Crosse v. Keene.

Now, by the seventh condition, and by the description of lot 2 itself in the particulars of sale, it is expressly stipulated that the purchaser is not to require the lands to be distinguished. Then, when they stipulate that the purchaser is not to inquire in this respect into the title to the land, and we consider the timber as part of the land, it is in effect stipulated that neither is the purchaser to inquire in this respect into the title to the timber. Suppose the ninth condition had included timber to be taken at a valuation, how is the timber to be valued? Undoubtedly not as copyhold, but it is to be valued as timber not affected by the state of the title. Suppose the whole land copyhold, could it be said that the vendor is entitled to nothing in respect of the timber? Again: the purchaser must be considered as destinating part of the price to copyhold trees; and he must be considered as calculating in his own mind, at the time of the sale, the chances and uncertainty of ascertaining his right of property in any of these trees, and therefore, that he makes up his mind to offer so much less. Mr. James put an ingenious case as to fixtures; but I think a nearer analogy in the case of fixtures would be, where a vendor selling a house were to agree to sell the fixtures at so much, stating his inability to distinguish which were landlord's and which tenant's fixtures. That is a case where, as I apprehend, the court would interfere and enforce the contract. So here, the purchaser was told that the title as to the timber was in this state that, in fact, it could not be pointed out what he might cut down, and what he might not. He must, therefore, pay the whole 2631. interest and costs, and complete the purchase on that basis.

CROSSE V. KEENE.

This was a claim for a specific performance of a similar contract as to lot 6, at the same sale: the contract was in the same terms, and the conditions of sale the same. But in this lot the lands were altogether copyhold. The purchaser declined to pay for the timber, and refused to complete his purchase unless upon being allowed all the valuation price of it.

TURNER, V. C. The question in this case is similar to that in the last. The distinction which is to be taken between this case and the case of the sale of a crop of corn, which the vendor can give no right to cut, is this, that corn cannot be enjoyed except by reaping it; whereas the trees may be enjoyed without cutting them. There is often much value and enjoyment in the possession of trees quite apart from the value of them as timber. I think this is all one contract. There is no separate and distinct contract, one for land and another for the trees.

The Great Northern Railway Co. v. The Manchester, &c. Railway Co.

THE GREAT NORTHERN RAILWAY COMPANY V. THE MANCHESTER, SHEFFIELD, AND LINCOLNSHIRE RAILWAY COMPANY & others.1

December 16, 1851.

Injunction Agreement between two Railway Companies of a permanent Character.

In 1848 the East Lincolnshire Railway Company agreed with the defendants that a station on the defendant's line should be used equally by both companies, but should be subject to the by-laws of the defendants, and that a committee of three from each board should be appointed to arrange the working of the traffic, &c.; that the cost and maintenance of the station and the working should be borne by the two companies equally; that the defendants should afford to the East Lincolnshire Railway Company facilities for access to the Great Grimsby Docks, and that the East Lincolnshire Railway Company should give up a piece of land to the defendants; that the defendants should have the right of running with their engines, &c. on the East Lincolnshire line between Great Grimsby and Louth, and that the East Lincolnshire Railway Company should have the same right over the defendants' line between Great Grimsby and New Holland, paying in either case 661. per cent. of the gross receipts to the company whose line was used; and that each company should provide station accommodation for the other at New Holland and Louth respectively for three years, as therein mentioned. The said East Lincolnshire line of railway became vested in the plaintiffs, as lessees thereof for 999 years. Disputes arose between the companies, which ended in the defendants preventing the plaintiffs from running their engines, &c. on the line between Great Grimsby and New Holland, and giving them a formal notice to determine the agreement. On motion, an injunction was granted to restrain the defendants from obstructing the plaintiffs running their engines, &c. over that part of the defendants' line mentioned in the agreement:

Held, that the agreement was permanent, and could not be determined without the consent of both parties, and was not a mere license revocable at the will of either.

Held, that an agreement to grant an easement of this nature to a corporate body need not be by deeds, and might be permanent, although it was to the company only, and not to the company and their successors.

