The Marquis of Salisbury v The Great Northern Railway Company

JurisdictionEngland & Wales
Judgment Date19 November 1858
Date19 November 1858
CourtCourt of Common Pleas

English Reports Citation: 141 E.R. 69

IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER

The Marquis of Salisbury
and
The Great Northern Railway Company

S. C. 28 L. J. C. P. 40; 5 Jur. N. S. 70; 7 W. R. 75. Distinguished, R. v. Wycombe Railway, 1867, L. R. 2 Q. B. 322. See Plumstetad Board of Works v. British Land Company, 1874-75, L. R. 10 Q. B. 16, 203. Distinguished, Micklethwait v. Newlay Bridge Company, 1886, 33 Ch. D. 153. Referred to, Devonshire v. Pattinsan, 1887, 20 Q, B. D. 273; Pryor v. Petre, [1894] 2 Ch. 16, 22. Followed, Melsham Urban District Council v. Gay, 1902, 18 T. L. R. 359.

START [174J the marqihh of salisbury v. the great northern railway company. Nov. 19th, 1858. [S. C. 28 L. J. G. P. 40 ; 5 Jur. N. S. 70 ; 7 VV. R. 75. Distinguished, R. v. Wywmbt Hallway, 1867, L. R. 2 Q. B. 322. See Plu-mstetul Hoard of Tories v. British Lawl Company, 1874-75, L. R. 10 Q. B. 1C, 203. Distinguished, Mickletltviait v. Newlay Bridge Ootnpa^y, 1886, 33 Ch. D. 153. Referred to, Devonshire v. Pattimsan, 1887, 20 Q, B. D. 273; Pryor v. Petre, [1894] 2 Ch. 16, 22. Followed, Mdkdiam Urban DMd Council v. Gay, 1902, 18 T. L. R. 359.] The Great Northern Railway Company, in 1848, purchased of the plaintiff certain freehold land adjoining a turnpike-road to be used partly for the site of their railway and works, and partly for the purpose of diverting a portion of an existing road. Having made a substituted road, the company, with the knowledge of the plaintiff and of the trustees, inclosed and took possession of the portion of the old road which had ceased by the diversion to form part of the turnpike-road. The soil of the road was not noticed in the conveyance, all parties being under the impression that it was vested in the trustees. - By several acts regulating the turnpike-road, the trustees had power from time to time to purchase land for the widening of the road : but there was no evidence that the freehold of the diverted portion of the road had ever been acquired by them : - Held, that the presumption that the soil of the road was in the plaintiff as owner of the adjoining land, was not rebutted by the local turnpike-acts, so as to cast upon the plaintiff the onus of shewing that the soil of the road had not been purchased by the trustees. - Held, also, that the soil of the old road did not pass by the conveyance to the company j and that there was nothing in the General Turnpike Act, 3 G. 4, c. 120, or in the! (a) In the course of the following term, Bovill asked for leave to appeal. He observed, that, if the plaintiffs, treating the question as one of law, appealed without leave of the court, it was possible they might be met by the court of error saying that there was some scintilla of evidence. But Cockburn, C. J. said : I think we ought not to give you leave to appeal, when you admit that we properly dealt with the question as one purely of law, and so disposed of it. I think it woidd be going too far to give the plaintiffs any facility. We must leave them to their legal rights. 70 MARQUIS OF SALISBURY V. GREAT NORTHERN RLY. CO. 5 C. B (N.S.)175. Railways Clauses Consolidation Act, 1845, 8 & 9 Viet. c. 20, to place the company in the position of trustees of the substituted road, so as to transfer- to them the soil of the old road.-Held, also, that the absence of objection on the part of the plaintiff and his agents when the company took arid continued in possession of the land in question, did not amount to such a consent on his part as to preclude him from re-entering, by force of the 124th section of the Lands Clauses Consolidation Act, 1845, 8 & 9 Viet. c. 18.-Semble, that the true effect of the 124th section of the 8 & 9 Viet. c. 18, is not to prevent a claimant from bringing ejectment to establish his title, but merely to authorize the court to stay execution upon the judgment, when obtained.-A portion of the land thus taken by the company was purchased by them from one Pryor. It formed part of a larger plot which was originally waste ground of the manor of H. (of which the plaintiff was lord), lying at the side of the road, but which some years before 1848 had been inclosed and whs held as copyhold of the manor. In 1848 it was so held by Pryor, who conveyed it to the company under the powers of the Lands Clauses Consolidation Act, 1845, and subsequently by deed in June, 1856, the plaintiff enfranchised the land so conveyed to the company by Pryor, to hold the same to and to the use of the company:-Held, that, assuming the plaintiff to have power so to grant, the right to- the soil of the road did not thereby vest in Pryor. This was an action of ejectment. By the writ the plaintiff claimed to be entitled to possession of a piece of land near the Wrestlers' Inn, in the parish of Bishop's Hatfield, in the county of Hertford, formerly the site of the old North Road, and commencing at a point nearly opposite the said inn, and extending thence, on the side of the present road, and between it and the Great Northern railway, to a point where it falls into the said railway, and which piece of land contains by estimation sixteen perches. The defendants appeared and defended for the whole of the land mentioned in the writ. [175] The eause came on to be heard before Pollock, C. B., at the last Summer Assizes for Surrey, when a verdict was found for the plaintiff, subject to the opinion of the court upon the following case :- The Marquis of Salisbury, the plaintiff, is lord of the manor of Hatfield, within the boundaries of which all the lands hereinafter mentioned are situate, and is owner of all the wastes of the manor. In the year 1846, the Great Northern Railway Company, the defendants, obtained an act of parliament intitled "The Great Northern Railway Act, 1846" (9 & 10 Viet. c. Ixxi.), impowering them to make and maintain a railway according to certain plans and sections deposited as therein mentioned. In 1847, they obtained another act intituled "The Great Northern Railway Deviation between London and Grantham Act, 1847 " (10 & 11 Viet. c. cclxxxvii.), impowering them to make certain deviations : and the part of their said railway to which this case refers is part of such deviations constructed under the powers of the last-mentioned act. The Lands Clauses Consolidation Act, 1845 (8 & 9 Viet. c. 18), and the Railways Clauses Consolidation Act, 1845 (8 & 9 Viet. c. 20), are incorporated with and form part of the said acts. The plans, sections, and schedules hereinafter mentioned accompanied this case, and were to be referred to as part of it. The plan or map marked A. and the section marked B. were copies of a portion of the deposited plans and sections of the defendants for the parish of Hatfield, through which the railway was to pass, and the schedule marked C. was a copj' of part of the book of reference to and accompanying the said plan and section, and contained by reference to the figures on the said plan and section the names of the owners or reputed owners, lessees or reputed lessees, and occupiers [176] of the lands in or!through which the said alterations and deviations were intended to be made in the said parifeh; which said plan, section, and book of reference had been duly deposited, amongst others, with the clerks of the peace for the counties of Middlesex: and Hertford, apd were part of the plans, sections, and books of reference mentioned! in the said act 6f 1847. The fields or pieces of land numbered respectively 75 and 79 on the plan, were at this time the freehold property of the plaintiff: the part numbered 47 was the turnpike-road hereinafter particularly mentioned. The defendants requiring portions of the land numbered 75 and 79 on the deposited a C. B. (N. a.) 177. MARQUIS OF SALISBURY V. GREAT NORTHERN ELY. CO. 71 plans as above mentioned, purchased and took these portions, as well as other lands of the plaintiff, under the powers of their act. The conveyance from the plaintiff to the defendants of the lands so purchased, bears date the 19th of October, 1848. After reciting that the said plans and sections shew ing the said proposed alterations in the line of the said railway, and also the said book of reference to the said plans containing aa aforesaid the names of the owners or reputed owners, lessees or reputed lessees, and oecupiers of the lauds in or through which the said alterations and deviations were intended to be made, had been deposited as aforesaid, the parcels conveyed are thus deicrihad " All those the pieces or parcels of land and hereditaments particularly described in the first and second schedules hereunto annexed, and all mines and other minerals under, and all timber and other trees, and all rights, easements, and privileges whatsoever belonging or in anywise appertaining to the said pieces or parcels of land and hereditaments, or any of them, or any part thereof." In the said first schedule to the said conveyance are [177] described (among others) the pieces or pareels of land following:- No. on plan herttto and also on company's depuated planx. Parish. County. Lessen. Occupier, \ Quantity. 1 | i a. r. p. 75 Hatfield. Hertford. Harriet Webb. j 2 3 0 79 " ji Same. 1 2 26 Annexed to the conveyance was a plan as mentioned as aforesaid in the said schedule of which the plan marked D. was a copy. The defendants required the lauds so purchased, not only for their railway and works, but also for the purpose of diverting a part of a certain turnpike-road, being part of the said old North Road. They accordingly constructed their railway in the line shewn in the plan marked E.; and, under the powers vested in them by s. 16 of the Railways Clauses Consolidation Act, 1845 (8 & 9 Viet. c. 20), diverted the said part of the aaid turnpike-road into the position shewn on the same plan, carrying the diverted part of the turnpike-road over the railway by a bridge. The effect of this diversion was that some portion of the site of the said part of the said...

