1852.

THE QUEEN

v.

THE

no steps towards the making of the Railway, are not bound to take any, I think there ought to be judgment for the prosecutor, with the award of a peremptory mandamus. LANCASHIRE The case is certainly one of the most important ever arRAILWAY Co. gued in Westminster Hall, and it is attended with considerable difficulty. I therefore earnestly hope, that, as speedily as possible, it may be brought by writ of error before a superior tribunal (a).

& YORKSHIRE

COLERIDGE, J.-I am of the same opinion; and, as I have had the opportunity of reading and considering attentively both the judgments of my Lord, now delivered, it is scarcely necessary for me to add more than my concurrence in the conclusion to which he has come, and, speaking generally, to the arguments and view of the authorities by which he has been led to it, I should merely waste time in an attempt to repeat the former or reexamine the latter. In the case now for decision, it seems to me perfectly clear, that if the writ discloses a primâ facie case on which it can be supported, the return alleges nothing whatever to displace that case. The return can be no answer, unless this can be maintained, that the defendants may, by a representation to the legislature, of which they are called on to prove the truth, that it will be a great public benefit that a Railway should be constructed through a particular district and by a particular line, and that they are willing at their own expense so to construct it, procure from the legislature all necessary powers, and most stringent they are, for that purpose; that by these powers they should at once, and for the whole number of years specified by the Act, take from the landowners on the line the free use of their property, impede all improvements, prevent all sales; that they

(a) A writ of error has been brought, and is now pending. His

Lordship stated that Crompton,
J., concurred in this judgment.

1852.

v.

THE

& YORKSHIRE RAILWAY CO.

should indirectly, but effectually, prevent the district from the admitted benefit of having a Railway constructed by THE QUEEN other parties; and yet that they, having thus procured the powers, given the undertaking, and occasioned the LANCASHIRE inconvenience above stated, may simply do nothing, retaining however all their powers for the time specified. In this case the defendants allege no inconvenience-no impossibility of making the line-no want of funds, means, or time; so that the bare and single circumstances of their having done nothing is relied on to relieve them from the obligation of doing anything. The very statement of these circumstances seems to me sufficient to shew how entirely impossible it is to sustain this return.

The real question then is on the writ; and after much consideration and some hesitation, I am of opinion that it discloses a sufficient legal right in the individual promoting it, and a sufficient obligation on the defendants, to render it valid. It alleges that the whole of the projected line would pass through the townships of Wooldale and Cartworth; that Mr. Hinchcliff was and is owner of lands in Cartworth, through which the line will pass; that these lands are shewn on the plans, and his name included in the books of reference; and that he is desirous the line should be made. He is therefore not merely interested as one of the public in the general benefits to result from the projected line-he is not merely one of the public on whose behalf the contract has been made for the construction of the Railway, but individually he has been affected in his property by the acts of the defendants. Ever since the statute passed at their instance; they have exercised a control over his lands, and he has been impeded in improving them, and substantially prevented from selling them. The only recompense for this is the specific performance of that which was originally contemplated by the parties, and intended to be provided by the legislature; none other would be complete; and to this

1852.

THE QUEEN

v.

THE

LANCASHIRE

he has a legal right. I therefore agree with my Lord, that our judgment should be for the Crown.

ERLE, J., stated that he adhered to the opinion which

& YORKSHIRE he had given in Reg. v. The York and North Midland

RAILWAY Co. Railway Company (a), but delivered no judgment.

Judgment for the Crown.

(a) The preceding case.

COURT OF COMMON PLEAS.

Nov. 25th.

Michaelmas Term, 1852.

LITTLE V. THE NEWPORT, ABERGAVENNY, AND HEREFORD
RAILWAY COMPANY.

