Croft against The London and North Western Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 27 January 1863 |
| Date | 27 January 1863 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 164
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
S. C. 32 L. J. Q. B. 113; 7 L. T. 741; 9 Jar. N. S. 962 11 W. R. 360. Principle applied, Todd v. Metropolitan District Railway, 1871, 24 L. T. 438; R. v. Poulter, 1887, 20 Q. B. D. 139. Referred to, Mercer v. Liverpool Railway, (1903) 1 K. B. 662; (1904) A. C. 461.
[436] croft against the london and north western railway company. Tuesday, January 27tb, 1863. Eailway. Compensation. Damage foreseen. Agreement of reference, arbitration and deed of grant. Lands Clauses Consolidation Act, 1845, 8 & 9 Viet. c. 18, s. 68.-A railway Company were authorized by Act of Parliament to construct a branch railway tunnel under land on part of which were erected a manufactory and buildings connected therewith, of which K. was owner in fee. In 1848, K. made a claim against the Company for compensation under The Lands Clauses Consolidation Act, 1845, 8 & 9 Viet. c. 18. The claim 8 B.S8.4J7. CROFT V. LONDON AND NORTH WESTBBN RAILWAY CO. 165 was referred to arbitration; and on the 6th April, 1848, the arbitrators made an award, by which, after reciting that it had been agreed that the amount to be paid " for the right to construct and for ever maintain the said branch railway or tunnel underneath the said hereditaments and premises, and for the purchase of the site of the said branch railway or tunnel, and in full compensation for all damage or injury to be sustained by reason of the construction " thereof, should be left to arbitration, they awarded that the Company should pay unto K. the sum of 1261. "as compensation for the right to construct and for ever maintain the said branch railway or tunnel underneath, the said hereditaments and premises, and for the purchase of the site of the said tunnel, and in fall for compensation for all damage and injury sustained by him by the construction thereof." By deed of grant, dated November 7th, 1848, reciting, among other things, the passing of the special Acts of Parliament relating to the railway, and the agreement to refer, and the award, K., in consideration of the sum therein mentioned, which he acknowledged to be " in full for the purchase of the site of, and the right to construct, maintain, and use the said tunnel underneath the pieces or parcels of land and hereditaments," granted to the Company " the site of, and full and free liberty, power and authority ... to bore, dig out, excavate, make, and construct the said branch railway or tunnel" underneath, the said pieces or parcels of land, " together with the full, free, exclusive and uninterrupted right and Kberty, at all times for ever hereafter, to use, enjoy, uphold, maintain and repair the tunnel and branch railway, and the site thereof," to hold the said liberty and all other the premises "for the purposes of the several Acts of Parlia-mentrelating to the said railway, freed and discharged from all claims and demands whatsoever of or by" K. his heirs, &c. Subsequently the branch railway or tunnel wag opened for traffic in 1849, and serious injuries were from time to time sustained by the buildings and the manufactory caused by the subsidence of the surface consequent upon the construction of the tunnel in such a soil (the stratum through which it passed at this point of its course, and upon which the premises stood, consisting of clay and loose earth), and by the vibration resulting from the passing of heavily laden and other trains along the tunnel, " or by one of such causes." Held:-1. That K. could maintain no action against the Company. 2. That K. was not entitled to compensation under The Lands Clauses Consolidation Act, 1845, 8 & 9 Viet. c. 18, s. 68. [S. C. 32 L. J. Q. B. 113; 7 L. T. 741; 9 Jur. N. S. 962; 11 W. R. 360. Principle applied; Todd v. Metropolitan District Railway, 1871, 24 L. T. 438; R. v. Poulter, 1887, 20 Q. B. D. 139. Referred to, Mercer v. Liverpool Railway, [1903] 1 K. B. 682; [1904] A. C. 461.] [437] This waa an action to recover damages for injury to buildings of the plaintiff causid by the construction of a railway tunnel of the defendants, and by their working of their railway in and through that tunnel; and under the Common Law Procedure Act, 1852, the following case was stated for the opinion of the Court, without pleadings, : By st*t. 8 & 9 Viet. c. cxxiii., The Liverpool and Manchester Railway Company were authorized to extend their stations and works in Liverpool, and to make a branch railway or tunnel from Edgehill to Waterloo Road, in Liverpool. 7 stats. 