BAILY v. DE CRESPIGNY. the parties. On the other hand, to confine the word "assigns 1869 to those who take by the voluntary act of the assignor would not, as was suggested in argument, limit the operation of the covenant to his immediate grantee: because all those who take from the first assignee do so in consequence of the original voluntary act of the assignor, and it was his own fault that he assigned at all, or that he did not in the original conveyance guard against the acts of subsequent assignees. To exempt him from liability for such acts would be contrary to the intention of the parties, to be collected from their words, interpreted according to their known ordinary signification. It was, indeed, conceded on the argument by the plaintiff's counsel, that the defendant would not be liable for all acts of the railway company, as he would have been for the acts of any other assignee; but it was contended that the defendant was relieved from liability on his covenant as to those acts only which the company was required by the act of parliament to do, and not as to those which the company was merely empowered to do. We do not think that this distinction is well founded. The rule laid down in Brewster v. Kitchell (1) rests upon this ground, that it is not reasonable to suppose that the legislature, while altering the condition of things with reference to which the covenantor contracted, intended that he should remain liable on a covenant which the legislature itself prevented his fulfilling; but the covenantor in this case is equally disabled from preventing the railway company from doing those things which it is empowered to do, as those which it is required to do; why then should there be a difference in the liability of the covenantor with respect to the one and the other? But, assuming that the imposing on the defendant by the legislature of assigns whom he could not control, would, without more, free him from the engagements which he entered into with reference to assigns whom he could control, it remains necessary to deal with the argument that, though the company was empowered to take the lands free from the restrictions upon building, this was only on condition of paying full compensation for what they got, and that it must be supposed that the defendant obtained from the company not only the value of the land as he held it, encumbered (1) 1 Salk. 198. 1869 BAILY v. DE CRESPIGNY. with a covenant not to build, but also what was deemed a fair consideration for the right to build. It appears to be assumed in this argument that the difference, between the price of the land encumbered with the covenant not to build and the price of it freed from that covenant, would be the amount of damages to be paid by the defendant to the plaintiff in the present action. But that is not so: the plaintiff, if entitled to recover at all in this action, would be entitled to the damage he had sustained by the breach of the covenant, even if these damages should exceed the whole value of the land taken. No doubt, if the legislature had in express terms, or by necessary implication from its language, given to persons in the defendant's situation a remedy over against the railway company in respect of acts done by the company, this would have indicated that the legislature did not intend that the defendant should be freed from liability on his covenant, although he was disabled from performing it. But we cannot find in the railway acts any express or implied enactment to this effect. It has been already pointed out that there is no relation between the compensation which the defendant would be entitled to for his land and the damages for which he would be liable to the plaintiff. How could it be possible for the defendant to lay before the compensation jury evidence of the extent of his liability on such a covenant as that under consideration? How could he, in an inquiry to which the plaintiff was no party, offer evidence of the injury which the plaintiff might by any possibility sustain in the uncertain event of the company erecting a station or other building on the land taken ? Further, if the covenant of the defendant is to be considered as broken by the act of the railway company so as to entitle the plaintiff to damages, it must be deemed to carry with it the other consequences of a breach of contract. Thus, if the situation of the plaintiff and the defendant in this case had been reversed, and the covenant not to build on land adjoining the demised premises had been entered into by a lessee, with the usual proviso for re-entry in the event of breach of any covenant, the lessee would have been liable to forfeiture of his whole interest by reason of an act over which he had no control; and the railway company would be liable, if the plaintiff's contention be correct, to pay, by way of compensation for a piece of land taken, the whole value of the interest of the lessee in the adjoining estate. The solution of the case appears to be, that the plaintiff is one of a numerous class of persons injured by the construction of a railway, for whom the legislature has not provided compensation. This may be illustrated by reference to the special damage claimed in the declaration. It is there alleged that the amenity and comfort of the land demised have been diminished by reason of the prospect therefrom being interfered with, and by being overlooked by the windows of the station, with the appurtenances, including water-closets and urinals. These are heads of damage