The Queen against The London and North Western Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1854 |
| Date | 01 January 1854 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 1208
COURTS OF QUEENS BENCH AND THE COURT OF EXCHEQUER CHAMBER.
S. C. 23 L. J. Q. B. 185; 18 Jur. 993. Followed, Bradby v. Southampton Local Board, 1855, 4 El. & Bl. 1019; Chapman v. Monmouthshire Railway and Canal Company, 1857, 2 H. & N. 277. Discussed, Read v. Victoria Station and Pimlico Railway, 1863, 1 H. & C. 839. Applied, Beckett v. Midland Railway, 1866, L. R. 1 C. P. 247. Referred to, Buccleuch v. Metropolitan Board of Works, 1870-72, L. R. 5 Ex. 227; L. R. 5 H. L. 418; Rhodes v. Airdale Drainage Commissioners, 1876, 1 C. P. D. 395, 402; Great Northern Railway and City v. Tillett, [1902] 1 K. B. 878; Dawson v. Great Northern and City Railway, [1905] 1 K. B. 276.
the queen against the london and north western railway company. 1854. Notice was given by D. to a railway company that by their works they had permanently obstructed a way to the use of which D. was entitled as appurtenant to a messuage belonging to D.: whereby D. was prevented from enjoying the way, and his interest in the messuage was injuriously affected: and the Company were required, in default of their agreeing to pay to D. a, sutp named, to issue their warrant to the sheriff to summon a jury to assess compensation.- The Company issued a warrant, reciting the notice, stating that they did not admit D.'s right to the way, or the damage, or the injurious affection ; but that they were willing that the amount of the said compensation should be settled as requested in the notice; and they required the sheriff to summon a jury to determine by their verdict the amount of the compensation in respect whereof D. by his notice had required the Company to issue their warrant.-The sheriff summoned a jury to try the question in dispute in the warrant. At the inquiry, the jury having been sworn to inquire and assess the compensation and damages in the warrant mentioned, evidence waa given for and against the existence of the right. D. insisted that the existence of the right was to be taken for granted on the inquiry, and, further, that the right was proved. The Company insisted that the right was disproved, and that the jury ought to be told that I . was not entitled to any compensation.-The sheriff told the jury to say whether D. was entitled to the way ; but, if they negatived this, to say what was the compensation to be paid on the assumption that the right existed,-The jury found that the right of way did not exist, and that on that ground D. had not sustained any damage: but, on the supposition that they were to assume its existence, they settled the compensation at 1501. This finding was specially incorporated in the verdict; and the sheriff gave judgment thereon that D. had not sustained any damage.-This Court, on the application of D., quashed the inquisition, verdict and judgment, upon certiorari: holding:-1. That the jury, under sect. 68 of 3 EL. 6BL.4M. THfi QUBJfiN V. LONDON AND NORTH WBSTERN RLY. CO. 1209 The Land Glauses Consolidation Act, 1845, had no power to inquire into the right of D. to the way, but were bound to assess compensation upon the assumption that it existed.-2. That the verdict was totally bad, and could not be rejected as to the negativing the right but stand as to the conditional assessment of the amount.-Per Lord Campbell C.J., Coleridge and Wightinan Js.: dis-sentieute Brie J., who held that the jury had power to inquire into the right. [S. C. 23 L, J. Q. B. 185; 18 Jur. 993. Followed, Bradby \. Southampton Local Board, 1855, 4 El. & Bl. 1019; Chapman v. Monmouthshire Railway and Canal Company, 1857, 2 H. & N. 277. Discussed, Read v. Victoria Station and Pimlico Railway, 1863, 1 H. & G. 839. Applied, Beckett v. Midland Railway, 1866, L. R. 1 C. P. 247. Referred to, Bucckuch v. Metropolitan Board of Works, 1870-72, L. R. 5 Ex. 227; L. R. 5 H. L. 418; Rhodes v. Airdale Drainage Commissioners, 1876, 1 C. P. D. 395, 402: Great Northern Railway and City v. Tillett, [1902] 1 K. B. 878; Dawson v. Great Northern, and. City Railway, [1905] 1 K. B. 276.] Hugh Hill, in last Easter Term, obtained a rule calling on The London and North Western .Railway [444] Company to shew cause why a writ of certiorari should not issue, to remove into this Court the record of a verdict and judgment given upon an iuqaisitioK taken by the sheriff of Warwickshire, on 13th April 1853, by virtue of a warrant of the said Company, dated 17th February 1853, directed to the said sheriff, to summon a special jury to determine by their verdict and settle the amount of the compensation to be paid to Charles Dollman and Peter Pitt, in respect whereof they had by their notice and claim required the Company to issue their said warrant. From the affidavit on which the rule was obtained it appeared that the Company, under the powers of stat. 9 & 10 Viet. c. ccclix. (a), and in construction of the railway and works thereby authorized, in the