Chamberlain v West End of London Railway
| Jurisdiction | England & Wales |
| Judgment Date | 02 February 1863 |
| Date | 02 February 1863 |
| Court | Exchequer Division |
English Reports Citation: 121 E.R. 1202
IN THE COURT OF QUEEN'S BENCH, AND THE COURT OF EXCHEQUER CHAMBER
For note see 2 B. & S. 605
1202 CHAMBERLAIN V. THE WEST END OF LONDON 2 B. ft 3. 617- [617] in the exchequer chamber. chamberlain against the west end of london and crystal palace railway company. Monday, February 2d, 1863. For head note see ante, p. 605. [For note see 2 B. & S. 605.] The defendants having brought error upon the above judgment, the case was argued in Michaelmas Term November 26tb, 27tb, 1862, and Hilary Vacation, February 2d, 1863. Rqcbfort Clarke, for the defendants.-The test laid down by Lord Campbell in Be Penny and the South Eastern Railway Company (7 E. & B. 660, 669), and adopted by the Court below in this case, is not well founded. [Williams J. That test was first suggested by my brother Keating in arguing the case of Glover v. The North Staffordshire Railway Company (16 Q. B. 912, 923), and was adopted eulogiatically by Lord Campbell.] In Be Penny and the South Eastern Railway Company (7 E. & B. 660, 667, 668), the judgment of Lord Cranworth C. in The Caledonian Railway Company v. Ogilvy (2 Macq. 229, 235) on the same point was referred to, which is guarded thus: " I am far from admitting that he would have a right of compensation in some oases iti which, if the Act of Parliament had not passed, there might have been not only an indictment, but a right of action." [618] And then Lord Campbell said r " I think he would be entitled to compensation in such cases;" and Erie J., "Even where the damage was only a scintilla." There is some inaccuracy in the report of that dictum. [Erie C.J. That dictum is certainly foreign to the bent of my mind.] In The Caledonian Railway Company v. Colt (3 Macq. 833, 838, 839) Lord Campbell C. said : " It is well settled that this statutory tribunal is only established to give compensation for losses sustained in consequence of what the railway Company may do lawfully under the powers which the Legislature has conferred upon them, and that for anything done in excess of these powers, or contrary to what the Legislature, in conferring these powers, hai commanded, the proper remedy is a common law action in the common law Courts." [He also referred to The New Ewer Company, Appts., Johnson, Respt. (29 L. J. M. C. 93 ; 6 Jur. N. S. 374).] [Erie C.J. What is the boundary line between such an injurious affecting of land as entitles a person to compensation, and such as does not?] There must be a direct injury to land, including in that word tenements and hereditaments, and nob merely consequential damage. The diversion of traffic on a public highway, upon which a person has begun to build houses, is not a case for compensation. The diverting of this highway affects the whole neighbourhood, and it is a necessary damage to the neighbourhood from the making of the railway, and does not interfere with the land as snch. [Williams J. Suppose an acre of land, with a frontage to a highway, which a surveyor has valued at 10001., and the highway is withdrawn [619] and he then value* it at 5001. only, is not the land injuriously affected1!] Not within the meaning of The Lands Clauses Consolidation Act, 1845, 8 & 9 Viet. c. 18, and Tha Railways Clauses Consolidation Act, 1845, 8 & 9 Viet. c. 20. The sections of stat. 8 & 9 Viet. e. 18, from sect. 22 to sect. 68, inclusive, relate to the purchase and taking of lands. The provisions relating to the stopping up and diverting of roads, whether public or private, are in stat. 8 & 9 Viet. c. 20, from sect. 46 to sect. 64 inclusive." By sect. 53athe Company, before they interfere with any road, are required to substitute another as convenient or as nearly so as may be. By sect. 54, if they fail to do so, they are liable to a penalty of 201. for every day during which the default continues, recoverable by the trustees of the road if it is a public road, or in case of a private road by the owner thereof. And, by sect. 55, if a person entitled to a right of way over any road interfered with by the Company shall suffer any special damage by reason of their default in making another road, he may rpcover that damage by action on the case. Again, by sect. 56, the Company are required to restore: the road interfered with, or make a permanent substituted road, equally convenient as the former, or as near thereto as circumstances will allow ; and, by sect. 57, if such road be not so restored or the substituted road so completed within certain specified periods, the Company shall forfeit 51. for every day after the expiration of such periods, to the trustees of the road if public, or if a private road to the. 2B. &S.620. AND CRYSTAL PALACE RAILWAY COMPANY 1203 owner thereof. No compensation is given for private injuries caused by the stopping up or [620] diversion of public roads. And, iu Watkins v. The Great Northern Railway Company (16 Q. B. 961) it was held that stat. 8 & 9 Viet. c. 18, took away the common law right of action for an interference with a private right of way except when special damage bad been sustained. The special Act empowers the Company to divert the old road, and give the public a new one. Rex v. The Bristol Dock Company (12 East, 429) and Rex v. The London Dock Company (5 A. & E. 163) are authorities in favour of the defendants. In the former case the injury to the water of the river Avon, by the works executed by The Bristol Dock Company under their Acts, was held to be a common damage for which the owners of a brewery could not claim compensation under a clause in one of the Acts which was larger in its terras than the compensation clauses in stats. 8 & 9 Viet. cc. 18 & 20. In Bex v. The London Dock Company (5 A. & E. 163) this Court held that the tenants of a public house, whose custom had been affected by the works of the Company cutting off the communication, were not entitled to compensation under a clause which gave compensation if any person having an estate or interest not less than a tenancy from year to year in any houses, lands &c., should be injured in his estate or, interest by any of the works authorized by the Acts : and Lord Denman, in delivering the judgment of the Court, said, p. 179, "The inconvenience they complain of is not only one common in a greater or less degree to every inhabitant in the neighbourhood, but it is the necessary consequence of the lawful Act [621] done by the Company." In Rex v. Pease (4 B. & Ad. 30) the principle urged by Sir F. Pollock in argument, p. 37, that in undertakings in which the public are largely interested "some public benefit is to be sacrificed to the greater public benefit derived from the undertaking," was adopted by Parke J., in delivering the judgment of the Court, p. 41. The cases relied upon by the plaintiff do not conflict with Rex v. London Dock Company (5 A. & E. 163, 178), In Wilkes v. The Hungerford Market Company (2 Bing N. C. 281), which was recognized in Rex v. The London Dock Company (5 A. & E., 163, 178), the declaration shewed special injury to the plaintiff alone beyond the common and public nuisance. In Beg. v. The Eastern Counties Railway Company (2 Q. B. 347) the railway cutting caused an actual injury to the land ; as Lord St. Leonards observed in The Caledonian Railway Company v. Ogilvy (2 Macq. 229, 248), or at all events an injury to an easement in the nature of land, which was not common to all the Queen's subjects; and the case was decided upon the provisions of the special Act, 6 & 7 W. 4, c. cvi. [Erie C.J. That statute contemplated satis faction for injury sustained by the raising or lowering of a highway.] In Re Jubb v. The Hull Dock Company (9 Q. B. 443), by the interpretation clause of The Hull Dock Company's Act, 7 & 8 Viet. c. eiii, the word "lands" extended to "profits"; and it; was held: that the premises of a brewery having been taken by the Company for the purposes of their works, the owner was entitled to corapen-[622]-sation fof the loss of profits in his business...
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