The prohibition to enter in on lands taken before payment or deposit does not apply to operations which merely injuriously affect lands not taken, Hutton v. L. and S.W.R. (1849), 7 Hare 259; Law of Rlys. p. 207. Nor is notice by the company necessary, Don v. N.B.R. and Newport R.C. (1878), 5 R. 972, per L.P. As to liability for damage caused by improper or insufficient construction, as apart from the right to compensation under the Acts for injuriously affecting, see Law of Rlys. pp. 307-309, and 444-449, and cases there cited. As to non-liability for consequences of the use of the railway, see Brand v. Hammersmith R.C. supra; Cal. R.C. v. Ogilvy (1865), 2 Macq. 229; Port-Glasgow and Newark Sailcloth Co. v. Cal. R.C. (1892), 20 R.H.L. 35; Law of Rlys. pp. 316-325, and cases there cited. See also Aikman v. C. R. (1877), 4 R. 1020; Cal. R.C. v. M'Bride (1891), 19 R. 255; Cal. R.C. v. Watt (1875), 2 R. 917; Lawson v. Cal. R.C. (1881), 8 R. 442; Fleming v. Newport R.C. (1883), 10 R.H. L. 30. VII. Errors and omissions in plans to be corrected.-If any omission, misstatement, or erroneous description shall have been made of any lands, or of the owners, lessees, or occupiers of any lands, described on the plans or books of reference mentioned in the special Act, or in the schedule to the special Act, it shall be lawful for the company, after giving ten days' notice to the owners of the lands affected by such proposed correction, to apply to the sheriff for the correction thereof; and if it shall appear to such sheriff that such omission, mis-statement, or erroneous description arose from mistake, he shall certify the same accordingly, and shall in such certificate state the particulars of any such omission, and in what respect any such matter shall have been mis-stated or erroneously described; and such certificate shall be deposited in the office of the principal sheriff clerk in every county in which the lands affected thereby shall be situate, and shall also be deposited with the schoolmasters of the several parishes (or, in royal burghs, with the town clerk), in which the lands affected thereby shall be situate; and such certificate shall be kept by such sheriff clerks, schoolmasters, and other persons respectively along with the other documents to which they relate; and thereupon such plan, book of reference, or schedule shall be deemed to be corrected according to such certificate; and it shall be lawful for the company to make the works in accordance with such certificate.1 1 See as to whether sheriff's interlocutor is final, Hamilton v. Cal. R.C. (1848), 10 D. 678. See also Kemp v. West End of London, etc., R. C. (1855), 1 K. & J. 681; and Law of Rlys. pp. 457, 458. VIII. Works not to be proceeded with until plans of all alterations authorised by Parliament have been deposited.—It shall not be lawful for the company to proceed in the execution of the railway unless they shall have previously to the commencement of such work deposited in the office of the principal sheriff clerk in every county in or through which the railway is intended to pass a plan and section of all such alterations from the original plan and section as shall have been approved of by Parliament, on the same scale and containing the same particulars as the original plan and section of the railway, and shall also have deposited with the schoolmasters of the several parishes (or, in royal burghs, with the town clerk) in or through which such alterations shall have been authorised to be made copies or extracts of or from such plans and sections as shall relate to such parishes respectively. IX. Sheriff clerks, etc., to receive plans of alterations and allow inspection.The said sheriff clerks, schoolmasters, and town clerks shall receive the said plans and sections of alterations, and copies and extracts thereof respectively, and shall retain the same, as well as the said original plans and sections, and shall permit all persons interested to inspect any of the documents aforesaid, and to make copies and extracts of and from the same, in the like manner and upon the like terms, and under the like penalty for default, as is provided in the case of the original plans and sections by an Act passed in the first year of the reign of her present Majesty, intituled, “An Act to compel clerks of the peace for counties and other persons to take the custody of such documents as shall be directed to be deposited with them under the standing orders of either House of Parliament." X. Copies to be evidence.