VOL. IX.] AND PRIVY COUNCIL. 787 [HOUSE OF LORDS.) THE GREAT WESTERN RAILWAY COM- a CAN oe oe 1884 oe May 6. THE SWINDON AND CHELTENHAM ho EXTENSION RAILWAY COMPANY . a a Railway Company—Compulsory Powers—Easement—Hereditaments—* Land,” whether incluiles Incorporenl Hereditaments—Lanis Clauses Consolidation Act 1845 (8 «9 Viet, ¢. 18) ss. 8, 16, 84, 85. By a special Act the S, Co. were authorized to make a railway and to carry it across the railway of the G. W. Co,, at one point by a bridge over and at another by an archway under that railway, the archway to remain the property’ of the G. W. Co. ‘The Act by s. 8, which was inserted at the instance of the G. W. Co. for their protection, provided that the 8. Co. should not purchase and take any land of the G. W. Co. which the 8. Co. were authorized to use enter upon or interfere with, but that the 8. Co. might purchase and take, and the @. W. Co. should sell and grant aecord- ingly, an easement or right of using the same in perpetuity for the purposes of the Act; and by s. 9 that if any dispute should arise respecting the matters aforesaid it should be settled by an arbitrator to be appointed under the Act. Tho Lands Clauses Act 1845 (except where expressly varied by the Act) was incorporated therewith, and it was enacted that the words and expressions to which meanings were assigned by the Lands Clauses Act should have the same respective meanings unless there was something in the subject or context repugnant to such construction. ‘The $. Co. gave the G, W. Co. a notice to treat for the purchase of an easement or right in or over lands of the G. W. Co. for the purposes of the crossings, and shortly afterwards a notice of their desire to enter upon and use the lands for those purposes, and of their intention to apply to the Board of ‘Trade to appoint a surveyor to determine the value of such ease- ment or right. The valuation was made, and the 8. Co, deposited the amount and entered into a bond under s. 85 of the Lands Clauses Act. ‘The G, W. Co, having brought an action for an injunction to restrain the 8. Co. from entering or continuing upon the lands mentioned in the notice to treat or from putting in force any of the powers of the special Act ot of the Lands Clauses Act in relation to the compulsory purchase of land, on the ground that the capital of the . Co. had not been duly subscribed as required by s. 16 of the Lands Clauses Act :— Held, by Lords Bramwell and FitzGerald, affirming the decision of the788 HOUSE OF LORDS (VOL. Ix, HL. (EB) Court of Appeal, Lord Watson dissenting, that the 8. Co. could not be restrained on that ground : ~~ By Lord FitzGerald, ‘Chat (1) the assertion of the rights conferred by Great s. 8 of the special Act was not a “putting in force of the powers of the BREN Lands Clauses Act or of tho special Act in relation to the compulsory = taking of land”: and (2) that even if the perpetual casements created by Swaxpox ax 5, 8 of the special Act would constitute “land” within s, 16 of the Lands Grsuren4 Clauses Act, yet the caso had been taken out of the compulsory powers ol of the Lands Clauses Act by s. 8 of the special Act, APPEAL from an order of the Court of Appeal (1). The action was brought by the appellants for an injunction to restrain the respondents under the circumstances stated in the head-note. Chitty J. made an order for the injunction, which was reversed by the Court of Appeal (Jessel MLR. and Bowen LJ., Cotton IJ. dissenting). ‘The material clauses of the respondents’ special Act are set ont in the report of the decisions below (2), and are summarized in the judgment of Lord FitzGerald in this House. Feb. 11, 12, 14. B. B Webster QC. (Romer Q.C. with them) for the appellants :— The judgments of Chitty J. and Cotton LJ. are right. ‘The respondents gave notice to treat for an easement or right which is a “hereditament,” and is therefore “land” within sect. 16 of the Lands Clauses Consolidation Act 1845 (8 & 9 Vict. c. 1s) when read together with the interpretation clause sect. 3. ‘The effect of the material sections of the respondents’ special Act and BR, S. Wright is that they contemplate putting in force the provisions of the Lands Clauses Act. ‘There is no provision in the special Act requiring payment for the purchase of the easement except the arbitration clause. ‘The right in questién is much more than an easement; it is o right in the nature of property, involving the exclusive occupation of part of the appellants’ soil. A ferry, being a franchise, is an hereditament and therefore “land” within the Lands Clauses Act: “hereditament” in that Act means any- thing which is the subject of inheritance: per Blackburn J, in (1) 22 Ch. D. 677. August 1882, and not the Slst of (2) 22 Ch. D. 677, The date of March, as stated in 22 Ch, D. p. 682. the notice to treat was the 12th ofVOL, IX.] AND PRIVY COUNCIL. 