8 & 9 VICT. c. 18. that, although the company were in possession under another title, still they intended to destroy the property, and must therefore pay the money into Court: (Saunders v. Tottenham and Hampstead Railway Co., 2 W. N. 132.)

No injunction

where there is a ment to pay, and a provision for interest in case

bond or agree

of delay.

Payment of part

money.

(e) No injunction or order to pay into Court will be granted where the company have entered into an agreement or bond to pay the purchase-money on a future day, with interest in case of delay, since they must be held to have entered for the purpose for which the land was sold to them, and since the delay is expressly provided for by the stipulation for interest: (Pell v. Northampton and Banbury Railway Co., L. R. 2 Ch. 100; 36 L. J. (Ch.) 319; 15 W. R. 27; 15 L. T. Ñ. S. 169; Pryse v. Cambrian Railway Co., L. R. 2 Ch. 444 ; and see 36 L. J. (Ch.) 565; 15 W. R. 604.)

So also where part only of the purchase-money had been paid, the of the purchase- residue being retained by the company until title should be shown, the company were not restrained in any way, as they were held to have purchased the right of possession at least, by payment of part of the purchase-money: (Capps v. Norwich und Spalding Railway Co., 9 Jur. N. S. 635; 11 W. R. 657; 2 N. R. 51.)

Where line

company.

But in another case where a railway company took land, and made leased to another a railway upon it, and afterwards leased the line to another company, leaving part of the purchase-money unpaid, it was ordered, on appeal, (dissentiente Sir G. Turner, L. J., who thought that a receiver should be appointed,) that the first company should pay the money, and in default that both companies should be restrained from using the land: (Cosens v. Bagnor Railway Co., L. R. 1 Ch. 594; 14 W. R. 1002.)

Payment in respect of part

after a counter

notice to take

the whole under

s. 92.

Tenants are not

And in a late case of a similar nature, the Master of the Rolls held that the company to whom the line was leased, was properly brought before the Court; and his Lordship ordered payment of the purchase-money within three months, and declared that the plaintiffs had a lien on the property, with leave, in default of payment, to apply for an injunction, or for a receiver: (Bishop of Winchester v. Mid-Hants and London and South-Western Railway Companies, 2 W. N. 259. See further the cases on this subject collected in the notes to s. 85, post.)

Where a counter-notice to take the whole property under s. 92 has been given by a landowner, the company are not entitled to pay into Court the price of part only; and an injunction restraining them from entering upon the land without depositing the entire price will be awarded: (Giles v. London, Chatham, and Dover Railway Co., 30 L. J. (Ch.) 603; 9 W. R. 587; 7 Jur. N. S. 59; following the principle of The Governors of St Thomas's Hospital v. Charing Cross Railway Co., 30 L. J. (Ch.) 395.)

It seems that tenants upon the property contracted to be sold by necessary parties the freeholder, are not necessary parties to a bill by him for an into bill by land- junction in consequence of non-payment of the purchase-money: (Robertson v. Great Western Railway Co., 1 R. C. 459.)

owner.

Laches.

(f) Where the landowner is apprehensive of damage, for which he has not received compensation, being done to his land by a company, he should be very active in obtaining an injunction to restrain the company from doing the damage, for, if he wait until it has been accomplished, and the company have no intention of permanently

Entry by Mistake-Leave to View.

253

using the land, he will not be entitled to the interference of the 8 & 9 VICT. c. 18 Court: (Fooks v. Wilts, Somerset, and Weymouth Railway Co., 5 Hare, 199; 4 R. C. 210.)

And where the company, acting bonâ fide, made a mistake as to Mistake. the land taken, and began their works, delay on the part of the landowner, and the public interest that the works should not be stopped, were considered valid reasons for the non-interference of the Court: (Wood v. Charing Cross Railway Co., 33 Bea. 290.)

the works where

Where the company have been put under an undertaking, not to Leave to view interfere with the property of the plaintiff, without proceeding damage is appreunder the Lands Clauses Act, the plaintiff may obtain an order, if hended. he fear a breach of the undertaking, to view the works: (Saul v. Metropolitan Railway Co., 2 W. N. 99; 16 L. T. N. S. 169.)

