Sect. 10. rised by the Commissioners, the repair and maintenance of roads, the protection of the rights of the Crown, the speed to be run, the power to carry goods, the rates to be charged, the relations with telephone companies, working agreements with local authorities, the time allowed for the acquisition of land and construction, the amount of the capital, the time for the repayment of advances, the substitution of a deposit for a penalty, and the persons empowered to purchase the undertaking.

Provisions which may be made by the order.

After it has confirmed an Order the Board duly advertises the fact. (s) Compare sect. 12 (2).

(t) The effect of these provisions, on the principle of Chartered Institute of Patent Agents v. Lockwood, [1894] A. C. 347; 63 L. J. P. C. 74, is that the Order so confirmed is binding on every one, as though it were an Act of Parliament, and that no question can be raised as to its reasonableness or as to the regularity of the proceedings by which it was made, or whether it is ultra vires of the persons who made it.

11. An order under this Act may contain provisions consistent with this Act for all or any of the following

purposes

(a) the incorporation, subject to such exceptions and variations as may be mentioned in the order, of all or any of the provisions of the Clauses Acts as defined by this Act (u). Provided that where it appears to the Board of Trade that variations of the Lands Clauses Acts are required by the special circumstances of the case, the Board of Trade shall make a special report to Parliament on the subject, and that nothing in this section shall authorise any variation of the provisions of the Lands Clauses Acts with respect to the purchase and taking of land otherwise than by agreement (x); and

(b) the application, if and so far as may be considered necessary, of any of the enactments mentioned in the Second Schedule to this Act (being enactments imposing obligations on railway companies with respect to the safety of the public and other matters) (y); and

(c) giving the necessary powers for constructing (2) Sect. 11.
and working (a) the railway, including power

to make agreements with railway and other
companies for the purpose (b); and

(d) giving any railway company any power required
for carrying the order into effect (b); and
(e) the constitution as a body corporate of a com-
pany for the purpose of carrying out the
objects of the order (c); and

(f) the representation on the managing body of the
railway of any council who advance, or agree

to advance, any money for the purpose of the
railway (d); and

(g) authorising a council to advance or borrow
money for the purposes of the railway and
limiting the amount to be so advanced or
borrowed, and regulating the terms on which
any money is to be so advanced or bor-
rowed (e); and

(h) the manner in which the profits are to be
divided, where an advance is made by a
council to a light railway company as part
of the share capital of the company (e); and
(i) the proper audit of the accounts of the managing
body of the railway where the managing
body is not a local authority (ƒ) and the
time within which the railway must be con-
structed (g); and

(j) fixing the maximum rates and charges for
traffic (h); and

(k) in the case of a new company, requiring the
company to make a deposit, and providing

for the time of making and the application
of the deposit (i); and

(1) empowering any local authority to acquire the
railway (k); and

(m) any other matters, whether similar to the above

or not, which may be considered ancillary to

J

Sect. 11.

the objects of the order or expedient for carrying those objects into effect (1).

(u) The Clauses Acts are defined in sect. 28 for England and sect. 26 (7) (see also sect. 26 (3)) for Scotland. The incorporation of them is subject also to the variations made in them by sects. 13 (1) and 14 of the present Act. By sect. 12 (1) they do not apply except in so far as the Order incorporates or applies them. The portions of the Clauses Acts which are practically always incorporated in Orders for light railways of Class A. and Class B. respectively will be found enumerated post, pp. 550, 587. It will be observed that provisions for the compulsory purchase of land are usually not incorporated in Orders of the latter class.

It is very rarely that any variation is found. In Cranbrook and Tenterden Order, 1900, Rep. V. 11 (Class A.), a water company is given further protection than that afforded by Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), ss. 18 to 23. In Rhyl and Prestatyn Order, 1900, Rep. V. 44 (Class B.), sects. 112, 113 of the same Act are applied to the extent of allowing a local authority, which has acquired the railway, to lease it. Kelvedon, Tiptree and Tollesbury Order, 1901, Rep. II. 7 (Class A.), contains special provisions limiting the application of Railways Clauses Act, 1863 (26 & 27 Vict. c. 92), s. 7, which is incorporated as usual. Wakefield and District Order, 1901, Rep. VII. 36, incorporates, contrary to the usual practice, sect. 6 of Railways Clauses Consolidation Act, 1845. As to the meaning of exceptions and variations, see note (p) to sect. 15 of Tramways Act, 1870.

(x) The intention of the sub-section is that the Board of Trade should make a special report to Parliament, apparently for the purpose merely of calling Parliament's attention to the matter, wherever it thinks it necessary to make variations of the Lands Clauses Acts (this does not include exceptions of portions of those Acts) in a Light Railway Order. But such variations can only be of a limited nature, as it is provided that the compulsory-purchase sections of the Lands Clauses Acts shall not be varied by the Board. The words, however, are "nothing in this section" shall authorise any such variation, and therefore do not affect the variation of the compulsory-purchase sections effected by sects. 13 (1) and 14 of the present Act. The effect of the present sub-section, then, is to forbid the Board to vary the compulsory-purchase sections as varied by sects. 13 (1) and 14. Thus the Commissioners have refused to apply the compulsory-purchase sections of the Lands Clauses Acts without the variation in them imposed by sect. 13 (1) (Kelvedon, Coggeshall and Halstead case (1898), Rep. IV. 13; Oxley, 70; Gosforth and Ponteland case (1899), Rep. V. 20; Oxley, 95), though they do not object so to apply them, where they are to be used for the purpose of fixing the price of land to be taken by agreement

and not for compulsory purchase. (Mid-Suffolk Order, 1900, Sect. 11. Rep. VI. 26; Oakington and Cottenham Order, 1901, Rep. VI. 29.)

