carrying a line of railway across two private roads, which formed the 8 & 9 VICT. c. 18. only access to claimant's house, and erecting gates on each side of the railway across the roads: (Glover v. North Staffordshire Railway Co., 20 L. J. (Q. B.) 376;) making and maintaining a railway, without a sufficient drainage to protect the neighbouring property: (Reg. v. North Union Railway Co., 1 R. C. 729;) raising the level of a brook, and thereby causing it to inundate and stop certain coalworks: (Reg. v. North Midland Railway Co., 2 R. C. 1;) raising a public road, thereby impeding the access to claimant's house, rendering it damp and unwholesome by rain and mud, which penetrated into it from an adjoining bridge, and causing loss of health to claimant (Tuohey v. Great Southern and Western Railway Co., 10 Ir. L. R. (N. S.) 98 ;) making a railway on claimant's lands, so close to his cotton mill, that by reason of the proximity of the railway, and the danger of fire from the trains using the line, the building was less suitable for a cotton mill, could only be insured at an increased premium, and was rendered of less saleable value: (Re Stockport, dec., Railway Co., 33 L. J. (Q. B.) 251; 10 L. T. N. S. 426;) interrupting the access to claimant's wharf from the river, (Bell v. Hall and Selby Railway Co., 1 R. C. 616,) and to an ancient ferry: (Re Cooling, 19 L. J. (Q. B.) 25 ;) blocking up a right of access to the river Thames, and of loading barges: (Macey v. Metropolitan Board of Works, 33 L. J. (Ch.) 377; 12 W. R. 619; 10 L. T. N. S. 66 ;) cutting off a stream which ran through claimant's farm, and was used by him for irrigation and other purposes: (Little v. Dublin and Drogheda Railway Co., 7 Ir. L. R. N. S. 82.) As to injury to a mill, by altering a weir, see Reg. v. Nottingham Old Water-Works, 6 A. & El. 355; and as to loss of tolls by stopping up an ancient towing path, see Reg. v. Thames and Isis Navigation Commissioners, 5 A. & El. 804. The following are also cases decided on the subject of lands "in- Injury from juriously affected" within the meaning of this section - Where a railway company constructed a tunnel near an inn, and the vibrations caused by the passing of the trains prevented beer being kept in the cellars in a state fit for consumption, the Lord Chancellor dissolved an injunction which had been granted to prevent the innkeeper from proceeding for compensation under this section : (London and North-Western Railway Co. v. Bradley, 3 M'N. & G. 336; 6 R. C. 551, 560.) In Croft v. London and North-Western Railway Co., 32 L. J. (Q. B.) 113; 3 B. & S. 436, Cockburn, C. J., was of opinion that the damage likely to accrue to buildings over a tunnel, from subsidence and vibration, and which might have been foreseen, was matter which might and ought to have been taken into consideration by the arbitrator, and assessed prospectively but the decision in that case turned on another point. And in Brand v. Hammersmith and City Railway Co., 36 L. J. (Q. B.) 139 ; 2 L. R. (Q. B.) 223; 16 L. T. N. S. 101, it was held by the Court of Exchequer Chamber, reversing the decision of the Court of Queen's Bench, that where a house and premises adjoining a railway, but untouched by it, were depreciated in value through vibration, noise, and smoke, caused by the passage of locomotives over the railroad, after it had been completed, the owner was entitled to compensation.

vibration and subsidence.

Landowners or owners of property not taken for the purposes of Persons whose the railway, but in the neighbourhood of a railway, considering them- property is in

juriously affected need not establish their right

at law before proceeding un

der this section.

