8 & 9 VICT. Cap. 33. [46] [XLVII.] to be compulsorily taken by them under the powers of this or the special Act, to contract with any party willing to sell the same, for the purchase of any land adjoining or near to the railway, or to any other railway communicating therewith, and on which the traffic thereupon may pass, and in any town or city adjoining to or near such railways, not exceeding in the whole the prescribed number of acres for extraordinary purposes; (that is to say), For the purpose of making and providing additional stations, yards, wharfs, and places for the accommodation of passengers, and for receiving, depositing, and loading or unloading goods or cattle to be conveyed upon the railway, and for the erection of weighing-machines, toll-houses, offices, warehouses, and other buildings and conveniences; For the purpose of making convenient roads or ways to the railway, or any other purpose which may be requisite or convenient for the formation or use of the railway.1 1 See Law of Rlys. p. 150, and cases there cited, and 26 & 27 Vict. c. 92, sec. 8. Lands acquired under sec. 38 do not become superfluous, Cal. R.C. v. C. of Gl. Un. R.C. (1871), 2 L.R. Sc. Ap. 160. As to access, see Baxter v. N.B.R. (1846), 8 D. 1212; and Scott v. Ed., Leith, etc., R.C. (1848), 11 D. 91. CROSSING OF ROADS AND CONSTRUCTION OF BRIDGES. And with respect to the crossing of roads, or other interference therewith, be it enacted as follows: - XXXIX. Crossing of roads.-If the line of the railway cross any turnpike road or public highway, then, except where otherwise provided by the special Act, either such road shall be carried over the railway, or the railway shall be carried over such road, by means of a bridge, of the height and width and with the ascent or descent by this or the special Act in that behalf provided; and such bridge, with the immediate approaches, and all other necessary works connected therewith, shall be executed and at all times thereafter maintained at the expense of the company; provided always, that, with the consent of the sheriff or two or more justices, as after mentioned, it shall be lawful for the company to carry the railway across any highway, other than a public carriage road, on the level.1 1 For commentary on and illustration of this and the following sections, see Law of Rlys. pp. 462-471. This section does not include a footway, Dartford Rural D. Co. v. Bexley Heath R. C. L.R. (1896), 2 Q.B. 74, see sec. 52. An overline or underline bridge is in the company's option, and may be changed after construction, S.E.R. v. Reg. (1851), 4 H.L.C. 471. As to diversion, see sec. 16, supra, and Reg. v. Wycombe R.C. (1867), 2 L.R. Q.B. 310, contrasted with Att.-Gen. v. Ely, Haddenham, etc., R.C. (1869), 4 L.R. Ch. 194, and other cases Law of Rlys. p. 464. As to the maintenance and repair of bridges, see Mag. of Perth v. Earl of Kinnoull and Cal. R.C. (1872), 10 M. 874; L. and Y. R.C. v. Mayor of Bury (1889), L.R. 14 A.C. 417, and other cases cited in Law of Rlys. pp. 465, 466; North Staffordshire R.C. v. Dale (1856), 8 El. & Bl. 836; Newcastle-under-Lyne and Leek Turnpike Road Trs. v. N. Staffordshire R.C. (1860), 5 H. & N. 160. As to alteration of inclination, see Reg. v. Cal. R.C. (1850), 16 Q.B. 19. XL. Provision in cases where roads are crossed on a level.-If the railway cross any turnpike road or public carriage road on a level, the company shall erect and at all times maintain good and sufficient gates across such road, on each side of the railway where the same shall communicate therewith, and shall employ proper persons to open and shut such gates; and such gates shall be kept constantly closed across such road on both sides of the railway, except during the time when horses, cattle, carts, or carriages passing along the same shall have to cross such railway; and such gates shall be of such dimensions and so constructed as when closed to fence in the railway, and prevent cattle or horses passing along the road from entering upon the railway; and the person intrusted with the care of such gates shall cause the same to be closed as soon as such horses, cattle, carts, or carriages shall have passed through the same, under a penalty of forty shillings for every default therein: provided always, that it shall be lawful for the Board of Trade, in any case in which they are satisfied that it will be more conducive to the public safety that the gates on any level crossing over any such road should be kept closed across the railway, to order that such gates shall be kept so closed, instead of across the road, and in such case such gates shall be kept constantly closed across the railway, except when engines or carriages passing along the railway shall