-True copies of the said plans and books of reference, or of any alteration or correction thereof, or extract therefrom, certified by any such sheriff clerk in Scotland, which certificate such sheriff clerk shall give to all parties interested, when required, shall be received in all courts of justice or elsewhere as evidence of the contents thereof. XI. Limiting deviation from datum line described on sections, etc.-In making the railway it shall not be lawful for the company to deviate from the levels of the railway, as referred to the common datum line described in the section approved of by Parliament, and as marked on the same, to any extent exceeding in any place five feet, or, in passing through a town, village, street, or land continuously built upon, two feet, without the previous consent in writing of the owners and occupiers of the land in which such deviation is intended to be made; or in case any street or public highway shall be affected by such deviation, then the same shall not be made without the consent of the trustees or commissioners having the control of such street or public highway, or, if there be no such trustees or commissioners, without the consent of the sheriff, or without the consent of the trustees or commissioners for any public sewers, or the proprietors of any canal, navigation, gas-works, or water-works, affected by such deviation: provided always, that it shall be lawful for the company to deviate from the said levels to a further extent without such consent as aforesaid, by lowering solid embankments or viaducts, provided that the requisite height of headway as prescribed by Act of Parliament be left for roads, streets, or canals passing under the same: provided also, that notice of every application to the sheriff for the purpose of considering the matter shall, fourteen days previous to such application, be given in some newspaper circulating in the county, and also be affixed upon the door of the parish church in which such deviation or alteration is intended to be made, or, if there be no church, some other place to which notices are usually affixed.1 1 For meaning of "town," see Lands Clauses Act, secs. 91 and 121, and sec. 15 of Railways Clauses Act. See also Elliot v. South Devon R. C. (1848), 5 R.C. 500; Falkner v. Somerset R.C. (1873), 16 L.R. Eq. 458; Law of Rlys. pp. 242, 450, 452, and cases there cited, especially Tod v. N.B.R. (1846), 5 Bell's App. 184. As to how far deposited plans are binding on company, see Law of Rlys. pp. 454-457, and cases there cited. XII. Previous notice of such deviation to be given.-Before it shall be lawful for the company to make any greater deviation from the level than five feet, or, in any town, village, street, or land continuously built upon, two feet, after having obtained such consent as aforesaid, it shall be incumbent on the company to give notice of such intended deviation by public advertisement, inserted once at least in two newspapers, or twice at least in one newspaper, circulating in the district or neighbourhood where such deviation is intended to be made, three weeks at least before commencing to make such deviation; and it shall be lawful for the owner of any lands prejudicially affected thereby, at any time before the commencement of the making of such deviation, to apply to the Board of Trade, after giving ten days' notice to the company, to decide whether, having regard to the interests of such applicant, such proposed deviation is proper to be made; and it shall be lawful for the Board of Trade, if they think fit, to decide such question accordingly, and by their certificate in writing either to disallow the making of such deviation, or to authorise the making thereof, either simply or with any such modification 1845. [10] [11] [XII.] 8 & 9 VICT. Cap. 33. [XIII.] [XIV.] [15] as shall seem proper to the Board of Trade; and after any such certificate shall have been given by the Board of Trade it shall not be lawful for the company to make such deviation, except in conformity with such certificate. XIII. Arches, tunnels, etc., to be made as marked on deposited plans.Where in any place it is intended to carry the railway on an arch or arches or other viaduct, as marked in the said plan or section, the same shall be made accordingly; and where a tunnel is marked on the said plan or section as intended to be made at any place, the same shall be made accordingly, unless the owners, lessees, and occupiers of the land in which such tunnel is intended to be made shall consent that the same shall not be so made.1 The powers of deviating engineering works are extended by the Railways Clauses Act 1863, 26 & 27 Vict. c. 92, sec. 4. See Law of Rlys. pp. 452, 453; also Att.-Gen. v. G.E.R. (1873), 2 L. R. E. & I. App. 367; Att.-Gen. v. Tewkesbury and Malvern R.C. (1863), 1 De G. J. & S. 423; Little v. Newport, Abergavenny, and Hereford R. C. (1852), 7 R.C. 280. XIV. Limiting deviations from gradients, curves, etc.