8 & 9 VICT. c. 18, selves entitled to compensation, (to be obtained in the manner indicated by this section,) for injury alleged by them to have been caused by the works of the company, are not now driven to bring an action at law to establish their right to compensation before proceeding under this section. It is true that in the case of London and North-Western Railway Co. v. Smith, (1 M‘N. & G. 216,) an interim injunction was granted to restrain the defendant, the owner of certain houses in a street stopped up by the company, but whose houses had not been taken, from proceeding under this section, pending the trial of an issue directed by the same order; but since the cases of East and West India Docks Co. v. Gattke, (3 M'N. & G. 155 ; 20 L. J. (Ch.) 217; 6 R. C. 371,) and Lancashire and Yorkshire Railway Co. v. Evans, (15 Bea. 322,) this case can no longer be considered as law. But where notice under s. 18, and counter-notice under s. 92, had been given, and much delay had taken place, and the company entered under s. 85, whereupon renewed negotiations followed, both the Vice-Chancellor and, on appeal, the Lord Chancellor held that the questions ought, under such circumstances, to be decided at law, before proceeding before a jury, and an injunction went to prevent proceedings under s. 68 being taken : (London and SouthWestern Railway Co. v. Coward, 5 R. C. 703; 1 H. & T. 377.)

Secus, in cases of disputed rights and of great delay.

Proximity of company's coke

ovens.

Damage to goods

Obstructions

preventing cus tomers reaching

So also where an injunction was prayed to restrain an alleged nuisance, caused by the proximity of the company's coke ovens, the evidence on the subject being conflicting, the Lord Chancellor, in overruling the Vice-Chancellor's decision, refused the injunction, since he thought the jurisdiction of the Court of Chancery was for the protection of the right at law, the dispute as to which should first be tried by action: (Semple v. London and Birmingham Railway Co., 1 R. C. 120; and see Kemp v. London and Brighton Railway Co., 1 R. C. 504; but see Warburton v. London and Blackwall Railway Co., 1 R. C. 558.)

In East and West India Docks Co. v. Gattke, (ubi supra,) the in neighbouring defendant was a haberdasher, and he complained of damage to his shops. goods, caused by the dust and dirt arising from the plaintiff's works, of obstructions which prevented his customers from reaching his shop with ease, and consequent loss of trade, and also of the stopping up of a certain passage, of which he had previously engaged the use. No part of the defendant's premises were included in the schedule to the special act. Lord Truro refused to grant an injunction to restrain the assessment of damages under s. 68 of the Lands Clauses Act, observing that the compensation is not to be limited to damage sustained by persons whose land, or a part thereof, is taken or interfered with.

shop.

Stopping up passages.

The grounds of this decision were explained to be the delay and oppression arising from the necessity of proceeding by mandamus to compel the company to summon a jury.* And his Lordship remarked that the issuing of a precept by the company, being a duty imposed by the Legislature, could not be construed into an admis

* It seems, however, that since the cases of Corrigal v. London and Blackwall Railway Co., 5 Man. & G. 219; and Williams v. Jones, 13 M. & W. 628, the remedy is by action for the sum claimed, and not by mandamus.

Lands" injuriously affected"-Injunctions.

199

sion of the right of the claimant to compensation. Lord Truro, 8 & 9 VICT. c. 18 however, noted the difference between the case before him and London and North-Western Railway Co. v. Smith, saying that in the latter the injury to the plaintiff was the same as that suffered by all the Queen's subjects, and that the principle of Rex v. Bristol Dock Co., 12 East, 429, applied; whereas in East and West India Docks Co. v. Gattke, (supra,) the claim was individual and personal.

An injunction to restrain the defendant from taking the benefit Crossing roads. of s. 68 was refused where the company had crossed a road leading to defendant's farm. The case of East and West India Docks Co. v. Gattke was expressly followed, and the authority of London and North-Western Railway Co. v. Smith impugned: (South Staffordshire Railway Co. v. Hall, 1 Sim. N. S. 373.)

And where an act allowed the working of coal, provided no injury Damage from was done to a certain canal, notice having been given to the coal working coal, owner not to work, the Lord Chancellor, overruling the decision of the Vice-Chancellor, refused to prevent the defendant from proceeding to have the compensation assessed before the proper tribunal (Cromford Canal Co. v. Cutts, 5 R. C. 442.)

vibration caused

The same was the result of an application to restrain a defendant, Damage to who complained of the vibration caused by the passing of trains liquors from near his inn, whereby his ale and beer became thick and muddy by trains. London and North-Western Railway Co. v. Bradley, 3 M'N. & G. 336; 6 R. C. 551.)

