had been passengers belonging to the ship by virtue of a passenger contract, but I do not rest my decision upon this ground, but upon the ground that the libellants were not passengers within the meaning of the rule, which denies compensation to passengers, and are consequently entitled to a proper reward for the labour they performed, and I decree the considerations of public policy, upon which the whole doctrine of salvage rests, to be fully applicable to the present case, and to require that the good order, patience and willingness with which this large body of men-soldiers as they were, with arms and the power to provide as they pleased for their own safety, laboured constantly to keep the ship afloat, should be recognised in a Court of Admiralty. As to the amount of salvage, the court subsequently fixed it at two months' pay for each officer and man according to the rate received by them in the military service. The mumber of those who appeared as libellants in the suit was 371, and the total amount of the salvage decreed was 20,513 dols. on a valuation of the vessel of 250,000 dols. No appeal was taken from the decree. [PRIV. CO. In 1852 Sydmonton, with Ecchenswell, which formerly formed part of the parish of Kingsclere, was formed, under an Order in Council bearing date 19th Aug. 1852, into a distinct and separate parish for ecclesiastical purposes. In Sept. 1852 Mr. Rugg, the appellant, was instituted incumbent of Ecchenswell with Sydmonton. In 1853 the present church was built by Mr. Kingsmill, at his sole cost and expense. In Aug. 1864 the church was consecrated. In Aug. 1865 the faculty now in question was granted by the Consistory of Winchester. The appellant opposed the grant of_the faculty, and appealed from the decision of the Judge of the Consistory Court at Winchester to the Dean of Arches, who confirmed the judgment, with slight variation, of the court below. The present appeal was then brought. Appellant in person.-First. The bishop has no jurisdiction over this vault at all; it is not uncommon for vaults under a church to be used as wine vaults. There is no access to this vault from the church or from any consecrated ground. It does not follow that because a building is consecrated, all beneath it is so too. At Winchester, a church is built over the public road, and it cannot be contended Judicial Committee of the Privy Council. that the road is consecrated also. Secondly. Even Reported by HENRY F. PURCELL, Esq., Barrister-at-Law. Dec. 20 and March 11. (Present; Lord ROMILLY, Sir J. W. COLVILLE, Sir E. V. WILLIAMS, Sir R. T. KINDERSLEY, and Sir R. PHILLIMORE.) RUGG v. KINGSMILL. A faculty having been decreed by the local ordinary authorising the appropriation of a vault under the chancel of a chapel, the entrance to which was from the outside in private and unconsecrated ground, on an appeal by the incumbent, in opposition to the grant of the faculty, their Lordships Held, that the incumbent could not be compelled to perform the service in unconsecrated ground, and that the grant of the faculty should be made conditional upon a sufficient piece of ground near the aperture to the vault being first duly consecrated for the sole and special purpose of burials in the vault: Semble, the discretion of the ordinary in granting such faculty is not fettered by the dissent of the vicar, whose objections should, however, be considered. Very exceptional circumstances alone can justify an ordinary in granting a faculty for interments in the chancel or body of a church. This was an appeal from a sentence pronounced by the late Judge of the Arches Court at Canterbury, whereby he affirmed the sentence of the Con sistorial Court of Winchester, which decreed a faculty to issue to Mr. Kingsmill, authorising the appropriation to that gentleman of a vault under the chancel of Sydmonton Church. This church is situate in the parish of Sydmonton, in the county of Southampton. It appears that the whole property, as well as the principal house in the parish, belongs to Mr. Kingsmill, and that, with the exception of the consecrated ground upon which the church is built, he is proprietor of all the land up to the very walls of the church, which has no burial ground attached to it. In the year 1849 there was a chapel which occupied the site of the present building. Under the chancel of this former chapel the father of Mr. Kingsmill possessed a vault. In 1849 the chapel was pulled down. if the bishop have jurisdiction over both church and vault, he cannot grant a faculty without consent of the incumbent for a vault in any parish church, still less in a chapel where no custom of burial has existed; a faculty is a dispensation to do that which is not permitted by law and is irrevocable; it transfers, too, a part of the freehold: it is different from a licence: the 25 Hen. 8, c. 21, is the only Act that I know of under which the bishop has power to grant a faculty; that Act gives him no bent; the freehold is in the incumbent, and the permission to do so without consent of the incumexercise of this power would amount to a transfer of the freehold : Ayliffe's Parergon; Griffin v. Deighton, 33 L. J., N. S., 