"The Lands purposes of the special Act, the rent payable in respect of the lands 29 VICTORIA, comprised in such lease shall be apportioned between the lands so No. 289. required and the residue of such lands; and such apportionment rent to be may be settled by agreement between the lessor and lessee of such apportioned. lands on the one part, and the promoters of the undertaking on the clauses Consoliother part; and if such apportionment be not so settled by agree-dation dation Act 1845" ment between the parties, such apportionment shall be settled by two justices; and after such apportionment the lessee of such lands shall as to all future accruing rent be liable only to so much of the rent as shall be so apportioned in respect of the lands not required for the purposes of the special Act; and as to the lands not so required and as against the lessee, the lessor shall have all the same rights and remedies for the recovery of such portion of rent as previously to such apportionment he had for the recovery of the whole rent reserved by such lease; and all the covenants conditions and agreements of such lease except as to the amount of rent to be paid shall remain in force with regard to that part of the land which shall not be required for the purposes of the special Act in the same manner as they would have done in case such part only of the land had been included in the lease. Ib. s. 120. 360. Every such lessee as last aforesaid shall be entitled to Tenants to be receive from the promoters of the undertaking compensation for the compensated. damage done to him in his tenancy by reason of the severance of the lands required from those not required or otherwise by reason of the execution of the works. tenants at will. 361. If any such lands shall be in the possession of any person Compensation to having no greater interest therein than as a tenant for a year or from be made to year to year, and if such person be required to give up possession of Ib. s. 121. any lands so occupied by him before the expiration of his term or interest therein, he shall be entitled to compensation for the value of his unexpired term or interest in such lands, and for any just allowance which ought to be made to him by an incoming tenant, and for any loss or injury he may sustain; or if a part only of such lands be required, compensation for the damage done to him in his tenancy by severing the lands held by him or otherwise injuriously affecting the same and the amount of such compensation shall be determined by two justices in case the parties differ about the same; and upon payment or tender of the amount of such compensation, all such persons shall respectively deliver up to the promoters of the undertaking or to the person appointed by them to take possession thereof any such lands in their possession required for the purposes of the special Act. interest claimed year lease to be b. produced. s. 122. 362. If any party having a greater interest than as tenant at where greater will claim compensation in respect of any unexpired term or interest than from year to under any lease or grant of any such lands, the promoters of the undertaking may require such party to produce the lease or grant in respect of which such claim shall be made or the best evidence thereof in his power; and if after demand made in writing by the promoters of the undertaking such lease or grant or such best evidence thereof be not produced within twenty-one days, the party so claiming compensation shall be considered as a tenant holding only from year to year and be entitled to compensation accordingly. 29 VICTORIA, No. 289. 363. The powers of the promoters of the undertaking for the compulsory purchase or taking of lands for the purposes of the Limit of time for special Act shall not be exercised after the expiration of the precompulsory pur- scribed period; and if no period be prescribed, not after the expiration of three years from the passing of the special Act. chase. "The Lands Clauses Consolidation Act 1845" 8. 123. accidentally omitted may be subsequently purchased. Ib. s. 124. 364. If, at any time after the promoters of the undertaking Interests in lands shall have entered upon any lands which under the provisions of this Part or the special Act or any Act incorporated therewith they were authorised to purchase and which shall be permanently required for the purposes of the special Act, any party shall appear to be entitled to any estate right or interest in or charge affecting such lands which the promoters of the undertaking shall through mistake or inadvertence have failed or omitted duly to purchase or to pay compensation for, then (whether the period allowed for the purchase of land shall have expired or not) the promoters of the undertaking shall remain in the undisturbed possession of such lands; provided, within six months after notice of such estate right interest or charge in case the same shall not be disputed by the promoters of the undertaking or in case the same shall be disputed then within six months after the right thereto shall have been finally established by law in favor of the party claiming the same, the promoters of the undertaking shall purchase or pay compensation for the same, and shall also pay to such party or to any other party who may establish a right thereto full compensation for the mesne profits or interest which would have accrued to such parties respectively in respect thereof during the interval between the entry of the promoters of the undertaking thereon and the time of payment of such purchase money or compensation by the promoters of the undertaking so far as such mesne profits or interest may be recoverable in law or equity; and such purchase money or compensation shall be agreed on or awarded and paid in like manner as according to the provisions of this Part the same respectively would have been agreed on or awarded and paid in case the promoters of the undertaking had purchased such estate right interest or charge before their entering upon such land or as near thereto as circumstances will admit. How value of estimated. Ib. s. 125. 365. In estimating the compensation to be given for any such such lands to be last-mentioned lands or any estate or interest in the same or for any mesne profits thereof, the jury or arbitrators or justices (as the case may be) shall assess the same according to what they shall find to have been the value of such lands estate or interest and profits at the time such lands were entered upon by the promoters of the undertaking, and without regard to any improvements or works made in the said lands by the promoters of the undertaking and as though the works had not been constructed. Promoters of the undertaking to litigation as to 366. In addition to the said purchase money compensation or pay the costs of satisfaction and before the promoters of the undertaking shall become absolutely entitled to any such estate interest or charge or to have the same merged or extinguished for their benefit, they shall, when the right to any such estate interest or charge shall have been disputed by them and determined in favor of the party claiming the same, pay the full costs and expenses of any proceedings at law or in equity for the determination or recovery of the same to the parties No. 289. with whom any such litigation in respect thereof shall have taken 29 VICTORIA, place; and such costs and expenses shall, in case the same shall be disputed, be settled by the proper officer of the court in which such litigation took place. wanted to be sold ers of adjoining Clauses Consoli s. 127. 