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8 & 9 VICT. Cap. 33.

[LXXVII.]

[78]

The Company shall not be bound to make any such openings in any place which they shall have set apart for any specific purpose with which such communication would interfere, nor upon any inclined plane or bridge, nor in any tunnel :

The persons making or using such branch railways shall be subject to all bye-laws and regulations of the company from time to time made with respect to passing upon or crossing the railway, and otherwise; and the persons making or using such branch railways shall be bound to construct, and from time to time, as need may require, to renew, the offset plates and switches according to the most approved plan adopted by the company, and under the direction of their engineer.i

1 See Law of Rlys. pp. 495-497; Cal. R.C. v. Gardiner (1873), 1 R. 271; M'Laren v. Snowdone (1861), 23 D. 962; Matson v. Baird (1878), 5 R.H.L. 211; Monkland and Kirkintilloch R.C. v. Dixon (1842), 3 R.C. 273; Woodruff v. Brecon and Merthyr J. R.C. (1884), 28 Ch. D. 190. As to provisions in special Acts, see 51 & 52 Vict. c. 25, sec. 9; Bell v. M.R. (1859), 3 De G. & J. 673; Laird v. Birkenhead R.C. (1859), 1 Johns. 500; and Portway v. Colne Valley and Halstead R. C. (Rly. Com. 1891), 7 R. & C.T. Ca. 102. As to bye-laws under the section see Rhymney R.C. v. Taff Vale R.C. (1860), 30 L.J. Ch. 482.

WORKING OF MINES.

And with respect to mines lying under or near the railway, be it enacted as follows:

:

LXX. Promoters of the undertaking not to be entitled to minerals.—The company shall not be entitled to any mines of coal, ironstone, slate, or other minerals under any land purchased by them, except only such parts thereof as shall be necessary to be dug or carried away or used in the construction of the works, unless the same shall have been expressly purchased; and all such mines, excepting as aforesaid, shall be deemed to be excepted out of the conveyance of such lands, unless they shall have been expressly named therein and conveyed thereby.1

1 For commentary on and illustration of this and the following sections see Law of Rlys. pp. 189-197, and cases there cited. As to what are "mines and minerals" in sense of the Act, pp. 196, 197. On sec. 70, see Nisbet Hamilton v. N.B.R. (1886), 13 R. 454, contrasted with Hopetoun v. N.B.R. (1893), 20 R. 704, and Loosemore v. Tiverton and North Devon R.C. (1888), 22 Ch.D. 25, at p. 42. The purchase by the company may be at any time before the expiry of the compulsory powers, Errington v. Metr. Dist. R. C. (1882), 19 Ch. D. 559.

LXXI. Mines lying near the railway not to be worked if the company willing to purchase them.-If the owner, lessee, or occupier of any mines or minerals lying under the railway, or any of the works connected therewith, or within the prescribed distance, or, where no distance shall be prescribed, forty yards therefrom, be desirous of working the same, such owner, lessee, or occupier shall give to the company notice in writing of his intention so to do thirty days before the commencement of working; and upon the receipt of such notice, it shall be lawful for the company to cause such mines to be inspected by any person appointed by them for the purpose; and if it appear to the company that the working of such mines, either wholly or partially, is likely to damage the works of the railway, and if the company be desirous that such mines or any parts thereof should be left unworked, and if they be willing to make compensation for such mines or minerals, or such parts thereof as they desire to be left unworked, they shall give notice to such owner, lessee, or occupier of such their desire, and shall in such notice specify the parts of the mines under the railway or works or within the distance aforesaid which they shall desire to be left unworked, and for which they shall be willing to make compensation; and in such case such owner, lessee, or occupier shall not work or get the mines or minerals comprised in such notice;

and the company shall make compensation for the same, and for all loss or damage occasioned by the non-working thereof, to the owner, lessee, and occupier thereof respectively; and if the company, and such owner, lessee, or occupier, do not agree as to the amount of such compensation, the same shall be settled as in other cases of disputed compensation.1

1 As to the notice by owner, see G. and S. W.R. v. Bain (1893), 31 S. L. R. 98; M.R. v. Robinson (1887), 37 Ch.D. 386, 15 A.C. 19. As to who is entitled to compensation and when, Lord Gerard v. L. and N. W.R. L.R. (1894), 2 Q.B. 915, and L.R. (1895), 1 Q. B. 459; Smith v. G. W.R. (1877), 2 A.C. 165. As to working beyond the forty yards' distance, see M. R. v. Checkley (1867), 4 L.R. Eq. 19. As to effect of the thirty days' period, see Wm. Dixon, Lim. v. Cal. and G. and S. W.R. Cos. (1879), 7 R. H.L. 116, L.R. 5 A.C. 820. Compensation for minerals is not within conditions of bond, under sec. 84, Neath and Brecon R.C. (1876), 2 Ch. D. 201.

