Assessment by Arbitration or Jury.

165

party claiming

tration, and signify (a) such desire by notice in writing to 8 & 9 VICT. c. 18. the promoters of the undertaking, before they have issued jury, at the their warrant (b) to the sheriff to summon a jury in re- option of the spect of such lands, under the provisions hereinafter con- compensation. tained, stating in such notice the nature of the interest in respect of which such party claims compensation, and the amount of the compensation so claimed, the same shall be so settled accordingly; but unless the party claiming compensation shall as aforesaid signify his desire to have the question of such compensation settled by arbitration (c), or if, when the matter shall have been referred to arbitration, the arbitrators or their umpire shall for three months (d) have failed to make their or his award, or if no final award shall be made (e), the question of such compensation shall be settled by the verdict of a jury, as hereinafter provided.

See s. 41 of 31 & 32 Vict. c. 119, whereby cases of disputed compensation may be tried under an issue directed by a judge's order as an ordinary action. See the Act, post.

(a) It is to be observed that "these arbitration clauses being in- Parties may elect troduced for the benefit of the parties, they are at liberty to to proceed under renounce at their pleasure the advantages they afford," (per Mellor, this section. J., in Palmer v. Metropolitan Railway Co., 31 L. J. (Q. B.) 259; 10 W. R. 714;) when, therefore, the parties to a reference under these sections consent to enlarge the time for making the award beyond the statutory term of three months, the award will not be set aside on the ground that it is made beyond the prescribed time, and that the parties cannot dispense with the provisions of the statute: (Ibid.)

ence under s. 68.

As to the notice required, see note to s. 68, post. This section This section aphas been held to apply to a case of reference to arbitration under plies to a refersection 68, of the amount of compensation in respect of land already taken or injuriously affected: (Evans v. Lancashire and Yorkshire Railway Co., 1 E. & B. 754; 22 L. J. (Q. B.) 254 ;) in which case an action brought as an award made by the arbitrator more than three months after his appointment was held not to lie.

issue a warrant

(b) A mandamus was granted in the case of Ex parte Senior, 7 D. Mandamus to & L 36, to compel a company to issue their warrant to summon for a jury where a jury to assess compensation, where proceedings by arbitration arbitration under this and the following sections had proved abortive, in proves abortive. consequence of the non-appointment of an umpire within the time limited-the owner not being bound to proceed even under the 68th

section.

this section, al

It has been decided that the owner of property acquired does not Owner entitled lose his right to have the value assessed by a jury under this sec- to proceed under tion because he has made no claim, and because the company have though his land proceeded under section 85. They must have actually paid or ten- has been taken dered the money, or the owner may claim to proceed under this section (Reg. v. Metropolitan Railway Co., 13 L. T. N. S. 444.) (c) Where the award proceeded upon the footing that certain works after

under s. 85.

Variation in

award.

8 & 9 VICT. c. 18. roads would not be diverted, and that two bridges would have to be made in consequence, it was held that the award did not prevent the company from modifying their plans, within the limits of deviation, so as to necessitate the construction of one bridge only, subject to the necessity of making further compensation to the claimant, according to s. 16 of the Railways Clauses Act: (Selby v. Colne Valley and Halstead Railway Co., 6 L. T. N. S. 709; 10 W. R. 661.)

Award need not state means of making accom

This case follows Wood v. North Staffordshire Railway Co. (1 M'N. & G. 278), in which Lord Cottenham, in dissolving an injunction granted by Sir J. L. K. Bruce, V.-C., observed that there had been performance of the letter of the contract of reference, and if substituted road was not so convenient a mode of communicating with the plaintiff's premises as that which was awarded, that was an injury not provided for by the contract, but a case under section 16 of the Railways Clauses Act, whereby all damage to roads, &c., is the subject of compensation.

And an award is not invalid, because it omits to settle the means of making proper communications, archways, drains, &c., for which modation works. the Railways Clauses Act expressly provides: (Skerratt v. North Staffordshire Railway Co., 2 Ph. 475; 5 R. C. 166; 17 L. J. (Ch.) 161.)

Award notwith

ment.

Nor will the award be set aside in consequence of an agreement standing agree- concerning the land, the subject of the award, having been entered into, unless proper steps to upset it have been taken; and, the purchaser having been let into possession, the amount found by the arbitrators will be ordered to be paid into court, although it be shown that the agreement has not been performed by the vendor : (South-Eastern Railway Co. v. London, Brighton, and South Coast Railway Co., 1 W. N. 130; 14 W. R. 666.)

Award or jury

but cannot de

cide on title.

