THE COURTS.

New Zealand Mail, Issue 766, 5 November 1886, Page 9

THE COURTS.

COMPEWS4TION COURT,

Walker v the Wellington and Manawatu Railway Company (Limited).

(Judgment of Riohmond, J., delivered 24th

Sept., 1886. This is a special case stated by consent for the opinion oE the Court. A Compensation Court having awarded to the plaintiff the sum of £ISOO a 3 compensation for lands taken for the construction of the defendant Company’s line of railway, and for damage to lands injuriously affected by such construction, the plaintiff claims the payment of interest, at 8 per cent, on the amount awarded; either (1) from the 11th October, 1883, the date of the notice of intention to take the land ; or (2) from 11th December. 1883, the date of the taking possession ; or (3) from the date either of the original or of the amended claim ; or (4) from the date of the award. The claim is founded upon the English decisions on the Lands Clauses Consolidation Act of 1845. In addition to the eases cited on the argument I have referred to, Iu re Shaw and the Corporation of Birmingham ; Law Reports 27, Chancery Division 614, in which Mr Justice Chitty refers to Rhys v Dare Valley Railway Company; Law Reports 19, Equity 93, and to subsequent decisions. It appears to bo established that a notice to treat, given by a Railway Company to a landowner under the Lands Clauses Act, followed by an award or verdict fixing the amount of purchase money, effects a contract' or quasi contract between the parties for sale and purchase, to which the ordinary rules governing the relation of vendor and purchaser apply; the award, or verdict, being regarded as the ascertainment of the amount of a capital sum as the purchase money. Of course, I should be bound by these decisions if the provisions of the Public Works Act wete analogous to those of. the English statute.

In my opinion, however, that is not so. The Public Works Act makes no discrimination between the ascertainment of a price for the land taken, and the as-essment of damage occasioned by the construction of the railway. Sec. 27 treats the tailing and the damage as equally subjects of compensation; and the first form given in schedule 2 is suited to a claim for a lump sum in respect of both sub-ject-matters. Section 60 is framed in the same way, and section 61 enacts, in so many words, that the Court may award one gross sum as the compensation to be paid to the claimant on all accounts.

In this respect the Colonial Act contrasts with the English; which generally distinguishes between purchase money and compensation for damage; Section 49, in particnlarVrequires the sheriff’s jury to deliver their verdict separately for the sum of money to be paid for the purchase, and for the sum of money to be paid by way of compensation for damage by severance or otherwise ; and section 28 requires the promoters to notify separately what sum of money they are willing to give under each head. The dominant idea in the English Act—if one may so speak of an Act of Parliament — is that of ascertaining price, the sole notion of the compensation clauses of the Public Works Act being that of assessing damage, and the value of the land compulsorily taken being included in damage. If a gross sum be awarded, it will generally include, with the value of the land taken, allowances not only for damage by severance, but for damage otherwise occasioned by the execution of the works to adjacent lands of the claimants. In such an award, it is impossible to say how much has been allowed as purchase money, how muoh as damage by severance, and how much as damage otherwise occasioned by the execution of the works. In regard to the latter head of damage, interest ought not necessarily to begin to run from the time when possession is taken, but rather from the commencement of the works occasioning the damage. Therefore, it would

not alway-3 be fair to allow interest from the date of possession on the whole sum awarded as if it were all in the nature of purchasemoney. On the whole, I conclude that the Court does not contemplate the addition of interest to the sum awarded, but assumes that the Compensation Court will'take into consideration the length of time elapsed since possession was taken, and will include in the amount of its award what is proper in each case to be a’lowed. Another reason for this conclusion is, that to bold otherwise would deprive the award of the finality which it appears to be intended to have : for if the claim to interest in addition to the amount awarded be allowed, the sum actually payable is left, in every case, to be ascertained by the calculator of interest from a date which has not been judicially determined, and whioh may be in dispute. This is not consistent with the provision of section 64, which gives to an award, in cases within that section, the effect of a judgment of the Supreme Court. On these grounds, 1 am of opinion that , the claimant i 3 not entitled to interest prior to the date of the award. As to the right to subsequent interest it is clear that interest must be held to accrue from the time when under section 64 the award acquires the effect of a judgment of the Supremo Court. Rut it is doubtful whether that section applies to a ca?e in which, although there has been no doubt or dispute as to the title of the claimant to compensation, payment has been delayed. In such case as payment ought to have been made immediately, it is evidently just that interest should run from the date of the award. This point being on the present occasion conceded by the respondent Company, an absolute decision is not called for.