Mercer v. Liverpool, St Helens, and South Lancashire Railway Co. [1904] UKHL 488
(Before the Lord Chancellor (Halsbury) , Lords Macnaghten and Lindley .)
42 SLR 488Mercer v. Liverpool, St Helens, and South Lancashire Railway Company.(On Appeal From the Court of Appeal in England.)
Subject_ Railway — Compensation — Land Injuriously Affected — Claim for Compensation by Lessee who has Acquired his Holding Subsequent to the Notice to Treat Given to Owner. Facts:A railway company in virtue of its statutory powers served on a proprietor notice to treat for the purchase of a part of his lands and for compensation for damage by the execution of their works. Subsequent to the notice and the sending in of the particulars of his claim, the proprietor granted a building lease of a part of his lands adjoining the land proposed to be acquired by the railway company. The proprietor's claim was settled by the payment of a sum of money. Held that the sum of money paid to the proprietor must be held to cover damage done to the lessee's holding in the execution of the works, and that the lessee could not claim compensation therefor from the railway company.Lord Gerard was the proprietor of land near St Helens. Under their statutory powers the Liverpool, St Helens, and South Lancashire Railway Company, on 23rd October 1891, served on him a notice to treat for the purchase of a part of his land, and for compensation for damage by the execution of their works. On the 12th January 1892 Lord Gerard served on the Railway Company particulars of his claim. In February he made a verbal agreement with one Gleave to grant a building lease to the latter of a part of his land for 999 years from January 1, 1892. The land to be let adjoined the land proposed to be acquired by the Railway Company, but no claim for compensation for damage to it had been included in the particulars of claim. Gleave obtained possession, received a formal lease dated 14th June 1892, built some houses, and subsequently assigned the lease to Mercer.Lord Gerard's claim against the Railway Company was by agreement of 14th October 1892 settled, and by deed of 27th February 1894, in consideration of the sum of £24,209 paid to him, he conveyed to the Railway Company the lands included in that agreement, and some others. The lessee had no knowledge of the notice to treat, agreement, and conveyance.During the year 1895 the Railway Company in the execution of their works injuriously affected, by interfering with the access, and in other ways, the land held by Mercer. For this damage, in an arbitration under the Lands Clauses Consolidation Act, Mercer obtained an award of compensation, which with the expenses of the arbitration amounted to £371, 10s.Mercer brought an action to enforce the award. The Judge ( Lord Alverstone , C.J.) gave judgment for the plantiff, but on appeal this decision was reversed by the Court of Appeal ( Vaughan Williams, Stirling, and Mathew , L.JJ.)The plaintiff appealed.At delivering judgement—
Lord Chancellor —In this case I cannot entertain any doubt that the judgment of the Lords Justices of Appeal was right. The position of things which is here disclosed upon the facts is that at the time when the notice to treat was given Lord Gerard was the owner not only of the land intended to be taken under the powers of the Act but of other land which might or might not be injuriously affected, without any communication to the Railway Company of the possibility of his sub-letting the land, or rather letting the land for building purposes on a building speculation, and without any communication to the Railway Company that he had done so. The compensation was ascertained not by the ordinary course of an inquiry by an assessment jury but by a bargain between the parties. Of course, inasmuch as we have nothing at all before us as to whatPage: 489 ↓
Lord Macnaghten —I am of the same opinion. As regards the question between the plaintiff and the Railway Company I am unable to see any answer to the argument of Stirling, L.J. I am quite content with his judgment, and I am unable to add anything to it.Lord Lindley —This case is one of novelty and of great importance, not only to railway companies but to landowners. I agree entirely in the judgment of the Court of Appeal, and I can add really nothing to the judgment of Stirling, L.J. The broad principle appears to me to be that it is not competent for an owner of land who has received notice to treat to deal with any of his land either taken or injuriously affected by the company so as to increase the burden of the company as regards the compensation to be made in respect of such land or any of it. In this case it would be most unjust to the company to depart from this principle, as the company settled with the owner without notice of his dealings with his land after the notice to treat was given and after his claim was sent in, and he insisted all along on his right to have the streets lowered (see sec. 13, clause 7 of the Special Act 1886).Judgment appealed from affirmed, and appeal dismissed.Counsel for the Plaintiff and Appellant— Cripps, K.C.— Haldane, K.C.— MacConkey. Agents— Bell, Brodrick, & Gray.Counsel for the Defendants and Respondents— M'Call, K.C.— Horridge, K.C.— W. H. Loraine. Agents— Maples, Teesdale, & Co.