They have also refused to apply them without such variation for the purpose of valuing minerals. (Brackenhill case (1899-1900), Rep. VI. 8, VII. 5; Oxley, 99.)

The provisions of this sub-section have also led the Commissioners to refuse to relieve promoters from Lands Clauses Consolidation. Act, 1845 (8 & 9 Vict. c. 18), s. 16 (Penzance, Newlyn and West Cornwall case (1899), Rep. V. 36; Oxley, 78), or sect. 92 (Southendon-Sea and District case (1899), Rep. V. 38; Oxley, 189; Nuneaton and District case (1900), Rep. VI. 28; Oxley, 247).

With regard to compensation generally, the Commissioners have refused to order compensation to be paid for the use of highways by a light railway (Flamborough and Bridlington case (1897), Rep. I. 7; Oxley, 126; Hastings, Bexhill and District case (1899), Rep. V. 22 ; Oxley, 227), or for the interference with the herbage on roadside wastes (Flamborough and Bridlington case, ub. sup.), and have refused to allow brackets to be compulsorily fixed to houses on payment of compensation. (Id. ib.)

Where road widenings were necessary, but the compulsory powers necessary for acquiring land for the purpose had not been asked for, the Commissioners refused to deal with the schemes. (London County cases (1900), Rep. VII. 22-24.)

(y) The enactments mentioned in the Second Schedule only apply so far as the Order incorporates or applies them. (Sect. 12 (1).) Those which are usually applied by the Order are, in the case of a light railway of Class A., Regulation of Railways Act, 1868 (31 & 32 Vict. c. 119), s. 19 (proceedings where an engine fails to consume its own smoke), Regulation of Railways Act, 1889 (52 & 53 Vict. c. 57), except sect. 1, sub-sects. (a) and (b) (block system and interlocking), and sect. 4 (returns of overtime); in the case of a light railway of Class B., Regulation of Railways Act, 1889, ss. 5 and 6 (penalties for avoiding payment of fare, and provision that the fare shall be printed on every passenger ticket). (See the model clauses, post, pp. 551, 588.)

In Crowland and District Order, 1898, Rep. II. 10, and Corringham Order, 1899, Rep. V. 10 (both authorising light railways of Class A.), sect. 1 (c) of Regulation of Railways Act, 1889, is omitted and replaced by clauses enabling the Board of Trade at any time to order the company to provide and use continuous brakes.

Special provisions with regard to cheap trains will be found in Oakington and Cottenham Order, 1901, Rep. VI. 29.

[In the following notes the most important variations of, and departures from, the model clauses printed post, pp. 548, 586, have been noted:-]

(z) A. Lands.

For the Clauses Acts and compulsory purchase, see notes (u) and (r), above.

Sect. 11.

The usual clauses providing for the acquisition of lands by the company will be found post, pp. 554, 592. As to the time limited for the purchase of lands, see note (g) below.

Where it is proposed to lay a light railway on a "roadside waste," nice questions may arise as to the ownership both of the herbage (Curtis v. Kesteven County Council (1890), 45 Ch. D. 504; 60 L. J. Ch. 103) and of the soil of such wastes. (Neeld v. Hendon Urban District Council (1899), 81 L. T. 405; Countess of Belmore v. Kent County Council, [1901] 1 Ch. 873; 70 L. J. Ch. 501; Harvey v. Truro Rural District Council (1903), W. N. 126; 19 T. L. R. 576.) As to interference with footpaths on such a waste, see Kidderminster and Bewdley Order, 1901, Rep. VIII. 10.

Where, as is often the case, powers of compulsory purchase are not given in the case of light railways of Class B., the land which the promoters may acquire by agreement is limited to either five or

ten acres.

B. Works.

For the usual clauses as to the construction of works, see post, pp. 556, 592. As to the time for completion, see sub-sect. (j) and note (g), below.

I. Light Railways of Class A.

Rails.-The weight of rails allowed ranges from as low as 35 lbs. to as high as 85 lbs. per yard. 56 or 60 lbs. per yard are the most common weights. For the corresponding loads permitted, see note (a) below.

Sometimes provision has been made for the substitution of heavier rails for lighter. (West Highland Railway (Loch Fyne) Order, 1898, Rep. II. 28; Bury and Diss Order, 1901, Rep. VII. 29, VIII. 13.) In the Derby and Ashbourne case (1897-8), Rep. II. 4, IV. 7; Oxley, 122, where the railway, though of Class B., was intended to serve the purposes of a railway of Class A., an immense amount of interesting discussion took place as to the form of rails which it was best to adopt; and the results are embodied in Derby and Ashbourne Order, 1901. Special modes of construction are prescribed in Nuneaton and District Order, 1901, Rep. VI. 28. For permission to use second-hand rails, see Wrington Vale Order, 1898, Rep. I. 15.

Radii of curves.-Sometimes in the case of railways of very narrow gauge it has been provided that these shall not be reduced below three chains without the consent of the Board of Trade. (Welshpool and Llanfair Order, 1899, Rep. II. 23; North Wales Narrow Gauge Railways (Beddgelert Light Railway Extension) Order, 1900, Rep. V. 43.) The limit is four and a half chains in Nidd Valley Order, 1901, Rep. VIII. 14, with power to the Board of Trade to approve further reductions. In Blackpool and Garstang Order, 1901, Rep. VII. 3, for an electric railway of standard gauge, the limit is one chain. The provision with regard to a checkrail is varied accordingly.