29, Q. B.; 8 L. T. Rich v. Bushnell, 4 Hagg. 164; Fuller v. Lane, 2 Addams, 431. Thirdly. The citation in this case is illegal; before it issued the Ecclesiastical Court should have ascer tained whether the incumbent's consent had been It as obtained; it should also have been addressed to the minister and churchwardens, not to the people at large; this latter is the ordinary form, because in all cases the minister's consent is first obtained. was not affixed to Ecchenswell church-door should have been done. Under the Marriage Act (6 & 7 Will. 4, c. 85), s. 26, notice must always be given to the minister before a church is licensed for marriage. Fourthly. As there is no custom to bury reference to chancels : at Sydmonton, it is opposed to the rubric in Wheatley on Common Prayer; Canon in Edward II.'s reign. At a council held at Winchester all burial in churches existed from the earliest period: (3 Phil. churches was forbidden; no custom to bury in 349.) Fifthly, there is no public access to this vault; there is no consecrated ground at its entrance, and, ratione loci, the bishop has no jurisdiction over the stone at the entrance. I cannot be compelled as incumbent to perform the service on unconsecrated ground, and on private ground from which I am liable to be ordered away: Kemp v. Wicks, 3 Phil. 295. Suppose the owner change his religion, the bishop could not prevent a Catholic service from being gone through underneath the church, nor could Ï bring an action of trespass; to open an entrance to the vault from the church itself would be utterly illegal. By the Cemeteries Act (10 Vict. c. 65), ss. 15 and 24, it is clear that burial ground must be inclosed on every side. Sixthly, the Burial Service in the present case cannot be performed in accordance with the rubric. It is not compulsory that the service should be performed within the church, the priest should stand on consecrated ground, and that outside the grave-the service cannot be read on unconsecrated ground. A clergyman cannot read the service under the Cemeteries Act in the Dissenting portion of a cemetery. The Burial Service is a public service. The whole spirit of modern legislation is opposed to intramural interments. Deane, Q. C. and Swabey for respondent (who were heard only on the last objection).-All the service might be performed within the church. By the act of consecration the stone at the entrance of the vault and the steps leading to it are consecrated, the minister could stand on these steps, the vault itself is perfectly legal, if a difficulty as to a burial arises hereafter it can then be settled-a faculty is granted in connection with a particular case. It was not a condition precedent to the granting of this faculty that the place of access should be consecrated; there can be no objection to the granting of the faculty; it may, however, be allowed, subject to conditions. The appellant replied. March 11.-Their LORDSHIPS now delivered judgment.-Before a faculty, either to the parishioners in general or to a private inhabitant of the parish, can be decreed, the ecclesiastical law requires that all persons interested in opposing the grant should have an opportunity of being heard before the ordinary. The faculty which has been decreed in this case is, as has been stated, for a burial vault underneath the chancel. The objector to the grant of the faculty is the incumbent, who is either vicar or perpetual curate. The applicant for the faculty is | the impropriate rector, who resides in the parish, and whose father appears to have rebuilt and partially endowed, at his own cost, the church. The vicar or perpetual curate, although entitled to officiate in and to have free access to the chancel, has no right, strictly speaking, to fees for the erection of monumental tablets, or for the construction of vaults (in the very rare instances in which they should be allowed) in the chancel; but he has certainly a persona standi, by reason of his general spiritual position as incumbent, to oppose the grant of such a faculty as the present. The objections of the appellant to the sentences from which he appeals are various: First, he contends that the Ecclesiastical Court has no jurisdiction to grant this faculty. He supports this objection by reference to the facts that there is no burial ground attached to this chapel; that no funeral has ever taken place there; that the inhabitants of the district have consequently no general right of burial connected with the chapel, and his argument appeared to extend so far as to question the validity of the consecration of the chapel itself by the bishop. Their Lordships, however, see no reason to doubt that the bishop had full authority to consecrate this building, and they are of opinion that the objection founded on the absence of any burial ground, and of any general right of burial on the part of the parishioners, did not render unlawful the act of the ordinary, though it imposed upon him the duty of exercising with much caution the discretion which the law has vested in him as to granting a faculty of this kind. The appellant further contended that the grant of this faculty was bad, upon the ground