nature and value of the goods under the Carriers Act, and it was alleged that the goods were lost by the gross negligence of the carriers, the Court in an elaborate judgment held that this did not make the carrier liable. The principle of these cases is applicable to the facts now before the Court.

Butt (Murphy with him), in support of the replication.-The question raised in the present case is simply whether there is not a distinction between ordinary and extraordinary negligence. The agreement only protects the company from the consequences of an accident which might with care have been avoided, but it leaves them liable for the result of gross and outrageous negligence. In Phillips v. Clark (4), where goods were carried under a bill of lading which stipulated that the shipowner should not be liable for leakage and breakage, it was held that he remained liable for leakage and breakage caused by his own negligence or by that of his servants.

[BLACKBURN, J.-In McManus v. The Lancashire and Yorkshire Railway Company (5), it was held that a condition by which the company were not to be responsible for any injury or damage (however caused) to live stock while travelling upon the railway was unreasonable, as it professed to protect the defendants from all loss, though occasioned by their own misconduct. This seems to assume that the agreement does not bear the construction you seek to put upon it, and on the carriage of passengers you cannot, of course, object that the condition is unreasonable. Why should not the company be at liberty to say, “We will not be liable whether our servant has been lazy or has only made a mistake."]

There is a difference between an accident from a mere oversight, and one arising from a perverse disregard of the ordinary course of traffic.

COCKBURN, C.J.-I am of opinion that the plea is good and the replication bad. It appears from the plea that the plaintiff

(4) 2 Com. B. Rep. N.S. 156; s. c. 26 Law J. Rep. (N.s.) C.P. 167.

(5) 4 Hurl. & N. 327; s. c. 28 Law J. Rep. (N.s.) Exch. 353.

had a free pass, and was carried under an agreement, in which it was provided that he should travel at his own risk, and I think that such an agreement must have been intended to exclude everything to which the company would ordinarily be liable as carriers of passengers. Now I cannot think of anything for which the company would be liable with regard to the plaintiff except negligence. There would, under ordinary circumstances, be an obligation to use due care in carrying the plaintiff. This obligation is excluded by the express terms of the bargain, and consequently there is a good defence to the action.

BLACKBURN, J.-I am of the same opinion. The duty of the defendants as carriers of passengers is to take reasonable care that such passengers shall not be exposed to danger during their journey. If through the want of due care the passenger is killed or injured, the carrier is liable to make compensation, and may even be made criminally responsible. An agreement that the passenger should be carried at his own risk would not take away the carrier's liability to a criminal prosecution. No such agreement could be set up as a defence to an indictment, but there is nothing to prevent it from being pleaded in a civil action. In the present case the agreement substantially amounts to this, that the passenger should be carried at his own risk, and that so far as he is concerned he shall not be at liberty to bring an action for damages against the company. What is meant by the expression" wilful negligence" in the replication I do not know, but I feel convinced that it is included under the terms of the agreement.

MELLOR, J.-I am of the same opinion. The plaintiff appears to have been received as a passenger under unusual circumstances, for he had a free pass, and in consideration of it agreed to be carried at his own risk. This contract clearly exempts the company from all ordinary liability; and although I do not doubt that there may be degrees of negligence, I think that the exemption is applicable to everyone of them.

QUAIN, J.-I am of the same opinion. The action is founded upon negligence,

without which the company, who are not insurers, could not be made liable. But it appears that there was a contract by which they were expressly protected from any such liability. The question is, whether the statement in the replication takes the case out of the contract. I cannot think that it does; the negligence mentioned in the replication is the very thing for which the defendants stipulated that they should not be responsible, and the word "wilful" does not carry the case any further, especially when we consider that a master is not liable for the wilful acts of his servants. Judgment for the defendants.

Attorneys-Johnston & Mounsey, for plaintiff; Sharp & Ullithorne, for defendant.

[IN THE EXCHEQUER CHAMBER.]

and powers of the B. & H. Company became vested in the defendants in the year 1846. The plans and books of reference deposited with the clerk of the peace included a field in the parish of B., the property of M. and others. With the exception of a narrow strip on the north side, the whole field was included within the limit of deviation delineated on the plan. By a notice of the 11th of March, 1846, the owners were required to treat with the defendants for the purchase of part of the field, and the value was settled by arbitration. By a notice of the 5th of November, 1846, the owners were required to treat with the defendants for the purchase of the remainder, the value being subsequently agreed upon. The whole field was conveyed to the defendants in fee simple by indenture of the 12th of May, 1847. The defendants took possession, and on a portion of the

1872. MAY V. THE GREAT WESTERN

Nov. 26. J RAILWAY COMPANY.

Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), s. 127-Superfluous Land unsold; Property in-Owners of Property in Owners of Lands adjoining.

By the Lands Clauses Consolidation Act, 1845, "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," it is enacted by section 127 that,

within the prescribed period, or, if no period be prescribed, within ten years after the expiration of the time limited for the completion of the works, the promoters of the undertaking shall absolutely sell and dispose of all such superfluous lands, and apply the purchase money arising from such sales to the purposes of the special Act; und, in default thereof, all such superfluous lands remaining unsold at the expiration of such period shall thereupon vest in and become the property of the owners of the lands adjoining thereto, in proportion to the extent of their lands respectively adjoining the same."

The B. & H. Railway Company was incorporated for the purpose of making a railway which was to be completed on or before the 30th of June, 1850. The rights

structed a portion of their line and a station and other works connected therewith; upon part of the remainder they deposited chalk and other spoil, which, in making the railway, was excavated from a cutting near the said field, and in order to provide, and for the purpose of providing a place for depositing the chalk and spoil from the said cutting, the company purchased the whole of the said field, instead of purchasing a portion only. The chalk and spoil were deposited and remain upon part of the field to the depth of from one to eight or nine feet, the defendants allowing certain persons to use it, and receiving rent from such persons.

By a special Act obtained by the defendants in the year 1861, it was provided that the time limited "for the sale of superfluous lands belonging to and vested in the company within the several parishes enumerated in the schedule to this Act annexed, shall be and the same are hereby extended to the further period of seven years from the passing of this Act."

By another special Act obtained by the defendants in the year 1868, it was provided that "the company may, notwithstanding anything to the contrary in the Lands Clauses Consolidation Act, 1845, or in any Act relating to the company, &c., retain and hold any lands belonging to them in the parishes enumerated in schedule A to

this Act, and which have not yet been applied to the purposes of the company for the period of ten years after the passing of this Act," &c.

The above named parish of B., in which the said field was situate, was one of the parishes enumerated in the respective schedules to the above mentioned Acts.

The land to the north having become the property of the plaintiff, he, on the 10th of June, 1869, commenced an action of ejectment to recover from the defendants the portion of the field to which his land adjoined. There being no prescribed period within which the defendants were bound to sell "superfluous" lands, the period of ten years mentioned in section 127 would apply:

Held, by KELLY, C.B., KEATING, J., and BRETT, J., affirming the judgment of the Court of Queen's Bench (dissentientibus MARTIN, B., and BYLES, J.), that the plaintiff was entitled to recover.

This was error upon a Special Case stated for the opinion of the Court of Queen's Bench. The Special Case may be found at length in the report of the case when in the Court below-see 41 Law J. Rep. (N.S.) Q.B. 104, where also the plan referred to is copied. The judgment of Martin, B., so fully states the circumstances, that it is not necessary to set them out here.

Manisty (Raymond with him) argued on behalf of the defendants (the plaintiff's in error). He referred to the several Acts of Parliament specified in the Special Case-to the Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20); the Companies Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16), to The City of Glasgow Union Railway Company V. The Caledonian Railway Company (1), Moody v. Corbett (2), Malins v. Freeman (3) and Molton v. Camroux (4).

(1) Law Rep. 2 Scotch App. 160.

(2) 5 B. & S. 859, in error; 7 B. & S. 544; 8. c. 34 Law J. Rep. (N.s.) Q.B. 166, in error; 35 Law J. Rep. (N.S.) Q.B. 161; s. c. Law Rep. 1 Q.B. 510.

(3) 4 Bing. N.C. 395; s. c. 7 Law J. Rep. (N.s.) C.P. 212.

(4) 4 Exch. Rep. 17; s. c. 18 Law J. Rep. (N.S.) Exch. 256,

Pinder (H. T. Cole with him), argued on behalf of the plaintiff (the defendant in error).-He referred to the several sta

tutes and to Doe d. Armistead v. The North Staffordshire Railway Company (5), Doe d. Payne v. The Bristol and Exeter Railway Company (6), Lord Carington v. The Wycombe Railway Company (7), Earl Beauchamp v. The Great Western Railway Company (8), Rangeley v. The Midland Railway Company (9), Lund v. The Midland Railway Company (10), Townson v. Tickell (11), and to Moody v. Corbett (2). Manisty replied.