It would seem that an arbitrator, or a jury, can only assess the can assess value, value of the interest claimed, and cannot decide upon the right to such interest; therefore the right to money paid in under s. 76 must be ascertained by a court of equity, and if it is found that the claimant has not the interest which he claims, or has some other interest, the Court of Chancery, by reference to chambers, will find out the value of his real interest, and, if it be less than that claimed, will pay the actual value to the claimant, and the remainder of the amount deposited to the company: (See Brandon v. Brandon, 2 Dr. & Sm. 305; 13 W. R. 251; 5 N. R. 214.)

How time for making award is computed.

(d) The period of three months given by this section for the purpose of the award, is given by it also to an umpire appointed under s. 28; and the time commences to run from the time of the duty devolving upon him, and not from the time of his appointment. In re Bradshaw v. East and West India Dock and Birmingham Railway Co., 12 Q. B. 562; 5 R. C. 527, following the case of Skerratt v. North Staffordshire Railway Co., 2 Ph. 475, in which it was held that the three months allowed are computed from the appointment of the last arbitrator; but where an umpire has been appointed, and is called upon to act, he may make his award within three months of the time when that duty devolved upon him: (Skerratt v. North Staffordshire Railway Co., 2 Ph. 475; 5 R. C. 166; 17 L. J. (Ch.) 161; and see Evans v. Lancashire and Yorkshire Railway Co., 1 E. & B. 754; 22 L. J. (Q. B.) 254.)

(e) Where an arbitration fails, the proper method of proceeding 8 & 9 VICT. C. 18. is by mandamus to summon a jury under this section : (Lind v. Isle Mandamus in of Wight Ferry Co., 1 N. R. 13.)

case of failure in

ant before award made.

Where it was declared in a submission to arbitration that the arbitration. proceedings should be in strict accordance with the provisions of Death of claimthis and the Railway Clauses Act, and the arbitrator from time to time enlarged the time for making his award, and before it was made the claimant died, whereupon it was sought to set aside the award; it was held by the House of Lords that the submission did not expire at the death of the landowner; that the award was valid, though made after the statutable period; and that the arbitrator might employ an expert, and consult men of science: (Caledonian Railway Co. v. Lockhart, 3 Macq. 808; 6 Jur. N. S. 1311.)

as to

XXIV. It shall be lawful for any justice, upon the ap- Method of proplication of either party with respect to any question of settling disputes disputed compensation by this or the special act, or any tion by justices. act incorporated therewith, authorised to be settled by two justices, to summon the other party to appear before two justices, at a time (a) and place to be named in the summons, and upon the appearance of such parties, or in the absence of any of them, upon proof of due service of the summons, it shall be lawful for such justices to hear and determine such question, and for that purpose to examine such parties or any of them, and their witnesses, upon oath, and the costs of every such inquiry shall be in the discretion of such justices, and they shall settle the amount thereof.

(a) See ex parte Edmundson, 17 Q. B. 67, the notes to s. 22, ante, Time for making and Reg. v. Leeds and Bradford Railway Co., (18 Q. B. 343,) deciding complaint and proceeding. that section 11 of stat. 11 & 12 Vict. c. 43, is applicable to orders made upon complaints under this act, and is retrospective. See also notes to s. 63, post,

questions are to

by arbitration.

XXV. When any question of disputed compensation (a) Appointment of by this or the special act, or any act incorporated therewith, arbitrator when authorised or required to be settled by arbitration, shall be determined have arisen, then, unless both parties shall concur in the appointment of a single arbitrator, each party (b), on the request of the other party, shall nominate and appoint an arbitrator, to whom such dispute shall be referred; and every appointment of an arbitrator (c) shall be made on the part of the promoters of the undertaking under the hands of the said promoters or any two of them, or of their secretary (d) or clerk, and on the part of any other party under the hand of such party, or if such party be a cor

8 & 9 VICT. c. 18. poration aggregate under the common seal of such corporation; and such appointment shall be delivered to the arbitrator, and shall be deemed a submission to arbitration on the part of the party by whom the same shall be made; and after any such appointment shall have been made neither party shall have power to revoke the same without the consent of the other, nor shall the death of either party operate as a revocation; and if for the space of fourteen days after any such dispute shall have arisen, and after a request in writing, in which shall be stated the matter so required to be referred to arbitration, shall have been served by the one party on the other party to appoint an arbitrator, such last-mentioned party fail to appoint such arbitrator (e), then upon such failure the party making the request, and having himself appointed an arbitrator, may appoint such arbitrator to act on behalf of both parties, and such arbitrator may proceed to hear and determine the matters which shall be in dispute, and in such case the award or determination of such single arbitrator shall be final (ƒ).