—It shall not be lawful for the company to deviate from or alter the gradients, curves, tunnels, or other engineering works described in the said plan or section, except within the following limits, and under the following conditions; (that is to say), Subject to the above provisions in regard to altering levels, it shall be lawful for the company to diminish the inclination or gradients of the railway to any extent, and to increase the said inclination or gradients as follows; (that is to say,) in gradients of an inclination not exceeding one in a hundred, to any extent not exceeding ten feet per mile, or to any further extent which shall be certified by the Board of Trade to be consistent with the public safety, and not prejudicial to the public interest; and in gradients exceeding the inclination of one in a hundred, to any extent not exceeding three feet per mile, or to any further extent which shall be so certified by the Board of Trade as aforesaid: It shall be lawful for the company to diminish the radius of any curve described in the said plan to any extent which shall leave a radius of not less than half a mile, or to any further extent authorised by such certificate as aforesaid from the Board of Trade: It shall be lawful for the company to make a tunnel, not marked on the said plan or section, instead of a cutting, or a viaduct instead of a solid embankment, if authorised by such certificate as aforesaid from the Board of Trade.1 1 See Law of Rlys. p. 453, and cases there cited. As to "other engineering works," see Beardmer v. L. and N. W.R. (1849), 1 Mac. & G. 112. XV. Lateral deviations.-It shall be lawful for the company to deviate from the line delineated on the plans so deposited, provided that no such deviation shall extend to a greater distance than the limits of deviation delineated upon the said plans, nor to a greater extent in passing through a town than ten yards, or elsewhere to a greater extent than one hundred yards from the said line, and that the railway by means of such deviation be not made to extend into the lands of any person, whether owner, lessee, or occupier, whose name is not mentioned in the books of reference, without the previous consent in writing of such person, unless the name of such person shall have been omitted by mistake, and the fact that such omission proceeded from mistake shall have been certified in manner herein or in the special Act provided for in cases of unintentional errors in the said book of reference.1 1 See Doe. d. Armistead v. North Staffordshire R. C. (1851), 20 L.J. Q.B. 249; Finck v. L. and S. W.R. (1889), 44 Ch. D. 330, and other cases cited in Law of Rlys. p. 451. See also as to "town" sec. 11, supra, and contrast terms of sec. 11 and of English sec. 15 XVI. Works to be executed.-Subject to the provisions and restrictions in this and the special Act, and any Act incorporated therewith, it shall be lawful for the company, for the purpose of constructing the railway, or the accommodation works connected therewith, hereinafter mentioned, to execute any of the following works; (that is to say), Inclined planes, etc.-They may make or construct, in, upon, across, under, Drains, etc.-They may make drains or conduits into, through, or under Warehouses, etc. They may erect and construct such houses, warehouses, offices, and other buildings, yards, stations, wharfs, engines, machinery, apparatus, and other works and conveniences, as they think proper ; Alterations and repairs.-They may from time to time alter, repair, or discontinue the before-mentioned works or any of them, and substitute others in their stead; and General power. They may do all other acts necessary for making, maintaining, altering, or repairing, and using the railway: Proviso as to damages. Provided always, that in the exercise of the powers by this or the special Act granted, the company shall do as little damage as can be, and shall make full satisfaction, in manner herein and in the special Act, and any Act incorporated therewith, provided, to all parties interested, for all damage by them sustained by reason of the exercise of such powers.1 As to contracts for the construction of the line and questions arising in connection therewith, see Law of Rlys. Part V. chap. i. sec. 3. As to the construction of sec. 16 generally, see ibid. sec. 1, and cases there cited. The powers given are not subject to a restriction in the special Act as to the time of completing the railway, Emsley v. N.E.R., L.R. (1896), 1 Ch. 418. The powers are permissive, not obligatory (Law of Rlys. pp. 443, 444), but are to be exercised only in so far as "necessary" (ibid. pp. 