Cohen v Wilkinson
| Jurisdiction | England & Wales |
| Judgment Date | 06 November 1849 |
| Date | 06 November 1849 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 1351
HIGH COURT OF CHANCERY
S. C. 12 Beav. 125; 5 Railw. Cas. 741; 18 L. J. Ch. 378; 13 Jur. 641; 14 Jur. 491; 1 H. & Tw. 554. See Sharpley v. Louth and East Coast Railway Co., 1876, 2 Ch. D. 678.
[481] cohen v. wilkinson. Nov. 6, 1849. [S. C. 12 Beav. 125; 5 Eailw. Gas. 741; 18 L. J. Ch. 378; 13 Jur. 641; 14 Jur. 491; 1 H. & Tw. 554. See Sharpley v. Lwth awl East Coast Railway Co., 1876, 2 Ch. D. 678.] A railway company, by their Act, had power to make a railway from E. to P. The original undertaking being found impracticable, the majority of the shareholders agreed to construct a railway from E. to L., a very small portion of the line originally contemplated. An injunction was granted, at the suit of an individual shareholder, restraining the company from making that limited portion only. This was an application on behalf of the Defendants, the directors of the Direct London and Portsmouth Railway Company, and of the Direct London and Portsmouth Railway Company, to reverse an order made by the Master of the Rolls on the 14th June 1849, whereby it was ordered that an injunction should issue to restrain the Defendants from applying the capital or funds of the Direct London and Portsmouth Railway Company, or any part thereof, in or towards the construction of a railway from the Croydon and Epsom Railway, commencing by a junction therewith in the parish of Epsom, to Leatherhead in the county of Surrey, only, or any otherwise than for the purpose of making and completing a railway from the Croydon and Epsom Railway to the parish of Portsea, in or near to the town of Portsmouth, in the county 1352 COHEN V. WILKINSON 1 MAC. ft Q. 2. of Southampton, in pursuance of the powers then vested in them by Act of Parliament; and that the injunction so granted might be dissolved. It appeared from the bill, which was filed on the 1st June 1849 by the Plaintiff, on behalf of himself and all other the proprietors of shares in the Direct London and Portimouth Railway Company, except the Defendants, that the Act by which the company was constituted (and which was passed on the 26th June 1846) enacted that the railway should commence by a junction with the Croydon and Epsom Railway, and should pass through the various parishes in the Act specified, and should terminate in the parish of Portsea, [482] in or near Portsmouth, and, among other provisions, that the company should not take tolls for the use of the railway, until the works required to be made should have been completed; that the Act also provided that the railway should be completed within five years from the passing of the Act, and that upon the expiration of such period, the powers granted to the company for executing the railway, or otherwise in relation thereto, should cease to be exercised, except as to so much of the railway as should be then completed; that the Plaintiff was an original subscriber to the undertaking for certain shares therein, and was, at the filing of the bill, the duly registered proprietor of seventy-one shares, in respect of which he had paid two deposits of 1 and 1, 10s. per share, and two calls of 1, 5s. and 1, 10a. j and that by means of the deposits and calls so paid by him and other members of the company, the directors had already raised 128,467. The bill also stated that, in March 1848, at the ordinary half-yearly meeting of the company, a report was submitted by the directors, which contained the following passage:- " The Directors, however, hope that they may still be able to effect some arrangement under existing powers, which will enable this company to commence the construction of the first portion of the line, namely, that between Epsom and Dorking, upon terms which will afford the proprietors a remuneration, not only for any further amount that may be required for such purpose, but also for the capital which they have already expended." The bill then set out a speech of the chairman at that meeting, in which he said " that it was not likely any opportunity for progressing with the affaire of the company would occur; and that two things suggested themselves for adoption ; either to allow their powers to lapse, or to obtain an Act of Parliament for the dissolution of the company." The bill then set out a re-[483]-port submitted to another meeting of the company on the 27th February 1849, in reference to the arrangement proposed at the last-mentioned meeting, in the following terms ;-"since the last meeting of the proprietors, the attention of the directors has been constantly applied to the subject of the arrangement contemplated in the leading paragraph of their report made to that meeting, whereby the funds expended on this undertaking might be rendered effectual to some extent for the purposes for which they were advanced, but they regret that they are still unable to announce anything definite." The bill then set out a portion of the speech