If a company has entered by consent, and neglects to tender a Remedy at law. conveyance or the price of the land, the owner's only remedy at law is to proceed upon the award for payment of the compensation. He cannot treat the company as tenants at will, liable to be turned out by a demand of possession, or bring an action of ejectment against them: (Doe d. Hudson v. Leeds, &c., Railway Co., 16 Q. B. 796; 20 L. J. (Q. B.) 486.) The consent cannot be revoked: (Ibid.; Knapp v. London, Chatham, and Dover Railway Co., 32 L. J. (Exch.) 236.)

If the entry is unlawful, ejectment or trespass may be maintained: (Doe d. Hutchinson v. Manchester, &c., Railway Co., 14 M. & W. 687; 15 L. J. (Exch.) 208.)

If a company makes a permanent tunnel through the soil, without Permanent disturbing the surface, (though used as a public highway,) this is an tunnel. entering on the land within the meaning of this section; and if compensation has not previously been made to the owner, trespass will lie: (Ramsden v. Manchester, &c., Railway Co., 1 Exch. 723; 5 R. C. 552; see also Hosking v. Phillips, 3 Exch. 168.)

A cheque given by two directors is a payment of the purchase-money by the company: (Taylor v. Clemson, 11 Cl. & Fin. 610; 3 R. C. 85.)

on lands before

making deposit

LXXXV. Provided also, that if the promoters of the Promoters to be undertaking shall be desirous of entering upon and allowed to enter using (a) any such lands (b) before an agreement (c) purchase, on shall have been come to or an award made, or verdict by way of security given for the purchase-money or compensation to be paid and giving bond. by them in respect of such lands, it shall be lawful for the promoters of the undertaking to deposit in the bank by way of security (d), as hereinafter mentioned, either the amount of purchase-money or compensation (e) claimed by any party interested in or entitled to sell and convey such lands (f), and who shall not consent to such entry, or such a sum as shall by a surveyor (g) appointed by two justices in the manner hereinbefore provided in the case of parties who cannot be found (h) be determined to be the value of such lands, or of the interest therein which such party is entitled to or enabled to sell and convey, and also to give to such a party a bond (i), under the common

8 & 9 VICT. c. 18. seal of the promoters if they be a corporation, or if they be not a corporation under the hands and seals of the said promoters, or any two of them, with two sufficient sureties (k) to be approved of by two justices in case the parties differ, in a penal sum equal to the sum so to be deposited, conditioned for payment to such party, or for deposit in the bank for the benefit of the parties interested in such lands, as the case may require, under the provisions herein contained, of all such purchase-money or compensation, as may in manner hereinbefore provided be determined to be payable by the promoters of the undertaking in respect of the lands so entered upon, together with interest thereon, at the rate of five pounds per centum per annum, from the time of entering on such lands, until such purchase-money or compensation shall be paid to such party, or deposited in the bank for the benefit of the parties interested in such lands, under the provisions herein contained; and upon such deposit by way of security being made as aforesaid, and such bond being delivered or tendered to such nonconsenting party as aforesaid, it shall be lawful for the promoters of the undertaking to enter upon and use such lands, without having first paid or deposited the purchasemoney or compensation in other cases required to be paid or deposited by them before entering upon any lands to be taken by them under the provisions of this or the special act.

Lands injuri

ously affected.

Lands taken and used with

out paying compensation.

Easement.

Not entitled to

ance after entry under s. 85.