LXXII. If company unwilling to purchase owner may work the mines.—If before the expiration of such thirty days the company do not give notice of their desire to have such mines left unworked, and of their willingness to make such compensation as aforesaid, it shall be lawful for such owner, lessee, or occupier to work the said mines, or such parts thereof for which the company shall not have agreed to pay compensation, up to the limits of the mines or minerals for which they shall have agreed to make compensation, in such manner as such owner, lessee, or occupier shall think fit, for the purpose of getting the minerals contained therein; and if any damage or obstruction be occasioned to the railway or works by the working or getting of any such minerals which the company shall so have required to be left unworked, and for which they shall so have agreed to make compensation, the same shall be forthwith repaired or removed, as the case may require, and such damage made good, by the owner, lessee, or occupier of such mines or minerals, and at his own expense; and if such repair or removal be not forthwith done, or, if the company shall so think fit, without waiting for the same to be done by such owner, lessee, or occupier, it shall be lawful for the company to execute the same, and recover from such owner, lessee, or occupier the expense occasioned thereby by action in any competent court.1

1 The effect of this and the preceding provisions is to take away the company's common law right to support, G. W.R. v. Bennett, 2 L. R. E. & I. App. 27, and other cases Law of Rlys. p. 192; and to entitle the owner to work unless the company purchase or compensate. As to tunnel, see L. and N. W.R. v. Ackroyd (1862), 31 L.J. Ch. 588. As to method of working by owner, see M.R. v. Robinson (1889), 15 A.C. 19; Ruabon Brick and Terra Cotta Co. v. G. W.R. L. R. (1893), 1 Ch. 427; and other cases Law of Rlys. p. 196. As to company's obligation re line thus let down, R. v. G. W.R. (1893), 62 L.J. Q.B. 572.

LXXIII. Mining communications.-If the working of any such mines or minerals under the railway or works, or within the above-mentioned distance therefrom, be prevented as aforesaid by reason of apprehended injury to the railway, it shall be lawful for the respective owners, lessees, and occupiers of such mines, and whose mines shall extend so as to be on both sides of the railway, to cut and make such and so many airways, headways, gateways, or water levels through the mines, measures, or strata the working whereof shall be so prevented as may be requisite to enable them to ventilate, drain, and work their said mines; but no such airway, headway, gateway, or water level shall be of greater dimensions or section than the prescribed dimensions and sections, and where no dimensions shall be prescribed, not greater than eight feet wide and eight feet high, nor shall the same be cut or made upon any part of the railway or works, or so as to injure the same, or to impede the passage thereon.1

1 See M. R. v. Miles (1885), 30 Ch. D. 634; M.R. v. Miles (1886), 33 Ch.D. 632; and Law of Rlys. p. 194.

K

1845.

[79]

[LXXX]

8 & 9 VICT. Cap. 33.

[81]

[LXXXII.]

[83]

[LXXXIV.]

[85]

LXXIV. Company to make compensation for injury done to mines.-The company shall from time to time pay to the owner, lessee, or occupier of any such mines extending so as to be on both sides of the railway all such additional expenses and losses as shall be incurred by such owner, lessee, or occupier by reason of the severance of the lands lying over such mines by the railway, or of the continuous working of such mines being interrupted as aforesaid, or by reason of the same being worked in such manner and under such restrictions as not to prejudice or injure the railway, and for any minerals not purchased by the company, which cannot be obtained by reason of making and maintaining the railway; and if any dispute or question shall arise between the company, and such owner, lessee, or occupier as aforesaid, touching the amount of such losses or expenses, the same shall be settled as in other cases of disputed compensation.1

1 See Whitehouse v. Wolverhampton and Walsall R.C. (1869), 5 L.R. Ex. 6; Glasgow, Barrhead, etc., R.C. v. Nitshill Coal Co. (1848), 11 D. 327; Barnsley Canal Co. v. Twibell (1844), 13 L.J. Ch. 434; and Law of Rlys. pp. 194, 195.

LXXV. And also for any airway or other work made necessary by the railway.-If any loss or damage be sustained by the owner or occupier of the lands lying over any such mines the working whereof shall have been so prevented as aforesaid (and not being the owner, lessee, or occupier of such mines), by reason of the making of any such airway or other work as aforesaid, which or any like work would not have been necessary to be made but for the working of such mines having been so prevented as aforesaid, the company shall make full compensation to such owner or occupier of the surface lands for the loss or damage so sustained by him.

