8 VICT. Cap. 19. [4] [V.] [6] [7] "The bank."-The expression "the bank" shall mean any one of the incorporated or chartered banks in Scotland. IV. SHORT TITLE OF THE ACT.—. . . In citing this Act in other Acts of Parliament and in legal instruments, it shall be sufficient to use the expression "The Lands Clauses Consolidation (Scotland) Act, 1845." 1 Words, "And be it enacted that" omitted by 54 & 55 Vict. c. 67. V. FORM IN WHICH PORTIONS OF THIS ACT MAY BE INCORPORATED WITH OTHER ACTS.1-And whereas it may be convenient in some cases to incorporate with Acts of Parliament hereafter to be passed some portion only of the provisions of this Act; be it therefore enacted, that for the purpose of making any such incorporation it shall be sufficient in any such Act to enact that the clauses of this Act with respect to the matter so proposed to be incorporated (describing such matter as it is described in this Act in the words introductory to the enactment with respect to such matter) shall be incorporated with such Act; and thereupon all the clauses and provisions of this Act with respect to the matter so incorporated shall, save so far as they shall be expressly varied or excepted by such Act, form part of such Act, and such Act shall be construed as if the substance of such clauses and provisions were set forth therein with reference to the matter to which such Act shall relate. 1 As to the incorporation generally or partially of this Act in special Acts, see Law of Rlys. pp. 144, 145, and cases there cited. PURCHASE OF LANDS BY AGREEMENT. And with respect to the purchase of lands by agreement, be it enacted as follows: VI. Power to purchase lands by agreement.1-Subject to the provisions of this and the special Act, it shall be lawful for the promoters of the undertaking to agree with the owners of any lands by the special Act authorised to be taken, and which shall be required for the purposes of such Act, and with all parties having any right or interest in such lands, or by this or the special Act enabled to sell and convey the same, for the absolute purchase of any such lands, or such parts thereof as they shall think proper, and for the purchase of all rights and interests in such lands of what kind soever. As to the completion of the contract and time of payment, see Law of Rlys. pp. 150, 151. VII. Parties under disability enabled to sell and convey.-It shall be lawful for all parties, being possessed of any lands, or any such right or interest therein, to contract for, sell, convey, and dispose of such lands, or of such right therein, to the promoters of the undertaking, and to enter into all necessary agreements for these purposes, and particularly it shall be lawful for the parties following so to do; (that is to say), all corporations, heirs of entail, liferenters, or persons holding any other partial or qualified estate or interest, married women seised in their own right or entitled to terce or dower, or any other right or interest, husbands, tutors, curators, and other guardians for infants, minors, lunatics or idiots,1 fatuous or furious persons, or for persons under any other disability or incapacity, judicial factors, trustees or feoffees in trust for charitable or other purposes, executors, and administrators; and the power so to contract for, sell, convey, and dispose of as aforesaid may lawfully be exercised by all such parties, not only on behalf of themselves and their respective heirs, executors, administrators, and successors, but also for and on behalf of every person entitled in reversion or expectancy after them, and as to such married women as if they were sole, and as to such tutors, curators, guardians, judicial factors, and trustees, on behalf of those for whom they respectively act, whether infants, minors, issue unborn, bankrupts, lunatics, idiots, fatuous and furious persons, married women, or other incapacitated persons, and that to the same extent as such infants, minors, bankrupts, lunatics, idiots, fatuous and furious persons, married women, and other incapacitated persons respectively could have exercised the same power under the authority of this and the special Act if they had respectively been under no disability. 1 See Tugwell (1884), 27 Ch. D. 309. 1845. [8] VIII. Parties under disability may exercise other powers.