C. A. 1903 MERCER v. LIVERPOOL, AND SOUTH RAILWAY. damage must be estimated on the assumption that the promoters will execute any work which they have power under their Act to execute. Therefore the compensation which Lord Gerard could claim would include compensation for the damage in respect of which the plaintiff now claims compensation. ST. HELEN'S The owner of land in respect of which notice to treat has been LANCASHIRE given cannot, after service of the notice, create a fresh interest in that land which will be the subject of compensation: Ex parte Edwards (1); Wilkins v. Mayor of Birmingham. (2) The same principle applies to compensation for injuriously affecting other lands belonging to the owner of the land taken; he cannot impose a greater burden upon the promoters by creating a new interest in his land which is not included in the notice to treat. Compensation must, except possibly where the damage cannot be foreseen, be assessed once for all, and the owner of land taken, whose compensation has been once assessed, cannot subsequently claim further compensation for injuriously affecting his adjoining land: Croft v. London and North Western Ry. Co. (3); Todd v. Metropolitan District Ry. Co. (4) Lord Gerard himself, therefore, could not have claimed further compensation in respect of this land; neither can the plaintiff, whose interest is derived from him, do so. [They also cited on this point Cowper-Essex v. Acton Local Board. (5)] Secondly, on the assumption that the provisions of s. 13 of the Act of 1886 had not lapsed, and that the statutory agreement therein contained remained in force at the time when the works were executed, the plaintiff is not entitled to compensation. The claim made by Lord Gerard was on the footing that those provisions had not lapsed. The section was inserted for the benefit of Lord Gerard, and it may be argued, therefore, that the limit of twelve months mentioned in it was for his benefit; but he could waive it if he chose, and in the event of his doing so the promoters could not claim to disregard the (1) (1871) L. R. 12 Eq. 389. (2) (1883) 25 Ch. D. 78. (3) (1863) 3 B. & S. 436. C. A. 1903 MERCER V. LIVERPOOL, AND SOUTH RAILWAY. restrictions imposed upon them by the section as a condition of their being allowed to execute the works. Regarding the case from that point of view, the damage to the plaintiff's houses resulted from the statutory agreement having been ST. HELEN'S carried out in part only, and not in toto, by lowering the level LANCASHIRE of part of Birchley Street, but not that of the land on which the plaintiff's houses stand. It may be questionable whether the statutory agreement includes an obligation to lower the land, which had no buildings upon it when the agreement was made, now that houses have been built upon it; but, however that may be, it is clear that the remedy for not carrying out the terms of the statutory agreement would be by action, and not by way of compensation. [They also cited Tiverton and North Devon Ry. Co. v. Loosemore. (1)] Cripps, K.C., and MacConkey, for the plaintiff. It is admitted that a notice to treat binds the lands comprised in it which the promoters are seeking to acquire, so that an interest created in those lands by the owner after service of notice to treat on him is not a subject of compensation under the Lands Clauses Consolidation Act, 1845. But no case has gone the length of suggesting that the same doctrine applies to an interest created by the landowner in his adjoining land which is not required by the promoters, but is injuriously affected by the execution of their works. It is not a reasonable result of the exercise by promoters of their compulsory powers that the owner of a large estate, who has been served with a notice to treat in respect of a small portion of his land, should be unable after that date to create a fresh interest in his adjoining land except subject to the notice to treat. A notice to treat does not, until after assessment of the purchase-money and compensation, constitute a contract of sale enforceable by a decree of specific performance: Mason v. Stokes Bay Pier Co. (2); Harding v. Metropolitan Ry. Co. (3); by itself it is of the nature of an inchoate contract, and that only as to the land comprised in it: Adams v. London and Blackwall Railway (4); (1) (1884) 9 App. Cas. 480. (3) (1872) L. R. 7 Ch. 154. Metropolitan Railway v. Woodhouse. (1) It cannot be that the service upon the landowner of a notice amounting at most to an inchoate contract in respect of lands comprised in it prevents him from dealing with his other lands. [VAUGHAN WILLIAMS L.J. No doubt he can deal with his other lands; the question is whether the fresh interest which he creates in them is a subject for compensation.] If a landowner between the service of the notice to treat and the assessment of compensation were to sell his adjoining land, he would not be entitled to compensation for the injurious. affection of that land, in which at the date of the assessment he had no interest; upon the sale, the owner's right to compensation would pass to the purchaser, for the owner himself would not be injuriously affected. As between the vendor and the promoters no doubt there can be but one assessment, except in the case where at the time of assessment the damage resulting from the injurious affection of adjoining lands of the owner cannot be foreseen; future injury resulting in future damage may be the subject