(a) It may be regarded as settled by the case of Lister v. Lobley, (7 A. & E. 124,) that the company may, before making the compen. sation payable under s. 68 of the Railways Clauses Act, execute works upon their own land, or that of another party, injuriously affecting neighbouring lands, upon which they have not entered: (Hutton v. London and South-Western Railway Co., 7 Hare, 259.)

The remedies of the landowner where his land has been taken or used without previously receiving compensation are stated and explained in the notes to s. 84, (p. 249, et seq., supra.)

(b) Where an easement is to be regarded as "lands" under the Lands Clauses Act is a question, the cases upon which will be found in p. 193, supra.

(c) The company are not entitled to go to the Court for specific specific perform- performance of an agreement with a landowner, after they have entered upon the land, and given a bond under s. 85: (Bedford and Cambridge Railway Co. v. Stanley, 2 J. & H. 746; 9 Jur. N. S. 152; 32 L. J. (Ch.) 60; 1 N. R. 162; 11 W. R. 139; 7 L. T. N. S. 477.)

Entry before expiration of

powers, but no

further step taken.

If a company, in compliance with the provisions of this section, has entered on lands before the expiration of the time for exercising their compulsory powers for taking land, but no further step is taken until after the expiration of that time, the subsequent pos

Expiration of Powers-Payment into Court. 255

session of the company is not unlawful, and ejectment cannot be 8 & 9 VICT. c. 18. maintained against them: (Worsley v. South Devon Railway Co., 16 Ejectment. Q. B. 539; 20 L. J. (Q. B.) 254; Doe d. Armitstead v. North Stafford

expiration of

shire Railway Co., 16 Q. B. 526; 20 L. J. (Q. B.) 249.) If the com- Notice imme. pany have given notice that the lands are required, the compliance diately before with the present section, even the day before the compulsory powers powers. expire, by giving a bond and depositing money, is sufficient to prevent their powers to purchase or enter from lapsing by extension of the prescribed time: (Marquis of Salisbury v. Great Northern Railway Co., 21 L, J. (Q. B.) 185; 17 Q. B. 840.) The amount of compensa- Assessment of tion may be ascertained after the expiration of that time, as this is compensation after expiration. not the exercise of a compulsory power, (Doe d. Armitstead v. North Staffordshire Railway Co., ubi supru;) neither is an entry by the Entry. company after the requisites of this section have been observed, an exercise of the compulsory powers of the company: (Marquis of Salisbury v. Great Northern Railway Co., ubi supra.) See further on the subject of the exercise of the compulsory powers after the limited time has elapsed, s. 123, post, and the notes thereon.

when receiver in

If the property to be taken is in the possession of a receiver ap- Company cannot pointed by the Court of Chancery, and the matter of the sale to the act under s. 85 railway company have been referred to the master, the company possession. will not be entitled to resort to their compulsory powers without leave of the Court: (Tink v. Rundle, 10 Bea. 318.)

under this sec

(d) Money paid in under this section "is not finally ascertained, Effect of paybut an estimated value, in order to secure to the party who owns ment in, &c., the land, and who is to part with it, the means by which he may be tion. ultimately paid what may be found due:" (Per Lord Cottenham, C., in re Fooks, z M'N. & G. 357.)

saved.

Consequently the ordinary rights of a vendor will not be taken Vendor's ordiaway from a person whose land is made the subject of compulsory nary rights sale. In a late case, accordingly, he was declared to be entitled to Enforcement of enforce his lien for unpaid purchase-money by sale of the land, lien by sale. although the railway had been opened for public traffic; it was also held that the accepting a security for an unascertained sum would not deprive the vendor of his remedy; and that the rights of the public could not be used as an excuse by a railway company who have taken a man's land and have not paid for it: (Walker v. Ware, Hadham, and Buntingford Railway Co., L. R. 1 Eq. 195; 12 Jur. N. S. 18 ; 35 L. J. (Ch.) 94; 14 W. R. 157; 13 L. T. N. S. 517. See also Attorney-General v. Sittingbourne and Sheerness Railway Co., L. R. 1 Eq. 636; 35 L. J. (Ch.) 318; 14 W. R. 414; 14 L. T. N. S. 92, where an order for sale was not made, because the application was by petition under the liberty to apply given by a decree in a suit for specific performance of a contract, whereas it is necessary to establish the lien by bill, bringing before the Court incumbrancers and other parties, before the lien can be enforced.)