789 Reg. v. Cambrian Railway Company (1). Moreover sect. 6 of the ¥.L. (2) Lands Clauses Act authorizes companies to purchase any interest in land. This is clearly an interest in land. The respondents having served a notice to treat under sect. 18 of the Lands ») 1884 Gnear Wester JAILWAY CO. Clauses Act cannot contend that they are not subject to the soe Swipox anp provisions of that Act. Gueurentast Rattway Co. Upjohn for the respondents :— The notice to treat was not a notice under sect. 18 of the Lands Clauses Act. It was a good notice under the special Act: whether it is a good notice under sect. 18 of the Lands Clauses Act is immaterial. The respondents are not within sect. 16 at all, for two reasons: First, because they are not putting in force any of the “powers in relation to the compulsory taking of “land.” Entry under sect. 85 of the Lands Clauses Act is not an exercise of the powers of compulsory purchase: Marquis of Salisbury v. Great Northern Railway Company (2). Sects. 16 and 85 only affect the occupation of the land, per the Court of Appeal in Loosemore v. Tiverton, de., Company (3). Secondly the respondents are not within sect. 16, because this easement or right is not “land” within sect. 16, The respondents are nevertheless entitled to enter and use under sect. 85, the easement being such as to confer @ right of user of land. The respondents do not “take lands”: they take a right to use lands. This is a taking by parliamentary agreement as embodied in the special Act: not a compulsory taking. ‘The appellants must fail unless they make out that the taking was compulsory, and that the taking was of “lands.” ‘That it was not compulsory is shewn by the fact of the parliamentary bargain: such a bargain is common enough and the statute must be so read: Taylor v. Corporation of Oldham (4) per Jessel LR. A right of way may confer a right to put a bridge and metals, &c.: Gale on Easements, p. 529; Senhouse v. Christian (8). Great Northern Railway Company v. Hast and West India Docks, &2., Company (8) is on all fours with the present (1) Law Rep. 6 Q. B. 422, 431. (4) 4 Ch. D. 409. (2) Law Rep. 17 Q. B. 840. () 1. R. 560. (8) 22 Ch. D. 25, judgment re- (6) 7 Railway Cas. 356, versed in H. L. ante p. 480, ‘Vou. IX. 3 3H790 HOUSE OF LORDS (VOL. Ix. HLL.) case. The plaintiffs there were allowed to acquire an easement. 1884 Gnear Wesrerx Ratway Co. ® Swixpon AND after their power to acquire land had expired. ‘The easement in question is not “land” within sect. 16 as interpreted by sect. 3. “Hereditaments” in the Lands Clauses Act do not include incor- poreal hereditaments, Incorporeal hereditaments are not the Cuextexuas Subject of tenure unless appendant or appurtenant to corporeal Ramway * hereditaments. ‘There is no need to give a notice to treat to the owner of an easement: Clark v. School Board of London (1). The decision in Reg. v. Cambrian Railway Company (2) was overruled by Hopkins v. Great Northern Railway Company (3). In Pinchin y. London and Blackwall Railway Company (4) Lord Cranworth thonght that a notice to take such an easement as the one now in question is not a notice warranted by the Lands Clauses Act; and that “hereditaments” in the interpretation clause (sect. 3) of that Act means only corporeal hereditaments, and does not include such an easement as the present. lasoments come within sect. 85 where there is express power to take them: Hill v. Midland Rail- way Company (5). ‘The result of the authorities is that such an easement is not “land” within sect. 16 ; but that the present case is within sect. 85, the respondents requiring only to enter upon and use” but not to “take” Iand within the meaning of that section, [He also referred to Macey v. Metropolitan Board of Works (6), North London Railway Company v. Metropolitan Board of Works (7), Metropolitan District Railway Company v. Cosh (8), and Metropo- litan District Railway Company y. Sharpe (9) relied on by Chitty J.] Webster Q.C. replied. The House took time for consideration. May 6. Lorp FirzGeraup :-— My Lords, This case comes before us on a writ,” without pleadings, by which the Great Western Company claimed an (1) Law Rep. 9 Gh. 120. (5) 21 Ch. D. 143, 147, (2) Law Rep. 6 Q, B. 422. (6) 83 L. J. (Ch.) 877, (8) 2Q. B.D. 224, 237. (1) John. 405. (4) 5D. M. & G. 851, 861. (8) 13 Ch. D. 607, (®) 5 App. Cas. 425,VOL. IX.) AND PRIVY COUNCIL. injunction to restrain the defendants from entering or continuing on certain lands of the plaintiffs, and from putting in force any of the defendants’ compulsory powers of taking Jands or any easement therein, until the capital of the defendants shall have been duly subscribed. ‘There is no controversy as to the