for which railway companies are not in ordinary circumstances bound to give compensation, but for which the defendant would be liable in an action on his covenant. We do not think that it was the intention of the legislature to make a railway company liable for such damages in the exceptional case of a person, in the position of the plaintiff, having taken a covenant from his lessor on the terms of that under consideration, or that, if such had been the intention of the legislature, so peculiar a head of compensation as that now suggested, namely, for liability to damages for breach of collateral covenants resulting from the taking of lands, would have been left to be conjectured from the vague language of the Lands Clauses Consolidation Act. For these reasons we are of opinion that our judgment ought to be for the defendant. Attorney for plaintiff: S. A. Beck. Judgment for the defendant. Attorneys for defendant: Domville, Lawrence, & Graham. 1869 BAILY V. DE CRESPIGNY. 1868* Nov. 9. THE QUEEN v. VAUGHAN AND THE METROPOLITAN DISTRICT Railway Company-Compensation-Loss of Trade Profits-Lands Clauses In June, 1865, a railway company served on F., a tenant from year to year, the usual notice to treat, and a notice as required by their Act, of their intention at the expiration of six months to enter and take the premises. F. sent in his particulars of claim to the company, but they did nothing further till 1868. F. in the meantime continued to carry on his business of a publican on the premises. In March, 1868, a summons was served by the company on F., and in April, the question of the compensation to be paid by the company to F. for his interest in the premises, was heard before a metropolitan police magistrate, under s. 121 of the Lands Clauses Consolidation Act. F., inter alia, claimed compensation for the depreciation in the value of such interest, which had taken place in the interval since the expiration of the six months by reason of the execution of the company's works, the custom of the public-house having been greatly reduced by the pulling down of the neighbouring houses taken under the company's statutory powers. The magistrate having refused to assess this item of compensation; on a rule to compel him to do so: Held, that this depreciation was not the subject of compensation, and the claim had been rightly rejected. By the Metropolitan District Railways Act, 1864 (27 & 28 Vict. c. cccxxii.), the Metropolitan District Railway Company were empowered to take a skittle ground, shed, and yard, belonging to a public house called the Black Bull, Little Chapel Street, Westminster, of which Edmund Furber was the occupier, as a tenant from year to year, at a rent of 100%. The company's act incorporated the principal sections of the Railways Clauses Consolidation Act, 1815, of the Lands Clauses Consolidation Act, 1845, and of the other general Acts. On the 16th of June, 1865, the company served Furber with the usual notice to treat for the skittle ground, shed, and yard; and they also served a notice on him (as the person assessed to the poor-rate), with a notice pursuant to s. 59 of 27 & 28 Vict. c. cccxxii. (1) of their intention to enter and take the same on or after the expiration of six months from that date. (1) By 27 & 28 Vict. c. cccxxii., s. 59, the company shall not enter on or take any tenement under the powers of this Act, until the expiration of six months *The report of this case has been unavoidably delayed. 1868 V. VAUGHAN. On the 7th of July, 1865, Furber sent particulars of claim to the company, stating his interest in the public house to be that of THE QUEEN tenant from year to year, and claiming "for the good-will of the business carried on upon the premises 7507. The furniture, fixtures, and utensils in trade to be taken by valuation in the usual way, and the loss by forced sale of stock in trade (if any) when possession is required. Valuers and surveyors' fees to be paid in addition." The premises not being immediately required by the company, no further proceedings were taken until October, 1867, when the company endeavoured to arrange terms with Furber, but failed. On the 16th of March, 1868, the company's contractor entered on the skittle ground, and began to pull down the shed without any notice to or consent of Furber, and he accordingly commenced an action and obtained an injunction on the 18th of March. On the 28th of March the company served a summons on Furber to appear before a police magistrate for the purpose of the magistrate hearing and determining Furber's claim to compensation, under 8 Vict. c. 18, s. 121 (1), which by s. 84 of the company's Act was expressly applied to lands taken under their Act. On the same day the company served a notice on Furber that they required possession of the skittle ground, shed, and yard. after serving notice in writing of their intention to take the same on the person assessed to the poor-rate of such tenement by serving such notice at such tenement. (1) 8 Vict. c. 18, s. 121:-"If any such lands shall be in the possession of any person having no greater interest therein than as tenant for a year, or from year to year, and if such person be required to give up possession of any lands so occupied by him before the expiration of his term or interest therein, he shall be entitled to compensation for the value of his unexpired term or interest in such lands, and for any just allowance which ought to be made to him by an incoming tenant, and for any loss or injury he may sustain, or if |