sum larger than

Where the company entered under the powers of the 85th section Subsequent and paid a certain sum into Court, upon their non-performance of agreement for a subsequent agreement for a larger sum, the plaintiff was held that paid in. entitled to a decree for specific performance and payment of the balance by a day fixed; but a sale of the land, over which the railway had already been completed, was refused: (Betty v. London, Chatham, and Dover Railway Co., 2 W. N. 169.)

8 & 9 VICT. c. 18.

Vendor's lien.

Order for payment, and injunction in de fault thereof.

After a decree of this nature, it seems that, even where the property has not been, and is not intended to be, used, if default is still made in payment of the purchase-money, the Court will, upon the petition of the landowner, declare his lien, but will not immediately order a sale (Heriot v. London, Chatham, and Dover Railway Co., 2 W. N. 180; 16 L. T. N. S. 473.)

And in a case where a railway company took land, and made a railway upon it, and afterwards leased the line to another company, leaving part of the purchase-money, it was ordered on appeal, (dissentiente Sir G. L. Turner, L. J., who thought that a receiver ought to be appointed,) that the first company should pay the money, and in default that both companies should be restrained from using the land: (Cosens v. Bagnor Railway Co., L. R. 1 Ch. App. 594; 14 W. R. 1002)

In the next case upon this subject, the company had, by agreement with the landowner, been let into possession of the land, had given him a bond, and made their line over the land, but had failed to pay the money due thereon. It was held, upon an interlocutory motion, that as he had let the company into possession, and they were only using the land for the very purpose for which he sold it to them, he was not entitled to an injunction, though perhaps he might be entitled to an order for a receiver: (Pell v. Northampton and Banbury Railway Co., L. R. 2 Ch. App. 100; 36 L. J. (Ch.)319; 15 W. R. 27; 15 L. T. N. S. 169.)

So, where a landowner expressly agreed to sell his land upon the terms that the company should pay a deposit, and the whole sum with interest at 4 per cent. if the purchase was not completed within six months, and at per cent. afterwards, the Lords Justices, seeing that the deposit had been paid, that an increased rate of interest had been provided for in case of default, and that the land was used for the purposes for which it was taken, refused, even after a delay of three years, to grant an order for payment of the balance into Court: (Pryse v. Cambrian Railway Co., L. R. 2 Ch. App. 444; and see 36 L. J. (Ch.) 565; 15 W. R. 604.)

Where, however, an agreement for sale and conveyance had been made, possession taken, but the purchase-money left unpaid, ViceChancellor Stuart made an order, upon motion for decree, against the company and their lessees, (who were made parties to the bill,) declaring a lien against both companies, with leave, in case the money should not be paid, to apply for an injunction, and for the appointment of a receiver: (Bishop of Winchester v. Mid-Hants Railway Co., L. R. 5 Eq. 17.)

The Master of the Rolls, in another case, upon a bill for specific performance, made an order similar to that in Walker v. Ware and Hadham Railway Co., (ubi supra,) it appearing that the defendants had accepted the title under the agreement, had taken possession of the land, and made their railway over it: (Raper v. Crystal Palace and South London Junction Railway Co., 3 W. N. 48; 16 W. R. 413.)

Upon motion for decree in another case, where the company had failed in the completion of the contract for sale, an order was made by Sir J. Stuart, V.-C., for specific performance within six months, with interest at 4 per cent., and in default to rescind the contract: (Forster v. Great Eastern Railway Co., 3 W. N. 122.)

And after a decree for specific performance has been made in a