jury, under The Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18., to determine the compensation to be paid to the proprietor of a messuage and land in consequence of their "having been or being injuriously affected by reason of the execution or construction of the railway and works;" it did not appear "that any structural injury was or would be caused" to the premises by the construction of the railway; but it did appear that "by reason of the working of the railway after it had been opened for traffic," they were and would be "subjected to vibration, noise and smoke from passing trains, and were and always would be affected and depreciated and lessened in value thereby:" Held by the Exchequer Chamber, consisting of Keating and Smith JJ., and Bramwell B., dissentiente Channell B., that the claimant was not entitled to compensation: reversing the decision of the Queen's Bench, consisting of Mellor and Lush JJ. THIS 'HIS was an action for the recovery of 2721., the balance of 11417., being the amount for which judgment was given by the sheriff of Middlesex for the female plaintiff, then Mary Christiana Louisa Piper, VOL. VII. B B. & S. February 1st, 1867.J Railway Company. for injury to Compensation premises. Injury from noise and vibration, smoke after completion of railway. [1867.] BRAND HAMMER SMITH and CITY Railway Company. widow, against the defendants, upon an inquisition held before him under The Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18., to assess the compensation to be paid by the defendants to her as executrix and devisee in fee of one R. M. Piper, for damage sustained by him in his lifetime and by her since his decease by a certain messuage, buildings, garden and land having been or being injuriously affected by reason of the execution or construction of the railway and works authorized by the defendants' Acts of Parliament and the Acts incorporated therewith, or otherwise by the exercise of the powers vested in them by any Act of Parliament, together with interest, &c. By consent of the parties the following case was stated for the opinion of the Court under a Judge's order. R. M. Piper, deceased, was at the time of his death seised in fee in possession of a certain messuage, outbuildings, garden and lands, situate at Shepherd's Bush, in the county of Middlesex, and known as Cumberland House. He died in October, 1863, having by will appointed the female plaintiff, then his wife, and other persons his executrix and executors, and after certain specific bequests to her devised and bequeathed to them all and every his freehold and leasehold messuages, lands, tenements and hereditaments, and all other his real estate, and all other the residue of his personal estate, upon certain trusts. She proved his will, and became solely seised in fee in possession of the messuage, outbuildings, garden and lands as trustee under the will. By The Hammersmith and City Railway Act, 1861, 24 & 25 Vict. c. clxiv., the defendants were incorporated, and were empowered to make and maintain a certain railway and works as therein mentioned, and to enter upon, take and use certain lands for the purposes of that Act. The Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18., and The Railways Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 20., were incorporated with and formed part of that special Act. The defendants proceeded to construct and execute the railway and works under and in accordance with the provisions of the special Act and the Acts incorporated therewith. The railway, in its course, crossed the Uxbridge Road nearly at right angles, and at and near this point it was constructed upon a viaduct of brick arches, and at a height of about 19 feet above the level of the ground. This part of the railway was completed in or about the month of August, 1863, and the railway was opened for public traffic in the month of June, 1864. The railway never was worked by the defendants, who never had any engines or carriages, but since it was first opened for traffic always had been run over and worked by The Great Western Railway Company, with their own engines and carriages, under the powers given by the before mentioned special Act. It was worked by them as a passenger railway only, and in the usual and ordinary way. Cumberland House is situated in the immediate neighbourhood of the railway, near the spot where the railway crossed the Uxbridge Road. No part of Cumberland House, and no lands or hereditaments whatsoever of R. M. Piper, or of the female plaintiff, were ever entered upon or taken or used by the defendants permanently or temporarily. The railway and works were commenced in the life [1867.] BRAND V. HAMMER SMITH and CITY Railway Company. [1867.] BRAND V. HAMMER SMITH and CITY Railway Company. time of R. M. Piper, and he was then residing there with his wife and family, and after his death the female plaintiff, then his widow, continued to reside there with her family. The female plaintiff, after the death of R. M. Piper, and on the 19th July, 1864, caused to be served on the defendants, by her solicitors, a notice, of which the following is a copy : "To The Hammersmith and City Railway Company. "Take notice that I, Mary Christiana Louisa Piper, of Cumberland House, Shepherd's Bush, Hammersmith, in the county of Middlesex, widow, claim to be entitled to compensation from you, the said Company, for damage and injury done or caused to be done, and which will hereafter arise and be occasioned, to my property by the exercise by you, the said Company, of the powers conferred on you, the said Company, by the several Acts of Parliament relating thereto, and in the course of and in and by the making and execution by you, the said Company, of the said railway, and of the works connected therewith, and by the working and use of the said railway by you, the said Company, and consequential thereon, and that the property in respect of which I claim compensation is the said Cumberland House, with the buildings and garden and land connected therewith, and adjoining thereto, and that my interest in the said property is that of tenant in fee in possession as trustee under the last will and testament of Robert Monkhouse Piper, deceased, who in his lifetime and at the time of his death was seized in fee in possession of the said property: and further take notice that I am also executrix of the said last will and testament of the said Robert Monkhouse Piper, deceased, and that, as such executrix as aforesaid, I also claim compensation for |