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DEFENCE ACT 1860

DEFENCE ACT 1860 - LONG TITLE

An Act to make better Provision for acquiring Lands for the Defence
of the Realm.{1}
[28th August 1860]
Preamble rep. by SLR 1892

Clerks of the peace, &c., to receive and hold copies so deposited
as under 1837 c.83.

DEFENCE ACT 1860 - SECT 5

5. All clerks of the peace, and clerks of unions shall receive and
retain the copies deposited with them as aforesaid, and permit all
persons interested to inspect the same, and make extracts or copies
therefrom, in the like manner, and upon the like terms, and under
the like penalty for default, as provided by the Parliamentary
Documents Deposit Act, 1837, with respect to plans directed to be
so deposited by the standing orders of either House of Parliament.

Ss.68 rep. by SLR 1875. S.7 required the Secretary of State within
six months after making such declaration to serve notices upon the
owners, lessees, and occupiers of the lands.

DEFENCE ACT 1860 - SECT 9
How notices to be given.

9. Every such notice shall be served personally on the said
parties, or left at their last usual places of abode, if any such
can after diligent inquiry be found, and, in case any of such
parties be absent from the United Kingdom, or cannot be found after
diligent inquiry, shall be addressed to such party and left with
the occupier of the lands, or, if there be no such occupier,
affixed upon some conspicuous part of such lands:

If any of such parties be a corporation aggregate, such notice
shall be left at the principal office of such corporation; or, if
no such office can after diligent inquiry be found, such notice
shall be served on some principal member, if any, of such
corporation, and a duplicate of the notice shall be addressed to
such corporation and left with the occupier of the lands, or, if
there be no such occupier, affixed upon some conspicuous part of
such lands.

Amount of compensation may be determined by agreement.

DEFENCE ACT 1860 - SECT 10

10. The amount of compensation to be paid for any lands required
to be taken, and the amount of compensation to be paid in respect
of any damage sustained by reason of such restraints as aforesaid,
or by reason of the execution of any works in or over any lands
required to be kept free from buildings, may be determined by
agreement between the said Secretary of State and all parties having
any estate or interest in such lands respectively.

DEFENCE ACT 1860 - SECT 11
Corporations, trustees, etc. empowered to agree.

11. All corporations and all ... trustees for charitable or other
purposes of any lands required to be taken or to be kept free
from buildings, ... and the ..., guardians, trustees, committees, and
attorneys of such of the owners of or other persons interested in
any such lands as may be ... infants, lunatics, idiots, or beyond
the seas, or otherwise incapable of acting for themselves, may agree
with the said Secretary of State as to the amount of such
compensation to be paid for any such lands, or any damage sustained
in respect thereof.

All agreements made and acts done by such corporations and persons
respectively in relation to such compensation shall be valid and
effectual in law to all intents and purposes whatsoever.

How compensation to be settled in case of neglect to treat.

DEFENCE ACT 1860 - SECT 12

12. If for fourteen days after the service of any such notice as
aforesaid any party on whom the same is served fail to state the
particulars of his claim in respect of any lands to which such
notice relates, or to treat with the said Secretary of State as to
the amount of compensation to be paid to such party or which he
is empowered to agree upon,

or if the said Secretary of State and such party do not within
such fourteen days agree as to the amount of such compensation,

such amount shall be settled by a jury in like manner as if the
same were compensation for lands surveyed and marked out under the
Defence Act, 1842, as amended by the Ordnance Board Transfer Act,
1855.

DEFENCE ACT 1860 - SECT 13
Provision where compensation claimed is under #200.

13. Provided always, that if the compensation claimed do not exceed
two hundred pounds, the same shall be settled by two justices in
manner following; that is to say, it shall be lawful for any
justice, upon the application of either party, to summon the other
party to appear before two justices at a time and place to be
named in the summons; and upon the appearance of the parties, or,
in the absence of either of them, upon proof of due service of
the summons, it shall be lawful for such justices to determine such
amount, and for that purpose to examine the claimant and the
witness of the parties upon oath.

DEFENCE ACT 1860 - SECT 14
Compensation to absent parties to be settled by a surveyor to be
nominated by two justices.