8 & 9 Viet. c. cxcviii. and 9 & 10 Viet. o. cciv., The London and North Western: Railway Company were authorized to carry out the powers and provisions contained in the first mentioned statute. Th.eia thrte Acts of Parliament were to be taken as forming part of the case. The branch railway or tunnel called the Victoria Tunnel was constructed by The London and North Western Railway Company, under the provisions of the above mentioned Aats of Parliament, and was opened for traffic about the mouth of August, 1849. At the time of the passing of the above mentioned Acts of Parliament and of the construction of the tunnel, and down to the year 1850, Edward Kilshaw was the owner in fee;(subject to certain mortgages and leases) of a soap manufactory and buildings connected therewith, situate in Gascoyne Street, Vauxhall Road, in the borough of Liverpool, in the county of Lancaster. The Victoria Tunnel passes through 166 CROFT V. LONDON AND NORTH WBSTERN RAILWAY CO. 3 B. & S. 8. the south west corner [438] of the premises iti Gascoyne Street, formerly used as a soda, ash, and soap manufactory. The total area of the promises in Gascoyne Street, upon which a manufactory formerly stood, together with dwelling houses and shops fronting into Vauxhall Road, is about 1600 square yards. The area of that portion of those premises under which the tunnel passes is about 120 square yards. The stratum through which the tunnel passes at this part of its course, and upon which the above mentioned premises stand, consists of clay and loose earth. In 1848, E. Kilahaw (the then owner of the premises above mentioned) made a claim under The Lands Clauses Consolidation Act, 1845, 8 & 9 Viet. c. 18, s. 68, against The London and North Western Railway Company for compensation for the right to construct the tunnel underneath his premises, and for the site of the tunnel, and also for damage caused by the construction of the same. Thia claim was referred to arbitration, and on the 6fch April, 1848, the arbitrators made the following award :- "To all to whom these presents shall come, We, J. A. P., of &c., J. D., of &c., and P. E., of &g., sent greeting. Whereas by an agreement bearing date the 4th March last, and made between H. Booth, Esq., on behalf of The London and North Western Railway Company of the one part, and E. Kilshaw, of &e., of the other part; reciting that under the provisions of an Act passed in the Session of Parliament, 1845, The Liverpool and Manchester Railway Company were authorized to extend their stations and works in Liverpool, and to make a branch railway or tunnel from Edgehill to Waterloo Eoad, in Liverpool aforesaid ;[ and reciting that by two [439] Acts of Parliament, the one passed in the said Session of 1845, and the other in the Session of 1846, The London and North Western Railway Company were authorized to carry out the powers and provisions contained in the first mentioned Act as effectually as could have been done by The Liverpool and Manchester Railway Company ; and also reciting that the said branch railway or tunnel passed underneath the property described in the plan attached, and signed by the said H. Booth; and further reciting that it had been agreed that the amount to be paid to the said E. Kilshaw for the right to construct and for ever maintain the said branch railway or tunnel underneath the said hereditaments and premises, and for the purchase of the site of the said branch railway or tunnel, and in full compensation for all damage or injury to be sustained by reason of the construction thereof, should be left to arbitration as thereinafter mentioned : It is by the now reciting presents agreed that it should be referred to the award of the said J. A. P. on behalf of the said London and North Western Railway Company, and of the said J. D. on behalf of the said E. Kilsbaw, and in case they could not agree, such third person as should be appointed either before or after entering upon the said reference by the said J. A. P. and J. D., or any two of them, to determine and ascertain the amount to be paid by the said railway to the said E. Kilsbaw for the right to construct and for ever maintain the said branch railway or tunnel underneath the said hereditaments and premises, and for the purchase of the site of the said branch railway or tunnel, and in full for compensation for all damage or injury to be sustained by him by reason of the construction of the said [440] tunnel underneath the said hereditaments and premises. And it was thereby mutually agreed that the decision and award of the said three arbitrators, or of any two of them, should (whether such third arbitrator should or should not be appointed or join in such award or not) be final and conclusive upon the said London and North Western Railway Company and the said E. Kilshaw, and that each of them on their respective parts would abide by and perform the award of the three arbitrators or any two of them, if made in writing, within one calendar month from the date thereof; and that the said arbitrators should be at liberty to examine the said JE. Kilahaw and his witnesses, and the witnesses of the said Company, upon oath or solemn declaration, or without, if they thought fit; and that the arbitration intended by that agreement should be proceeded with upon three clear days notice given by either party to the other...
To continue reading
Request your trial