Blyth & Tyne Railway Company acquired all the interest of the lessees in the said colliery railway, but did not acquire the interest of the landowner. The colliery railway so acquired became part of the Morpeth branch of the Blyth & Tyne Railway. 5. By the North Eastern Railway Act 1874, the Blyth & Tyne Railway became vested in the North Eastern Railway Company, and by the North Eastern Railway Act 1890, the North Eastern Railway Company were empowered to take, among other lands, the lands which were the subject of the above-mentioned wayleave lease.

6. On June 9, 1893, notice to treat was given by the North Eastern Railway Company to Henry Sidney, the owner of the said land, but notwithstanding such notice no steps were taken by either party to assess the compensation payable to the landowner, and the railway company continued to pay the annual rent of 511. payable under the said wayleave lease.

7. Among other traffic conveyed over the said railway as part of the public railway, there are conveyed to the port of South Blyth for shipment coals produced at the Bedlington Colliery and at another colliery called the Bedside Colliery, and there is no other railway by which such coals can be carried to South Blyth.

8. In 1910 arbitrators were appointed by the parties to assess the compensation payable to the landowner, and, the arbitrators having differed, the matter was referred to an umpire. It was contended before him on behalf of the landowner that, in determining the amount to be paid in respect of the said land, he should have regard (a) to the special adaptability of the land for railway purposes arising from the fact of the existence on it of an integral part of a public railway, and (b) to the fact that if the railway company had not exercised their statutory powers of taking the land in question it would have been necessary for them [631] or for the colliery company to have renewed the wayleave lease owing to the railway held under it forming part of the main line of the public railway over which a large traffic passes daily.

9. On behalf of the railway company it was contended that he ought to disregard entirely any value that the said land might

have to the railway company, and that the umpire should treat the value to the landowner as being determined by the rent of 511. paid by the railway company, and that under the circumstances above set forth there could not be any probability of any increased rent being obtainable by the landowner from the colliery company or any other party than the railway company.

10. The umpire found that, if the railway company had not exercised their statutory powers and the wayleave lease had expired, there would have been a reasonable probability that the landowner would have renewed the lease to the colliery company at an enhanced rent, if the lease had not been renewed to the railway company, and that such renewed lease could have been assigned to the railway company by the colliery company, thereby placing the railway company for a further term of years in the same position as they had been in for many years, subject only to the payment of the increased rent.

11. He accordingly held that, while he ought to disregard any special value which the land might have to the railway company by reason of its forming part of their public railway, he ought to take into consideration the probability of the landowner being able to renew the wayleave lease to the colliery company at an enhanced rent; and that in assessing the compensation he ought to have regard to the enhanced rent which in his judgment the landowner might reasonably have expected to obtain as between a willing lessor and a willing lessee for such renewal if the railway company had not obtained and exercised statutory powers of taking the land.

12. It was also contended on behalf of the landowner that in assessing the compensation the umpire should include interest on the amount of the purchase money assessed by him as from the date of the notice to treat, but the umpire was of opinion under the circumstances that the landowner was not entitled to claim interest.

[632] 13. If the court should be of opinion that the findings in paragraphs 10, 11, and 12 were correct, he awarded and determined that the amount of the compensation payable to the landowner for the said land was 2,2001.

14. If the court should be of opinion that his findings were

not correct and that the contention of the railway company was correct, then he awarded that the amount of the compensation payable was 1,1227.

15. If the court should be of opinion that his findings and also the contention of the railway company were incorrect he asked that the award might be remitted to him with such directions as the court might think fit.

Gore-Browne, K.C., and Disturnal, K.C., for the landowner. The umpire has not taken into account the railway company as a possible purchaser. He ought to have done so upon two grounds. 1. The railway company would, if they had not obtained powers to take the land and the lease had expired, have been potential competitors for it in the market. The umpire said that there would have been a probability of a renewal of the lease to the colliery lessees; he ought to have said to the colliery lessees or to the railway company. He only contemplated the railway company as assignees of a lease renewed to the colliery lessees, in which case the profit on such assignment would go into the pockets of the colliery lessees, and could not be taken into account in considering the value to the lessor. 2. Apart from the question of competition, the umpire was bound to take into consideration the fact that this land was, by reason of its being part of the physical track of the railway company's main line, specially adaptable for use as a railway. No doubt where the value of land is enhanced by the fact of the statutory powers under which it is taken having been obtained, such enhancement must be disregarded in assessing its value. But here the value to the railway company was not in any way due to the powers conferred by the Act of 1890, under which the notice to treat was given. The land in question had been in fact part of the railway track for many years before 1890, and the special value which it had acquired was due to the unusual fact that the company had in 1874 [633] forgotten to take powers to acquire it. The landowner is entitled to take advantage of that omission. The value to the seller is what he can reasonably expect to get without reference to the compulsory powers of the undertakers. He may always take advantage of the buyer's necessities so long as they are not created by the act. The case of Gough v. Aspatria, &c.