of the chairman of the company at the meeting, wherein, after alluding to the failure of various negotiations, he said, "we are no longer in a condition to attempt that which we had contemplated; we have, therefore, only to wait until the powers of our Act expire, which will be in June next." The bill proceeded to state, that it appeared by the proceedings at the meetings that the company and directors had long since abandoned all intention to make the railway as authorized by their special Act, viz., from Epsom to Portsmouth ; but that they had under consideration, and were about to carry out, a plan for making a railway from Epsom to Leatherhead, a distance of about four miles only, and to apply the monies of the company to that purpose, and that they had entered into an arrangement with the London and Brighton Company, for the works of such railway when made, on payment of certain tolls. The bill, after stating that the intention of the directors, to make the proposed railway from Epsom to Leatherhead only, became known to the Plaintiff for the first time within fourteen days before the filing of his bill-prayed a declaration that it was not within the powers of the company to make the railway to Leatherhead only; and [484] an injunction in the terms in which it was granted by the Master of the Rolls as above stated. The object of the present motion was to dissolve this injunction. Mr. Malins and Mr. Bovill, for the Defendants, in support of the motion. The Parliamentary contract which the Plaintiff subscribed authorises the construction of the whole or any part of the line. If the Act makes it imperative on the company 1MAC. tea. B. COHEN V. WILKINSON 1353 to construct the whole line, the Plaintiff's remedy is at law by mandamus; Regina v. The Eastern Counties Railway Company (10 A. & E. 531; S. C. 1 Railway Cases, 509 ; 2 Railway Gases 260). These undertakings are regarded as conferring great public benefit, and also in the light of contracts with the public. [THE lord chancellor. If it is a contract with the public, is it not, a fortiori, a contract with the individual shareholders 1 ] The Plaintiff has clearly no equitable right; and even if he had, he has waived it, the bill shewing that he was cognizant of what occurred at the various meetings on the subject of the abandonment of the original undertaking; and it is not competent for him to lie by, and after the directors, with the full consent of all the other proprietors, have (as the fact is) served notices on the various landowners on the portion of the line which they are about to construct, and thus entered into binding contracts with them (Walker v. Eastern Counties Railway Company (6 Hare, 594)), to file his bill to restrain the company from completing this portion. These contracts having been thus entered into, this injunction will be [485] no answer to a bill for specific performance, filed by any individual landowner. This is not like a case of an appropriation of the capital of the company to purposes without the scope of the undertaking, as in C'olman v. The Eastern Counties Railway Company (10 Beav, 1). The principles on which this Court acts in reference to public companies are accurately stated in Frewin v. Lewis (4 Myl. & Cr. 249). Here there is no attempt to exceed the powers of the company ; and the principle on which this injunction is granted would, in fact, be equally applicable if the company were about to construct all but a mile of the whole line. If the question involved in this injunction is tested by the balance of convenience or inconvenience, it is manifest that if the Defendants are restrained from making this portion of the railway, the injury to the company will be irreparable; whereas, if they are permitted to go on, the Plaintiff cannot suffer any injury by the construction of part only of the whole line. The words of the special Act are not mandatory, but permissive ; Stone v. The Commercial Railway Company (4 Myl. & Cr. 122). [THE lord chancellor. It is a fallacy to say that the company are restrained from making this portion of the line. The Master of the Rolls steers clear of that by expressly restraining the company from making a portion only; and it is quite consistent with this injunction, and competent for the Defendants, to commence this portion at once, provided it is with the intention of executing the entire railway.] [486] The cases of The Mayor, dr., of King's Lynn v. Pemberton (1 Swanst. 244), A gar v. The Regent's Canal Company (1 Swanst. 250, note), Ware v. The Grand Junction Waterworks Company (2 Russ. & M. 470), Salmon v. Randall (3 Myl. & Cr. 439), Lord v. The Governor and Company of Copper Miners (2 Phil. 740), were also referred to in the course of the foregoing argument. Mr. Rolt and Mr. H. W. Cole, for the Plaintiff, were not called on by the Lord Chancellor. the lord chancellor [Cottenham] observed that the main point in the case, namely, the right of an individual member of a company to restrain that company from...
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