-The power hereinafter given to discharge any lands from feu-duties or casualties of superiority, as well as every other power required to be exercised by any superior pursuant [copyhold] to the provisions of this or the special Act, or any Act incorporated therewith, and the power to discharge lands from any rent, payment, charge, feu-duties, ground-annuals, or other real burdens or incumbrances, and to agree for the apportionment of any such rent, payment, charge, feu-duties, ground-annuals, or other real burdens and incumbrances, shall extend to and may lawfully be exercised by every party herein before enabled to contract for, sell, dispose of, or convey lands or rights or interests therein to the company. [9] IX. Amount of compensation in case of parties under disability to be ascertained by valuation and paid into the bank. The purchase money or compensation to be paid for any lands, or any rights or interests therein, to be purchased or taken from any party under any disability or incapacity, and not having power to sell or convey such lands, or rights or interests therein, except under the provisions of this or the special Act, and the compensation to be paid for any permanent damage or injury to any such lands, shall not, except where the same shall have been determined by the sheriff, or by the verdict of a jury, or by arbitration, or by the valuation of a valuator appointed by the sheriff under [two justices] the provision hereinafter contained, be less than shall be determined by the valuation of two able practical valuators, one of whom shall be nominated by the promoters of the undertaking, and the other by the other party, and if such two valuators cannot agree in the valuation, then by such third valuator as the sheriff shall, upon application of either party, after notice to the other party, for that purpose nominate; and each of such two valuators, if they agree, or if not, then the valuator nominated by the said sheriff, shall annex to the valuation a declaration in writing, subscribed by them or him, of the correctness thereof;1 and all such purchase money or compensation shall be deposited in the bank, for the benefit of the parties interested, in manner hereinafter mentioned.2 1 See Law of Rlys. p. 148, and pp. 385-387. Sc. M.J.R.C. v. Gray (1850), 13 D. 410. 2 Peters v. Lewes and East Grinstead R. C. (1881), 18 Ch.D. 429. As to how far section is obligatory, see Bridgend Gas and Water Co. v. Lord Dunraven (1885), 31 Ch. D. 219; and Law of Plys. pp. 148, 149, and cases there cited. In reference to the purchase money or compensation to be paid for lands, or rights or interests therein, and the compensation for permanent damage or injury, see also secs. 6 and 16 of Railways Clauses Act, and secs. 20 (68), 21 (22), 48 (49), 56 (58), 61 (63) of the Lands Clauses Act. For a detailed statement of the law as to what injuries form subjects for statutory compensation, see Law of Rlys. Part IV. chap. ii. p. 302. It may be summarised with reference to the leading cases as follows: Ibid. 1. The injury must be from the legitimate exercise of the statutory powers. Cal. R.C. v. Colt (1860), 3 Macq. 833, p. 838. For improper exercise the remedy is by action. and e.g. Lawrence v. G. N.R. (1851), 16 Ad. & El. Q.B. 643; Law of Rlys. pp. 307-309. 2. The injury must have been actionable but for the statute. In re Penny v. S. E.R.C. (1857), 7 E. & B. 660; and per Lord Watson in Cal. R. C. v. Walker's Trs. (1882), 9 R.H.L. 19, at p. 38. If, however, land, or its equivalent, be taken, a claim will lie for all damage [surveyors] 8 VICT. Cap. 19 [10] suffered by the owner in respect of the land taken, or land of his connected with it and injuriously affected, D. of Buccleuch v. Metr. Board of Works (1871-72), L.R. 5 E. & I. App. 418; Cowper-Essex v. Local Board of Acton (1889), L. R. 14 A.C. 153; Law of Rlys. pp. 309-316. 3. Right of action may be taken away without right to compensation being conferred. Cal. R.C. v. Ogilvy (1865), 2 Macq. 229; Port-Glasgow and Newark Sailcloth Co. v. Cal. R.C. (1892), 20 R.H.L. 35; Law of Rlys. pp. 316, 317. 4. Injury must be from construction and not merely from subsequent use of line, where no land has been taken. Hammersmith R.C. v. Brand (1869), 4 L.R. E. & I. App. 171. Dist. City of Gl. Union R.C. v. Hunter (1870), 2 L.R. Sc.App. 78. But where land has been taken, and there may be a claim under the Lands Clauses apart from the Railway Clauses Act, see Cowper - Essex v. Local Board of Acton (1889), 14 A. C. 153; Law of Rlys. pp. 317-325. 5. If there is right to compensation the right of action is excluded. Watkins v. G.N.R. (1851), 20 L.J. Q.B. 391; and Cal. R. C. v. Lockhart (1860), 3 Macq. 808, per Lord Chancellor; Law of Rlys. p. 325. 6. To entitle to compensation there must be injury (not necessarily structural) to land, and not merely to a personal interest. Ricket v. Metr. R.C. (1867), 2 L.R. E. & I. App. 175, contrasted with Beckett v. M.R.C. (1867), 3 L.R. C.P. 82; Law of Rlys. pp. 326-335, and correct headline by omitting "structurally." 