THIS was a motion on behalf of the plaintiffs for an injunction to restrain the defendants, the Manchester, Sheffield, and Lincolnshire Railway Company, their officers, servants, and workmen, including James Allport, from obstructing or preventing the plaintiffs, the Great Northern Railway Company, from running their engines and carriages, laden or unladen, over so much of the line of railway of the said Manchester, Sheffield, and Lincolnshire Railway Company as was constructed between Great Grimsby and New Holland Pier, both in the county of Lincoln, and from using the same in such manner as was necessary for the safe and speedy conveyance of passengers and goods on and along the same railway; and from using the Great Grimsby and New Holland stations, and the piers, wharves, landing-places, and basins leading to or from the Great Grimsby Docks and New Holland Ferry, and all such other conveniences as the said plaintiffs were accustomed to use since the arrangement made before the late Master of the Rolls on the supplemental bill in this suit mentioned; and to restrain the defendants from demanding toll from any passengers having paid their fares to the said plaintiffs, and travelling by the said plaintiffs' trains, and producing the ticket

1 16 Jur. 146.

The Great Northern Railway Co. v. The Manchester, &c. Railway Co.

of such payment; and from making such alteration in the booking of passengers, or in the working of traffic over the said Manchester, Sheffield, and Lincolnshire Railway from New Holland to Great Grimsby, as was threatened in certain letters of the defendants James Allport and John Wickey Stables, set forth in the said supplemental bill; and from denying or obstructing passengers to and from the Great Northern Railway trains from passing with their luggage to, in, out of, and from the steamboats of the said defendants plying between New Holland and Hull, or from doing or directing to be done any act or thing whereby the passage of the engines or carriages of the said plaintiffs over the said parts of the said Manchester, Sheffield, and Lincolnshire Railway might be obstructed, delayed, or rendered unsafe or inconvenient, or from acting in any way contrary to the agreement of the 7th April, 1848. By the Great Grimsby and Sheffield Junction Railway Act of 1845, the Great Grimsby Railway were authorized to form a railway from Bole, in Nottingham, to Grimsby, with a branch to New Holland, on the banks of the Humber, about a mile from Hull. By the East Lincolnshire Railway Act, 1846, the East Lincolnshire Railway Company were empowered to form a railway from Grimsby to Boston, and to join the Great Northern Railway there. The lines of the Great Grimsby and Sheffield Junction Railway between New Holland and Grimsby, and also of the East Lincolnshire Railway between Grimsby and Boston, were completed, and formed, together with the Great Northern Railway, a continuous line from New Holland to London. The line from New Holland to Grimsby subsequently became the property of the defendants. At a meeting held on the 7th April, 1848, at which were present two directors of the Great Northern Railway, two directors of the Manchester, Sheffield, and Lincolnshire Railway, and three directors of the East Lincolnshire Railway, according to the minutes of the proceedings at such meeting, it was discussed and agreed to, that the directors present should be considered as subcommittees from their respective boards, and personally pledged to endeavor to obtain at their several general boards, as soon as possible, a confirmation of all arrangements which might be agreed between themselves; and it was resolved, amongst other things, with respect to the Lincoln and Sheffield stations, "That the Great Northern Company provide station accommodation for the Manchester, Sheffield, and Lincolnshire Railway Company at Lincoln, and the latter provide station accommodation for the former at Sheffield, the same to include accommodation for booking, and all servants except booking clerk; the terms to be the payment, to the company furnishing the accommodation, of the full maximum toll for two miles, as allowed by the Manchester, Sheffield, and Lincolnshire Company's acts, on the particular description of traffic so accommodated, and this provision to continue in force for three years after the opening of the line between Lincoln and Sheffield, Retford to Sheffield, and Saxelby to Lincoln. That for the conveyance of traffic by the Great Northern Company on the Manchester, Sheffield, and Lincolnshire Railway between Retford and Sheffield, and for the conveyance of

The Great Northern Railway Co. v. The Manchester, &c. Railway Co.

traffic by the Manchester, Sheffield, and Lincolnshire Railway Company between Saxelby and Lincoln, under their respective running clauses, the company conveying the traffic shall pay the company owning the line 661. per cent. of the gross receipts upon such line; the same to be in addition to the station charges contained in the previous clause."

"East Lincolnshire Railway.

"Grimsby Passenger Station. That the present through or passenger station at Grimsby shall be appropriated equally for the passenger traffic of the two companies, but shall be subject to the bylaws and regulations of the Manchester, Sheffield, and Lincolnshire Railway Company; and a committee of three from each board shall be appointed to make recommendations as to the working of the traffic, and arrange all disputes and differences and the cost and maintenance of the station, and the working and other expenses, shall be borne by the two companies equally.

