The Duke of Beauford v Patrick
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1853 |
| Date | 01 January 1853 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 954
ROLLS COURT
S. C. 22 L. J. Ch. 489; 17 Jur. 682; 1 W. R. 280. Distinguished, Martin v. London, Chatham, and Dover Railway Company, 1866, L. R. 1 Ch. 510. See Plimmer v. Mayor, &c., of Wellington, 1884, 9 App. Cas. 713.
[60] the duke op beaufort -v. patrick.(!) March 12, H, April 15, 1853. [S. C. 22 L. J. Ch. 489; 17 Jur. 682; 1 W. R. 280. Distinguished, Martin v. London, Chatham, and Dover Railway Company, 1866, L. R. 1 Ch. 510. See Plimme-r v. Mayor, Ac., of WMimjton, 1884, 9 App. Gas. 713.] In 1794 an Act authorized the making of a public canal through lands of which A. was the owner and B. his lessee, and upon payment of the compensation the land was to vest in the company. An arrangement was made in respect of compensation with B. but not with A. The canal was made, " with the full consent and approba tion of and in accordance with the wishes of A.," whose name was mentioned in the Act, and it was enjoyed until the expiration of the lease in 1844. The representatives of A. then recovered at law the land taken for the canal. Held, in equity, that A. having thus sanctioned the formation of the canal, was not entitled to retake possession but only to a fair compensation, to be determined by the agricultural value of the land taken, as calculated in 1844, and not in 1794. Held, secondly, that persons who had bought A.'s property with notice in the conditions of sale as to the canal were equally bound by the same equity. Held, thirdly, that this Court might itself determine the amount of compensation. In 1793 a company was formed, for the purpose of making a canal to be called " The Swansea Canal," which was to pass over lands of which the Duke of Beaufort and Mr. Popkin were the owners. At that time there existed on the lands of the Duke and Mr. Popkin a private (1) dates. 1779. Lease for sixty-five years. 1783. Mortgage. 1784. Foreclosure suits. 1793. Order for sale. 1894. Act. 1797. Canal opened. 1797. Arrangement with lessee. 1800. Sale to Calland. 1808. Letter. 1844. Lease expires. 17BEAV.81. THE DUKE OF BEAUFORT V. PATRICK 955 canal or cut in part of the line of the intended canal, which it was arranged should be deepened and widened, and then form part of the canal. This cut had been made by Messrs. Morris & Co., for the purposes of their business, upon a part of the waste of the manor of Trewyddfa, granted to Morris by the then Duke of Beaufort, the lord of the manor, and on which Morris and his partners had erected copper smelting works, and partly on certain copyhold land of the same manor, which in 1779 had been demised to Morris for a term of sixty-five years, but without any power to make the cut, by Popkin, the owner in fee. The Act passed on the 23d of May 1794 (34 Geo. 3, c. cix.). It provided that the Duke and not the company should have power to make that part of the canal which passed [61] through the manor of Trewyddfa, including the cut and several yards at each end of it, and the same powers were given to the Duke as to taking the lands, making this part of the canal, and levying the dues or tolls thereon, as were given to the company, in respect of the remaining part. The Act limited the time in both cases for completing the canal to two years, and imposed a fine of 500 a year, to be paid by either party to the other, in the event of either failing to make the canal within the time, till it should be completed. By the 47th section it was enacted, that upon payment of the purchase and compensation money determined by certain Commissioners, or assessed by a jury, it should be lawful for the canal company to enter upon such lands, or before such payment or tender, by leave of the owners or occupiers, and that thereupon such land should thenceforth vest in the company for the purpose of the Act. The Act also provided that the Commissioners, appointed by the Act to settle the value of lands taken and damage done and to adjust differences, should entertain no complaint for injury or damage not made within three months from the time it was done. Popkin, as one of the proprietors, was of course included in the Special Act, and he appeared also to have been a promoter of the undertaking, and was mentioned by name in the 1st section of the Act as a proprietor, and in the 115th section, which protected his rights and interest in the fee of Trewyddfa, except so far as was necessary for making the canal. The canal was not opened for general traffic till 1797, and even then nothing had beon done to improve or widen the cut, according to the dimensions directed by the Act. On the 9th of August 1797, however, an arrangement was entered into between the then Duke of Beaufort of the one part, and Morris & Co. the lessees, of the other, whereby it was agreed that the two parties should be jointly interested in making and [62] maintaining that part of the canal passing through the manor or fee of Trewyddfa, and in widening and improving the cut, so as to make it correspond with the rest of the canal, and an arrangement was made as to the division of the tolls to be taken by the Duke, and the compensation to Morris & Co. for their interest in the cut and the additional land taken ; but this agreement, and the stipulations contained in it, were not authorized by the lease of 1779. No agreement, however, appeared to have ever been made between the Duke and Popkin, or the reversioners entitled to the lands on the expiration of the lease, as to compensation for his or their interest; but a letter, dated 8th of January 1808, written by the duke's agent to the solicitors of the parties entitled to the reversion, requesting " information upon the subject of the consideration to be paid by the Duke of Beaufort, for the land taken from Mr. Popkin's property," shewed that there had been negotiations respecting it which terminated in nothing. In 1783 Popkin had mortgaged the copyholds in question. Two suits for foreclosure being instituted, two orders were made, one in November 1793, and the other in July 1794, for the sale of the mortgage property; and in 1800 John Calland became purchaser under particulars of sale, which stated that the canal would run through and improve the property in question. John Calland entered into possession, and the lessees paid their rent to him, and after his death in 1803 to the devisees until the expiration of their lease in 1844. Shortly afterwards the Defendants, his devisees in trust, brought an action of ejectment against the Duke of Beaufort, to recover so much of the land and banks of the Swansea Canal as formed part of the land demised [63] by Popkin. On the trial, a special verdict was found, stating among other things that no payment or satisfaction had been made or agreed to be made to the owners or proprietors of the lands taken 956 THE DUKE OF BEAUFORT V. PATRICK 17BEAV.64. for the purposes of the canal, but that everything done by the Duke had been done with their full consent and approbation, and that the maps and books of reference deposited with the Clerk of the Peace shewed that the canal was to pass through the lands in question, of which however there was no conveyance. The case was afterwards argued in the Court of Exchequer, and the judgment was in favour of the Plaintiffs in the action. (See 6 Exeh. Rep. 498.) In 1851 the present suit was instituted by the Duke of Beaufort, against the devisee* of CalJand, the Duke's eldest son and tenant in tail of the estates, and the Attorney-General, to restrain the devisees of Calland from proceeding further in the action of ejectment, from commencing any other proceedings at law for recovering possession of the premises, and for a conveyance from the devisees to the Plaintiff, he offering to pay them what, if any, compensation which might be due under the provisions of the Swansea Canal Act. the solicitor-general, Mr. W. M. James and Mr. Cracknall, for the Plaintiff. The jurisdiction of this Court to protect the Plaintiff from the enforcement of the legal title against him is based upon the equity raised by these facts and circumstances : The lands sought to be recovered were included in the maps and books of reference, deposited with the Clerk of the Peace, and were part of the lands authorized by the Act to be taken for the purpose of the canal. The Duke of Beaufort accordingly entered upon the lands, for the [64] purpose of making the canal, not only with the consent and approbation, but at the earnest wish and request of all the proprietors in its line of direction, including Mr. Popkin. He, it appeared, was aware of and took an active part in all the proceedings; he was a promoter of the scheme: he stipulated, by a clause in the Act, for his own rights and interest, and he was greatly benefited by the passage of the canal through his estate ; so much so that when it was put up for sale, the canal was particularly mentioned as greatly improving it...
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