that the proper forms prescribed by the practice of [PRIV. CO. the Ecclesiastical Court had not been complied with. Their Lordships, however, are of opinion that the case was regularly and properly conducted in the Diocesan Court of Winchester, and that this objection cannot be sustained. The appellant contends that this faculty could not be granted without his consent, but this contention is not supported by authority or practice. The vicar or perpetual curate, as has been stated, is entitled to be heard against the grant of the faculty, and his objections ought of course to be considered by the ordinary, but the discretion of the ordinary is not fettered or taken away by the dissent of the vicar. There are objections, however, urged by the appellant which are of a more serious character; they may be all ranged under the general head-that the discretion of the ordinary was unwisely exercised in the grant of this faculty. From the decision of the ordinary an appeal lies to the Archbishop, and ultimately to the Crown, under the advice of the Judicial Committee of the Privy Council. If we think that the grant of this faculty, though not absolutely illegal, was, as it at present stands, indiscreet and likely to give rise to future troubles and difficulties in the church and district of Sydmonton, which were not duly considered by the Ecclesiastical Courts, we ought to advise Her Majesty accordingly. The appellant has pointed out to their Lordships that the ground upon which the church stands alone is consecrated, that the jurisdiction of the ordinary depends upon the consecration of the ground, and does not extend over any part of the ground which comes up to the very walls of the church. The legal consequences of this circumstance, upon which the appellant insists, will presently be noticed. Their Lordships, having regard to the peculiar circumstances of this church and parish, are not disposed to dissent from the opinion expressed by the judge of the Arches Court, that the judicial discretion of the local ordinary was lawfully exercised in granting permission to Mr. Kingsmill to retain, for the use of himself and his family, so long as they shall remain proprietors of Sydmonton Court (for this must, of course, be a provision contained in the instrument), the vault which has been constructed underneath the chancel. Their Lordships desire that it should be understood that they do not mean to express any approbation of a general practice of granting faculties for interments in chancels or the body of churches. On the contrary, they are of opinion that very exceptional circumstances can alone justify such an exercise by the ordinary of the discretion which the law has vested in him. With respect to the particular faculty the consideration of which is now before their lordships, they have come to the conclusion that it ought not to be issued, at the present time, in the manner proposed. Their Lordships are extremely reluctant to interfere with the exercise of the discretion in these matters by the local ordinary, and they fully recognise the expediency of the rule of practice which discountenances such interference. But their Lordships think that the objection to the immediate issue of this faculty, while the only entrance to the vault is in the private and unconsecrated ground of Mr. Kingsmill, is deserving of great consideration. In the first place it is clear that the ordinary could not compel the incumbent by eeclesiastical censures to perform the burial service in the unconsecrated ground in which the only entrance to the vault is to be found. It has not been argued that the ordinary could so compel the incumbent: indeed, it has been very properly admitted by the counsel for Mr. Kingsmill, that no authority can be found for such a practice. In the next place it appears to their Lordships to be inexpedient that the spot upon which a portion at least of the burial service is usually performed by the minister should be exempt CHAN.] LORD CARINGTON v. THE WYCOMBE RAILWAY COMPANY. from the jurisdiction of the ordinary. It is true that the ordinary would have jurisdiction over the vault itself, and that the whole service might lawfully, their Lordships think, in the peculiar circumstances of this case, be performed in the church, and the corpse afterwards taken into the garden and deposited in the vault; and their Lordships do not mean to say that the ordinary might not be enabled to punish any unlawful proceedings which might precede or accompany the act of burial; but it is also true that the absence of any ecclesiastical jurisdiction over this spot of ground might afford an apparent impunity to evade the law, and thereby possibly cause a scandal in the parish. If, in the present state of circumstances, the grantee of this faculty or his successors in the mansion to which it is in fact attached, were hereafter, either perhaps on account of their having ceased to be members of the church, or on account of some quarrel with the incumbent, or for any other motive, to cause a service different from that which is enjoined in the Prayer Book to be read over the corpse, or if they were to place the body in