LXXVI. Power to company to enter and inspect the working of mines.— For better ascertaining whether any such mines are being worked or have been worked so as to damage the railway or works, it shall be lawful for the company, after giving twenty-four hours' notice in writing, to enter upon any lands through or near which the railway passes wherein any such mines are being worked or are supposed so to be, and to enter into and return from any such mines or the works connected therewith; and for that purpose it shall be lawful for them to make use of any apparatus or machinery connected with such mines belonging to the owner, lessee, or occupier of such mines upon payment of the reasonable cost of using and working the same, and of any loss thereby occasioned to the working of the mines, or otherwise, and to use all necessary means for discovering the distance from the railway to the parts of such mines which are being worked or about so to be.

LXXVII. Penalty for refusal to allow inspection.-If any such owner, lessee, or occupier of any such mine shall refuse to allow any person appointed by the company for that purpose to enter into and inspect any such mines or works in manner aforesaid, every person so offending shall for every such refusal forfeit to the company a sum not exceeding twenty pounds.

LXXVIII. If mines improperly worked supports to be made.-If it appear that any such mines have been worked contrary to the provisions of this or the special Act, the company may, if they think fit, give notice to the owner, lessee, or occupier thereof to construct such supports or works, and to adopt such means as may be necessary or proper for making safe the railway, and preventing injury thereto; and if after such notice, any such owner, lessee, or occupier do not forthwith proceed to construct the works necessary for making safe the railway, the company may themselves construct such works, and recover the expense thereof from such owner, lessee, or occupier by action in any competent court.

PASSENGERS AND GOODS ON RAILWAY.

And with respect to the carrying of passengers and goods upon the railway, and the tolls to be taken thereon, be it enacted as follows:

1845.

LXXIX. Company to employ locomotive power, carriages, etc.-It shall be [LXXXVI.] lawful for the company to use and employ locomotive engines or other moving power, and carriages and waggons to be drawn or propelled thereby, and to carry and convey upon the railway all such passengers and goods as shall be offered to them for that purpose, and to make such reasonable charges in respect thereof as they may from time to time determine upon, not exceeding the tolls by the special Act authorised to be taken by them.1

1 As to the distinction between conveyance and carriage, see Law of Rlys. Part VII. chap. i. pp. 541-561. As to the liability in respect of traffic in private waggons, ibid. pp. 561-563. As to the obligations of the Company under the Railway and Canal Traffic Acts, ibid. Part VII. chap. ii. pp. 564-604.

As to their responsibility in respect of the carriage of goods, ibid. Part VII. chaps. iv. and v. pp. 625-660; of live stock, chap. vi. pp. 661-676; of passengers, chap. vii. pp. 677726 (liability in respect of bodily injuries); and chap. viii. (regulation of traffic, detention of trains, disputes with passengers, acts of servants, etc.) pp. 727-763; of passengers' luggage, chap. ix. pp. 764-784; and also Pratt v. S. E. R. L. R. (1897), 1 Q.B. 718.

As to how far company are common carriers, see Law of Rlys. pp. 558-560, and Johnson v. M.R. (1849), 6 R.C. 61; and as to their obligation to carry under the Railway and Canal Traffic Act, 1854, Law of Rlys. pp. 557, 558, and Dickson v. G. N. R. (1887), 18 Q.B. D. 176. As to the "toll" and "limiting charges" clauses of special Acts, see Law of Rlys. pp. 546-548.

LXXX. Company empowered to contract with other companies.-It shall be [LXXXVII.] lawful for the company from time to time to enter into any contract with any other company, being the owners or lessees or in possession of any other railway, for the passage over or along the railway by the special Act authorised to be made of any engines, coaches, waggons, or other carriages of any other company, or which shall pass over any other line of railway, or for the passage over any other line of railway of any engines, coaches, waggons, or other carriages of the company, or which shall pass over their line of railway, upon the payment of such tolls and under such conditions and restrictions as may be mutually agreed upon; and for the purpose aforesaid it shall be lawful for the respective parties to enter into any contract for the division or apportionment of the tolls to be taken upon their respective railways.1

1 As to running powers, see Law of Riys. pp. 528-532; and as to reasonable regulations re the exercise, Rhymney R.C. v. Taff Vale R.C. (1860), 29 Beav. 153.

As to joint stations, Law of Rlys. pp. 533-537, and 5 & 6 Vict. c. 55, sec. 11; 31 & 32 Vict. c. 119, sec. 30; and 27 & 28 Vict. c. 120, sec. 3.

As to junctions, Railways Clauses Act, 1863, 26 & 27 Vict. c. 92, and Law of Rlys. p. 532. As to working agreements, Railways Clauses Act, 1863, Part III., and Law of Rlys. pp. 537-539. As to agreements held void as amounting to a delegation of the company's statutory powers, see Law of Rlys. pp. 135-137; also Ritchie v. Sc. Central R.C. (1847), 20 Jur. 62; and contrast G. N.R. v. South Yorkshire and River Dun Rly. Co. (1854), 9 Ex. 642, rev. 22 L.J. Ch. 761.