facts. ‘The plaintiffs did not either in the Court below or here seek to amend, and the question is whether sect. 16 of the Lands Clauses Act 1845 applies to and governs the case. Before determining this question, we must examine the nature and description of that which sect. 8 of the special Act (expressed to be “for the protection of the Great Western Company ”) authorizes the Swindon Company to take and to do, and calls “an easement or right of using.” Sect. 8 of the special Act elaborately defines what may be done and what is prohibited : 1. The Swindon Company is not permitted to interfere with or execute any works whatever under, over, or affecting the railway or lands of the Great Western Company until plans have been furnished to and approved of by the principal engineer of that company, or failing him, by an‘ engineer to be approved of by the Board of Trade, and then such works are to be at the sole expense of the Swindon Company. 2. The Swindon Railway No. 1 is to be carried at one point over, and at another point under, the Great Western : at each point bya bridge or arch of certain dimensions, with: an express proviso to secure certain extensive easements at each place for the benefit of the Great Western Company, without payment for the same, so as to enable that company to provide for its own use additional lines of rails. 3, The archway which is to carry railway No. 1 under the Great Wester is to be the property of that company, and form part of the structure of the Great Western Railway, with an obligation on the Swindon Company perpetually to maintain it in good and sufficient repair. 4, The Swindon Company is at all times to maintain and keep in good repair and good order and condition the bridges and other works so to be constructed. 5, Except for the purposes of those crossings, the Swindon Company shall not acquire any rights over any of the lands of the Great Western Company, or be enabled to take or use any land of that company, cither temporarily 3 3H2 791 HALE) asst Grear Westerns, Ranway Co. % Swispow Np Cin renmane Ramway Co, Lord FitaGersld,792 HL.) 1884 Great WESTERN, Banway Co. ” Swispox AND Cuevresnam Ratway Co. Lord FitzGerald. HOUSE OF LORDS (VoL. Ix. or permanently, without the consent in writing of the Great ‘Western Company, “and with respect to any lands of the Great ‘Western Company which the company are by this Act from time to time authorized to use, enter upon, or interfere with, the company shall not purchase and take the same, but the company may purchase and take, and the Great Western Company shall sell or grant accordingly, an easement or right of using the same in perpetuity ” for the purposes defined in the special Act. It will thus be seen that the special Act has not conferred on the Swindon Company any compulsory powers to take any land, messuage, or hereditament of the Great Western Company, but that the Swindon Company is authorized to purchase and take a right created by the special Act to carry the new railway over the Great Western by means of a bridge, and under the Great ‘Western by means of an archway, in consideration of compensa- tion to be made to the Great Western Company, if they are entitled to any, and of the rights conferred on them of having certain extended easements over or under the line of the Swindon Company without payment, We have, therefore, before us not the case of any known easement,'‘or of any hereditament of any tenure known to the law, but a right the result of a parliamentary arrangement of a peculiar and special nature, designed for the protection. and benefit of the Great Western Company, by which on certain expressed conditions, and subject to very special safe- guards, the Swindon Company is entitled to the benefit of a por- petual statutable right to carry their railway at one point over, and to run their trains at another point under, the railway of the Great Western Company. Many questions have been discussed in the course of the argu- ment on the construction of the Lands Clauses Act 1845, on which I do not find it necessary to express any opinion. It seems conceded that sect. 16 of that Act if interpreted as it stands, and aided only by the context of the Act itself, would not be appli- cable to the case of a, statutable easement such as that now before us. The interpretation of “lands” in the Lands Clauses Act if that Act ‘stood alone would probably be that it was confined to the taking of “land” as commonly understood, and that land so taken should include all cxisting rights, hereditaments, andVOL. IX.] AND PRIVY COUNCIL. 