The Trowbridge Waterworks Company was empowered to take certain brooks and streams for the purposes of its undertaking. B. was the owner of a water meadow which was watered by a stream called Biss Brook. Biss Brook was supplied in part by Biss Springs. The company took Biss Springs, and so diminished the amount of water in the Biss Brook, and thus caused injury to the plaintiff's meadow. The company had served no notice on B. under the Lands Clauses Act, 1845, sect. 18. B. then filed a bill for an injunction to restrain the company from taking the Biss Springs held, that the Biss Brook was injuriously affected, and not taken within the meaning of the Waterworks Clauses Act, 1847, sect. 6, and that, therefore, the company was not bound to serve a notice on B. under the Lands Clauses Act, 1845, sect. 18. Bush v. Trowbridge Waterworks Co., L. R., 10 Ch. App. 459; 44 L. J., Ch. 645; 23 W. R. 641; 33 L. T., N. S. 137 (affirming the decision of the Master of the Rolls, 44 L. J., Ch. 235; 23 W. R. 330; 32 L. T., N. S. 182; L. R., 19 Eq. 291). The landowner is entitled to proceed by mandamus to compel the com- Enforcing the pany to issue their warrant to assess compensation. R. v. Hungerford Market Co., 4 B. & Ad. 327; and see post, p. 623.

The landowner has also a right to proceed under the C. L. P. Act, 1854, sect. 68, by an action for a mandamus to the company to issue their warrant. Fotherby_v. Metropolitan Railway Co., 36 L. J., C. P. 88; 12 Jur., N. S. 1005; L. R., 2 C. P. 188; Morgan v. Metropolitan Railway Co., 37 L. J., C. P. 265; L. R., 3 C. P. 553; affirmed in Exch. Cham., 38 L. J., C. P. 87; 19 L. T., N. S. 655.

Where a company has given notice to take lands under its compulsory powers, and the price is fixed, the Court of Chancery will entertain a suit for specific performance. Regent's Canal Co. v. Ware, 23 Beav. 575; 26 L. J., Ch. 566; and see Inge v. Birmingham, Wolverhampton and Stour Valley Railway Co., 1 Sm. & G. 347; affirmed on appeal, 3 De G., M. & G. 658; Mason v. Stokes Bay Pier, &c. Co., 32 L. J., Ch. 110; 11 W. R. 80; Harding v. Metropolitan Railway Co., L. R., 7 Ch. App. 154 ; 41 L. J., Ch. 371; 20 W. R. 321; 26 L. T., N. S. 109. In an early case (Walker v. Eastern Counties Railway Co., 6 Hare, 594; 5 Rail. Cas. 469; 12 Jur. 787) it had been held, that a bill for specific performance would lie even where the price had not been agreed upon; but this decision was not followed in Hill v. Great Northern Railway Co., 23 L. J., Ch. 524; 2 Eq. Rep. 1069; nor in Haynes v. Haynes, 1 Dr. & Sm. 426; 30 L. J., Ch. 578. And see also Adams v. London and Blackwall Railway Co., 2 Mac. & G. 118; 6 Rail. Cas. 271; and a notice by the company that they will apply for a surveyor under sect. 36 of the Railway Companies Act, 1867 (30 & 31 Vict. c. 127), does not so bind the company as to prevent their withdrawing their notice to treat for part only of a manufactory, upon receiving counter-notice to take the whole. Grierson v. Cheshire Lines Committee, L. R., 19 Eq. 83; 31 L. T., N. S. 428; 23 W. R. 68. As to the requirements of the Statute of Frauds regarding writing, see Watts v. Watts, L. R., 17 Eq. 217; 43 L. J., Ch. 77; 29 L. T., N. S. 671. A notice to treat with lessees will not exonerate them from liability for breaches of covenant committed after such notice but before assignment to the company. Mills v. East London Union, L. R., 8 C. P. 79; 42 L. J., C. P. 46. A company authorized to make a line of railway under a public street is not bound to give notice to treat or to pay compensation to the adjoining owners in whom the soil of the street is vested. Souch v. East London Railway Co., L. R., 16 Eq. 108; 42 L. J., Ch. 477; 21 W. R. 590; and a cul-de-sac, if dedicated to the public, is a street for that purpose. Ibid. A company having given notice to a landowner to treat, after some discussion the question of compensation was referred to arbitration, which however was never completed: it was held, that the remedy of the landowner was by mandamus to compel the summoning of a jury, and not by bill in Chancery. Lind v. The Isle of Wight Ferry Co., 7 L. T., N. S. 416. A notice to treat having been given, and particulars accordingly fur

contract created by the notice.

Service of notices on owners and occupiers of lands.

Service of notice on a corporation aggregate.