of a subsequent assessment: per Fry L.J. in Reg. v. Poulter (2); the injurious affection may not occur for several years after the notice to treat, and compensation in respect of it may be claimed when the injury happens by the person whose interest is injuriously affected. There is nothing to shew that, in fixing the amount of compensation paid to Lord Gerard, damage of the nature of that for which the plaintiff claims compensation was in fact taken into consideration. [They also cited Carter v. Great Eastern Railway (3); Lancashire and Yorkshire Railway v. Evans (4); Duke of Bedford v. Dawson. (5)] McCall, K.C., in reply. Cur. adv. vult. Jan. 31. VAUGHAN WILLIAMS L.J. I have had the advantage of reading the judgment which has been prepared by Stirling L.J., and I so entirely agree with it that it would (1) (1865) 34 L. J. (Ch.) 297. p. 138. (3) (1863) 8 L. T. (N.S.) 197. C. A. 1903 MERCER V. LIVERPOOL, ST. HELEN'S AND SOUTH RAILWAY. C. A. 1903 MERCER V. LIVERPOOL, ST. HELEN'S AND SOUTH LANCASHIRE RAILWAY. serve no useful purpose for me to deliver a separate judgment in my own language. There is, however, one observation which I shall have to make after my learned brethren have delivered their judgments. STIRLING L.J. read the following judgment :-The material facts to be borne in mind are these. On October 23, 1891, the defendants under their special Acts served upon Lord Gerard, the owner in fee, a notice to treat in respect of certain specified lands, the notice, in accordance with s. 18 of the Lands Clauses Act, 1845, in particular demanding from him particulars of his estate and interest in such lands and of the claims made by him in respect thereof, and stating that the defendants were willing to treat for the purchase thereof, and as to compensation to be made for damage that might be sustained by reason of the execution of the works. On January 12, 1892, Lord Gerard sent in his claim. On October 14, 1892, an agreement was executed between Lord Gerard and the defendants, and on November 27, 1894, there was a conveyance by Lord Gerard to the defendants of the land comprised in the notice to treat. On June 14, 1892, before either the agreement or the conveyance had been executed, a lease was granted by Lord Gerard to the plaintiff or the plaintiff's predecessor in title of certain building land not comprised in the notice to treat, and on this land the lessee proceeded to erect houses. It is to be taken that the lessee had no knowledge of the notice to treat having been served when the lease was granted, nor had the railway company any notice of the lease when the agreement with Lord Gerard was entered into or the conveyance executed. Subsequently to the date of the conveyance the defendants executed works which necessitated the lowering of a street on which the plaintiff's land abutted, and thereby injuriously affected such land. The plaintiff thereupon claimed from the defendants compensation under s. 68 of the Lands Clauses Consolidation Act, 1845, and the sum of 3717. 10s. was by award of an arbitrator found as the amount of compensation. The question is whether the plaintiff is entitled to this amount. C. A. 1903 MERCER V. LIVERPOOL, ST. HELEN'S AND SOUTH RAILWAY. No case has been cited which exactly covers the point which arises for decision; but the effect of a notice to treat as regards lands proposed to be taken has been frequently considered. The result of the decisions appears to me to be stated with perfect accuracy by Kindersley V.-C. in Haynes v. Haynes. (1) The learned Vice-Chancellor says: "I consider that the notice to treat constitutes, as between the landowner and the company, the relation of vendor and purchaser to a certain extent Stirling L.J. and for certain purposes (that is the language of Lord Cottenham in Adams v. London and Blackwall Ry. Co. (2)), and that some of the consequences which flow from an actual contract also follow upon the notice to treat; such as that the particular lands which the company are to take, and which the landowner must give up to the company after certain steps prescribed by the Act shall have been taken, are fixed, and that neither party can get rid of the obligation, the one to take and the other to give up the lands specified in the notice; and that such is the meaning to be attributed to those expressions, which may have dropped from learned judges, which seem to intimate that it is a contract; but that in no other sense and to no further extent does the notice constitute a contract, at least on the part of the landowner." It is at the same time to be observed that the rights and obligations created by the service of a notice to treat, if they fall short in some respects of those which arise under an ordinary contract of sale, are in other respects much greater. For example, under s. 85 of the Lands Clauses Consolidation Act, 1845, the promoters may, upon complying with the requirements of the section and before the purchase-money has even been ascertained, enter upon and use the lands; and it has been expressly decided that after such entry a railway company has a legal interest in the land: Worsley v. South Devon Ry. Co. (3); see also the judgment of Lord Campbell in Marquis of Salisbury v. Great Northern Ry. Co. (4), and the remarks of Lord Bramwell in advising the House of Lords in Tiverton and North Devon Ry. (1) (1861) 1 Dr. & Sm. 426, at p. 450. (2) 2 Mac. & G. 118. (3) (1851) 16 Q. B. 539. (4) (1852) 17 Q. B. 840. |