793 easements which affected that land. The general language of the H. L. (B.) Lands Clauses Act and its context with the form of the statutable 1884 conveyance (Schedule A.), all indicate that such should be its Game interpretation. My noble and learned friend opposite (Lord WU, Watson) is, I believe, of opinion that sect. 16 may have a larger. ® Swrspoy anp and wider application when incorporated in the special Act, and Craurexnac s0 as to be applicable to all cases of compulsory acquiring of SY © easements created by the special Act. I do not dissent from this position which must, however, depend on the language of the special Act, and renders necessary a critical examination of the defendants’ special Act. Some stress was laid on the terms of the 2nd section of the special Act by which the Lands Clauses Act is incorporated, but that incorporation would have taken place independent of sect. 2, and was necessary for the purposes of sect. 5, which describes the railway to be made by the company, and empowers the company to enter upon, take, and use such of the lands delineated on the said plans as may be required for that purpose. With sect. 5 and the prior incorporation of the Lands Clauses Act the compulsory powers given to the company are completed. Sect. 5 is followed . by sects. 6, 7, 8 and‘ which require special attention. ‘The 8th sect. “was inserted at the instance of the plaintiff company” (see affidavit of Charles Brooke, page 31) for their protection. From what? ‘The answer is, from the exercise of these powers which the defendant company would otherwise have possessed under the 5th sect. of the special Act and the compulsory powers of the Lands Clauses Act. Sect. 8 may be said to form a special enactment, the result of a parliamentary arrangement complete im’ itself and providing for all contingencies. I have already adverted to its rather complicated details. The defendant company is prohibited from taking or acquiring compulsorily or otherwise any land of the plaintiff company and is strictly confined to ac- quiring two rights or privileges, the one to carry their railway over the railway of the plaintiff: company by means of a-bridge resting entirely on the land of the defendant company, but spaiining by its arch the railway of the plaintiff company, and the other to carry their railway by means of a tunnel or arch under the rail- way of the plaintiff company, but subject to the provision that Lord Fuser794 HLL. (£.) 1984 HOUSE OF LORDS (VOL. Ix. the tunnel or arch shall on completion be the property of the plaintiff’ company, and be deemed part of the structure of their main line to Gloucester. The defendant company is pro- ‘., hibited from acquiring any land from the plaintiff company, but Lord ViueGeratd. they may purchase the rights thus defined by the statute, and which the plaintiff company is bound to sell and grant to them. “The notice of the 12th of August 1882, called the “ Notice to Treat,” is not a notice under sect. 18 of the Lands Clauses Act 1845, but is a good notice under sub-sect. 8 of sect. 8 of the special Act. When the defendant company thus gave notice of their election to purchase the rights specified in sect. 8, the two companies immediately stood in this relation to each other, that the one was bound to purchase and the other to sell those rights, and nothing remained to be done but to ascertain the price. Nothing is said as to price in sect, 8, but it is imported in the terms “purchase” and “sell” although the price may be nominal merely. It may be that the plaintiff company would probably sustain no loss or injury whatever from the exercise of the rights conferred on the defendant company, or might be held to be adequately compensated by the rights stipulated for and secured to them in sub-sects. 2 and 4 of sect. 8, but it was urged that no provision is made to ascertain price or compensation, and‘that we are thus compelled to fall back on sect. 21 and the following sections of the Lands Clauses Act. It seems to me that is not so. Sub-sect. 9 of sect. 8 in my opinion provides for the case. Its language is very general. “If any dispute shall arise respect ing the matters and provisions: aforesaid, or any of them, such dispute shall be settled by an arbitrator,” &c. What are.the matters and provisions aforesaid? ‘The answer is to be found in the previous elaborate details of sect. 8, including the immediately preceding antecedent, viz. the purchase and sale of the statutable rights in question to the defendant company. But it was said that it was not reasoriable to suppose that it was contemplated to appoint a civil engineer to settle price or compensation. Who could be more competent to determine the price, if any, to be paid for the easement conferred on the defendant company by the Act ?VOL. IX. AND PRIVY COUNCIL. 