If parties fail

to treat, or in

case of dispute, question to be

settled as after mentioned.

nished by the landowner, who claimed 4,5001. as compensation, and requir ing payment thereof, or that a warrant should be issued by the company to summon a jury to assess the amount, the company took no further step in the matter: it was held, that the landowner could not maintain an action to recover the 4,5007. Burkinshaw v. Birmingham and Oxford Junction Railway Co., 6 Rail. Cas. 600; 5 Exch. 475; 20 L. J., Exch. 246. A company which has entered and paid for leaseholds may be compelled within a reasonable time by the lessee to accept an assignment with the usual covenants. Harding v. Metropolitan Railway Co., L. R., 7 Ch. App. 154; 41 L. J., Ch. 371; 20 W. R. 321; 26 L. T., N. S. 109.

Although the court will grant specific performance where a notice to treat has been given and the price fixed, it will not restrain the running of trains over the land until payment of the price in order to enforce the vendor's lien. Lycett v. Stafford and Uttoxeter Railway Co., L. R., 13 Eq. 261; 41 L. J., Ch. 474; 25 L. T., N. S. 870; Munns v. Isle of Wight Railway Co., L. R., 5 Ch. App. 414; 39 L. J., Ch. 522; 23 L. T.,

N. S. 96.

As to the case where a landowner is a lunatic, see Re Brewer, L. R., 1 Ch. Div. 409; 24 W. R. 465; 34 L. T., N. S. 466; Re Milnes, L. R., 1 Ch. Div. 28; 34 L. T., N. S. 46.

A quarterly tenant has no interest in the premises within the meaning of the above section. Syers v. Metropolitan Board of Works, Weekly Notes, 30th Dec., 1876, p. 305; affirmed by the Court of Appeal, 36 L. T., N. S. 277; Weekly Notes, 24th Feb., 1877. See sect. 121, post.

XIX. All notices required to be served by the promoters of the undertaking upon the parties interested in or entitled to sell any such lands shall either be served personally on such parties or left at their last usual place of abode, if any such can after diligent inquiry be found, and in case any such parties shall be absent from the United Kingdom, or cannot be found after diligent inquiry, shall also be left with the occupier of such lands, or, if there be no such occupier, shall be affixed upon some conspicuous part of such lands.

XX. If any such party be a corporation aggregate such notice shall be left at the principal office of business of such corporation, or, if no such office can after diligent inquiry be found, shall be served on some principal member, if any, of such corporation, and such notice shall also be left with the occupier of such lands, or, if there be no such occupier, shall be affixed upon some conspicuous part of such lands.

XXI. If for twenty-one days after the service of such notice any such party shall fail to state the particulars of his claim in respect of any such land, or to treat with the promoters of the undertaking in respect thereof, or if such party and the promoters of the undertaking shall not agree as to the amount of the compensation to be paid by the promoters of the undertaking for the interest in such lands belonging to such party, or which he is by this or the

special act enabled to sell, or for any damage that may be sustained by him by reason of the execution of the works, the amount of such compensation shall be settled in the manner hereinafter provided for settling cases of disputed compensation.

where the

claimed does

not exceed 501. to be settled by two justices.

XXII. If no agreement be come to between the promoters Disputes as to of the undertaking and the owners of or parties by this act compensation enabled to sell and convey or release any lands taken or amount required for or injuriously affected by the execution of the undertaking or any interest in such lands, as to the value of such lands or of any interest therein, or as to the compensation to be made in respect thereof, and if in any such case the compensation claimed shall not exceed fifty pounds, the same shall be settled by two justices.

An order of justices under this section has been held to be within the 11 & 12 Vict. c. 43, s. 1, and to be bad if the complaint on which the order is founded be made more than six calendar months after the cause of complaint arose; and such order was allowed to be brought up by certiorari to be quashed. Re Edmundson, 17 Q. B. 67. See note to sect. 121, post.

XXIII. If the compensation claimed or offered in any such case shall exceed fifty pounds, and if the party claiming compensation desire to have the same settled by arbitration, and signify such desire by notice in writing to the promoters of the undertaking, before they have issued their warrant to the sheriff to summon a jury in respect of such lands, under the provisions hereinafter contained, 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, or if when the matter shall have been referred to arbitration the arbitrators or their umpire shall for three months have failed to make their or his award, or if no final award shall be made, the question of such compensation shall be settled by the verdict of a jury, as hereinafter provided.

When the parties agree to refer the amount of compensation to arbitra. tion, it is not necessary for the landowner to go through the form of signifying his desire in writing as provided for by this section. Collins v. South Staffordshire Railway Co., 7 Exch. 5; 21 L. J., Ex. 247; In re South Yorkshire, Doncaster and Goole Railway Co., 7 D. & L. 36; 18 L. J., Q. B.

Compensation exceeding 507. to be settled

by arbitration option of the or jury, at the party claiming compensation.

