Sect. 26. Completion of work and (s) Such a bridge may be a bridge which remains vested in the owner or owners of the adjoining land or which is vested in a county council under Local Government Act, 1888 (51 & 52 Vict. c. 41), s. 64 (1), or taken over by them under the same Act, s. 6, or is vested in the corporation of a county borough under sect. 34 (2), where the person or body in whom the bridge is vested is not the road authority; but note that a person liable to repair a bridge is a road authority within the meaning of sect. 3 of the present Act. (Wolverhampton Tramways Co. v. Great Western Railway Co. (1886), 56 L. J. Q. B. 190.) Where a corporation in British Columbia had de facto taken over a certain bridge, over which a tramway ran, it was held liable for injury to a passenger on a tramcar, which was caused by the breaking down of the bridge through the default of an officer of the corporation. The question of the liability of the tramway company, if any, for sending a heavier weight over the bridge than it was intended to bear, was not raised. (Victoria Corporation v. Patterson, [1899] A. C. 615; 68 L. J. P. C. 128.) (t) See further as to the position of the owners of a railway or tramway which is to be physically interfered with by a proposed tramway, ante, pp. 17, 40, 43, and Standing Orders 13a (H. L.) and 13 (H. C.). In Brentford Urban District Council v. London United Tramways, Ltd. (1901), 45 So. J. 408 (so far as it is possible to make out from the report; that in "Times" Newspaper, Mar. 30, 1901, is better), the council sought to restrain the company from breaking up a road on the ground that sects. 26, 30 and 31 had not been complied with. The company's special Act gave them power to do certain works subject to sect. 30 of the Tramways Act. It was held that this did not exclude the application of sects. 26 and 31, but that the works did not fall within sect. 30, and therefore not within sect. 26, between which and sect. 30 there was no relevant distinction; that sect. 31 did apply and had been complied with. 27. When the promoters (u) have opened or broken reinstatement up any portion of any road (r), they shall be under the following further obligations; namely, of road. 1. They shall, with all convenient speed, and in all cases within four weeks at the most (unless the road authority (a) otherwise consents in writing), complete the work on account of which they opened or broke up the same, and (subject to the formation, maintenance, or renewal of the tramway) fill in the ground and make good the surface, and, to the satis- Sect. 27. 2. They shall in the meantime cause the place 3. They shall bear or pay all reasonable expenses of the repair of the road for six months after the same is restored, as far as those expenses are increased by the opening or breaking up. If the promoters aforesaid fail to comply in any respect with the provisions of the present section, they shall for every such offence (without prejudice to the enforcement of specific performance of the requirements of this Act or to any other remedy against them) be liable to a penalty (a) not exceeding twenty pounds, and to a further penalty not exceeding five pounds for each day during which any such failure continues after the first day on which such penalty is incurred (b). (u) See sects. 4 and 24. (x) Defined in sect. 3. (y) The usual clause dealing with the disposal of surplus material will be found post, p. 461. Stockport and Hyde Highway Board V. Cheshire County Council (1891), 61 L. J. Q. B. 22, dealt with a dispute between two rival road authorities as to the ownership under such a clause of surplus material excavated by the promoters of a tramway. (2) This provision is discussed in Cameron v. Patent Cable Tramways Corporation, Ltd. (1885), "Times" Newspaper, Apr. 22; (1886) Jan. 14 (C. A.), for which case see notes to sect. 55. (a) To be recovered summarily by sect. 56. (b) It must be noted (i.) This section does not provide to whom the penalty is payable. may be remedied by a clause in the Provisional Order or Act. This Sect. 27. In this the present section resembles the similar sections in Towns Improvement Clauses Act, 1847 (10 & 11 Vict. c. 34), s. 79, and Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), s. 111. Contrast Gasworks Clauses Act, 1847 (10 & 11 Vict. c. 15), ss. 10, 11, and Waterworks Clauses Act, 1847 (10 & 11 Vict. c. 17), ss. 32, 33, in which the penalties are payable to "the persons having the control or management of the street." Repair of part of road way is laid. (ii.) The reinstatement of the surface is expressed to be subject to the formation, maintenance or renewal of the tramway. This prevents any such question as arose in East London Waterworks Co. v. St. Matthew, Bethnal Green (1886), 17 Q. B. D. 475; 55 L. J. Q. B. 571, where a local authority had removed the guard boxes of stop valves which were necessary for a water company's undertaking, but which, of course, prevented the reinstatement of the pavement to its exact original condition. (iii.) The liability to a penalty is expressed to be without prejudice to any other remedy against the promoters. This prevents the application to this section of the doctrine of Atkinson v. Newcastle and Gateshead Waterworks Co. (1877), 2 Ex. D. 441; 46 L. J. Ex. 775 (C. A.), and the other authorities cited in note (1) to sect. 49 (see Broadbent v. Imperial Gas Light Co. (1857), 7 De G. M. & G. 436; 26 L. J. Ch. 276, per Willes, J., affirmed 7 H. L. C. (11 E. R.) 600; 29 L. J. Ch. 377). The liability of promoters for accidents arising from a breach by them of this section, and for other accidents, is discussed in note (h) to sect. 55. 