444-448), and the company are liable in damages for improper or inefficient exercise (ibid. pp. 445, note (h), 448, 449), and may be restrained by interdict (ibid. p. 445; Gillespie v. Lucas and Aird (1893), 20 R. 1035). But compare Cal. R.C. v. Gardiner (1873), 1 R. 271. As to "Acts therewith incorporated," see Rangely v. M.R.C. (1868), 3 L. R. Ch.App. 309, per Lord Cairns. As to "more conveniently," R. v. Eastern Co. R.C. (1842), 3 R.C. 34, per Alderson, B.; R. v. Wycombe R. C. (1867), 2 L.R. Q.B. 310, per Cockburn, C.J. As to 1845. [XVI.] 8 & 9 VICT. Cap. 33. [XVII.] [XVIII.] diversion of road, R. v. Wycombe R. C. (1867), 2 L.R. Q.B. 310. As to diversion of river, Pugh v. Golden Valley R.C. (1880), 15 Ch.D. 330. As to works in navigable river not amounting to diversion, Abraham v. G.N.R. (1851), 16 Q.B. 586. As to "station,' Lord Petre v. Eastern Co. R.C. (1843), 3 R.C. 367; Eton College v. G.W.R. (1838), 1 R.C. 200; Law of Rlys. p. 445, note (a). "First class station," Hood v. N.E. R.C. (1870), L. R. 5 Ch.App. 525, and see Law of Rlys. pp. 501-504. As to "yards. other works and conveniences," and power to take land, with result of enabling branch connection to be formed, see Boswell v. G. and S. W.R. (1851), 13 D. 1157. But contrast Cooper and Wood v. N.B.R. (1863), 1 M. 499. ... XVII. Works on the shore of the sea, etc., not to be constructed without the authority of the Commissioners of Woods and Forests and Commissioners of the Admiralty.1-It shall not be lawful for the company to construct on the shore of the sea, or of any creek, bay, arm of the sea, or navigable river communicating therewith, where and so far up the same as the tide flows and reflows, any work, or to construct any railway or bridge across any creek, bay, arm of the sea, or navigable river, where and so far up the same as the tide flows and reflows, without the previous consent of her Majesty,2 to be signified in writing under the hands of two of the commissioners of her Majesty's woods, forests, land revenues, works, and buildings, and of the lord high admiral of the United Kingdom of Great Britain and Ireland, or the commissioners for executing the office of the lord high admiral aforesaid for the time being, to be signified in writing under the hand of the secretary of the Admiralty, and then only according to such plan and under such restrictions and regulations as the said commissioners of her Majesty's woods, forests, land revenues, works, and buildings, and the said lord high admiral, or the said commissioners, may approve of, such approval being signified as last aforesaid; and where any such work, railway, or bridge shall have been constructed, it shall not be lawful for the company at any time to alter or extend the same without obtaining, previously to making any such alteration or extension, the like consents or approvals; and if any such work, railway, or bridge shall be commenced or completed contrary to the provisions of this Act, it shall be lawful for the said commissioners of her Majesty's woods, forests, land revenues, works, and buildings, or the said lord high admiral, or the said commissioners for executing the office of lord high admiral, to abate and remove the same and to restore the site thereof to its former condition, at the costs and charge of the company; and the amount thereof may be recovered in the same manner as a penalty is recoverable against the company. 1 Works upon tidal lands are by The Railways Clauses Act, 1863, placed under control of the Board of Trade. See Law of Rlys. pp. 449, 450; and as to acquisition of foreshore, Young v. N.B.R. (1887), 14 R. H.L. 53; and as to removal of obstruction in estuary, N.B.R. v. Mag. of Perth (1885), 13 R.H. L. 37. 2 Words "her heirs and successors omitted by 54 & 55 Vict. c. 67. XVIII. Alteration of water and gas pipes, etc.—It shall be lawful for the company, for the purpose of constructing the railway, to raise, sink, or otherwise alter the position of any of the watercourses, water pipes, or gas pipes belonging to any of the houses adjoining or near to the railway, and also the mains and other pipes laid down by any company or society who may furnish the inhabitants of such houses or places with water or gas, and also to remove all other obstructions to such construction, so as the same respectively be done with as little detriment and inconvenience to such company, society, or inhabitants as the circumstances will admit, and be done under the superintendence of the company to which such water pipes or gas pipes belong, and of the several commissioners or trustees, or persons having control of the pavements, sewers, roads, streets, highways, lanes, and other public passages |