latter part of 1851, permanently obstructed a private way leading from messuages and premises in the borough of Birmingham belonging to Charles Dollman and Peter Pitt, as lessees for a term of years, "and which way the said Charles Dollman and Peter Pitt claimed and alleged, and still claim and allege, to be a way which was of right appurtenant to and used with the same messuages and premises." The messuages and premises being (as deposed) injuriously affected by the obstruction, the attorney of1 Dollmau and Pitt served a notice and claim on the Company: reciting that the Company had "entered upon, stopped up, blocked up, and taken away, permanently obstructed, or destroyed, a certain way, passage or road leading from curtain messuages and other premises hereinafter more particularly referred to, belonging to us, the undersigned Charles Dollman and [445] Peter Pitt, into a certain public street in Birmingham" &c. " And the right to use such way, passage or road, for horses, carts, waggons, carriages, and also without the same, arid for all other purposes, belongs to us, and has been held and enjoyed by us, and by the person or persons under whom we claim to be entitled, with the messuages " &c. And that the Company had made certain paths, buildings, &a., of a permanent character, by reason whereof, and of certain walls, &c., the waj was permanently stopped up and destroyed : " whereby we, and our tenants, servants and others belonging to us, for some time past have been prevented from having the enjoyment of the said way, passage or road, and we, and our tenants, servants and others, are now prevented from having the use and enjoyment of the aaid way, passage or road; and whereby we, the undersigned, have been prejudiced, and are now prejudiced, in our estate and interest of and in the said several messuages" &c. Dollraan and Pitt then gave "notice that we are interested in, or entitled to, the said several messuages " &c., " in respect of which we claim such way, and so injured as aforesaid, subject to such tenancies as may subsist in the same premises for the residue of a term of 99 years to be computed from " &c. " And we do hereby, in pursuance of the statutes in that case" &c., "give you, the said Company, notice that we require you to pay us compensation in respect of the said way, passage or road, which you have entered upon and taken as aforesaid, whereby our said messuage*" &c.^ "and our estate and interest therein, have been damaged or injuriously (a) Local and personal, public: "For making a railway from The London and Birmingham Railway to or near to Navigation Street within the borough of Birmingham." 1210 THE QUEEN V. LONDON AND NORTH WESTERN RLY. CO. 3 EL & BL. 446. affected as aforesaid; and for the aforesaid injuries to the same, and in respect of our estate or interest in [446] the said way. And that the amount of our claim for compensation by reason of the premises is 23001," That, unless the Company were willing to pay the 23001., and to enter into a written agreement for the purpose within twenty one days, the claimants desired that the amount of compensation should be settled by a jury according to the provisions of the Act &c,, and required them, in that case, to issue a warrant to summon "a jury for settling the amount of the said compensation, as in the said Act or Acts is directed and provided." The Company accordingly issued their warrant to the sheriff', reciting the notice, and adding : " And whereas we clo not admit that the said Charles Dollman and Peter Pitt are interested or entitled as in the said notice mentioned, or that the claim to the said way is a valid claim, or that they are entitled to compensation in respect of the matters in the said notice and claim specified, or that such damage or injurious affection, as in the said notice is supposed, has arisen or accrued : yet, being willing that the amount of the said compensation shall be settled as in and by the aaid notice and claim is requested: Therefore, we the said Company do, by this warrant under our common seal, according to and in pursuance of the Lands Clauses Consolidation Act, 1845, and the Act" &c. (9 & 10 Viet. c. ccclix.), "and in pursuance of the said request in that behalf contained in the said notice and claim of the said C. D. and P. P., require you, the sheriff of Warwickshire, to summon a special jury to determine by their verdict and settle the amount of the compensation in respect whereof the said Charles Dollman and Peter Pitt have by their said notice and claim [447] requested and required of us to issue our warrant to you." The sheriff accordingly summoned a jury to try the question in dispute in the said warrant. The inquiry was held at Birmingham, before the uudersheriff, assisted by counsel as assessor : and the claimants and the Company appeared by counsel respectively. Evidence was given as to the existence aud user of the way. The counsel for the Company contended that there was no evidence of such right...
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