LXXXI.-Contracts not to affect persons not parties thereto.- Provided [LXXXVIII.] always, that no such contract as aforesaid shall in any manner alter, affect, increase, or diminish any of the tolls which the respective companies, parties to such contracts, shall for the time being be respectively authorised and entitled to demand or receive from any person or any other company, but that all other persons and companies shall, notwithstanding any such contract, be entitled to the use and benefit of any of the said railways, upon the same terms and conditions, and on payment of the same tolls, as they would have been in case no such contract had been entered into.

8 & 9 VICT. Cap. 33.

[89]

[XC.]

[91]

LXXXII. Company not to be liable to a greater extent than common carriers. -Nothing in this or the special Act contained shall extend to charge or make liable the company further or in any other case than where, according to the laws of Scotland, stage coach proprietors and common carriers would be liable, nor shall extend in any degree to deprive the company of any protection or privilege which common carriers or stage coach proprietors may be entitled to; but, on the contrary, the company shall at all times be entitled to the benefit of every such protection and privilege.1

1 See note to sec. 79, also the Carriers Act, supra, p. 1, and The Railway and Canal Traffic Act, 1854, infra.

LXXXIII. Power to vary tolls under like circumstances. TOLLS TO BE CHARGED EQUALLY under like circumstances.-And whereas it is expedient that the company should be enabled to vary the tolls upon the railway so as to accommodate them to the circumstances of the traffic, but that such power of varying should not be used for the purpose of prejudicing or favouring particular parties, or for the purpose of collusively and unfairly creating a monopoly, either in the hands of the company or of particular parties; it shall be lawful therefore for the company, subject to the provisions and limitations herein and in the special Act contained, from time to time to alter or vary the tolls by the special Act authorised to be taken, either upon the whole or upon any particular portions of the railway, as they shall think fit; provided that all such tolls be at all times charged equally to all persons, and after the same rate, whether per ton per mile or otherwise, in respect of all passengers, and of all goods or carriages of the same description, and conveyed or propelled by a like carriage or engine passing only over the same portion of the line of railway under the same circumstances; and no reduction or advance in any such tolls shall be made either directly or indirectly in favour of or against any particular company or person travelling upon or using the railway.1

1 Sec. 83 is "THE EQUALITY CLAUSE." See Law of Rlys. pp. 565-569. See also Railway and Canal Traffic Acts, 1854, 1873, 1888, and 1894.

As to steam-boat traffic, see 31 & 32 Vict. c. 119, sec. 16.

As to meaning of "tolls" in this section, see H. R. v. Jackson (1876), 3 R. 850, per L. P.; also M., S., and L. R. C. v. Denaby Main Col. Co. (1884), 14 Q.B.D. 223, per Lindley, J. As to what is necessary to constitute violation, Murray v. G. and S. W.R. (1883), 11 R. 205; Cal. R.C. v. Cross (1889), 16 R. 584; Yeats Trs. v. G. and S. W. R. (1889), 16 R. 535; Finnie v. G. and S. W.R. (1853), 15 D. 523, 2 Macq. 177; in re Caterham R.C. (1857), 1 C. B. N.S. 410 (cf. Att.-Gen. v. Birmingham and Derby J. R.C. (1840), 2 R.C. 124); Denaby Main Col. Co. v. M., S., and L. R. C. (1885), 11 A.C. 97; Evershed v. L. and N. W.R. (1878), 3 A.C. 1029.

As to the remedies for contravention, see G. W.R. v. Sutton (1868), 4 L.R. H.L. 226; L. and Y. R.C. v. Gidlow (1875), L.R. 7 H.L. 517, and per L. P. in Murray, supra. See also Hosie v. Ed. and Gl. R.C. (1856), 19 D. 65.

As to averment of contravention in defence to action for charges, N.B.R. v. Russell (1893), 1 S. L.T. 336 (L.O.)

As to "packed parcels," see Law of Rlys. pp. 566, 567, and cases there cited.

LXXXIV. How tolls to be calculated where railways are amalgamated.—And whereas authority has been given by various Acts of Parliament to railway companies to demand tolls for the conveyance of passengers and goods and for other services over a fraction of a mile equal to the toll which they are authorised to demand for one mile; be it enacted, that in cases in which any railway shall be amalgamated with any other adjoining railway or railways, such tolls shall be calculated and imposed at such rates as if such amalgamated railways had originally formed one line of railway.1

As to recovery by the amalgamated company of tolls due to the dissolved company, see 26 & 27 Vict. c. 92, sec. 40, infra. As to construction of word "tolls" in this section, see per L. P. Inglis in H. R. v. Jackson (1876), 3 R. 850.

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