LIV. Sheriff or justices to have power to order approaches and fences to be made to highways crossing on the level.-If, when the railway shall cross any highway on the level, the company fail to make convenient ascents and descents or other convenient approaches, and such handrails, fences, gates, and stiles as they are herein before required to make, it shall be lawful for the sheriff or two justices, on the application of the surveyor of roads, or of any two householders within the parish or district where such crossing shall be situate, after not less than ten days' notice to the company, to order the company to make such ascent and descent or other approach, or such handrails, fences, gates, or stiles as aforesaid, within a period to be limited for that purpose by such sheriff or justices; and if the company fail to comply with such order, they shall forfeit five pounds for every day that they fail so to do; 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 applied, in such manner and by such person as they think fit, in executing the work in respect whereof such penalty was incurred.1

1 Reg. v. Schofield (1893), 69 L.T. 313.

1845. [LXII.]

SCREENS FOR TURNPIKE ROADS.

LV. Screen for turnpike road to be made if required by the Board of Trade. -If the commissioners or trustees of any turnpike road, or the surveyor of any highway, apprehend danger to the passengers on such road in consequence of horses being frightened by the sight of the engines or carriages travelling upon the railway, it shall be lawful for such commissioners or trustees or surveyor, after giving fourteen days' notice to the company, to apply to the Board of Trade with respect thereto; and if it shall appear to the said Board that such danger might be obviated or lessened by the construction of any works in the nature of a screen near to or adjoining the side of such road, it shall be lawful for them, if they shall think fit, to certify the works necessary or proper to be executed by the company for the purpose of obviating or lessening such danger, and by such certificate to require the company to execute such works within a certain time after the service of such certificate, to be appointed by the said Board.1

1 But dist. Simkin v. L. and N. W.R. (1888), 21 Q.B.D. 453.

LVI. Penalty for failing to construct.-Where by any such certificate as aforesaid the company shall have been required to execute any such work in the nature of a screen, they shall execute and complete the same within the period appointed for that purpose in such certificate, and if they fail so to do, they shall forfeit to the commissioners or trustees or surveyor five pounds for every day during which such works shall remain uncompleted beyond the period so appointed for their completion; and it shall be lawful for the 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.

CONSTRUCTION OR REPARATION OF BRIDGES.

LVII. Sheriff or justices to have power to order repair of bridges, etc.— Where, under the provisions of this or the special Act, or any Act incorporated therewith, the company are required to maintain or keep in repair any bridge, fence, approach, gate, or other work executed by them, it shall be lawful for the sheriff or two justices, on the application of the surveyor of roads, or of any two householders of the parish or district where such work may be

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situate, complaining that any such work is out of repair, after not less than ten days' notice to the company, to order the company to put such work into complete repair within a period to be limited for that purpose by such sheriff or justices; and if the company fail to comply with such order they shall forfeit five pounds for every day that they fail so to do; 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 applied, in such manner and by such persons as they think fit, in putting such work into repair.

LVIII. Board of Trade empowered to modify the construction of certain roads, bridges, etc., where a strict compliance with the Act is impossible or inconvenient. In case any difference in regard to the construction, alteration, or restoration of any road or bridge, or other public work of an engineering nature, required by the provisions of this or the special Act, shall arise between the company and any trustees, commissioners, surveyors, or other persons having the control of or being authorised by law to enforce the construction of such road, bridge, or work, it shall be lawful for either party, after giving fourteen days' notice in writing of their intention so to do to the other party, to apply to the Board of Trade to decide upon the proper manner of constructing, altering, or restoring such road, bridge, or other work; and it shall be lawful for the Board of Trade, if they shall think fit, to decide the same accordingly, and to authorise, by certificate in writing, any arrangement or mode of construction in regard to any such road, bridge, or other work which shall appear to them either to be in substantial compliance with the provisions of this and the special Act, or to be calculated to afford equal or greater accommodation to the public using such road, bridge, or other work; and after any such certificate shall have been given by the Board of Trade, the road, bridge, or other work therein mentioned shall be constructed by the company in conformity with the terms of such certificate, and being so constructed, shall be deemed to be constructed in conformity with the provisions of this and the special Act: provided always, that no such certificate shall be granted by the Board of Trade unless they shall be satisfied that existing private rights or interests will not be injuriously affected thereby.