795 Sub-sect. 9 does not provide that the arbitrator should necessarily | H. I. (E:) be an engineer, but when you refer back to sect. 6 relating to 188 “the canal,” and to sect. 7 relating to “the canal company,” there _ Grear is an express provision in sub-sect. 5 of the one and sub-sect. 12 naar Oo of the other that the arbitrator is to be an engineer who is, . 0% jy amongst other things, to settle the amount of money to be paid Cusurexnax under the provisions of these sections. Before leaving sects, 6 “™N4¥ © and 7,I may observe that both relate principally to works of a cognate character to those which we have to deal with. It would be in my judgment wholly unsustainable to contend that the compulsory powers of the Lands Clauses Act referred to in sect. 16 of that Act had any relation to sect. 6 of the special Act; and as to sect. 7 of that Act, which provides for the pro- tection of the Wilts and Berks.Canal Company, it is remarkable that in sub-sect. 2 where an option is given to the canal company cither to grant a perpetual casement or right of using, or else sell the fee, it is specially enacted that if the canal company fail to exercise their option “ the company may enter upon, take and use the lands subject to the provisions of the Lands Clauses Act.” This reference to the Lands Clauses Act was here wholly unnecessary if the contention of the plaintiff company is well founded. Adopting by anticipation my noble and learned friend’s (Lord Bromwell’s) reading of sect. 8 of the Lands Clauses Act as to the interpretation of the word “lands,” which he will himself express, and on the most careful consideration, I have come to the conclu- sion that the statutable rights given to the defendant company do not, nor does either of them, constitute “lands” within the meaning of sect. 16 as incorporated in the special Act, and that we ought not to strain the meaning of the section so as to embrace a case which, in my opinion, it was never intended to meet. In determining this case we cannot separate the two privileges created by sect. $ of the special Act; and can it be said with accuracy that the privilege of constructing a bridge on their own land and carrying its one span of seventy-five fect through the air over the railway of the plaintiff company is the taking of land or of ‘any messuage or tenement, or of any hereditament known to the law? I think that the only answer to this must be in the negative, Lond FitzGerald,796 HOUSE OF LORDS [VOL. Ix, H.1.(E) notwithstanding the legal maxim “ cujus est solum ejus est usque 13st ad ecelum et ad inferos.” ‘Che ownership of land carries with it as Guar one of its natural incidents the right to the air in a line above it, RAVsTHRS, usque ad ccolum, but the air is not land. As to the other privi- Swami ann 18¢ Of driving a tunnel under the plaintiff company’s railway Cueurexuan and through their soil, it is to be borne in mind that, although Ranway ©. the defendant company is authorized to interfere with the land of the plaintiff company by constructing the tunnel, they are pro- hibited from taking or acquiring any land of the plaintiff com- pany, and that the archway, or tunnel, and any extensions thereof, when constructed, continue to be the property of the plaintiff company and part of the structure of their line. The defendant Lord Fit company gets the privilege to construct, and when constructed, the further privilege of running their rails and carrying their trains over the floor of that arch or tunnel, but the arch itself becomes, and the solum remains, the property of the plaintiff company. In my opinion the judgment of the Court of Appeal should be affirmed on two grounds:—1. That the assertion of the rights conferred by sect. 8 of the special Act is not » “putting in force of the powers of the Lands Clauses Act, or of the special Act, in relation to the compulsory taking of land.” 2, That even if the perpetual easéments created by sect. 8 of the special Act would constitute “land” within the scope of sect. 16 of the Lands Clauses Act, yet the case has been taken out of the compulsory powers of the Lands Clauses Act by the provisions of sect. 8 of the special Act. ‘There is another view to be considered, and which may gos considerable way to reconcile what I believe is a main difference of opinion between my noble and learned friends. If I am in error in my opinion that the compulsory powers referred to in sect. 16 are not applicable to the case before us, it would seem to me, nevertheless, that the notice of the 12th of August 1882, was not a notice to treat within sect. 18, but constituted an election to accept the rights offered by sect. 8 of the special Act. ‘That would seem at once to create such a relation between the com- panies of inchoate purchase and sale as to satisfy the difficulty entertained by my noble and learned friend opposite (LordVOL, IX.J AND PRIVY COUNCIL, Watson), and enable him to coincide in