have occasion to cross such road, in the same manner and under the like penalty as above directed with respect to the gates being kept closed across the road.1 1 By the Railways Clauses Act, 1863, the company must maintain lodges at level crossings. They are bound to keep the roadway in a proper state for the passage of vehicles on the road, Oliver v. N.E.R. (1874), 9 L.R. Q.B. 409. The section does not apply to private railways, Matson v. Baird (1877), 5 R.H.L. 211. See Barclay v. G. N.S. R.C. (1882), 10 R. 144. See generally Law of Rlys. pp. 467-471. As to the liability for accidents at level crossings see Law of Rlys. pp. 511-523, and cases there cited. Also Wyatt v. G.W.R. (1865), 34 L.J. Q.B. 204. As to unreasonable detention at a level crossing, Boyd v. G.N. R. C. (1894), 2 Ir.R. 555. 1845. XLI. As to crossing of turnpike roads adjoining stations.-Where the [XLVIII.] railway crosses any turnpike road on a level adjoining to a station, all trains on the railway shall be made to slacken their speed before arriving at such turnpike road, and shall not cross the same at any greater rate of speed than four miles an hour; and the company shall be subject to all such rules and regulations with regard to such crossings as may from time to time be made by the Board of Trade.1 1 As to shunting, see Bristol and North Somerset R.C. (1877), L.R. 3 Q.B.D. 10; as to scope of section, Lunt v. L. and N. W.R. (1866), 1 L.R. Q.B. 277. XLII. Construction of bridges over roads.-Every bridge to be erected for the purpose of carrying the railway over any road, except as otherwise provided by the special Act, shall be built in conformity with the following regulation; (that is to say), The width of the arch shall be such as to leave thereunder a clear space of not less than thirty-five feet if the arch be over a turnpike road, and of twenty-five feet if over a public carriage road, and of twelve feet if over a private road: The clear height of the arch from the surface of the road shall be not less than sixteen feet for a space of twelve feet if the arch be over a turnpike road, and fifteen feet for a space of ten feet if over a public carriage road; and in each of such cases the clear height at the springing of the arch shall not be less than twelve feet: 1 The clear height of the arch for a space of nine feet shall not be less than fourteen feet over a private carriage road : The descent made in the road in order to carry the same under the bridge shall not be more than one foot in thirty feet if the bridge be over a turnpike road, one foot in twenty feet if over a public carriage road, and one foot in sixteen feet if over a private carriage road, not being a tramroad or railroad, or if the same be a tramroad or railroad, the descent shall not be greater than the prescribed rate of inclination, and if no rate be prescribed, the same shall not be greater than as it existed at the passing of the special Act.2 1 Att.-Gen. v. Furness R. C. (1878), 47 L.J. Ch. 776. 2 As to incorporation of these provisions in private agreement, see Clarke v. M., S., and L. R.C. (1861), 1 Johns. & H. 631, [XLIX.] 8 & 9 VICT. [LI.] [LII.] [53] XLIII. Construction of bridges over railway.-Every bridge erected for carrying any road over the railway shall, except as otherwise provided by the special Act, be built in conformity with the following regulations; (that is to say), There shall be a good and sufficient fence on each side of the bridge of not The road over the bridge shall have a clear space between the fences thereof XLIV. The width of the bridges need not exceed the width of road in certain cases.- -Provided always, that in all cases where the average available width for the passage of carriages of any existing roads within fifty yards of the points of crossing the same is less than the width herein before prescribed for bridges over or under the railway, the width of such bridges need not be greater than such average available width of such roads, but so nevertheless that such bridges be not of less width, in the case of a turnpike road or public carriage road, than twenty feet; provided also, that if at any time after the construction of the railway the average available width of any such road shall be increased beyond the width of such bridge on either side thereof, the company shall be bound, at their own expense, to increase the width of the said bridge to such extent as they may be required by the trustees or surveyors of such road, not exceeding the width of such road as so widened, or the maximum width herein or in the special Act prescribed for a bridge in the like case over or under the railway.1 1 See Reg. v. Rigby (1850), 6 R.C. 479, and other cases cited in Law of Rlys. p. 