"Access to Grimsby Docks. That the Manchester, Sheffield, and Lincolnshire Railway Company afford, for the traffic of the East Lincolnshire Railway Company, facilities for convenient access to the Great Grimsby Docks.

"Land at Grimsby. That the triangular piece of land between the two lines at Grimsby shall become wholly the property of the Manchester, Sheffield, and Lincolnshire Railway Company, and the East Lincolnshire Railway Company shall transfer their interest therein, and the powers of their act, to the Manchester, Sheffield, and Lincolnshire Company, at cost price.

"That the Manchester, Sheffield, and Lincolnshire Company shall have the right of running with their engines, carriages, trucks, and conveying traffic, on the East Lincolnshire line between Great Grimsby and Louth, and the East Lincolnshire Company shall have the same right over the Manchester, Sheffield, and Lincolnshire line between Great Grimsby and New Holland, provided such traffic require to pass upon both lines; and that the terms shall be the payment of 667. per cent. of the gross receipts by the company conveying the traffic to the company owning the line, as in the case of Retford to Sheffield, and Saxelby to Lincoln; and each company shall provide. station accommodation for the other at New Holland and Louth respectively, on the same terms as at Sheffield and Lincoln."

Agreements, in the words of these minutes, were afterwards signed by four gentlemen, two of whom were directors both of the Great Northern and also of the East Lincolnshire Companies, and the other two were directors of the Manchester, Sheffield, and Lincolnshire Company; and the last-mentioned agreement was afterwards confirmed by the boards of directors of the Great Northern Railway Company and also of the Manchester, Sheffield, and Lincolnshire Railway Company. In 1849 the East Lincolnshire Railway was demised to and vested in the plaintiffs for 999 years, under the authority of an act passed in 1847. Until July, 1850, the respective com

The Great Northern Railway Co. v. The Manchester, &c. Railway Co. panies ran their own engines and carriages, the one from Great Grimsby to Louth, the other from Great Grimsby to New Holland Pier. In the beginning of July, 1850, it was proposed by the defendants to the plaintiffs that the defendants' engines and carriages should cease running from Grimsby to Louth, and that the plaintiffs should, instead of running their own engines between Grimsby and New Holland, allow the defendants' engines to take on the plaintiffs' carriages and trains between Great Grimsby and New Holland. The plaintiffs' manager consented to make the experiment, provided the defendants would take on the guards of the plaintiffs along with the trains, and would not in any further way interfere with such trains. The plaintiffs alleged that this was tried for a few days, when, in consequence of some differences caused by the refusal to allow the plaintiffs' guards to accompany the train from Great Grimsby to New Holland, it was proposed that the rights of both parties under the agreement of April, 1848, should be resumed. Early in August the plaintiffs, attempting to run their engines from Grimsby to New Holland, were prevented by a block, and were detained a quarter of an hour, the defendants' servants informing them that the passengers might proceed by their train, which preceded that of the plaintiffs by fifteen minutes, to New Holland. The refusal of the defendants to allow the plaintiffs to run their own engines, according to the agreement, induced the former to apply for an injunction, which was moved for before the late Lord Langdale, when arrangements were come to by the parties for the future working of this portion of the line. Further differences subsequently arose, and on the 17th October, 1851, the Manchester, Sheffield, and Lincolnshire Railway Company gave notice, by a letter from their manager, Mr. Allport, to the Great Northern Company, that after the 1st proximo, all the traffic between Grimsby and New Holland would be worked by the engines, carriages, and servants of the former company; and on the 29th June, 1850, a formal notice to determine the agreement, under the seal of the defendant company, was given to the plaintiffs. Thereupon a supplemental bill was filed, under which the present motion was made.

Wigram, Malins, and Denison, for the motion. The agreement was not determinable by notice at the will of either party. Both parties had been acting for three years, on the understanding that this was a permanent arrangement; and a very great injury would be inflicted on the plaintiffs by taking from them the use of this particular part of the railway.

Bacon and Osborne, contrà, said that this was an agreement which, from its nature and the vagueness of its terms in some respects, could not have been enforced in a suit for specific performance; and therefore the court would not grant an injunction to prevent a breach of it. But here there had been no breach, for the agreement was regularly determined by the notice, it being in fact a mere license, revocable by either party; or at any rate, if not a license only, then it was