opinion with my noble and leamed friend beside me (Lord Bramwell) that the defendant company was in a position to take advantage of sect. 85 of the Lands Clauses Act, which stands outside the compulsory powers of the Act, and is unaltered by sect. 16, Upon these grounds, I move that the judgment of the Court of Appeal be affirmed and the appeal dismissed with costs. Lorp Warson :— My’ Lords, the fact that this case has given rise to much difference of judicial opinion must be my excuse for stating fully the reasons for which I am unable to assent to the judgment which has been moved. Sect. 5 of their special Act confers upon the respondent com- pany the usual powers to make and maintain the railways therein described, and to enter upon, take, and use such of the lands delineated on the deposited plans, and described in the books of reference, as may be required for that purpose. But that enact- ment is quolified by sect. 8, which, inter alia, provides thet, except for the purposes of the two crossings in question, the respondent company shall not take or acquire any rights over any land of the Great Western Company; and further that, as regards the lands of the Great Western Company which they are authorized to use, enter upon, or interfere with, “the company shell not purchase and take the same, but the company may purchase and take, and the Great Western Company shall sell or grant accordingly, an easement or right of using the same in perpetuity for the purposes for which, but for this enactment, the company might purchase and take the same.” It appears to me to be the necessary result of these statutory provisions that the bridge to be erected by the respondent company over the Bristol line will belong to them in fee. No part of the structure rests upon the soil of the Great Western Company. The arch is part of a building erected upon adjoining land acquired by the respondents for the purposes of their under- taking; and such a projection, made by: virtue of a right of easement, does not become the property of the owner of the servient tenement. ‘The crossing under the Gloucester line is in 197 HL. (B) 1884 Great Westerns Rasuway Co. SwixpoN AND CHELTENHAN Ramway Co.798 HOUSE OF LORDS [VOL. IX. H.L.(E) a somewhat different position, In that case the Great Western asst Company are vested with the property of the archway and works Gemr incidental thereto, which are in reality part and parcel of their RASTER own line, being the support substituted for the solid embankment *. to be removed in course of constructing the respondent company’s ‘Geum railway, The solum beneath the archway remains the property Rarway C0. of the Great Western Company; but such parts of the new . railway as the rails and sleepers, and possibly the ballasting, will not in my opinion become the property of that company. The oxpress provisions of sect. 8 (4) vesting the archway in the appellants, appear to me to indicate that the legislature did not intend to vest in them materials used for the formation of the new railway above the surface of the land. T cannot coneur in the opinion expressed by the late Master of the Rolls in the Court of Appeal to the effect that the right thus given to the respondents is in substance equivalent to running powers. Were I able to adopt that view I do not think I should hesitate to come to the same conclusion as the majority of the learned judges of the Court of Appeal. It must, in my opinion, be conceded that a statutory right which is in reality nothing more than a privilege of runing trains cannot be regarded as a power to take land within the meaning of sect. 16, or any other section, of the Lands Clauses Act. But there does not appear to me to be any real analogy between a grant of running powers and thé powers conferred upon the respondents by their special Act. Their right is to construct, maintain, and use in perpetuity a railway of their own above or upon the land of the Great Western Company ; and that ise very different thing from a mere right to run their trains over or otherwise use the undertaking of another company. The respondents maintain that the provisions of sect. 8 of their special Act constitute a complete voluntary agreement between the two companies for the purchase of the rights or easements in question. Tf that be the true construction of the clause, it is un- necessary for the respondents to resort to the powers of the general Act, either for the purpose of placing’ the Great Westen Company and themselves in the relative position of vendors and purchasers, or for the purpose of fixing the compensation payableVOL. IX.) AND PRIVY COUNCIL. 799 by them. I assume that the terms of sect. 8 were amicably H.%.