1 Preceding words omitted by 54 & 55 Vict. c. 67.

LIX. Authentication of certificates of the Board of Trade, service of notices, etc.-And be it enacted, that all regulations, certificates, notices, and other documents in writing purporting to be made or issued by or by the authority of the Board of Trade, and signed by some officer appointed for that purpose by the Board of Trade, shall, for the purposes of this and the special Act, and any Act incorporated therewith, be deemed to have been so made and issued, and that without proof of the authority of the person signing the same, or of the signature thereto, which matters shall be presumed until the contrary be proved; and service of any such document, by leaving the same at one of the principal offices of the railway company, or by sending the same by post addressed to the secretary at such office, shall be deemed good service upon the company; and all notices and other documents required by this or the special Act to be given to or laid before the Board of Trade shall be delivered at, or sent by post addressed to, the office of the Board of Trade in London.

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WORKS FOR ACCOMMODATION AND PROTECTION OF LANDS.

And with respect to works for the accommodation of lands adjoining the railway, be it enacted as follows:

LX. Works to be erected for the accommodation of adjoining lands.-The

company shall make and at all times thereafter maintain the following works for the accommodation of the owners and occupiers of lands adjoining the railway; (that is to say),

Gates, Bridges, etc.-Such and so many convenient gates, bridges, arches, culverts, and passages over, under, or by the sides of or leading to or from the railway as shall be necessary for the purpose of making good any interruptions caused by the railway to the use of the lands through which the railway shall be made; and such works shall be made forthwith after the part of the railway passing over such lands shall have been laid out or formed, or during the formation thereof : Fences. Also sufficient posts, rails, hedges, ditches, mounds, or other fences for separating the land taken for the use of the railway from the adjoining lands not taken, and protecting such lands from trespass, or the cattle of the owners or occupiers thereof from straying thereout, by reason of the railway, together with all necessary gates made to open towards such adjoining lands, and not towards the railway, and all necessary stiles; and such posts, rails, and other fences shall be made forthwith after the taking of any such lands, if the owners thereof shall so require, and the said other works as soon as conveniently may be. Drains. Also all necessary arches, tunnels, culverts, drains, or other passages, either over or under or by the sides of the railway, of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the making of the railway, or as nearly so as may be; and such works shall be made from time to time as the railway works proceed :

Watering places. Also proper watering places for cattle where by reason of the railway the cattle of any person occupying any lands lying near thereto shall be deprived of access to their former watering places; and such watering places shall be so made as to be at all times as sufficiently supplied with water as theretofore, and as if the railway had not been made, or as nearly so as may be; and the company shall make all necessary watercourses and drains for the purpose of conveying water to the said watering places;

Provided always, that the company shall not be required to make such accommodation works in such a manner as would prevent or obstruct the working or using of the railway, and that the company may, in lieu of such accommodation works, make compensation to the owners and occupiers of the lands, for the want thereof, in such manner as may be agreed upon between the company and such owners and occupiers, nor to make any accommodation works with respect to which the owners, lessees, and occupiers of the lands shall have agreed to receive and shall have been paid compensation instead of the making of them.2