Cur. adv. vult.

There being a difference of opinion, the following judgments were delivered on Nov. 26

MARTIN, B.-The facts of this case are these. In the year 1845 a railway company was created called the Berks and Hants Railway Company. In the year 1846 the interest of this company was transferred to and vested in the defendants. There was a field containing 15a. Or. 33p., which was then the property of Jane May, John Simmonds and Charles Simmonds; the whole of this field was included in the plan and book of reference, but the whole was not included within the limit of deviation delineated on the plan. There was a narrow strip on the northern side of the field beyond the line indicating the limit of deviation. By a notice of the 11th of March, 1846, Jane May and the other two owners were required to treat with the defendants for a purchase of the field towards the south, viz., 3a. 1r. 4p., and the value of this portion was settled by an arbitrator at 5711. 78. By a further notice of the 5th of November, 1846, Jane May and the other two owners were required by the defend

(5) 16 Q.B. Rep. 526; s. c. 20 Law J. Rep. (N.S.) Q.B. 249.

(6) 6 Mee. & W. 320; s. c. 9 Law J. Rep. (N.s.) Exch. 232.

(7) 37 Law J. Rep. (N.s.) Chanc. 213; s. c. Law Rep. 3 Chanc. App. 377.

(8) 38 Law J. Rep. (N.s.) Chanc. 162; s. c. Law Rep. 3 Chanc. App. 745.

(9) 37 Law J. Rep. (N.S.) Chanc. 313; s. c. Law Rep. 3 Chanc. App. 306.

(10) 34 Law J. Rep. (N.S.) Chanc. 276.
(11) 3 B. & Ald. 31.

ants to treat with them for the remainder of the field, and its value was subsequently agreed on at 1,7681. In both notices it was stated that the land was required for the purposes of the Berks and Hants Railway. By indenture of the 12th of May, 1847, Jane May and the other two owners conveyed the whole field to the defendants in fee simple. Upon the completion of the purchase, the defendants took possestion of the field, and upon a portion of it, viz., 5a. Or. 33p. towards the south, constructed a portion of their line and a station and other works connected with the railway, and upon much the larger part of the remainder deposited chalk and spoil which, in making the railway, were excavated from a cutting near the field, for the purpose of which deposit, the defendants had purchased the whole of the field instead of a portion only. The plan shews the extent of the field covered by the spoil and the extent uncovered. The depth of the spoil varies from one foot to eight or nine feet, and since the completion of the railway, the surface has been used for growing vegetables, for which rent has been paid to the defendants and their servants. The time for the completion of the railway expired on the 30th of June, 1850. On that day the land adjoining to the north was the property of the plaintiff. The ejectment was brought on the 10th of June, 1869, and the plaintiff claims to recover, under the 127th section of the Lands Clauses Act, 8 & 9 Vict. c. 18, the space shewn on the plan G B F H as superfluous land, being the space covered by the spoil and the small space uncovered. The defendants contend, first, that the land is not superfluous land, that it was and is required for the purposes of the undertaking, viz., the deposit of the spoil. Secondly, that the strip of land M to N on the plan was not acquired by the defendants compulsorily under the provisions of the Act, but voluntarily by agreement, and that the only land subject to the 127th section is the land south of the line M N, and that the property in the land adjoining thereto on the north was not in the plaintiff but in the defendants themselves as owners of the strip north of the line M N. Thirdly, that by virtue of the provisions of two Acts of Par

liament 24 & 25 Vict. c. cciv. s. 41, which received the Royal assent 1st of August, 1861, and 31 & 32 Vict. c. c. s. 20 (Royal assent 13th of July, 1868), the defendants are entitled to the land in dispute. With respect to this last point, if the contest of the plaintiff be in other respects right, then by virtue of the 127th section of the Lands Clauses Act, the superfluous land vested in and became the property of the plaintiff on the 30th of June, 1860. The enactment is absolute; there is nothing said about taking possession of the land. The 41st section, above referred to, enacts that the period for the sale of superfluous land now belonging to and vested in the defendants shall be extended for a further period of seven years from the 1st of August, 1861. The plaintiffs seem to have two answers to this contention. First, the seven years had expired before the action was commenced; and, secondly, the land did not, at the time of the passing of the Act, belong to nor was vested in the defendants, because, if the contention of the plaintiff be in other respects right, it was vested in and had become the property of the plaintiff by virtue of the 127th section on the 30th of June, 1850. The enactment in the second Act is that the defendants may retain and hold any lands belonging to them for the period of ten years, from the 13th of July, 1868; but, if the plaintiff be otherwise right, the land in question did not belong to them on the 13th of July, 1868; on the contrary, it belonged to the plaintiff. It, therefore, seems to me that the defendants fail as to this contention. Moody v. Corbet (2) is an authority to this effect.

