Jolly against The Wimbledon and Dorking Railway Company

JurisdictionEngland & Wales
Judgment Date15 June 1860
Date15 June 1860
CourtCourt of the Queen's Bench

English Reports Citation: 121 E.R. 913

IN THE COURT OF QUEEN'S BENCH, AND EXCHEQUER CHAMBER.

Jolly against The Wimbledon and Dorking Railway Company

jolly against the wimbledon and dorking eailway company. [Friday, June 15th, I860.]-Railway Company. Lands Clauses Consolidation Act, 1845, s, 124. Land taken by mistake. Notice of claim. Ejectment.-By the Lands Clause* Consolidation Act, 1845, 8 & 9 Viet. c. 18, s. 124, if, after the promoters of the undertaking have entered upon lands which they are authorized to purchase, and which are permanently required, any party shall appear to be entitled to any interest in or charge thereon which through mistake was not purchased, then the promoters shall remain in undisturbed possession ; provided within six months after notice of the interest or charge, in case the same is not disputed, or, in case the same shall be disputed, then, within six months after the right thereto shall have been established by law, they pay the compensation therein mentioned. The defendants, a railway Company, under their Act, which incorporated the Lands Clauses Consolidation Act, 1845, 8 & 9 Viet. c. 18, in July, 1858, entered upon lands of which the mortgagor had been in possession ; and although the purchase money was not paid to him, the parties were treating for arrangement, and the entry was with the knowledge and consent of the mortgagor. The plaintiff was mortgagee in fee of these lands, but the mortgage was not known by the defendants to exist until the plaintiff's attorney, having discovered the entry by the defendants, sent a letter in August, 1859, to the defendants' attorney, 914 JOLLY V. WIMBLEDON AND DORKING RLY. CO. 1B. ft S. 808. asserting the plaintiff's rights. A correspondence ensued, in which the plaintiff gave no information of his title and the defendants did not dispute his title, but asked for a short delay while their legal advisers were absent from London. In the following October the plainliff brought ejectment. Held, by the Court of Queen's Bench, on the authority of The Marquis of Salisbury v. The Great Northern Eailway Company, 5 C. B. N. S. 174, that the plaintiff might bring ejectment to establish his title, though execution upon the judgment would be stayed for six months. Held, by the Exchequer Chamber (reversing the judgment of the Queen's Bench), that ejectment could not be maintained, inasmuch as, the title not being in dispute, the above enactment gave the defendants a right of possession for six months after notice of the plaintiff's claim. [Reversed in Exchequer Chamber, 1 B. & S. 815 ; 31 L. J. Q. B. 95; 5 L. T. 614; 8 Jur. N. S. 1037 ; 10 W. E. 253.] Ejectment, brought the 25th October, 1859, to recover two pieces of land, being respectively parts [808] of a close of land and of an occupation road, at Merton, in the parish of Merton, in the county of Surrey. The defendants appeared on the 12th November, 1859, and defended for the whole of the said premises. On the trial, before Wightman J., at the Surrey Spring Assizes, in 1860, the following facts and circumstances were proved or admitted. The plaintiff was...

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