14. Where by reason of absence from the United Kingdom any party
is prevented from treating, or cannot after diligent inquiry be
found, the amount of such compensation shall be determined by
valuation in manner following; that is to say, the said Secretary
of State shall make application to two justices; and upon proof
satisfactory to them that any such party is by reason of absence
from the Kingdom prevented from treating, or cannot after diligent
inquiry be found, such justices shall, by writing under their hands,
nominate a competent surveyor for determining the amount of such
compensation as aforesaid; and such surveyor shall determine the same
accordingly, and shall annex to his valuation a declaration in
writing subscribed by him of the correctness thereof.

DEFENCE ACT 1860 - SECT 15
Surveyor acting corruptly to be guilty of a misdemeanor.

15. If any surveyor wilfully and corruptly make any incorrect or
false valuation, or wilfully and corruptly act in the matter hereof,
he shall be guilty of a misdemeanor.

DEFENCE ACT 1860 - SECT 16
Nomination and valuation to be preserved and produced on demand.

16. The said nomination shall be annexed to the valuation to be
made by such surveyor, and shall be preserved together therewith by
the said Secretary of State, who shall at all times produce the
said valuation and other documents, on demand, to all parties
interested in the lands comprised therein.

DEFENCE ACT 1860 - SECT 17
Damage may be ascertained when works have been done.

17. Where any damage has been sustained by reason of any works
authorized by this Act in or upon lands required to be kept free
from buildings and other obstructions in respect of which works
compensation has not been agreed upon, awarded, or otherwise
ascertained prospectively, compensation shall be paid in respect
thereof when the works have been done; such compensation to be
determined in like manner as other compensation under this Act, or
as near thereto as circumstances admit.

DEFENCE ACT 1860 - SECT 18
In estimating damage from works regard to be had to advantages
derived therefrom.

18. In determining the amount of compensation in respect of damage
sustained by reason of any such works, regard shall be had to any
increase in the extent of land capable of being brought under
cultivation by removal of banks, fences, hedges, and ditches, and to
any improved drainage and other advantages derived from any such
works.

DEFENCE ACT 1860 - SECT 19
Where any agreement in restraint of building exists, regard to be
had thereto in estimating compensation.

19. Where any covenant or agreement has been entered into with the
principal officers of Her Majesty's Ordnance or with the said
Secretary of State in restraint of the right to build on any
lands, and such covenant or agreement is legally or equitably
binding on the owner of the lands, regard shall be had in
ascertaining the amount of compensation to be paid under this Act
for or in respect of such lands (whether the same are required to
be taken absolutely or are required to be kept free from buildings)
to the existing restriction arising out of such covenant or
agreement.

Provision for payment and application of compensation money in
certain cases.

DEFENCE ACT 1860 - SECT 20

20. Any compensation payable under this Act for or in respect of
any lands or any interest therein taken from or holden by any
owner who by reason of absence is prevented from treating as
aforesaid, or who cannot after diligent inquiry be found, or who
refuses to accept such compensation, or neglects or fails to make
out a title to such lands or the interest therein claimed by such
owner to the satisfaction of the said Secretary of State,

and any compensation payable for or in respect of any lands or any
interest therein taken from or holden by any corporation or person
not having independently of this Act and the Defence Act, 1842, as
amended as aforesaid, power to agree as to the amount of such
compensation, or to sell and convey such lands or such interest,

shall be paid and applied in manner directed by the sections
numbered twenty-five to thirty of the Defence Act, 1842, ... as if
the said sections expressly extended to the said compensation.

DEFENCE ACT 1860 - SECT 21
On payment of compensation into the Supreme Court an addition to be
made to meet consequent expenses, &c.

21. Where any compensation is required to be paid [into the Supreme
Court or into [the Supreme Court in Northern Ireland]] under this
Act, there shall be added thereto a sum of thirty pounds as an
equivalent for the expenses consequent upon such payment; and upon
such compensation, with such additional sum (which shall be deemed
part of such compensation), being so paid, the said Secretary of
State shall be discharged from all liability in respect thereof; and
the Court of Chancery may allot to the tenant for life, or for
any other partial or qualified estate, in respect of any expenses
of investment incurred by him, any portion of any such compensation
which the Court may deem just.