7. The injury must be to the land (or its equivalent), but not necessarily upon the land, provided the premises suffer special damage. Metr. Board of Works v. M'Carthy (1874), 7 L.R. H.L. 243 (Lands Clauses Act); Cal. R.C. v. Walker's Trs. (1882), 19 R. H.L. 19 (Railways Clauses Act); Law of Rlys. pp. 335-339. For note of cases illustrating various circumstances, in which compensation has been granted or refused, see Law of Rlys. pp. 339-351. Interference with Access, p. 339; with Light and Air, p. 342; with Water Rights, p. 343; Injury by Fire, p. 345; by Smoke, p. 346; by Loss of Custom or Trade Profits, p. 347; Prospective Profits, p. 348; and Miscellaneous Items of Damage, p. 348. For specialties in connection with underground railways, see Law of Rlys. p. 350. X. Where vendor absolutely entitled, lands may be sold on feu-duties, etc.It shall be lawful for all parties entitled to dispose of absolutely1 any lands authorised to be purchased for the purposes of the special Act to convey such [chief rents] lands or any part thereof unto the promoters of the undertaking in consideration of an annual feu-duty or ground-annual payable by the promoters of the undertaking. [11] [XII.] 1 Extended to heirs of entail by 16 & 17 Vict. c. 94, sec. 14; and to all parties under disability by 23 and 24 Vict. c. 106, sec. 3. XI. Payment of which to be charged on tolls.-The feu-duties or groundannuals stipulated by any such conveyance shall be charged on the tolls or rates, if any, payable under the special Act, and shall be otherwise secured in such manner as shall be agreed between the parties, and shall be paid by the promoters of the undertaking as such feu-duties or ground-annuals become payable; and if at any time the same be not paid within thirty days after they so become payable, and after demand thereof in writing, the person to whom any such feu-duties or ground annuals shall be payable, may either recover the same from the promoters of the undertaking, with expenses of suit, by action in any competent court, or it shall be lawful for him to levy the same by poinding and sale of the goods and effects of the promoters of the undertaking.1 1 See Eyton v. Denbigh, etc., R. C. (1868), 6 L.R. Eq. 14. XII. Power to purchase lands required for additional accommodation.1-In case the promoters of the undertaking shall be empowered by the special Act to purchase lands for extraordinary purposes, it shall be lawful for all parties who, under the provisions herein before contained, would be enabled to sell, feu, and convey lands, to sell, feu, and convey the lands so authorised to be purchased for extraordinary purposes. 1 See 8 & 9 Vict. c. 33, sec. 38, and 26 & 27 Vict. c. 92, sec. 8. XIII. Authority to sell and repurchase such lands.—It shall be lawful for the promoters of the undertaking to sell the lands which they shall have so acquired for extraordinary purposes, or any part thereof, in such manner and for such considerations and to such persons as the promoters of the undertaking may think fit, and again to purchase other lands for the like purposes, and afterwards sell the same, and so from time to time, but the total quantity of land to be held at any one time by the promoters of the undertaking for the purposes aforesaid shall not exceed the prescribed quantity. 1845. [XIII.] [XIV.] XIV. Restraint on purchase from incapacitated persons.-The promoters of the undertaking shall not, by virtue of the power to purchase land for extraordinary purposes, purchase or acquire more than the prescribed quantity from any party under legal disability, or who would not be able to sell or convey such lands, except under the powers of this and the special Act; and if the promoters of the undertaking purchase or acquire the said quantity of land from any party under such legal disability, and afterwards sell or dispose of the whole or any part of the land so purchased, it shall not be lawful for any party, being under legal disability, to sell or convey to the promoters of the undertaking any other lands in lieu of the land so sold or disposed of by Corporations them. XV. Capital to be subscribed before compulsory powers of purchase put in force.-Where the undertaking is intended to be carried into effect by means of a capital to be subscribed by the promoters of the undertaking, the whole of the capital of the company or estimated sum for defraying the expenses of the undertaking shall be subscribed under contract binding the parties thereto, their heirs, executors, and administrators, for the payment of the several sums by them respectively subscribed before it shall be lawful to put in force any of the powers of this or the special Act, or any Act incorporated therewith, in relation to the compulsory taking of land for the purposes of the undertaking.1 1 See Law of Rlys. pp. 161, 162, and cases there cited. Also G. W.R. v. Swindon and Cheltenham R. C. (1882), 22 Ch.D. 677, and M., S., and L.R.C. v. South Yorkshire Nav. Co. (1890), 6 T.L.R. 414; Weld v. S. W.R. (1862), 32 Beav. 340. XVI. A certificate of the sheriff to be evidence that the capital has been subscribed. A certificate, under the hands of the sheriff, certifying that the whole of the prescribed sum has been subscribed, shall be sufficient evidence thereof; and on the application of the promoters of the undertaking, and the production of such evidence as such sheriff thinks proper and sufficient, such sheriff shall grant such certificate accordingly. [15. to have consent of Treasury.] [XVI.] [17] PURCHASE OF LANDS OTHERWISE THAN BY AGREEMENT. And with respect to the purchase and taking of lands otherwise than by agreement, be it enacted as follows: 1 As to what are purposes of Act justifying compulsory taking, see Law of Rlys. pp. 155, 156. As to strict construction of compulsory powers, ibid. pp. 153, 154. Also Att. Gen. v. G.N.R. (1860), 1 Dr. & Sm. 154. XVII. Notice of intention to take lands.