the vault without the previous performance over it of any religious service, in any case of this kind the present or future ordinary might be considerably embarrassed in the exercise of his proper jurisdiction to remove the scandal, or to punish the authors of it. Their Lordships think that it is the duty of the ordinary, when granting a privilegium of this kind, to take every precaution in his power against the possibility of a misuse by the grantee or his representative of the special favour which is conceded to him. They see no reason why the grant of this faculty to Mr. Kingsmill should not be made conditional upon his consenting to allow a sufficient piece of ground near the aperture to the vault, to be first duly consecrated for the sole and special purpose of burials in this vault. The jurisdiction of the ordinary, ratione loci, would then be unquestionable; and any impropriety with relation to the performance of the burial ser vice would be subject to his correction and control. "Their Lordships therefore think that this cause should be remitted to the Court of Arches, with directions to issue the faculty in question whenever it has been duly certified to that court that the consecration of the additional portion of ground has taken place; and with power, if it should be deemed necessary, to vary the terms of the faculty by a reference to a recital of the fact of such consecration having been effected. Their Lordships think that both parties ought to bear their own costs incurred in this court and in the Court of Arches. Their lordships will humbly advise Her Majesty in accordance with the opinion which they have now expressed. Proctors for the respondent, Rathery and Co. Equity Courts. COURT OF APPEAL IN CHANCERY. Reported by THOMAS BROOKSBANK and E. STEWART ROCHE, Esqrs., Barristers-at-Law. Feb. 11 and 12. (Before the LORDS JUSTICES.) LORD CARINGTON v. THE WYCOMBE RAILWAY COMPANY. Railway company-Lands Clauses Act 1845, sect. 128 -Superfluous lands-Right of pre-emption-Lands excepted-Compulsory powers of company-Abuse of. A railway company, before giving notice to treat for land under their compulsory powers, had contracted to sell to the defendant T. such part as they should not require. They purchased the land of S., the owner; [CHAN. they used but a small portion of it for their works, and conveyed the remainder to T. The land was not within any of the exceptions mentioned in the 128th section of the Lands Clauses Act. S. had meanwhile sold the lands from which those purchased by the company had been severed to the plaintiff, who claimed his right of pre-emption of the superfluous lands: Held, that the purchase of the company was a perversion of the intention of the Act in conferring the compulsory powers; and semble, that the plaintiff, notwithstanding that he was not the owner of the lands at the time of the severance, was entitled to the same right of preemption as had existed in his vendor. 66 Superfluous" land is such part of the lands acquired by promoters of a railway company under the provisions of their Act, as is not required for the purposes thereof. Under the 128th section such superfluous land must first be offered for sale to the person then entitled to the lands from which the same were origi nally severed, unless (1) such lands "be situate within a town;" unless (2) they be lands "built upon;” or, unless (3) they be lands "to be used for building purposes." To be brought within the first exception, they must be surrounded or covered by houses which are continuous or unbroken from the town; and lands separated by a meadow from the congeries of buildings forming the town, although they were within its boundary as a Parliamentary borough, and were liable to the paving, lighting, and other rates, were Held not to be within the exception. In order to be within the second exception, land not actually in a town must be covered with buildings, eodem modo, that the solum of the town is described to be covered with continuous building. And to bring it within the third exception, the land must be actually and de facto used for building purposes, and it is not enough that it should be suitable for such purposes. Per Selwyn, L. J.: Where a company has given notice to treat, and taken other proceedings under its compulsory powers, the owner is not deprived of his right of pre-emption because the parties ultimately agree between themselves the price to be paid for the land. This was an appeal by the defendants from a decree of Stuart, V. C., reported in 15 L. T. Rep. N. S. 49. In the year 1833 a mansion and estate called Castle Hill, in or near to High Wycombe, Buckinghamshire, became vested in John Abel Smith, Martin Tucker Smith, George Robert Smith, and Oswald Smith, as tenants in common. It consisted of the mansion house, grounds, and paddocks, and also of a cottage called Flint-cottage, with stable, garden, and a meadow attached thereto, and a second cottage. The Wycombe Railway Company's Act was passed in 1846, and this was extended by a further Act passed in 1857, under which the company, by virtue of their compulsory powers, gave notice in 1859 to the Messrs. Smith that