DEFENCE ACT 1860 - SECT 22
Provision for payment into the Supreme Court on failure to deduce a
title for three months after compensation ascertained.

22. The said Secretary of State may in any case at or after the
expiration of three months from the time at which the compensation
for any lands has been agreed upon or otherwise ascertained, if the
owner thereof have not in the meantime made out a title thereto to
the satisfaction of the said Secretary of State, pay such
compensation, without such addition as aforesaid, [into the Supreme
Court or into [the Supreme Court in Northern Ireland]] in manner
hereinbefore referred to; and such payment shall discharge the said
Secretary of State from all liability in respect of the money so
paid:

Provided always, that the Court of Chancery may, upon application
for payment of such money to the party entitled, in case the Court
be of opinion that there was no unreasonable delay in deducing the
title, or that a good title was shown, order all or any costs
occasioned by such payment into Court to be paid by the said
Secretary of State.

DEFENCE ACT 1860 - SECT 23
Orders concerning money paid into the Supreme Court may be made at
chambers.

23. All orders and directions in relation to any money paid into
the [Supreme Court] under this Act, or the securities in or upon
which the same may be invested, or the dividends or interest on
such money and securities, which under the said Acts the Court of
Chancery is empowered to make or give on motion or petition may be
made or given by the Master of the Rolls or any of the
Vice-Chancellors while sitting at chambers, upon summons, in like
manner as in other cases in which proceedings may be so had before
the Master of the Rolls and Vice-Chancellor, subject, nevertheless,
to any general rules and orders which may hereafter be made
concerning the practice, proceedings, or business of the said Court.

Costs of and incident to agreements, &c. under this Act to be
borne by Secretary of State, &c.

DEFENCE ACT 1860 - SECT 24

24. The costs of and incident to any agreement with the said
Secretary of State under this Act concerning the compensation to be
paid for or in respect of any lands taken or affected under the
provisions of this Act, and the costs of the deduction and
verification of title, shall be paid by the said Secretary of
State; all which costs shall be taxed by one of the taxing masters
of the Court of Chancery in ... Ireland ... upon the request and
at the expense of the said Secretary of State.

DEFENCE ACT 1860 - SECT 25
Provision for costs when amount of compensation is determined by a
jury or justices.

25. In case any jury give a verdict or assessment for more
compensation for any lands or any interest therein or any damage
than was offered for the same by the said Secretary of State, or
for any amount of compensation where no offer of any compensation
was made, then all the reasonable costs and expenses of and
incident to the settlement of the amount of such compensation by a
jury shall be paid by the said Secretary of State, such costs to
be settled upon the request of the said Secretary of State by one
of the Masters of the Court of Queen's Bench in ... Ireland ...:

But in every case in which the jury shall be of opinion that the
statement delivered by the claimant of the manner in which any
amount demanded as compensation has been computed and made up did
not give sufficient particulars to enable the said Secretary of
State to make a proper offer, and in every other case in which
the jury give a verdict or assessment for the same or a less sum
than was offered by the said Secretary of State, or in case no
damage be found by the jury where the question is as to damage
only, or where the summoning a jury arose from a refusal to state
or demand any amount of compensation, then and in every such case
all such costs and expenses to be settled in manner aforesaid shall
be paid to the said Secretary of State by the body or person
claiming the compensation or refusing to state or demand any amount
of compensation; and all costs and expenses payable hereunder to the
said Secretary of State shall be retained out of the compensation
(if any) given by the verdict or assessment of the jury:

The foregoing provisions as to costs in the case of the
determination of any question as to compensation by a jury shall be
applicable also where such question is determined by justices.

Apportionment of rents and incumbrances.

DEFENCE ACT 1860 - SECT 26

26. If part only of any lands comprised in any lease or mortgage
or otherwise subject to any rent service or other rent, or any
annual or other payment or incumbrance, be taken under this Act,
such rent, payment, or incumbrance may be apportioned by agreement
between the parties entitled thereto and to the lands subject
thereto and the said Secretary of State; or in case no such
agreement be made, the same may be apportioned, by the jury or
justices by whom the compensation payable in respect of the part of
the said lands taken by the said Secretary of State is determined,
or, if not so determined, may be determined by two justices, as
herein provided in certain cases of compensation.