(E) adjusted between those two companies with the object of protecting 188 (as the clause itself narrates) the interests of the Great Western _ Gurar Company ; but that does not make the clause an agreement of atone Oo sale and purchase. It must be construed according to its terms, gusty ap and I fail to discover in these a single expression importing that Cusumxaan Rattway Co. an agreement has been concluded for the purchase by the respon- | dents of an easement over any portion of the appellants’ lands, Sect. 8 enacts that the respondents “ may purchase and take,” and that the appellants “shall sell or grant” such easoments, these being the terms in which a statutory grant of compulsory powers is usually expressed; and its provisions are devoid of all the essentials of a contract, inasmuch as they neither impose an obli- gation upon the respondents. to take, nor do they define the subjects which are to be taken. The respondents are empowered to create these easements upon or above any portions of the appellonts’ land within their limits of deviution, which are by sect. 8 (2) restricted to one hundred feet on either side of the centre line, unless the appellants shall consent in writing to a further departure from it. The respondents are placed under no statutory obligation to purchase at all, or if they do purchase, to take any particular part of the appellants’ railways ; and something must be done in order to fix that obligation upon them, and to define the subject matter of the purchase. Sect. 8 makes no pro- vision for effecting either of these objects, both of which must be accomplished before there can be even an imperfect contract leaving the purchase money indeterminate, I am therefore of opinion that the respondents, when they have resolved to avail themselves of the statutory powers conferred by their special Act against the Great Western Company, can only do so by agree- ment or by notice to treat, in accordance with the provisions of the Lands Clauses Act. . Upon this part of the caso I shall only say further that I do not think the ascertainment of the compensation which the respondents are to pay to the Great Western Company for the enactments which they are authorized to purchase and take is one of the “matters and provisions aforesaid,” disputes concerning which are referred to arbitration by sect. 8 (9) of the special Act.800 HOUSE OF LORDS [VOL. Ix. H.L.(E.) It appears to me that the whole effect of the enactments of that 4s8t__section in regard to purchase and. sale is to substitute a right of Gnear use fora right of fee as the subject of compulsory purchase ; that HMwZN,, they are, in fact, a mere qualification of the power to take pre- Suma axn VOUsly conferred by sect, 5 of the Act. Nothing is said about Cunumesuor price in sect. 8; but the clauses of the general Act are incor- * porated, which do expressly provide for its ascertainment, and I am not prepared to hold that these express provisions are to be denied effect on the ground that such ascertainment ought by implication to be regarded as‘a dispute arising under a clause which makes no mention of price. It was next argued for the respondents that rights of use or easements, such as they are empowered to acquire by sect. 8, are not “lands” within the meaning of the 16th and other sections of the Lands Clauses Act which relate to compulsory taking ; and accordingly that their proceedings for the purpose of taking these rights of use or easements could in no event fall within the scope of sect. 16. ‘That argument raises a very important ques- tion on the construction of the general Act. In my opinion the view taken by Chitty J. and Cotton L.J. is the right one. The interpretation clause of the Lands Clauses Act (sect. 8) provides that the words and expressions therein defined shall “both in this and the special Act” have the several meanings thereby assigned to them “ unless there be something either in the subject or context repugnant to such construction ;” and it enacts that “the word ‘lands’ shall extend to messuages, lands, tenements, and hereditaments of any tenure.” Now it is perfectly true that the word “lands” as it occurs in many of the leading clauses of the Act of 1845, is, by reason of the context, limited to corporeal hereditaments, Taking that Act per se, and irrespective of the terms of any other statute, these clauses do not appear to be applicable to the compulsory taking of an easement, at least in the sense in which the respondents are by their Act empowered to purchase and take such a right. The only easements which these provisions, read by themselves, seem to contemplate are servitude rights burdening the corporeal lands taken by the company, which are destroyed or impaired by the construction of the railway. The company are not dealt with as being cither ‘Lord Watson.VOL. IX] AND PRIVY