Under the 13th THIS

& 15th sections of the 8 Vict.

c. 20, where a tunnel is

marked on the deposited plans of a Railway,

there can be no

deviation with in the limits of

deviation, unless the landowner consent; but the tunnel must be made

at the spot in

dicated: and if
the Company
deviate where

they ought not,
no special duty
is imposed
upon them to
make a tunnel

on the deviated
line.

was an action on the case, brought by order of the Lords Justices of appeal in Chancery, against the above Company, for having constructed their line within the limits of deviation otherwise than by a tunnel. The pleadings, which it is unnecessary to set out, raised the simple question, whether, on a line of Railway deviated within the limits of deviation, a Railway Company can legally deviate where a tunnel is shewn on the deposited plans.

At the trial, before Jervis, C. J., at the London Sittings after Trinity Term last, the plaintiff had a verdict on the material issue, leave being reserved to the defendants to move to set aside that verdict, and instead thereof to enter the verdict for the defendants.

A rule having been obtained accordingly,

Crowder, Byles, Serjt., Barstow, and M. A. Shee shewed

cause (a). The question raised depends upon the construction of the 13th and 15th (b) sections of the 8 Vict. c. 20. "Deviation" is mentioned generally in the 15th section, and the meaning is, that where the line is deviated, it must be with all its incidents, and where a tunnel is marked on the plans, and the line is deviated, there also a tunnel must be made. [Maule, J.-If the defendants are bound to make a tunnel as marked on the plans, the plaintiff cannot say that they are bound also to tunnel on the deviated line; and if the true construction of the Act be, that, when a tunnel is marked on the plans, there the Company cannot deviate, then the plaintiff is not entitled to recover. The 8 Vict. c. 20 is not intended to apply to all cases, but assumes, as to particular Railways, that there will be special Acts containing provisions relative to the ground through which the line will go.

(a) Before Jervis, C. J., Maule, J., Williams, J., and Talfourd, J.

(b) Sect. 13. "Where in any place it is intended to carry the Railway on an arch or arches or other viaduct, as marked on 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 80 made.

Sect. 15. "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 de

viation delineated upon the said
plans, nor to a greater extent in
passing through a town, village,
or lands continuously built upon,
than ten yards, or elsewhere to
a greater extent than one hun-
dred 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 refer-
ence, without the previous con-
sent in writing of such person,
unless the name of such person
shall have been omitted by mis-
take, and the fact that such
omission proceeded from mistake
shall have been certified in man-
ner herein or in the special Act
provided for in cases of uninten-
tional errors in the said books of
reference."

1852.

LITTLE

v.

THE NEWPORT, ABERGAVEN

NY, AND HEREFORD RAILWAY Co.

1852.

LITTLE

v.

THE

NEWPORT, ABERGAVEN

NY, AND HEREFORD RAILWAY CO.

The necessity of a tunnel varies according to the nature
of the country through which the line passes, and is a fit
subject for legislation in the particular Act.
This con-
struction is favourable to the landowners' rights, and also
to the construction which I think we ought to give to the
15th section. It might be that a tunnel, laid down on the
plans, was to go through a hill, and that there might be
such a deviation that no tunnel could be made, or that a
tunnel might thereby be unnecessary. We must look at
the 13th and 15th sections together, and see whether, where
a tunnel is marked on the plans, and a deviation is made,
rightfully or wrongfully, a tunnel must be made on the
deviated line.] If the Railway Company deviate in any
case, it must, it is submitted, keep to a tunnel if marked
on the plans.

Watson, Sir T. Phillips, and Rochfort Clarke, contrà, were not heard.

JERVIS, C. J.-The question on this record is, whether, on a line of Railway deviated within the limits of deviation, a Railway Company can properly deviate where a tunnel is shewn upon the deposited plans; and I am of opinion that they cannot. That question necessarily arises, for if the Company cannot deviate where a tunnel is shewn, -deviating, they are not bound to make a tunnel, as has been pointed out in the course of the argument by my Brother Maule. In reason and sense there is nothing against the construction which the words plainly warrant: the viaduct, arches, and tunnels, which are mentioned in the 13th section, and in respect of which there is a specific restriction in the 14th section, are matters of great importance, both to the public and to landowners, and could not be expected to be made the subject of provision in a Railways Clauses Act applicable to all railways, but should be specifically provided for by contract between the parties,