they should require, and intended to take, for the purposes of their works, two acres and upwards of the above lands so vested in them. The terms of purchase having been subsequently agreed upon between the parties without any arbitration under the Act, the required lands were conveyed to the company by three separate conveyances, as to the third of which, conveying Flint-cottage and the second cottage mentioned already, and about 1a. 27p. of land, the question in this suit arose. By that deed, which was dated the 26th Feb. 1862, the cottages and lands were, in consideration of 700l., conveyed to the company in fee, the purchase-money being expressed to be in full satisfaction and compensation for all damages for CHAN.] LORD CARINGTON v. THE WYCOMBE RAILWAY COMPANY. severance from and injury to the adjoining lands; | and it was agreed between the parties that the conveyance should operate and take effect as a conveyance of the premises made as near to the form in schedule (A) to the Lands Clauses Consolidation Act 1845 as the circumstances of the case would admit, and also in every other mode in which the same might operate and take effect independently of the Act. The company constructed and completed their line, and in so doing used only about three perches of the Flint-cottage property. By an indenture dated the 21st July 1864 the Messrs. Smith conveyed all of the property to which they had become entitled in 1833, "except such portions thereof as had been conveyed to the Wycombe Railway Company to Mr. Henry Ray Freshfield and his trustees to the use of the present plaintiff for life, with remainder to his eldest and other sons in tail. And Lord Carington, learning shortly afterwards, that the lands comprised in the conveyance were not, except as to the three perches, required by the company for their works, wrote to the company, stating his desire to purchase the superfluous lands, and requesting to know the price. In reply to this letter the plaintiff was informed on behalf of the company that the superfluous lands in question had been already conveyed by the company to a Mr. William Terry, who was one of the defendants to this suit, and it then appeared that in Oct. 1858, previously to the statutory notice to treat for the purchase of the lands which the railway company served upon the Messrs. Smith, the company had entered into a contract with the father of the defendant Terry, to sell to him such part of the lands as might not be required for the works. The elder Mr. Terry died before any conveyance was executed; but in July 1864 the company, in pursuance of this contract, conveyed to William Terry, the defendant, the whole of the Flint-cottage property except the three perches which had been used in the construction of their line. The plaintiff, however, insisted that he, as the owner of the lands from which the Flint-cottage land was taken, was entitled under the 128th section of the Lands Clauses Consolidation Act 1845, to repurchase the superfluous lands; that section provides "that before the promoters of any undertaking dispose of any superfluous lands, they shall, unless such lands be situate within a town, or be lands built upon, or to be used for building purposes, first offer to sell the same to the person then entitled to the lands (if any) from which the same were originally severed." That no such offer was ever made was admitted, but the company asserted that the cottage and lands came within the exceptions mentioned in the section, as being lands "situate within a town," and also as lands "built upon, or to be used for building purposes." The bill was then filed by Lord Carington and the parties entitled in remainder, praying for a declaration that the plaintiffs were entitled to have the land first offered to them before it could be conveyed to the defendant Terry; that the defendants might be ordered to convey the same accordingly, he offering to pay to the company the same price as had been paid by Terry, or otherwise that the value of the land might be ascertained by arbitration. Evidence was gone into on both sides, from which it appeared, on the one hand, that upon the land there was not any building except the cottage itself, and that no step had ever been taken towards using the land for building purposes; that the whole of the lands were beyond any of the streets or houses forming the town of Wycombe, and were separated from the town itself by a meadow; on the other [CHAN. hand, that the land was within the boundary of the Parliamentary borough of Wycombe, and that it was subject to the paving, lighting, and other rates of the town; that, inasmuch as it lay fronting the high road leading from Wycombe to Amersham, it was peculiarly adapted for building houses upon, and that it had been the intention of Terry, the father, in agreeing to purchase, to use the land for that purpose. The defendants further maintained that the purchase by the company of the Messrs. Smith had not been under their compulsory powers; and that, as when the notice to treat was given, and the conveyance executed, the plaintiffs were not in possession of the land, which was then the property of