1 Compare 5 & 6 Vict. c. 55, sec. 10.

2 For commentary on and illustration of this and the following sections, see Law of Rlys. Part V. chap. iii. pp. 481-494, and cases there cited. Owners and occupiers are the only creditors in the obligation imposed, Monklands R. C. v. Waddell (1861), 23 D. 1167; Matson v. Baird (1877), 5 R. 87; Buxton v. N.E. R. (1868), 3. L.R. Q. B. 549; and other cases cited in Law of Rlys. pp. 482-485. Accommodation works fall to be constructed only for existing uses, Reg. v. M. and S.W.R., e.p. Brown (1867), 8 B. & S. 456; but may be used for all purposes subsequently, United Land Co. v. G. E. R.C. (1875), L.R. 10 Ch. 586; Finch v. G. W.R. (1879), 5 Ex. D. 254. As to agreements for such works and the extent to which the court will enforce specific performance, see Law of Rlys. pp. 491-494. As to crossings for private roads or railways, ibid. p. 497; sidings, p. 498; stations, pp. 499-501; drainage, etc., p. 504. As to agreements for the stoppage of trains, ibid. pp. 501-504. As to discretion and powers of company in constructing, see Wilkinson v. Hull, etc., Dock and Rly. Co. (1882), 20 Ch.D. 323; Rangely v. M.R. (1868), 3 L.R. Ch. 306; Beauchamp v. G. W.R. (1868), 3 L. R. Ch. 745; Cal. R.C. v. Gardiner (1873), 1 R. 271. As to liability in respect of

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defective condition of fences, culverts, etc., see Law of Rlys. pp. 482-485, and cases there cited, and 489-491; and cases of Colley v. L. and N. W.R. (1880), 5 Ex. D. 277, and Ryan v. G. S. and W. R. (1892), 32 L. R. Ir. 15, contrasted with Corry v. G. W.R. (1881), 7 Q.B.D. 322. See also Bessant v. G. W.R. (1860), 8 C. B. N.S. 368. As to liability in connection with obligations to keep gates closed, see Law of Rlys. pp. 485-486. As to liability for works not accommodation, and where damage is caused by non-maintenance, see Reg. v. Fisher (1862), 32 L.J. M.C. 12, and other cases Law of Rlys. p.486 note (d); and Keates v. Holywell R.C. (1873), 28 L.T. 183. See also Dixon v. G. W.R. L. R. (1897), 1 Q. B. 300.

LXI. Differences as to accommodation works to be settled by sheriff or justices.— If any difference arise respecting the kind or number of any such accommodation works, or the dimensions or sufficiency thereof, or respecting the maintaining thereof, the same shall be determined by the sheriff or two justices; and such sheriff or justices shall also appoint the time within which such works shall be commenced and executed by the company.1

1 See Black v. Formartine and Buchan R.C. (1861), 23 D. 600; Main v. Lanarkshire and Dumbartonshire R.C. (1893), 21 R. 323; L. and D. R.C. v. Main (1894), 21 R. 1018; and other cases cited in Law of Rlys. p. 487, and ibid. pp. 276, 277, and 365.

LXII. Execution of works by owners on default by the company.—If for seven days next after the time appointed by such sheriff or justices for the commencement of any such works, the company shall fail to commence such works, or having commenced, shall fail to proceed diligently to execute the same in a sufficient manner, it shall be lawful for the party aggrieved by such failure himself to execute such works or repairs; and the reasonable expenses thereof shall be repaid by the company to the party by whom the same shall so have been executed; and if there be any dispute about such expenses, the same shall be settled by the sheriff or two justices; provided always, that no such owner or occupier or other person shall obstruct or injure the railway, or any of the works connected therewith, for a longer time, nor use them in any other manner, than is unavoidably necessary for the execution or repair of such accommodation works.

LXIII. Power to owners of land to make additional accommodation works.— If any of the owners or occupiers of lands affected by such railway shall consider the accommodation works made by the company, or directed by such sheriff or justices to be made by the company, insufficient for the commodious use of their respective lands, it shall be lawful for any such owner or occupier, at his own expense, to make such further works for that purpose as he shall think necessary, and as shall be agreed to by the company, or, in case of difference, as shall be authorised by the sheriff or two justices.1

1 See Rhondda and Swansea R. C. v. Talbot, L. R. (1897), 2 Ch. 131.

LXIV. Such works to be constructed under the superintendence of the company's engineer.-If the company so desire, all such last-mentioned accommodation works shall be constructed under the superintendence of their engineer, and according to plans and specifications to be submitted to and approved by such engineer; nevertheless the owners or occupiers of lands shall not be entitled to require either that plans should be adopted which would involve a greater expense than that incurred in the execution of similar works by the company, or that the plans selected should be executed in a more expensive manner than that adopted in similar cases by the company.