465. XLV. Existing inclinations of roads crossed or diverted need not be improved. -Provided also, that if the mesne inclination of any road within two hundred and fifty yards of the point of crossing the same, or the inclination of such portion of any road as may require to be altered, or for which another road shall be substituted, shall be steeper than the inclination herein before required to be preserved by the company, then the company may carry any such road over or under the railway, or may construct such altered or substituted road at an inclination not steeper than the said mesne inclination of the road so to be crossed, or of the road so requiring to be altered, or for which another road shall be substituted. XLVI. Before roads interfered with others to be substituted.-If, in the exercise of the powers by this or the special Act granted, it be found necessary to cross, cut through, raise, sink, or use any part of any road, whether carriage road, horse road, tramroad, or railway, either public or private, so as to render it impassable for or dangerous to passengers or carriages, or to the persons entitled to the use thereof, the company shall, before the commencement of any such operations, cause a sufficient road to be made instead of the road to be interfered with and shall at their own expense maintain such substituted road in a state as convenient for passengers and carriages as the road so interfered with, or as nearly so as may be.1 1 This and the following sections apply to private as well as public roads, Becke v. Stratford, etc., R.C. (1890), W.N. 126; and to permanent as well as temporary damage, Att.Gen. v. Barry Docks and Rly. Co. (1887), 35 Ch.D. 573. See Law of Rlys. pp. 471-480, and contrast effect of secs. 46 et seq. with that of secs. 25 et seq., per Lord Chelmsford in Ed. and Gl. R.C. v. Campbell (1863), 4 Macq. 570; and see under sec. 25. See also Law and Co. v. Cal. R.C. (1851), 13 D. 1122; Campbell v. Ed. and Gl. R.C. (1855), 17 D. 613. Contrast with Hay v. C. of Gl. Un. R.C. (1874), 1 R. 1191; Cal. R.C. v. Gardiner (1873), 1 R. 271. As to special powers to stop up or interfere with streets, see Law of Rlys. pp. 478-480. XLVII. Penalty for not substituting a road.—If the company do not cause another sufficient road to be so made before they interfere with any such existing road as aforesaid, they shall forfeit twenty pounds for every day during which such substituted road shall not be made after the existing road shall have been interrupted; and such penalty shall be paid to the trustees, commissioners, surveyor, or other person having the management of such road, if a public road, and shall be applied for the purposes thereof, or in case of a private road the same shall be paid to the owner thereof; and every such penalty shall be recoverable, with costs, by action in any competent court.1 1 See Llewellyn v. Vale of Glamorgan R. C., L. R. (1897) 2 Q.B. 239. XLVIII. Party suffering damage from interruption of road to recover in an action on the case.- -If any party entitled to a right of way over any road so interfered with by the company shall suffer any special damage by reason that the company shall fail to cause another sufficient road to be made before they interfere with the existing road, it shall be lawful for such party to recover the amount of such special damage from the company, with expenses, by action in the Court of Session, if the damage claimed exceeds twenty-five pounds, or in the sheriff court, if the damage claimed does not exceed twentyfive pounds, and that whether any party shall have sued for such penalty as aforesaid or not, and without prejudice to the right of any party to sue for the same.1 1 See Watkins v. G.N.R. (1851), 20 L.J. Q.B. 391. XLIX. Period for restoration of roads interfered with.-If the road so interfered with can be restored compatibly with the formation and use of the railway, the same shall be restored to as good a condition as the same was in at the time when the same was first interfered with by the company, or as near thereto as may be; and if such road cannot be restored compatibly with the formation and use of the railway, the company shall cause the new or substituted road, or some other sufficient substituted road, to be put into a permanently substantial condition, equally convenient as the former road, or as near thereto as circumstances will allow; and the former road shall be restored, or the substituted road put into such condition as aforesaid, as the case may be, within the following periods after the first operation on the former road shall have been commenced, unless the trustees or parties having the management of the road to be restored by writing under their hands consent to an extension of the period, and in such case within such extended period (that is to say,) if the road be a turnpike road, within six months, and if the road be not a turnpike road, within twelve months.1 1 See Christie v. Cal. R.C. (1847), 10 D. 312, and Law of Rlys. pp. 472, 473; Cal. R.C. v. Gardiner (1873), 1 R. 271. L. Penalty for failing to restore road.