The three months allowed to the arbitrators or their umpire for making their award is not one and the same period; but the umpire has a new period of three months for making his award, from the time when the arbitration devolves upon him. Skerratt v. North Staffordshire Railway Co., 2 Phillips, 475; 5 Rail. Cas. 166; 17 L. J., Ch. 161; Bradshaw's Arbitration, 12 Q. B. 562; 17 L. J., Q. B. 362; 5 Rail. Cas. 527. See also In re South Yorkshire, &c. Railway Co., supra, and Cromford Canal Co. v. Cutts, 5 Rail. Cas. 442.

The parties may by consent enlarge the time beyond the three months, and, if so, the award will not be set aside on the ground that it was not made within the prescribed period. Palmer v. Metropolitan Railway Co., 31 L. J., Q. B. 259; 10 W. R. 714.

The 23rd section applies to a case of a reference to arbitration under sect. 68 of the amount of compensation in respect of land already taken or injuriously affected, as well as to arbitrations for claims for land intended to be taken. Evans v. Lancashire and Yorkshire Railway Co., 1 E. & B. 754; 22 L. J., Q. B. 254.

A reference to arbitration under this section and sect. 25 is a submission to arbitration by consent within the Common Law Procedure Act, 1854, sect. 17 (Ex parte Harper, L. R., 18 Eq. 539; 22 W. R. 942), and the arbitrator may state a special case. Rhodes v. Airedale Drainage Commissioners, L. R., i C. P. Div. (C. A.) 402 (reversing decision of C. P., L. R., 9 C. P. 508); 45 L. J., C. P. Div. 861; 24 W. R. 1053; 35 L. T., N. S. 46. And see In re Harper and Great Eastern Railway Co., L. R., 20 Eq. 39, and In re Dare Valley Railway Co., L. R., 4 Ch. App. 554; 38 L. J., Ch. 417; 20 L. T., N. S. 291.

In the latter case it appeared that an award by an umpire under a reference pursuant to the Lands Clauses Act for ascertaining the amount of compensation having, on the application of the landowner, been set aside by the court and the matter referred back to the umpire, no proceeding was taken under the reference for nearly seven months from the date of the order, and the landowner then served the company with notice of his desire to have the compensation settled by a jury. The company then applied to the court to have the time for making the award extended. It was held by James, V.-C., that the provisions of the Common Law Procedure Act, 1854, with reference to remitting matters to the reconsideration of the arbitrator, and enlarging the time for making the award, applied to references under the Lands Clauses Act, and that the court had jurisdiction to extend the time, but that after the delay which had taken place this jurisdiction ought not to be exercised so as to deprive the landowner of a trial by jury. And the Court of Appeal affirmed this decision.

Where the parties have acted under an award they are usually estopped from setting it aside. Ex parte Harrison, 13 Jur. 381.

The North Staffordshire Railway Company, requiring certain lands, gave notice to treat to T. L., R. H., and R. H., the parties interested therein, and received from them a notice which stated that they had and claimed an estate and interest in the lands, and 3,3447. for compensation, and desired to have the same settled by arbitration, and appointed T. H. one of the arbitrators. The company having appointed their arbitrator, and an umpire having been nominated, a claim for compensation was made by one T. W., who alleged that he had an unexpired leasehold interest in the premises. The umpire awarded that the sum of 1,8617. should be paid to T. L., R. H., and R. H.; but omitted to adjudicate upon T. W.'s interest. On a rule to show cause why the award should not be set aside, the court held, that the submission was not in compliance with the statute, the claimants not having therein stated the nature of their interest. In re North Staffordshire Railway Co., 6 Rail. Cas. 17; 2 Exch. 235; 17 L. J., Exch. 350.

The landowner does not lose his right to have the compensation assessed

by a jury under the 23rd section because he has made no claim, and because the company has proceeded under sect. 85. They must have actually paid or tendered the money, or the owner may claim to go on under sect. 23 or sect. 68. And if the assignee of a bankrupt mortgagor will not concur, this is ground for proceeding under sect. 110. R. v. Metropolitan Railway Co., 13 L. T., N. S. 444.

XXIV. It shall be lawful for any justice, upon the appli- Method of cation of either party with respect to any question of disputed settling disproceeding for compensation by this or the special act, or any act incorporated putes as to compensation therewith, authorized to be settled by two justices, to summon by justices. the other party to appear before two justices, at a time 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.

The justices' decision need not be reduced into writing. Reg. v. Combe, 32 L. J., M. C. 67; 11 W. R. 441.

As to the time within which the order of the justices must be made, see Re Edmundson, ante, p. 613.

of arbitrator

XXV. When any question of disputed compensation by Appointment this or the special act, or any act incorporated therewith, when quesauthorized or required to be settled by arbitration, shall have tions are to be determined by arisen, then, unless both parties shall concur in the appoint- arbitration. ment of a single arbitrator, each party, 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 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 or clerk, and on the part of any other party under the hand of such party, or if such party be a corporation 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,