The case of Lancashire and Yorkshire Railway Co. v. Evans, 15 Damage to dye. works by fouling Bea. 322, was of the same nature as the foregoing, being an applireservoir. cation for an injunction to prevent proceedings under s. 68 by a defendant, the owner of certain dye-works, which were alleged to be injuriously affected by the dropping of lime and tar into a reservoir. It was decided that this must constitute a title to compensation, and that there being no equity to prevent the defendants from enforcing their rights, no injunction could be granted.

[Note.-In this case, and also in a case of Sutton Harbour Co. v. Hitchins, 15 Bea. 161; 16 Bea. 381; 1 De G. M. & G. 161, the injunction had been applied for upon the authority of London and North-Western Railway Co. v. Smith, and it was considered right that the bills should be dismissed without costs.]

Where there is an original equity affecting the claim, the case is Distinction in different, and an injunction will be granted. Thus, where lands cases of contract. were taken upon a contract that the company are to make certain communications, rendered necessary by the severance of the plaintiff's land, s. 68 was held not to apply, and specific performance of the contract was decreed: (Sanderson v. Cockermouth and Workington Railway Co., 19 L. J. (Ch.) 503.)

And in Duke of Norfolk v. Tennant, (9 Ha. 745,) it was stated that Gattke's case only settled that the Court ought not to interfere to restrain proceedings under s. 68, because the act does not settle the preliminary question whether the property is injuriously affected or not, and that this would not touch a case in which the lands are taken under a contract which affected some of the claims for compensation. An injunction on these grounds was therefore granted in this case.

If the injury is one affecting the Queen's subjects generally, the Lands not "inproper remedy is by indictment: (Caledonian Railway Co. v. Ogilvy, juriously affect

ed" within meaning of section.

8 & 9 VICT. C. 18. 2 M‘Q. H. L. 249; Lancashire, &c., Railway Co. v. Evans, 15 Bea. 322.) Thus it has been held that the owners of a brewery cannot claim compensation for loss to their business resulting from the deterioration of a public river which supplied water to the brewery by means of pipes laid under low-water mark, the use of the water having been common to all the sovereign's subjects, and not claimed as an easement to the particular tenement: (R. v. Bristol Dock Co., 12 East, 429.) It has also been held that the claimant was not entitled to compensation in the following cases: -Where the company pulled down an insufficient party wall, which a purchaser might do under the provisions of the Building Act: (R. · v. Hungerford Market Co., 1 A. & El. 676;) for stoppages and other mere inconveniences incident to the crossing (within a few yards of claimant's lodge) of a public road by a railway on the level, the inconveniences in such a case being such as all the Queen's subjects are exposed to, and for which no particular or individual remedy exists: (Caledonian Railway Co. v. Ogilvy, 2 M'Q. H. L. 229; Wood v. Stourbridge Railway Co., 16 C. B. N. S. 222;) for erecting a twenty-foot embankment in front of claimant's marine residence, and thereby interfering with his right of bathing, boating, and fishing (Falls v. Belfast and Ballymena Railway Co., 12 Ir. L. R. 233;) for an annoyance caused by persons standing on the bank of a railway, and overlooking claimant's premises, such annoyance being an injury to the amenities of his residence, and not so injuriously affecting his property that an action would lie : (Re Penny, 26 L. J. (Q. B.) 225; 5 W. R. 612;) for diversion of subterranean water from claimant's land by a tunnel constructed by the company on their own land, such being done in the exercise of the ownership of their own land: (Galgay v. Great Southern and Western Railway Co., 4 Ir. L. R. N. S. 456 ;) for injury done to claimant's well by intercepting water which would otherwise have percolated through the strata of earth into the well: (New River Co. v. Johnson, 29 L. J. M. C. 93; see R. v. Metropolitan Board of Works, 32 L. J. (Q. B.) 105;) nor, it would seem, for merely narrowing a road in front of a house: (Beckett v. Midland Railway Co., 1 L. R. (C. P.) 241, in which case the award was held bad for including compensation for such a claim.) (d) The amount of the compensation is the only question for the arbitrator or jury to determine: they have nothing to do with the right of the claimant to the interest which he claims, (see Ware v. Regent's Canal Co., 23 L. J. (Ex.) 145;) nor can they determine whether the promoters are excused from the obligation to pay by any collateral matter: (Re Byles, 25 L. J. (Ex.) 53; Brandon v. Brandon, 34 L. J. (Ch.) 333.)