—If any such road be not so restored, or the substituted road so completed as aforesaid, within the periods herein or in the special Act fixed for that purpose, the company shall forfeit to the trustees, commissioners, surveyor, or other person having the management of the road interfered with by the company, if a public road, or if a private road to the owner thereof, twenty pounds for every day after the expiration of such 1845. [54] [55] [LVI.] [57] 8 & 9 VICT. Cap. 33. [58] [60] [LXI.] [58] periods respectively during which such road shall not be so restored or the substituted road completed; and it shall be lawful for the sheriff or justices by whom any such penalty is imposed to order the whole or any part thereof to be laid out in executing the work in respect whereof such penalty was incurred.1 1 See Reg. v. Wilson (1852), 18 Q.B. 348; Law of Rlys. p. 472 (b). LI. Company to repair roads used by them.-If in the course of making the railway the company shall use or interfere with any road, they shall from time to time make good all damage done by them to such road; and if any question shall arise as to the damage done to any such road by the company, or as to the repair thereof by them, the same shall be determined by the sheriff or two justices; and such sheriff or justices may direct such repairs to be made in the state of such road, in respect of the damage done by the company, and within such period, as they think reasonable, and may impose on the company, for not carrying into effect such repairs, any penalty, not exceeding five pounds per day, as to such sheriff or justices shall seem just; and such penalty shall be paid to the surveyor or other person having the management of the road interfered with by the company, if a public road, and be applied for the purposes of such road, or if a private road, the same shall be paid to the owner thereof: provided always, that in determining any such question with regard to a turnpike road, the said sheriff or justices shall have regard to and make full allowance for any tolls that may have been paid by the company on such road in the course of the using thereof.1 1 See Carruthers v. Cal. R. C. 15 D. 591, 16 D. 425; Colt v. Cal. R.C. (1860), 3 Macq. 833, per Lord Campbell; West Riding and Grimsby R.C. v. Wakefield Local Board (1864), 33 L.J. M.C. 174; Exeter Road Trs. (1852), 16 Jur. 669. LII. Company to make sufficient approaches and fences to BRIDLEWAYS AND FOOTWAYS crossing on the level.-If the railway shall cross any highway other than a public carriageway on the level, the company shall at their own expense make and at all times maintain convenient ascents and descents and other convenient approaches, with handrails and other fences, and shall, if such highway be a bridleway, erect and at all times maintain good and sufficient gates, and if the same shall be a footway, good and sufficient gates or stiles on each side of the railway where the highway shall communicate therewith.1 1 See Law of Rlys. p. 470; and Williams v. G. W.R. (1874), 9 L.R. Ex. 157. LIII. Proceedings on application to sheriff or justices to consent to level crossings of bridleways and footways. When the company shall intend to apply for the consent of the sheriff or two justices, as hereinbefore provided, so as to authorise them to carry the railway across any highway other than a public carriage road on the level, they shall fourteen days at least previous to the time at which such application is intended to be made, cause notice of such intended application to be given in some newspaper circulating in the county, and also to be affixed upon the door of the parish church of the parish in which such crossing is intended to be made, or if there be no such church, some other place to which notices are usually affixed; and if it appear to the sheriff, or to any two or more justices acting for the district in which such highway at the proper crossing thereof is situate, after such notice as aforesaid, that the railway can, consistently with a due regard to the public safety and convenience, be carried across such highway on the level, it shall be lawful for such sheriff or justices to consent that the same may be so carried accordingly.1 1 See L., C., and D. R.C. v. Wandsworth Board of Works (1873), L. R. 8 C.P. 185; and Bristol and Exeter R. C. v. Tucker (1862), 13 C. B. N.S. 207. |