other persons, they were not the owners within the meaning of the section, and consequently were not entitled to claim the right of pre-emption. Stuart, V. C. was, however, of opinion that the right of pre-emption was in the plaintiffs, and decreed a conveyance of the land by all parties to uses for their benefit; and the company and Mr. Terry now appealed against that decree. Bacon, Q. C., Greene, Q. C. Speed, and W. W. Streeten supported the appeal on behalf of the company and the defendant Terry. Sir Roundell Palmer, Q. C. and Kekewich supported his Honour's decree. The authorities cited were: Elliott v. The South Devon Railway Company, 2 Ex. 725; Reg. v. Cottle and others, 16 Q. B. 412; The Stockton and Darlington Railway Company v. Greene, Q. C. having replied. Lord Justice Lord CAIRNS said.-In this case the bill alleges, and in my opinion successfully alleges, two separate questions, either of which, if supported by the facts, would entitle the plaintiffs to relief. In the first place, it alleges that the piece of land in question, containing something over an acre, was taken by the appellants, the railway company, under their compulsory powers, ostensibly for the purposes of their Act, not really for those purposes, but in order to implement or fulfil a contract which they had previously made with the appellant, Mr. Terry, that they would, for a valuable consideration, make over the whole of this piece of land to him. The alternative case alleged by the bill is that whether the land was acquired for the purposes of the Act or not, it has since become superfluous land within the meaning of the Lands Clauses Consolidation Act, and that those who are the owners of the land from which it was severed are entitled to the offer of it, and to purchase it if they are so minded before it is offered or sold to any other person. Either of those cases, if established, would, I have said, entitle the plaintiffs to relief. The measure of relief might be in some degree different. According to the first of these alternative cases, the plaintiffs would, probably, be entitled to a return of the land, giving back such part of the price that was received by them as would be attributable to this quantity of land. In the second case, they would be entitled now to exercise their option to purchase, and if the price on re-sale was not agreed upon, then the other parties would be entitled to have the price settled by arbitration according to the clauses of the Act. It was upon the second of these grounds that the decree of the Vice-Chancellor has proceeded, and with that the plaintiffs on their part are satisfied. CHAN.] LORD CARINGTON . THE WYCOMBE RAILWAY COMPANY. Now in the view that I take of the case, it is not necessary to go at length into the first ground to which I have referred, but as some part of the argument was addressed to it, I think it right to express my opinion upon it. The facts of the case are extremely simple. In the year 1859 the railway company gave notice to the plaintiffs or their trustees that they required the acre of land in question, and a few perches for the purposes of their Act, and proposed to take it under their compulsory powers. That resulted in an agreement as to the mode of adjusting the price, but the matter proceeding on the footing of compulsory sale, the price was ascertained, and the land was conveyed to the railway company. Prior to this notice to take the land, and in the year 1858 an agreement of the kind I am about to describe had been made by the railway company with Mr. Terry, the father of the appellant of that name. Mr. Terry agreed to advance to the railway company, or rather to sell to them, 20,000 worth of stock for the purpose of paying for the land which they had to buy in return; the railway company sold to Mr. Terry an annuity or annual rentcharge of 8007. a year to be charged on the land which they might buy, and further covenanted with regard to the piece of land in question that as soon as they had acquired it they would make over the whole fee-simple and inheritance of it to Mr. Terry, and in the meantime until they were in a position so to convey it to him, they would pay him an additional rentcharge or annual sum of 50l. a year. That was as I have said in the year preceding their notice to take the land. The land was taken, and the whole of it, or the whole of it less a fragment, has been conveyed to Mr. Terry by a deed which was expressed to be made in fulfilment of the covenant I have referred to in the year 1858. Now, upon that simple statement of facts, as to which there is no controversy, it appears to me that a more distinct and more openly avowed case of the use of Parliamentary powers for purposes not intended by Parliament, never has been presented to the court, and that this is exactly one of those cases which were described by the Lord Chancellor in expressing his opinion in the case of Galloway v. The Mayor and Commonalty of London, L. Rep. 1 H. of L. 34; 14 L. T. Rep. N. S. 865, in which Lord Cranworth said: "The principle is this, that when persons embarking in great undertakings, for the accomplishment of which those engaged in them have