After such apportionment such apportioned part only of such rent,
payment, or incumbrance shall be payable out of the residue of the
said lands; and all covenants, provisoes, conditions, agreements,
powers, and remedies in respect of the said rent, payment, or
incumbrance shall remain in force in respect of the apportioned part
which is to remain payable, as against the residue of such lands;
and where any rent originally reserved was an ancient and accustomed
rent, the part so continuing payable shall be deemed to be the
ancient and accustomed rent for such residue of the said lands.

DEFENCE ACT 1860 - SECT 27
Power to release portion of lands from rentcharge, &c.

27. With the consent of the party entitled to the lands, the party
entitled to any rentcharge, payment, or incumbrance may release
therefrom the portion of the said lands taken as aforesaid on
condition or in consideration of the remaining part remaining
exclusively subject to the whole rentcharge, payment, or incumbrance;
and in such cases all covenants, provisoes, conditions, agreements,
powers, and remedies in respect of such rentcharge, payment, or
incumbrance, shall remain in force against the said residue of the
said lands.

DEFENCE ACT 1860 - SECT 28
Who competent to make apportionment, &c.

28. All bodies and persons who are enabled to agree for the sale
of lands to the said Secretary of State shall be competent to
agree for and make an apportionment or release under either of the
two last preceding enactments.

Secretary of State may avail himself of powers of 1845 c.18.

DEFENCE ACT 1860 - SECT 29

29. The said Secretary of State may, if he thinks fit, as well in
respect of lands required to be kept free from buildings as in
respect of lands taken under this Act, use and avail himself of
all or any of the powers and authorities by the Lands Clauses
Consolidation Act, 1845, given to "the promoters of the undertaking";
and every party enabled by the last-mentioned Act to sell and
convey or release lands or any estate or interest therein to "the
promoters of the undertaking" shall have the same or the like
powers to contract and agree with the said Secretary of State as
to the compensation to be paid in respect of any lands, estates,
or interests taken or affected under the provisions of this Act:
Provided always, that nothing in this enactment shall prejudice or
affect the right to exercise the other powers or authorities hereby
given.

Lands taken to be vested in Secretary of State on behalf of Her
Majesty.

DEFENCE ACT 1860 - SECT 30

30. The lands required to be taken under this Act by the said
Secretary of State shall, from and after payment of the compensation
for the same, be vested in the said Secretary of State, on behalf
of Her Majesty, discharged of all estates, rights, and interests
whatsoever.

DEFENCE ACT 1860 - SECT 31
Power to Secretary of State to enter immediately.

31. Provided always, that it shall be lawful for the said Secretary
of State, at any time after the expiration of fourteen days from
the service of such notice as aforesaid in relation to any lands
mentioned in any such declaration as aforesaid as required to be
taken by him, to enter upon and take possession of and hold such
lands, or any of them, and to cause to be executed thereon all
such works as such Secretary of State may think fit.

DEFENCE ACT 1860 - SECT 32
Interest to be payable until payment of compensation money.

32. Provided also, that in case possession be taken of any lands
before payment of the compensation for the same, interest shall be
payable upon the amount of such compensation until payment thereof,
after the rate of five pounds per centum per annum, from the time
of taking possession as aforesaid; and such interest shall go and
be applied as the income of the lands would have gone and been
applied if possession had not been so taken.

Lands to continue subject to tithe rentcharge, taxes, and rates.

DEFENCE ACT 1860 - SECT 33

33. The lands vested in the said Secretary of State in pursuance
of this Act, which were before the time of such vesting liable to
and charged with tithes or tithe rentcharge, ..., poor or other
rates, shall continue chargeable therewith, but shall not be assessed
to any tax or rate at a higher value or rent than that at which
such lands were assessed at the time of such vesting.

Restrictions and powers with respect to lands required to be kept
free from buildings.