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4 cases
  • Willsher v Scott
    • United Kingdom
    • Court of Appeal (Civil Division)
    • March 15, 2007
    ...to be such, the public right of way is extinguished. Reliance is placed on two authorities for that purpose, namely Marquis of Salisbury v Great Northern Railway Company (1858) 5 CB(NS) 174, and Melksham UDC v Gay (1902) 18 TLR 13 On this point, in my judgment, the evidence of Mr Sandercock......
  • Jolly against The Wimbledon and Dorking Railway Company
    • United Kingdom
    • Exchequer
    • December 4, 1861
    ...The decision in The Marquis of Salisbury v. The Great Northern Railway Company 918 JOLLY V. WIMBLEDON AND DORKING RLY. CO. lB.ftB.H9. (5 C. B. N. S. 174) was upon that part of aeet. 124 which provides for the case in which : the estate, interest or charge it disputed: the Court of Common Pl......
  • Jolly against The Wimbledon and Dorking Railway Company
    • United Kingdom
    • Court of the Queen's Bench
    • June 15, 1860
    ...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......
  • Johnston v The Dublin and Meath Railway Company
    • Ireland
    • Rolls Court (Ireland)
    • December 10, 1866
    ...Law Rep. 361. Morrow's EstateUNK 14 Ir. Ch. Rep. 44. Palmer's case 5 Co. 24. The Marquis of Salisbury v. great Northern Railway Co.ENR 5 C. B., N. S. 174. Heywar's caseENR 2 Co. 37; Co. Lit. 145 b. Heywar's case 2 Co. 38 a. Moore's reportENR Moo. 86; Bend. 148; 1 And. 1. Stukely v. ButlerEN......

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