received authority from the Legislature to take compulsorily the lands of others, making to the latter proper compensation, the persons so authorised cannot be allowed to exercise the powers conferred upon them for any collateral object, for any purpose except those for which the Legislature has invested them with extraordinary powers:" (14 L. T. Rep. N. S. 866.) The land here, in my opinion, was taken, and is avowed to have been taken, for that which was an object entirely collateral, viz., to give to Mr. Terry that which he had bargained for. The only objections which were raised in substance to the relief to be given to the plaintiffs on these grounds were these. It was said that, although there was this covenant with Mr. Terry (and the present Terry only represents his father), there was some understanding that in this piece of ground, or in part of it, a road should be made forming a better access or approach to the station than the public at present possess. There is no trace whatever in the deed to which I have referred, or in any document in writing in the case, of any such undertaking; it is not said to be an agreement; it is only spoken of at the highest as an understanding. It is sufficient to say there was nothing which bound Mr. Terry's father, there was nothing which bound Mr. Terry himself, no delineation of any [CHAN. particular road that was to be made, and if any road ever came to be made, it would be made of the free bounty of Mr. Terry, and not under any obligation which was binding on him. I therefore cannot treat this suggestion as to the road otherwise than as an afterthought, and in my opinion it would be idle to suppose that the making of this road was any object or purpose for which the land in question was taken. Then it was said that in order to obtain relief on this ground the plaintiffs must show that if the land had not been conveyed to Mr. Terry or the company they would be the owners of it, and it is said that the plaintiffs took by conveyance from the Messrs. Smith, not this land in question, but all the lands adjacent to it expressly except that which had been conveyed to the railway company. This, if an objection, would be purely one of form, because it is perfectly clear from the evidence in the case, the Messrs. Smith themselves becoming witnesses, and acknowledging the fact upon oath, that they held the whole of the land as trustees for the plaintiffs, and that they left the management of the land to the plaintiffs as the persons beneficially interested; and at the most it would be necessary that the court should adopt some course for putting upon the record the title of the plaintiffs as beneficiaries of this small piece of land, and the court would readily, I think, permit an amendment for that purpose. It is not, however, necessary to pursue that subject further, for the reasons which I have to assign as to my view of the other part of the case. The alternative case deals with this land as superfluous land. The definition of superfluous land in the Act of Parliament is this: Immediately preceding the 127th clause the Act declares: "And with respect to lands acquired by the promoters of the undertaking under the provisions of this or the special Act or any Act incorporated therewith, but which shall not be required for the purposes thereof, be it enacted as follows." And that land so described is afterwards called superfluous land. Superfluous land is, therefore, land acquired by the promoters under the provisions of this Act, and not required for the purposes thereof. The land in question, for whatever purpose it was acquired, is clearly now superfluous land within this description. It was land which was acquired de facto under these Parliamentary powers, and it is not required for the purposes of the Act at present, and accordingly in the conveyance to Mr. Terry the railway company have themselves styled, and cannot now deny the fact, this land as superfluous land. Being therefore superfluous land, and the plaintiffs being now the persons entitled to the land from which this piece of land was originally severed, the plaintiffs have the right of pre-emption of this land before it is sold to any one else, unless it can be shown that it is land situate within a town, or land built upon or used for building purposes. The first question therefore is, is it land situate within a town? Now, looking at the map, or rather the maps, which are in evidence in the case, the first thing which strikes one at the outset is, that the land is clearly not any part of the solum which is covered by what I may term the congeries of houses which form the High-street of the town and the rear or back part of that High-street. It is not land, therefore, which comes within the definition of the cases which have been decided in the Court of Exchequer and the Court of Queen's Bench-land surrounded by continuous houses, or land covered by continuous houses, using the term “continuous in the popular sense, as distinguished from contiguous. It is not land of that character. But further than that, reverting to the position of things before the railway cutting was made, the land— with |