-When the promoters of the undertaking shall require to purchase any of the lands which by this or the special Act, or any Act incorporated therewith, they are authorised to purchase or take, they shall give notice thereof to all the parties interested in such lands, or to the parties enabled by this or the special Act to sell and convey the same, or their rights and interests therein, or such of the said parties as shall, after diligent inquiry, be known to the promoters of the undertaking, and by such notice shall demand from such parties the particulars of their interest in 8 VICT. Cap. 19. [19] such lands, and of the claims made by them in respect thereof; and every such notice shall state the particulars of the lands so required, and that the promoters of the undertaking are willing to treat for the purchase thereof, and as to the compensation to be made to all parties for the damage that may be sustained by them by reason of the execution of the works." 1 As to meaning of take," see Spencer v. Metr. Board of Works (1882), 22 Ch.D. 142. 2 For construction of "person interested," see Lawson v. C.R. (1881), 8 R. 442, and contrast with sec. 83. and Glasgow Dist. Subway Co. v. Johnstone (1892), 20 R.J.C. 28. 3 As to effect of notice to treat in constituting contract, see Law of Rlys. pp. 163-166, and cases there cited; and Reg. v. Hungerford Market Co. (1882), 4 B. & Ad. 327. As to effect of delay in following up, ibid. p. 166. As to what is covered by the notice, ibid. p. 167. What is equivalent to, ibid. pp. 167, 168. Abandonment of, ibid. p. 168; and Ystalyfera Iron Co. v. Neath and Brecon R.C. (1873), 17 L.R. Eq. 142; Thompson v. Tottenham and Forest Gate R.C. (1892), 67 L.T. 416; King v. Wycombe R.C. (1860), 28 Beav. 104. As to effect of notice in operating conversion, ibid. pp. 169, 170. As to authentication of, ibid. p. 251. Matters to be attended to in framing, ibid. pp. 251-253. Objections to form of, ibid. p. 253. Effect of errors in, ibid. pp. 253, 254. When essential, ibid. pp. 254, 255. As to effect of counter notice under sec. 90, see Law of Rlys. pp. 168 and 198, and cases there cited. As to sufficient description of "nature of interest," see Cameron v. Charing Cross R.C. (1864), 16 C. B. N.S. 430. The notice does not require to be stamped as an agreement. Rawlings v. Metr. R.C. (1868), 37 L.J. Ch. 824. As to interest created or changed after notice, see Law of Rlys. pp. 180, 181, and cases there cited; and also in re Marylebone Impt. Act, e.p. Topple (1871), 25 L.T. 407. XVIII. Service of notices on owners and occupiers of lands.-All notices required to be served by the promoters of the undertaking upon the parties interested in or entitled to sell any such lands shall either be served personally on such parties, or left at their last usual place of abode, if any such can, after diligent inquiry, be found; and in case any such parties shall be absent from the United Kingdom, or cannot be found after diligent inquiry, such notices, when the same are to be given to an owner of lands, shall be served on the factor or agent, if any, of such owner, and shall also be left with the occupier [20. Service on of such lands, or, if there be no such occupier, shall be affixed upon some concorporation.] spicuous part of such lands. [XXI.] XIX. If parties fail to treat, or in case of dispute, question to be settled as after mentioned.—If for twenty-one days after the service of such notice any such party shall fail to state the particulars of his claim in respect of any such land, or to treat with the promoters of the undertaking in respect thereof, or if such party and the promoters of the undertaking shall not agree as to the amount of the compensation to be paid by the promoters of the undertaking for the interest in such lands belonging to such party, or which he is by this or the special Act enabled to sell, or for any damage that may be sustained by him by reason of the execution of the works, the amount of such compensation shall be settled in the manner hereinafter provided for settling cases of disputed compensation.1 1 See Law of Rlys. pp. 247 et seq. Also Schwinge v. London and Blackwell R.C. (1855), 24 L.J. Ch. 405. XX. Dispute as to compensation may be referred to arbitration.-If no agreement be come to between the promoters of the undertaking and the owners of or parties by this or the special Act enabled to sell and convey any lands taken |