COUNCIL. S80L entitled or bound to purchase and take such easements, but as H. L. (E.) liable to make compensation in respect of their having by the construction of their authorized works injuriously affected the dominant land to which the easements aro attached. As for the p 1884 Greav ‘Westeny raILWay Co, land upon which the railway is to be constructed, the compulsory 5% clauses of the general Act contemplate that the company shall Cnsvrexsian take the soil itself, and not a mere right to use it in perpetuity. On the other hand I can see no reason for holding that in sect. 7, and other clauses of the Act which relate to purchase by agreement, the word “lands” must be restricted to corporeal hereditaments. If a landowner is willing to sell a right of use, and such a right is sufficient for all the purposes sanctioned by the special Act, I cannot conceive, that it was the intention of the legislature to enact that the landowner should not sell or the company purchase, that limited right. Granting, however, that the expression “lands” in the Act of 1845 must, when the terms and context of that Act are alone regarded, bear a more restricted meaning than is assigned to it by the interpretation clause, it does not follow that it must continue to have the same limited meaning when its clauses are embedded in a context which enlarges the scope of the general Act. When that Act is incor- porated with enactments which expressly confer upon the pro- moters power to purchase and take incorporeal hereditaments-by compulsion, I think its clauses ought by virtue of ‘their new context to be construed so as to include and apply to heredita- ments which are not corporeal. It was, according to my appre- hension, the purpose of the legislature that the clauses of the general Act should be capable of expansion, so as to apply not. only to the cases contemplated by that Act, but to all cases of purchasing and taking sauctioned by the provisions of any of the special Acts with which they were in future to be incorporated, subject, it may be, to the proviso that the words and expressions occurring in these clauses were not to be extended. beyond the meanings severally assigned to them in sect. 8 of the Act. The respondents, however, maintained that an easement or right of use, such as their special Act empowers them to take, is not a “hereditament” within the meaning of sect. 3 of the Ratway Co. Lond Watson,802 HOUSE OF LORDS. [VOL. 1x. H.L.@) Lands Clauses Act, and, at all events, is not a “hereditament of 188 tenure.” As to the first branch of tho argument, I-confess my Great inability to understand why the expression’ “hereditaments” in Westen sect, 3 should not be held to include incorporeal hereditaments. Ramway Co. is I think it does, and it was so held by the Court of Queen’s Bench Swinpow AND > Gurumin in Reg. ve Cambrian Railway Company (1), Lord Blackburn A" observing that “hereditaments,” as used in the Act, includes tori Wan. « anything which is the subject of inheritance.” ‘That case was overruled by the Court of Appeal in Hopkins v. Great Northern Railway: Company (2), on the ground that the injury to the ferry, for which the Court of Queen's Bench had held the company liable in compensation, was attributable to the user, and not to the construction of the railway. But Mellish L.J., who delivered the judgment of the Court of Appeal, said: “In the case of Reg. vy. Cambrian Railway Company (1) the judges rely on the clause in the Lands Clauses Consolidation Act by which the word “land” includes ‘ franchises.’ This no doubt proves that if fran- chises are injured by the construction of the railway or works, which they may be, compensation may be obtained.” So that the Court of Appeal, in Hopkins v. Great Northern Railway Com- pany (2), did not differ from, but on the contrary, approved of the decision in Reg. v. Cambrian Raihoay Company (1), in so far as it affirmed that an incorporeal hereditament, such as a fran- chise of ferry, is “land” within the meaning of sect. 3, and therefore “land” within the meaning of sect. 68 of the Lands Clauses Act. In the subsequent case of Hill v. Midland Railway Company (8), where the company had power by their special Act to acquire (except in a certain event which had not occurred) a right or easement of precisely the same character as that which the respondent company are authorized to take for the purpose of crossing the appellants’ Gloucester line, Fry J. held that such right or easement was, by reason of its having been made the subject of compulsory acquisition by the provisions of the special Act, brought within the scope of the statutory definition of the word “lands” as occurring in sects. 18 and 85 of the general (2) Law Rep. 6 Q, B. 422, 431, (2) 2Q. B.D, 224 287, (3) 21 Ch, D. 143,