By the 8 & 9 Vict. c. 20 (The Railway Clauses Consolidation Act, 1845), the company are authorised to take, compulsorily, the land within the limits of deviation; and by section 45, in addition to the lands authorised to be compulsorily taken, it was lawful for them to contract with any party willing to sell, for the purchase of land adjoining or near to the railway, not exceeding a certain prescribed quantity, for, amongst other purposes, any purpose which may be requisite or convenient for the formation or use of the railway. The case of The City of Glasgow

Union Railway Company v. The Caledonian Railway Company (1) has conclusively determined that, in order to let in the operation of the 127th section, the lands adjoining, which confer upon its owners the property in the superfluous land, must be adjoining to lands compulsorily taken, and that the section does not apply when the lands in respect of which the right is claimed adjoin lands taken by contract or agreement, and, as already said, the contention of the defendants is, first, that the adjoining land, in respect of which the plaintiff claims, does not adjoin upon land compulsorily taken, but upon land acquired by contract. There was no compulsory power under which the strip of land M Ñ could be taken; it could only be taken by reason of the owner of it being willing to sell it. From M to N southward could have been compulsorily taken, and the owners of land adjoining to the north of the line would be within the 127th section, but the defendants themselves, and not the plaintiff, were the owners of this adjoining land. The answer of the plaintiff was that the defendants had estopped themselves from saying that the whole piece of land was not taken compulsorily, because they had dealt with the land under a notice to treat. In my opinion this is not an estoppel, and the question depends upon the true facts. I think the plaintiff has failed to bring himself within the 127th section.

It was further contended that the land was not "superfluous land." The sections relating to superfluous land are introduced by a general heading, "With respect to lands acquired by the promoters of the undertaking, which shall not be required for the purposes thereof." These are the lands which the legislature speaks of as "such superfluous lands." Now lands not required for the purposes of the undertaking must mean lands acquired, and either never required, or which having been at one time required, are so no longer for those purposes. There can be no other. The land acquired and sought to be recovered in this ejectment certainly was at one time required for the purposes of the undertaking-Lund v. The Midland Railway Company (10);

NEW SERIES, 42.-Q.B.

Earl Beauchamp v. The Great Western Railway Company (8).

Is it so no longer, has it ceased to be so? It seems to me not, for it is still put to the purposes for which it was acquired, viz., the holding of the spoil. The only way this argument can be met is to say, that the spoil has become part of the land, and that, therefore, the land now serves no "purpose," and, therefore, is not required, and is superfluous. Now if the chalk put on it had sublimated or sunk through the land into the bowels of the earth, this would be true. But it has not gone from the surface. It is there, though it has been levelled and treated as land to some extent. If, instead of chalk spoil, old brick ends or clinkers or other things, which would grow nothing, had been put there, the plaintiff's argument could not be used. So also, if the chalk had been on in shapes so irregular that it could not be used. Suppose the company took any of the spoil, could it be said they had opened a chalk pit, or that they were removing some of the soil and were trespassers ? In truth, the land is under the spoil still. The chalk is not part of the land. Nobody describing the place would say chalk was the surface of the land; he would say there was the surface-soil with chalk on it. But there are to my mind arguments to the contrary of this argument to be found in the Act of Parliament. By section 127, the "lands" are to be sold; by section 128, the "lands" are to be offered to certain persons. Suppose there was such a sale, would not the purchaser have a right to call for the removal of this spoil? Would he not be at liberty to say, "This is no part of the lands "? "The lands you are to sell are the lands you bought." Further, the promoters are to sell within the prescribed period, or ten years after the expiration of the time limited for the completion of the works. This furnishes two arguments; a general one and a particular. The general one is this. It supposes that the superfluousness of the lands will be apparent within the time limited, or the ten years. It supposes, therefore, that the lands are such as have never been required, or required for temporary purposes. To these alone is it applicable. For suppose a

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