Amount of compensation sole question for jury or arbitrator.

Evidence of um

to show that

An award is bad if any one of the claims for which compensation has been awarded is not legally enforceable; at any rate, unless the damages are so assessed that the objectionable part can be severed from the rest (Beckett v. Midland Railway Co., 1 L. R. (C. P.) 241, 247;) and a plea to an action on the award, setting out the facts from which this appears, is a good plea : (Ibid.)

It was decided by the Court of Exchequer (dissentiente Brampire admissible well, B.) in the Duke of Buccleuch v. Metropolitan Board of Works, 18 L. T. N. S. 906, that the evidence of the umpire appointed under this act was admissible for the purpose of showing that the award

award is bad.

Amount of Compensation where Lands are Taken. 201

was void, as being in part made in respect of matters over which he 8 & 9 VICT. c. 18. had no jurisdiction.

And in a recent case in equity, where a motion to set aside an award was made on the ground of mistake of legal principles, the umpire was subpoenaed, and attended, but refused to give evidence. He had, however, drawn up a statement of his reasons for making the award, and this was allowed to be read: (Re Dare Valley Railway Co., 3 W. N. 216.)

The general rule is, that the tenant of lands taken is entitled to the Amount of comfull marketable value of his interest in them: (see ex parte, Farlow, pensation when 2 B. & Ad. 341.)

It was provided by statute (the Hungerford Market Act, 11 Geo. IV. c. lxx.) that all tenants for years, from year to year or at will, who should sustain any damage "in respect of any interest whatsoever for goodwill, improvements, tenant's fixtures, or otherwise," by reason of the passing of that act, should be entitled to compensation. A tenant from year to year was ejected by the company, but received a regular half-year's notice to quit. It appearing that she had been many years in possession, and that the tenancy was not likely to have been determined if the act had not passed, it was held that she was entitled to compensation for the whole marketable interest which she had in the premises at the time when the act passed; and that the goodwill, though of premises on so uncertain a tenure, was protected by the act as an interest which would practically have been valuable as between the tenant and a purchaser, though it was not a legal interest as against the landlord: (Ibid.; see also Ex parte Still, 4 B. & Ad. 592.) But a tenant from year to year, determinable at three months' notice at any quarter day, and with a stipulation against underletting without leave, was held not entitled to compensation under the same act: (Re Palmer, 9 A. & El. 463.) See further as to the adjustment of the rights of lessees to compensation, s. 74, post, and the notes thereon.

The principle upon which the amount of compensation is estimated when lands are taken, is different from that on which it is estimated when they are not taken but only "injuriously affected." In the former instance, compensation is allowed for the profits of trade; "the company claiming to take land by compulsory process, expel the owner from his property, and are bound to compensate him for all the loss caused by the expulsion; and the principle of compensation then is the same as in trespass for expulsion. . . . But where no land has been taken, if it was held that a claim could be sustained against a company for the loss of profit, which a jury could attribute to an obstruction of a highway in the execution of their works, the liabilities in a dense population would be innumerable. The common law limited the remedy for obstructions of public rights to indictment, unless there was special damage, to prevent innumerable actions, and the same reason applies in full force to prevent innumerable claims on account of an alleged loss of profits caused by obstructing a thoroughfare:" (Judgment of Exchequer Chamber in Ricket v. Metropolitan Railway Co., 34 L. J. (Q. B.) 257.)

lands are taken.

A jury, whether the dispute be as to the value of land required to Jury may take be taken by the company, or as to the compensation for damages by into account fuseverance, in assessing the amount to which the landowner is en

ture more bene