367. Where lands are acquired by the promoters of the under- Lands not taking under the provisions of this Part of this Act or the special or in default to Act or any Act incorporated therewith but are not required for the vest in the ownpurposes thereof, the promoters of the undertaking, within the pre- lands. scribed period or if no period be prescribed within ten years after the "The Lands expiration of the time limited by the special Act for the completion dation Act 1845" of the works, 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; and 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. of lands from which they were originally taken owners. Ib. s. 128. 368. Before the promoters of the undertaking dispose of any Lands to be such superfluous lands, they shall, unless such lands be situated offered to owner within a town or be lands built upon or used for building purposes, first offer to sell the same to the person then entitled to the lands or to adjoining (if any) from which the same were originally severed; or if such person refuse to purchase the same or cannot after diligent enquiry be found, then the like offer shall be made to the person or to the several persons whose lands shall immediately adjoin the lands so proposed to be sold, such persons being capable of entering into a contract for the purchase of such lands; and where more than one such person shall be entitled to such right of pre-emption, such offer shall be made to such persons in succession one after another in such order as the promoters of the undertaking shall think fit. claimed within 369. If any such persons be desirous of purchasing such lands, Right of prethen within six weeks after such offer of sale they shall signify their emption withi desire in that behalf to the promoters of the undertaking; or if six weeks. they decline such offer, or if for six weeks they neglect to signify Ib. s. 129. their desire to purchase such lands, the right of pre-emption of every such person so declining or neglecting in respect of the lands included in such offer shall cease; and a declaration in writing made before a justice by some person not interested in the matter in question, stating that such offer was made and was refused or not accepted within six weeks from the time of making the same or that the person or all the persons entitled to the right of pre-emption were out of the country or could not after diligent enquiry be found or were not capable of entering into a contract for the purchase of such lands, shall in all courts be sufficient evidence of the facts therein stated. by arbitration. 370. If any person entitled to such pre-emption be desirous of Difference as to purchasing any such lands and such person and the promoters of the price to be settled undertaking do not agree as to the price thereof, then such price Ib. s. 130. shall be ascertained by arbitration; and the costs of such arbitration shall be in the discretion of the arbitrators. veyed to the 371. Upon payment or tender to the promoters of the under- Lands to be contaking of the purchase money so agreed upon or determined as purchasers. No. 289. "The Lands dation Act 1845" 8. 131. 29 VICTORIA, aforesaid, they shall convey such lands to the purchasers thereof by deed, under the common seal of the promoters of the undertaking if they be a corporation, or if not a corporation under the hands and Clauses Consoli seals of the promoters of the undertaking or any two of the directors or managers thereof acting by the authority of the body; and a deed so executed shall be effectual to vest the lands comprised therein in the purchaser of such lands for the estate which shall have been so purchased by him; and a receipt under such common seal or under the hands of two of the directors or managers of the undertaking as aforesaid shall be a sufficient discharge to the purchaser of any such lands for the purchase money in such receipt expressed to be received. Effect of the conveyances. Ib. s. 132. 372. In every conveyance of land to be made by the promoters word "grant" in of the undertaking under this Part or the special Act, the word grant" shall operate as express covenants by the promoters of the undertaking for themselves and their successors or for themselves their heirs executors administrators and assigns (as the case may be) with the respective grantees therein named and the successors heirs executors administrators and assigns of such grantees according to the quality or nature of such grants and of the estate or interest therein expressed to be thereby conveyed as follows, except so far as the same shall be restrained or limited by express words contained in any such conveyance (that is to say) : A covenant that notwithstanding any act or default done by the promoters of the undertaking they were at the time of the execution of such conveyance seised or possessed of the lands or premises thereby granted for an indefeasible estate of inheritance in fee simple free from all encumbrances done or occasioned by them, or otherwise for such estate or interest as therein expressed to be thereby granted free from encumbrances done or occasioned by them. A covenant that the grantee of such lands his heirs successors executors administrators and assigns (as the case may be) shall quietly enjoy the same against the promoters of the undertaking and their successors and all other persons claiming under them, and be indemnified and saved harmless by the promoters of the undertaking and their successors from all encumbrances created by the promoters of the undertaking. A covenant for further assurance of such lands at the expense of such grantee his heirs successors executors administrators or assigns (as the case may be) by the promoters of the undertaking or their successors and all other persons claiming under them. And all such grantees and their several successors heirs executors administrators and assigns respectively according to their respective quality or nature and the estate or interest in such conveyance expressed to be conveyed may in all actions brought by them assign breaches of covenants as they might do if such covenants were expressly inserted in such conveyance. 373. Any summons or notice of any writ or other proceeding 29 VICTORIA, at law or in equity requiring to be served upon the promoters of the No. 289. undertaking may be served by the same being left at or transmitted service of notices through the post directed to the principal office of the promoters of upon company. the undertaking, or one of the principal offices where there shall be clauses Consolimore than one, or being given or transmitted through the post 14. directed to the secretary, or in case there be no secretary the solicitor, of the said promoters. "The Lands dation Act 1845" 8. Ib. s. 135. 374. If any party shall have committed any irregularity tres- Tender of pass or other wrongful proceeding in the execution of this Part or the amends. special Act or any Act incorporated therewith or by virtue of any power or authority thereby given, and if before action brought in respect thereof such party make tender of sufficient amends to the party injured, such last-mentioned party shall not recover in any such action; and if no such tender shall have been made, it shall be Payment of lawful for the defendant, by leave of the court where such action money into court. shall be pending, at any time before issue joined to pay into court such sum of money as he shall think fit; and thereupon such proceedings shall be had as in other cases where defendants are allowed to pay money into court. Date of Act. SCHEDULES. FIRST SCHEDULE. Titles. Extent of Repeal. "An Act to incorporate the Inhabitants of So much as extends and ap- plies to the town of Geelong All that has not been All that has not been The whole. All that has not been already repealed. Section 2. |