28. The promoters (c) shall, at their own expense, at all times maintain and keep in good condition and repair, with such materials and in such manner as the road authority (d) shall direct, and to their satisfaction, so much of any road (d) whereon any tramway belonging to them is laid as lies between the rails of the tramway and (where two tramways are laid by the same promoters in any road at a distance of not more than four feet from each other) the portion of the road between the tramways, and in every case so much of the road as extends eighteen inches beyond the rails of and on each side of any such tramway (e). If the promoters abandon (ƒ) their undertaking (g), or any part of the same, and take up any tramway or any part of any tramway belonging to them, they shall with all convenient speed, and in all cases within six weeks at the most (unless the road authority Sect. 28. otherwise consents in writing), fill in the ground and make good the surface, and, to the satisfaction of the road authority, restore the portion of the road upon which such tramway was laid to as good a condition as that in which it was before such tramway was laid thereon, and clear away all surplus paving or metalling material or rubbish occasioned by such work (h); and they shall in the meantime cause the place where the road is opened or broken up to be fenced and watched, and to be properly lighted at night (i): Provided always, that if the promoters fail to comply with the provisions of this section, the road authority, if they think fit, may themselves at any time, after seven days' notice (k) to the promoters, open and break up the road, and do the works necessary for the repair and maintenance or restoration of the road, to the extent in this section above mentioned (7), and the expense (m) incurred by the road authority in so doing shall be repaid to them by the promoters (n). (c) See sects. 4 and 24. (d) Defined in sect. 3. (e) Where the promoters have made a contract with the road authority under sect. 29 for the repair of that part of the road. which is here described, the liability for damage incurred by reason. of non-repair is shifted to the road authority. (Howitt v. Nottingham and District Tramways Co., Ltd. (1883), 12 Q. B. D. 16; 53 L. J. Q. B. 21; Alldred v. West Metropolitan Trams Co., [1891] 2 Q. B. 398; 60 L. J. Q. B. 631 (C. A.); Barnett v. Poplar Borough, [1901] 2 K. B. 319; 70 L. J. K. B. 698); for these cases see note (r) to sect. 29, post.) In Ritchie v. Dundee Police Commissioners (1886), 13 R. (J. C.) 63; 1 White Just. Ca. 139, the Commissioners, who had acquired tramways, were prosecuted summarily for penalties for failing to repair under this section and Dundee Street Tramways, Turnpike Roads and Police Act, 1878 (41 & 42 Vict. c. xciv.), s. 22, on the complaint of a cab-driver, who was also a ratepayer. The complaint was held to be irrelevant on the ground of want of specification of disrepair, but the Court also suggested that this section no longer applied to the case, as the Commissioners were both tramway company and road authority, and so there could be no question of the promoters failing to repair to the satisfaction of the road authority i.e., of themselves. Sect. 28. For a case where promoters were held not to be liable at the suit of a private person under a special Act which imposed a penalty for a breach of this section, see Murdoch v. London Street Tramways Co. (1879), "Times" Newspaper, Mar. 27, May 30. The road authority are given specific power to prescribe the materials and manner of the repairs. This is consistent with the preservation of their powers by sect. 60, and has been recognised in R. v. Croydon and Norwood Tramways Co. (1886), 18 Q. B. D. 39; 56 L. J. Q. B. 125 (C. A.) (where the road authority had refused to approve the material suggested by the company), and in Bristol Trams and Carriage Co., Ltd. v. Bristol Corporation (1890), 25 Q. B. D. 427; 59 L. J. Q. B. 441 (C. A.) (where the road authority had taken up the road material, which the company were bound to maintain, and replaced it with other material). In such a case as the last, the material taken up by the road authority is their property, as it vested in them when it was in the road (see Public Health Act, 1875 (37 & 38 Vict. c. 55), s. 149). Where, through no fault of the road authority-for instance, by the inevitable effect of the traffic-the junction between the tramway track and the rest of the road has become unsatisfactory, it is suggested that it will be the promoters' duty to remedy the defect. The road authority does not, however, seem to have any power to order the promoters to alter, at the promoters' own expense, the material which has been once approved by them, so long as the promoters keep it in proper repair. (Leek Improvement Commissioners v. Staffordshire JJ. (1888), 20 Q. B. D. 794; 57 L. J. M. C. 102.) Neither are the promoters bound to provide for the scavenging, cleaning, and watering of their part of the road, except in so far as is necessary for its maintenance and repair. (R. v. Essex JJ. (1888), 4 T. L. R. 676; Burnley Corporation v. Luncashire County Council (1889), 54 J. P. 279; and see Dublin United Tramways Co., Ltd. v. Fitzgerald, [1903] A. C. 99; 72 L. J. P. C. 52.) Compare, however, the wording of Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 148, in note (r) to sect. 29, post. But under similar words it has been held that the removal of snow, which rendered a road impassable, was part of the maintenance of the road. (Amesbury Union v. Wiltshire JJ. (1883), 10 Q. B. D. 480; 52 L. J. M. C. 64; and see Ogston v. Aberdeen District Tramways Co., [1897] A. C. 111; 66 L. J. P. C. 1, post, p. 234.) Whether a particular system of cleaning their track by means of tram water-vans was or was not a nuisance was discussed in Middlesbrough Corporation v. Imperial Tramways Co., Ltd. (1901), "Times" Newspaper, May 11. The deficiencies of this section as to the maintenance of the rails and substructure of the tramway, and its failure to provide a penalty for the default of the promoters, are rectified by the model clause, post, p. 428, which also provides machinery whereby the ratepayers may draw the attention of the Board of Trade to the promoters' default. |