4

Water Board [1904] 1 K. B. 417, 73 L. J. K. B. N. S. 228, 68 J. P. 229, 52 Week. Rep. 552, 90 L. T. N. S. 43, 20 Times L. R. 179, establishes that where the land has peculiar natural advantages for the undertakers' purposes, the fact that they are desirous of acquiring the site is not to be ignored. In Lucas v. Chesterfield Gas and Water Board [1909] 1 K. B. 16, ante, 1, where the question was as to the value of land taken for a reservoir, Vaughan Williams, L.J., agreed with the statement of Bray, J., in the court below, that "land adjoining large works would in fact often have a special value because the owner of the works would be likely to require additional land and would be willing to give a larger price because it adjoined his works, and why should not this land have a special value because, if the board desired to build a new reservoir, this was the most convenient site on which to build it?" Here the railway company would give a special price for this land in order that it might be linked up with their existing railway. There is nothing in the judgment of Fletcher Moulton, L.J., in that case which is inconsistent with this contention. The test whether the element of value is to be excluded is, Was that value created by the statutory scheme? And here it was not.

Upjohn, K.C., and Courthope-Munroe, for the railway company. The duty of the umpire was confined to valuing the land with regard to the purposes for which it might be used by the parties who were in possible competition for it; that is, for the purposes of a colliery railway. The colliery lessees could not be in competition with the railway company for the purposes of a public passenger railway, for they could not use it for those purposes. A distinction is to be drawn between special adaptability for particular purposes and special value to the particular undertakers. The former may be taken into consideration, the latter may not. In Gough v. Aspatria, &c. Water Board [1904] 1 K. B. 417, 73 L. J. K. B. N. S. 228, 68 J. P. 229, 52 Week. Rep. 552, 90 L. T. N. S. 43, 20 Times L. R. 179, and in Lucas v. Chesterfield Gas and Water Board [1909] 1 K. B. 16, ante, 1, the land was [634] specially adapted for the storing of water. But there is no such thing as special adaptability for a railway as there is for a reservoir; for in the case of a railway the adjoining land would

hit

generally do equally well, whereas in the case of a reservoir it would not. Where there are no competitors for the particular purpose for which the undertakers want the land, the doctrine of special adaptability has no application. This case stands on the same footing as land adjoining a railway in an agricultural district which is wanted to widen the railway. If that purpose cannot be taken into consideration, neither can the purpose for which the railway company want it here. The true principle is that stated by Fletcher Moulton, L.J., in Lucas's Case [1909] 1 K. B. at p. 31, ante, 1: "The decided cases seems to me to have upon the correct solution of this problem. To my mind they lay down the principle that, where the special value exists only for the particular purchaser who has obtained powers of com pulsory purchase, it cannot be taken into consideration in fixing the price, because to do otherwise would be to allow the existence of the scheme to enhance the value of the lands purchased under it. But when the special value exists also for other possible purchasers, so that there is, so to speak, a market, real though limited, in which that special value goes towards fixing the market price, the owner is entitled to have this element of value taken into consideration, just as he would be entitled to have the fertility or the aspect of a piece of land capable of being used for agricultural purposes." It is to be observed that in Lucas's Case [1909] 1 K. B. 16, ante, 1, there were three possible competitors for the site as a reservoir. No doubt here the railway company may be treated as being in competition with the colliery lessees, but when the latter had reached their highest bid the railway company would only bid a further nominal sum just sufficient to overtop it; and that is the figure that the umpire ought to fix as the value. There is a very definite limit to what a colliery proprietor will give for a wayleave. The adjoining landowners would be only too glad to grant a substituted way over their land.

Gore-Browne, K.C., in reply.

Cur. adv. vult.

[635] Avory, J., read the following judgment: The precise question raised between the parties in this case does not appear