The GLIO Site

     PETERSFIELD.—Court of Equity, Feb. 17.—Before Vice-Chancellor Sir W. Page Wood. 

     LIPSCOMB v. THE PORTSMOUTH RAILWAY COMPANY.—Mr. Cairns and Mr. Southgate moved for an injunction to restrain the defendants from proceeding with the construction of their railway upon the lands of the plaintiff, until the amount of purchase-money, or compensation, for the lands taken by them in pursuance of their notice to treat had been determined by a jury or by arbitration, and the purchase-money had been secured, in accordance with the provisions of the Land Clauses Act 1845, or until they should have proceeded under section 85 of the act, and from retaining possession of such lands or any part of them. The plaintiff, Mrs. Lipscomb was tenant for life, under the will of her husband, as cestui que trust, of certain lands in the parishes of Steep and Liss, in Hampshire, through which it was proposed to carry the line of the Portsmouth Railway, from Havant to Godalming, under the Portsmouth Railway Act, 1853. In September, 1853, Mrs. Lipscomb, who was upwards of 80 years old, and had previously dissented from the railway project, was persuaded by one of the trustees of her husband to sign an agreement with the company as to the purchase of her land in the parish of Steep. By this agreement, which bore date the 26th of September, 1853, and was made between the company of the first part, and Mrs. Lipscomb and the trustees of the second part, by which, after reciting that the company were desirous of meeting the requirements of the parties of the second part, and in consideration of their having abstained from opposition to the bill, had agreed to enter into certain stipulations, it was agreed that the company should pay to the trustees £100 for every acre taken for the railway, such sum to cover as well the value of the land as also any claims which might have been recovered on account of severance, and in consideration of compulsory purchase. Certain provisions were also contained as to compensation for buildings, severed land, and timber. No steps were taken by the company upon this agreement; but in July, 1856, they served Mrs. Lipscomb with notice to treat for her land in the parishes of Liss and Steep, and calling upon her to sign the schedule of claim. The plaintiff signed the schedule, claiming £1,215 10s. in respect of the 3½ acres required by the company and damages, and nominating Mr. Attree her agent to treat for the sale of the property. The company had subsequently claimed to be entitled, under the agreement of the 26th Sept., 1853, to take not only the land required for the line, but a further portion, amounting in the whole to nine acres; and in spite of the remonstrances of the plaintiff, who insisted that the agreement had been abandoned by the notice to treat, had paid £941 into court under section 76 of the Lands Clauses Consolidation Act, to the credit of the company and the account of the devisees in trust under the will of the testator. They had subsequently attempted to enter into possession, and were opposed by the tenant, but after arranging with him as to his compensation were, on the 28th January last, admitted into possession, and were now proceeding to construct their line upon the plaintiff’s lands, in restraint of which act Mrs. Lipscomb, and the persons entitled in remainder to the beneficial interest under the testator’s will, had filed their bill, and now moved for an injunction. In support of the motion it was contended that the company were not entitled to retain possession until the value had been assessed in the manner prescribed by the Lands Clauses Act, and that the agreement of the 26th September, 1853, had been abandoned and waived by the company upon their sending the notice to treat. The agreement was at all events void as to lands not actually required for the purposes of the railway.

     Mr. Rolt and Mr. Giffard, on behalf of the company contended that the matter could not be decided in the absence of the trustees of the will, who ought to have been made parties to the suit, as the power of sale was vested in them, and they could alone enforce specific performance of the agreement. As to the £941 paid into court, there was abundant evidence that it was more than an adequate price for the land taken. With respect to the agreement, parties were not entitled to withdraw from what they had deliberately entered into; and if it should prove to be invalid, the company were ready to pay the money into court under sec. 85 of the Lands Clauses Act.

     The Vice-Chancellor, without calling for a reply, said that the only question was to whether the motion should stand over to enable the trustees to be present. He had no doubt that, upon the facts of the case, the agreement had been entered into in 1853, and nothing was done upon it for three years. The company had after this lapse of time sent a notice to purchase upon a totally different footing. This variation of the contract having been accepted the agreement was gone, and it was not competent for either party to stand upon it. It would be very hard upon landowners that they should be put to the expense of sending in their claims and taking steps upon the act, and that the company should then be allowed to recur to the original agreement for their own convenience. The onus was at all events upon the company of inquiring of the trustees whether they choose to abide by the old agreement or act upon the notice. The objection as to their absence came with by no means a good grace from the company, who had taken a most irregular step in attempting to retain possession under the old agreement after sending the notice to treat. The plaintiff was entitled to an interim order till after Friday, with liberty to amend upon an undertaking to bring the trustees before the court on Saturday.