DEFENCE ACT 1860 - SECT 34

34. From and after the service of such notices as aforesaid in
relation to any lands required to be kept free from buildings and
other obstructions, the following restrictions, powers and consequences
shall attach with reference to such lands:

No building or other structure (other than barns, hovels, or other
like structures of wood), shall be made or erected thereon:

It shall be lawful for the said Secretary of State, at any time
after the expiration of fourteen days from the service of such
notice, and from time to time, to enter and pull down any present
or future buildings or structures (other than as aforesaid) thereon,
and to cut down or grub up all or any of the trees thereon, and
to remove or alter all or any of the banks, fences, hedges, and
ditches thereon, and to make underground or other drains therein,
and generally to level and clear the said lands, and do all such
acts for levelling and clearing the same as may be deemed necessary
or proper by the said Secretary of State; but in such manner,
nevertheless, that evidence of the boundaries of the lands held by
different owners may be preserved:

And it shall not be lawful for any person to alter the level of
the lands, or do any act which may prejudicially affect any work
done on the lands under the authority of the said Secretary of
State.

DEFENCE ACT 1860 - SECT 35
Limitation of time for exercise of powers conferred by the last
preceding enactment.

35. The powers conferred by the enactment lastly herein-before
contained in relation to any lands shall be exercised only within
three years after the making of any declaration that the said lands
are required to be kept free from buildings and other obstructions,
except with respect to pulling down buildings or structures
wrongfully made or erected after the expiration of that time, or
keeping or re-instating such lands in the condition in which the
same were left after the execution of any such work thereon as
aforesaid, or maintaining or restoring the level of such lands.

Provision as to interests omitted to be purchased.

DEFENCE ACT 1860 - SECT 36

36. If at any time after the said Secretary of State has entered
upon any lands vested in him under this Act, any party appear to
be entitled to any estate, right, or interest in or charge
affecting such lands, which through mistake and inadvertence has been
omitted to be purchased or compensated for, the said Secretary of
State shall nevertheless remain in the undisturbed possession of such
lands, and shall be deemed to have an indefeasible title thereto,
but shall pay compensation for any such estate, right, interest, or
charge, which but for this enactment might be recovered or enforced,
and 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 said
Secretary of State thereon and the time of the payment of such
compensation by the said Secretary of State, so far as such mesne
profits or interest may be recoverable at law or in equity:

Such compensation shall be agreed on or awarded and paid in like
manner as the same would have been agreed on or awarded and paid
in case the said Secretary of State had purchased or compensated
for such estate, right, interest, or charge before his entering upon
such lands, or as near thereto as circumstances will admit.

DEFENCE ACT 1860 - SECT 37
How compensation for such interests to be estimated.

37. In estimating the compensation to be given for any such estate,
right, interest, or charge affecting any lands, or for any mesne
profits or interest, the jury or justices, as the case may be,
shall assess the same according to the value of the lands at the
time the same were entered upon by the said Secretary of State and
without regard to any improvements or works made by him.

DEFENCE ACT 1860 - SECT 38
Secretary of State to pay the costs of litigation as to such
interests.

38. In addition to the said compensation, the said Secretary of
State, shall when the right to any such estate, right, interest, or
charge has been disputed by him and determined in favour 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 with whom any such litigation in
respect thereof has taken place; and such costs and expenses shall,
in case the same be disputed, be settled by the proper officer of
the court in which such litigation took place.

S.39 rep. by SLR 1875

Power to divert highways, &c.

DEFENCE ACT 1860 - SECT 40

40. It shall be lawful for the said Secretary of State, without
any writ being issued or other legal proceeding being adopted, to
stop up or divert or alter the level of any highway, way, sewer,
drain, or pipe over, through, under, or adjoining any lands
comprised in any such declaration as aforesaid; he, if necessary,
previously making, opening, or laying down another good and
sufficient way, sewer, drain, or pipe, in lieu of that stopped up
or diverted.

DEFENCE ACT 1860 - SECT 41
Power to alter the course of brooks, &c.

41. It shall be lawful for the said Secretary of State to alter
the course and level of any river not navigable, brook, stream, or
watercourse, and any branch of any navigable river (such branch not
itself being navigable) within or adjoining such lands, making
compensation for any damage sustained by reason of the exercise of
such powers; such compensation to be determined and paid in like
manner as other compensation under this Act, or as near thereto as
circumstances admit.

