c. 55. 5 & 6 Vict. 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 monies 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 condi tions; (that is to say,) Restrictions and conditions. No such branch railway shall run parallel to the The persons making or using such branch rail- (a) The 5 & 6 Vict. c. 55, s. 12, enacts, that whereas powers of laying down branch lines opening into the ledges or flanches of main lines of railway, and of entering upon and passing along such main lines with carriages and waggons, drawn by locomo tive engines, or by other mechanical or animal power, and also powers to form roads or railways across existing railways on a level, have been given by various acts relative to railways, to the owners or occupiers of lands adjoining the railway, and to other persons with their consent; and whereas experience has shewn that the exercise of such powers without limitation, would in many cases be attended with danger to the public using such railway, be it therefore enacted, that if in the case of any railway, on which passengers are conveyed by steam or other mechanical power, it shall appear to the lords of the said committee (of trade) that such power as aforesaid, cannot be so exercised without seriously endangering the public safety, and that an arrangement may be made with a due regard to the existing rights of property, it shall be lawful for the lords of the said committee, to order and direct that such powers shall only be exercised subject to such conditions as the lords of the said committee shall direct: provided always, that no railway shall be considered a passenger railway, if two-thirds or more of the gross annual revenue of such railway, shall be derived from the carriage thereon of coals, ironstone, or other metals or minerals. It will be observed, this section, which is the only section in point of the act referred to, gives a power to the Board of curtailing the rights of landowners, but none of extending or enforcing them. In case of the company's refusing to allow a branch railway to be made, a mandamus would, doubtless, be granted, on affidavits shewing distinctly, that no damage could accrue to the public, or injury to the railway, or inconvenience to its traffic. See Sirhowy Tramroad Company v. Jones. Homfray v. Jones, 3 A. & E. 640. As to the interference of branch railroads with roads, see Rex v. Morris, 1 B. & Ad. 441. The power here given of making railways, extends to using locomotive engines upon them. Bishop v. North, 11 M. & W. 418, 3 Railway Cases, 459, and is a continuing power to "all Owners, occupiers, and other persons," for all time: ib., and Monkland Railway Company v. Dixon, 3 Railway Cases, 273. See Keppell v. Bailey, 2 Myl. & K. 517. This clause seems completely to obviate certain difficulties raised in Monkland Railway Company v. Dixon. And with respect to mines lying under or near Working of“ the railway, be it enacted as follows: Mines. Company not to be LXXVII. The company shall not be entitled to any mines of coal, ironstone, slate or other minerals entitled to under any land purchased by them, except only minerals. such parts thereof as shall be necessary to be dug or Mines lying near the railway not to be worked if the company be willing to purchase them. If company unwilling to purchase, 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 comveyance of such lands, unless they shall have been expressly named therein and conveyed thereby. (a) (a) As to the effect of a reservation of mines, together with way-leave and stay-leave to and from the said mines, with liberty of sinking and digging pit and pits, see Dand v. Kingscote, 2 Railway Cases, 27. LXXVIII. 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 or minerals is likely to damage the works of the railway, and if the company be willing to make compensation for such mines or any part thereof to such owner, lessee or occupier thereof, then he shall not work or get the same; 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. LXXIX. If before the expiration of such thirty days the company do not state their willingness to treat with such owner, lessee or occupier for the owner may payment of such compensation, it shall be lawful for him to work the said mines or any part thereof for which the company shall not have agreed to pay compensation, so that the same be done in a manner work the mines. proper and necessary for the beneficial working thereof, and according to the usual manner of working such mines in the district where the same shall be situate; and if any damage or obstruction be occasioned to the railway or works by improper working of such mines, (a) 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 of the superior courts. (a) By improper working, &c.] The question what is or is not an improper working, cannot, of course, be considered without reference to the railway, or the maxim, "sic utere tuo ut alienum non lædas." The neglect of the company however, to purchase or offer compensation, will also be considered when they complain of injury to their works. A canal act provided, that the canal company should not be entitled, on purchasing lands for making a canal, to any coal mines, &c. under the same, but that such mines should belong to the same persons as would have been entitled to them if the act had not been made; but it required the owners to give notice to the company of their intention to work their mines within ten yards of the canal, and that the company might inspect the mines, and might stop the further working of them, paying compensation to the owners; it was held, that the right of the owners to work within ten yards was left as before the act, if after notice given by them to the company, the latter did not purchase out their rights; and that the canal being damaged by the nearer approach of the mine, after such notice and nonpurchase, no action lay against the coal-owner for such injury, which happened by the default of the company in not purchasing. Wyerley Canal Company v. Bradley and others, 7 East, 368. A canal act contained clauses, providing that the owner of any coal mine within a certain prescribed distance of a canal, should, if desirous of working it, give a certain notice to the company, who were empowered to inspect it, to determine what coal or other minerals might be got at without prejudice to Mining communications. the canal, &c.; and in case of the company neglecting so to inspect, the mines were permitted to be worked within the prescribed limits, if, on inspection, the company should refuse to allow the mines to be worked, they should pay compen sation. Another clause provided, that nothing in the act contained should defeat the right of any owner of lands or grounds in, upon, or through which the canal, &c., should be made, to the mines lying within or under the lands or grounds to be set out or made use of for such canal, but all such mines were reserved to such owners respectively; and that it should be lawful to such owners, subject to the conditions therein contained, to work all such mines, provided that in working such mines no injury be done to the said navigation. It was held that this proviso was to be construed with some qualification, viz., either as importing that the party working the mines was to do no unnecessary damage to the navigation, or no extraordinary: damage by working the mines out of the usual mode; and therefore where notice had been given by the lessee of a coal mine, of his intention to work the same under a reservoir belonging to the canal company, and the latter had not purchased his rights within the time limited by the act, that the lessee was entitled to work the mine under such reservoir, in the usual and ordinary mode, and the reservoir having been damaged by reason of such working by the lessee, that no action was maintainable by the company against him for such damage. The Dudley Canal Navigation Company v. Grazebrook, 1 B. & Ad. 59. See Reg. v. Leeds and Selby Railway Company, 3 A. & E. 683. Barnsley Canal Company v. Twibell, 22 Law J., Ch. 434. LXXX. If the working of any such mines under the railway or works, or within the above-mentioned distance therefrom, be prevented as aforesaid by reason of apprehended injury to the railway (a), it shall be lawful for the respective owners, lessees, and occupiers of such mines, and whose mines shall extend so as to lie 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 and section than the pre- . |