LXV. Accommodation works not to be required after five years.-The company shall not be compelled to make any further or additional accommodation works for the use of owners and occupiers of land adjoining the railway after the expiration of the prescribed period, or, if no period be prescribed, after five years from the opening of the railway for public use.1

1 See Colley v. L. and N. W.R. (1880), L. R. 5 Ex. D. 277; Dixon v. G. W.R., L.R. (1896), 2 Q.B. 333, and (1897), Q. B. 300; Darnley v. L., C., and D. R.C. (1867), L.R. 2 E. & I. App. 43, and other cases cited in Law of Rlys. pp. 489-491.

LXVI. Owners to be allowed to cross until accommodation works are made. Until the company shall have made the bridges or other proper communications which they shall under the provisions herein or in the special Act, or any Act incorporated therewith, contained, have been required to make between lands intersected by the railway, and no longer, the owners and occupiers of such lands, and any other persons whose right of way shall be affected by the want of such communication, and their respective servants, may at all times freely pass and repass, with carriages, horses, and other animals, directly (but not otherwise) across the part of the railway made in or through their respective lands, solely for the purpose of occupying the same lands, or for the exercise of such right of way, and so as not to obstruct the passage along the railway, or to damage the same; nevertheless, if the owner or occupier of any such lands have in his arrangements with the company received or agreed to receive compensation for or on account of any such communications, instead of the same being formed, such owner or occupier, or those claiming under him, shall not be entitled so to cross the railway.1

1 See Grand Junction R.C. v. White (1841), 2 R.C. 559; and Manning v. Eastern Counties R. C. (1843), 13 L.J. Ex. 265.

LXVII. Materials, etc., to vest in company for purposes of prosecution -During the execution of any contract made with the company the works in course of being done under such contract, and all the materials of every description brought upon or near such works for the purpose of being used in the execution of such contract, shall, in all proceedings instituted by them for the purpose protecting the same, or by the public prosecutor for the purpose of punishment on account of offences committed against the same, be held to be the property of the company.

of

LXVIII. Penalty on persons omitting to fasten gates.-If any person omit to shut and fasten any gate set up at either side of the railway, for the accommodation of the owners or occupiers of the adjoining lands, as soon as he, and the carriage, cattle or other animals, under his care, have passed through the same, he shall forfeit for every such offence any sum not exceeding forty shillings.

BRANCH RAILWAYS.

LXIX. Power to make private communicating branch railways. Restrictions and conditions.—And be it enacted, that this or the special Act shall not prevent the owners or occupiers of land adjoining to the railway, or any other persons, from laying down, either upon their own lands or upon the lands of other persons, with the consent of such persons, any collateral branches of railway, to communicate with the railway, for the purpose of bringing carriages to or from or upon the railway, but under and subject to the provisions and restrictions of an Act passed in the sixth year of the reign of her present Majesty, intituled "An Act for the better Regulation of Railways, and for the Conveyance of Troops"; and the company shall, if required, at the expense of such owners and occupiers and other persons, and subject also to the provisions of the said last-mentioned Act, make openings in the rails, and such additional lines of rail as may be necessary for effecting such communication, in places where the communication can be made with safety to the public, and without injury to the railway, and without inconvenience to the traffic thereon; and the company shall not take any rate or toll or other moneys for the passing of any passengers, goods, or other things along any branch so to be made by any such owner or occupier or other person; but this enactment shall be subject to the following restrictions and conditions; (that is to say), No such branch railway shall run parallel to the railway:

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