Compensations to be paid out of monies provided by Parliament.

DEFENCE ACT 1860 - SECT 42

42. All monies to become payable by the said Secretary of State
under this Act shall be paid out of such monies as have been or
may be provided by Parliament for this purpose.

DEFENCE ACT 1860 - SECT 43
Protection to Secretary of State.

43. The said Secretary of State shall not, by reason of anything
done or omitted to be done under this Act, be liable to any fine,
penalty, or forfeiture, or to execution of any process against his
person or property.

DEFENCE ACT 1860 - SECT 44
Provisions for enforcing delivery of possession.

44. If in any case in which the said Secretary of State is by
this Act authorized to take possession of or to enter upon any
lands any person refuse to give up possession thereof, or hinder
the said Secretary of State or the persons authorized by him from
taking possession of or entering upon the same, the said Secretary
of State may issue his warrant to the sheriff of the county in
which the lands are situate to deliver possession of the same to
the person in this behalf named in such warrant; and upon receipt
of such warrant the said sheriff shall deliver possession thereof
accordingly.

DEFENCE ACT 1860 - SECT 45
Notices, etc., required to be served on, or given by, Secretary of
State to be served on, or given by, the solicitor for Ministry of
Defence.

45. Any notice, summons, writ, or other document required to be
served on the said Secretary of State may be served by being
delivered to [the solicitor appointed to act for the Ministry of
Defence] for the time being, or by being left for him thereat; and
any notice, summons, writ, or other document required to be given
by or on behalf of the said Secretary of State shall be given
under the hand of such solicitor.

1842 c.94 amended as herein stated.

DEFENCE ACT 1860 - SECT 46

46. And whereas the Defence Act, 1842, has been amended by divers
Acts, and it is expedient further to amend the same:

The following provisions of this Act in relation to lands to be
taken under this Act shall be applicable where lands are surveyed
and marked out under the Defence Act, 1842, as amended as
aforesaid; (that is to say,)

The provisions concerning the mode of serving notices on owners,
lessees, and occupiers, and of notices, writs, or other documents on
the said Secretary of State:

The provisions concerning the determination of the amount of
compensation for lands otherwise than by agreement:

The provisions concerning the payment and application of compensation,
and the disposition of securities on which the same may be
invested, and of the interest and dividends of such compensation and
securities:

And the provision concerning interests omitted to be purchased; which
last-mentioned provision shall apply as well with respect to lands
already taken by the said Secretary of State, as with respect to
lands to be hereafter taken by him under the said Defence Act as
amended as aforesaid.

Interpretation of terms.

DEFENCE ACT 1860 - SECT 47

47. In the construction of this Act ... the following words and
expressions shall in this Act and the Defence Act, 1842, have the
several meanings hereby assigned to them, unless there be something
in the subject or context repugnant to such construction; (that is
to say,)

The word "lands" shall extend to messuages, lands, tenements, and
hereditaments of any tenure:

The word "lease" shall include an agreement for a lease:

The word "county" shall include any riding or other like division
of a county, and shall also include county of a city or county of
a town:

The word "sheriff" shall include under sheriff, or other legally
competent deputy; and where any matter in relation to any lands is
required to be done by any sheriff, and the lands being the
property of one and the same party are situate not wholly in one
county, the same expression shall be construed to mean the sheriff
of any county where any part of such land is situate:

The word "justices" and "justice" shall mean respectively justices or
a justice of the peace acting for the county, city, borough,
liberty, ... or place where the matter requiring the cognizance of
such justices or justice arises, and not interested in the matter,
and, where such matter arises in respect of lands being the
property of one and the same party situate not wholly in one
county, city, borough, liberty, ... or place, shall mean justices or
a justice acting for the county, city, borough, liberty, ... or
place where any part of such lands is situate, and not interested
in such matter; and the expression "two justices" shall mean two
justices assembled and acting together:

The word "owner" shall include any corporation or person having
authority under this Act or otherwise to agree with the said
Secretary of State as to the purchase money or compensation to be
paid for any lands.

DEFENCE ACT 1860 - SECT 48
Short title.

48. ... this Act may be cited as "The Defence Act, 1860".