One sum for compensation and damage.

For fee simple without allowing

for tenancies.

Remedy of tenants.

Where several

parties are inter

ested in the

what their interests are.

(a) It is no objection to the validity of the award that it assesses one sum for damage and price, though separate claims for each be made; and where an award was made to a claimant in fee simple for one sum for the fee simple in possession and for compensation for severance, it was held to be sufficient as against him, though the premises were at the time under lease: (In re Bradshaw, 12 Q. B. 562; 5 R. C. 527.)

In this case it was also pointed out that the remedy of the tenants under such circumstances would be against the company. See also Tew v. Harris, 11 Q. B. 7.

(b) But where trustees under a will served the company with a notice that they claimed an estate and interest in lands required by land, the arbitra- the company, and desired compensation to be assessed by arbitrator should find tion, and an umpire was appointed, where another party claimed in respect of a limited interest, and the umpire awarded a sum to be paid by the company to the trustees, the award was held bad, as he had not found the nature of their interest in the lands, and awarded distinct compensation in respect of it. But the Court refused to set the award aside, leaving the company to dispute it when the parties should attempt to enforce it: (North Staffordshire Railway Co. v. Landor, 2 Exch. 235; 6 R. C. 17; see also North Staffordshire Railway v. Wood, 2 Exch. 244; 6 R. C. 25, ante, p. 162.) (c) Where, upon a reference the landowner objects to the company's arbitrator, as, for instance, that he is employed as surveyor to the company, he should not proceed with the reference, because that might be construed as a waiver of his objections: (Re Elliot and the South Devon Railway Co., 2 De G. & Sm. 17.)

Objections to arbitrator.

Arbitrators-Effect of Award-Umpire.

169

Although in strictness the surveyor of the company ought per- 8 & 9 VICT. c 18. haps not to be appointed an arbitrator for them, still the Court would not set aside the award made by him as such arbitrator : (Ibid.)

And the same rule applies where the company's arbitrator is interested as a proprietor or shareholder in the line: (Ibid.)

Appointment of company's surveyor as arbitrator.

Arbitrator a shareholder in

Appointment signed by secre

tary alone.

(d) Where, in pursuance of the arbitration clauses of this act, company. both parties agree on the appointment of an arbitrator, there is no necessity for a perfect compliance with all the statutory forms; it is sufficient if the appointment on the part of the company be signed by the secretary: (Per Pollock, C. B., in Collins v. South Staffordshire Railway, 7 Exch. 5; 21 L. J. (Exch.) 247; and see note to s. 121, post.)

(e) The notification of the appointment must be express; and Neglect to apwhere B. had given notice to a railway company who had refused point arbitrator. compensation that "it was his intention" to appoint M. as arbitrator, and that if they failed within fourteen days to appoint, he would appoint him to act for both parties, and M. did so act, the Court refused to enforce his award or to set it aside on motion: (Bradley v. London and North-Western Railway Co., 5 Exch. 769 ; 20 L. J. (Exch.) 3.)

(f) The Court of Chancery considers the award of an aribitrator Effect of award. finding the amount of damage done by a nuisance, as equivalent to a verdict at law, and consequently as a foundation for a legal right upon which an injunction may be granted: (Imperial Gas Light and Coke Company v. Broadbent, 26 L. J. (Ch.) 276; 7 De G. M. & G. 436; affirmed on appeal to the House of Lords, 7 H. L. Ca. 600 ; 29 L. J. (Ch.) 377.)

aside award after price paid in.

Where a landowner had taken legal proceedings to set aside the Where landowner award after refusing to deliver an abstract of his title, whereupon takes steps to set the company had paid into the bank the sum awarded, and entered into possession, a petition by the company to have it paid out to' them was granted; the landowner being held not to be entitled to take the benefit of the deposit, and also to repudiate the proceedings upon which it was made: (In re Fooks, 2 M'N. & G. 357.)

trator to be sup

XXVI. If, before the matters so referred shall be deter- Vacancy of arbimined, any arbitrator appointed by either party die, or be-plied. come incapable, the party by whom such arbitrator was appointed may nominate and appoint in writing some other person to act in his place, and if, for the space of seven days after notice in writing from the other party for that purpose, he fail to do so, the remaining or other arbitrator may proceed ex parte; and every arbitrator so to be substituted as aforesaid shall have the same powers and authorities as were vested in the former arbitrator at the time of such his death or disability as aforesaid.

XXVII. Where more than one arbitrator shall have Appointment of been appointed such arbitrators shall, before they enter

umpire.