Cases. Construction of the obstruct the navigation of the canal, or any part thereof; and specified the height and dimensions of any bridge to be made and mainTemporary Bridges. tained for carrying the railway over the canal. The company, for purpose of transporting earth from the higher lands on the south, to the lower lands on the north side of the canal, for constructing an embankment, erected a temporary bridge over the canal, supported partly on piles driven into the bed of the canal. The defendants pulled down such bridge, and thereby destroyed the passage of communication for the carriage of the earth. It was decided by Sir C. C. Pepys, M. R., on a motion for an injunction to restrain the defendants from destroying such bridge, or preventing any such communication, that the clause empowering the railway company to cross canals in the progress of their works was not restricted by the subsequent clauses, which applied to permanent bridges; and His Honor therefore restrained the defendants from obstructing the making or use of such passage of communication. (See also The Attorney-General v. The Eastern Counties Railway Company, 3 Railway Cases, 337; post, 395). If a railway company are authorised to erect a temporary bridge for a particular purpose, they may use the bridge for other purposes, provided no additional injury is thereby caused to the navigation. The plaintiffs having offered to undertake not to interfere with the canal otherwise than as authorised by the act, such undertaking was adopted by the Court, and will have the effect of an injunction so far, that the defendants will be enabled to make any infringement thereof the subject of an application to the Court. Semble-Although a railway company are not to act capriciously in regard to carrying out the powers of an act of Parliament, the act constitutes them the judges of the most convenient mode of conducting their works. Priestley v. The Manchester and Leeds Railway Company, (2 Railway Cases, 134; 4 Y. & Col. 72).]-The Manchester and Leeds Railway Act enabled the company to make the railway in a prescribed course. The 34th section, reciting that the railway was to be carried across the Aire and Calder Navigation at three specified places, required the company to erect bridges at such three crossings, and prescribed the dimensions of such bridges. The 38th section provided that the company should, during the progress of constructing such bridges, leave an open uninterrupted navigable waterway, of a specified height and extent. The 42nd and 44th sections provided that the railway company should not make any bridge over the navigation, and, generally, should not interfere therewith otherwise than as provided for by the act. The 94th section empowered the com Cases. Construction of pany, subject to the restrictions imposed by the act, to make and maintain the railway, and to construct, in, under, upon, across, or over any hills, valleys, roads, rivers, canals, brooks, or streams, or Temporary Bridges. other waters, such embankments, bridges, aqueducts, and conduits, either temporary or permanent, and to erect and construct such buildings, engines, machinery, apparatus, and other works and conveniences for the purposes of the act, as the company should think proper. By an agreement, made between the navigation and railway companies, and afterwards embodied in an act of Parliament, the line of the railway was changed, by which change the navigation was crossed only once by the railway, and only one bridge required. The railway company had introduced into the above agreement a clause enabling them to erect temporary bridges across the navigation, but which was struck out by the navigation company. The railway company, having commenced the building of the permanent bridge, erected a temporary bridge adjoining to the permanent bridge, which was used partly for building that bridge and partly for conveying earth and materials across the river. On the application of the navigation company, an injunction was granted ex parte, restraining the erection of a temporary bridge across the navigation, or of anything impeding the navigation, in a manner not authorised by the act. Affidavits were filed on both sides, and, upon motion to dissolve the injunction, it was decided, that, subject to the restrictions of the act, the 94th section ought to be liberally carried into effect; that the railway company had the power of erecting such a temporary bridge, the power being exercised reasonably and bonâ fide; that, in construing such power, with a view to its reasonable and bonâ fide exercise, regard must be had to the peculiar purpose for which the permanent bridge was designed; that the temporary bridge, being of the dimensions specified in the 34th section, and a navigable waterway being left, as required by the 38th section, the same was lawfully erected under the 94th section, for the bonâ fide purpose building the permanent bridge; that the temporary bridge, being erected and used for a lawful purpose, might also be used for other purposes, for which alone it could not have been erected; and that, subject to the restrictions of the act, the company, acting bonâ fide, were constituted the judges of the mode of executing their works. In delivering judgment, Alderson, B., said :-The 94th section gives the company power to enter the lands of all persons, under the of Cases. Construction of provisions and subject to the restrictions of the act, and to make and construct a variety of works, bridges, tunnels, and embankments, Temporary Bridges. either temporary or permanent, as they shall think proper. Therefore, they had power-not, to use the language of the Lord Chancellor, an arbitrary or capricious power, but power to be exercised judiciously by them, as reasonable and skilful men, judging of the necessity of the case-to erect any works for the purpose of the undertaking. And, in considering whether such a bridge is built as reasonable and skilful men, exercising a proper judgment, would build, we must remember that these bridges are built on a railway; and it must be considered, with reference to that circumstance, whether it is such as the company, executing their power fairly and discreetly, are competent to build. Now, when one sees a bridge in a railway near an embankment on one side and the other, it is not unreasonable to say that the railway company should have the advantage of erecting the embankment as well as the railway; and we ought not to regard the bridge as erected on the ordinary plan of bridges, but of bridges on railways, the essential qualities of which are, that they should be level, and within a certain compass. Now, the 94th section gives the company power to erect bridges, subject to the previous restrictions in the act; and if this bridge is not within the restrictions prescribed by the antecedent parts of the act, the injunction ought to be continued ; but, subject thereto, the provisions of the 94th section ought to be carried into execution. Now, what are the restrictions in the act of Parliament? The first material one is in the 34th section. According to that section, the company, in crossing the river Calder, are not to cross it in their discretion, in any way convenient for the purpose of the railway, but in such way, and under such restrictions, as the railway act says are not impediments to the navigation; therefore, the act of Parliament gives a particular requisition," that they shall, at their own expense, under the inspection of the engineer of the undertaking, and according to plans to be submitted to and approved by the respective engineers of the said undertakers and the said railway company, make and execute, at each of the said crossings, (over the river Calder), a good and substantial bridge of stone, brick, or iron, of three arches, over the said river, and the towing-paths thereof respectively, with proper approaches thereto, with perpendicular foundation-walls to such bridges, and without any projections under water," thereby making the waterway complete, perpendicular, and full as it was before, and Cases. Construction of the towing-path free and accessible. Now, that section enables the party to make a particular sort of bridge. That may be well consistent with the 94th section. Though it is a particular sort of bridge, Temporary Bridges. yet the company, in building it, may be guided by the provisions of the 94th section, and have the power of uniting it with the embankments on either side, which are to be part of the railway; therefore the two sections stand together. But then we find another restriction imposed by the 38th section; because it occurred to the Legislature, that, although, when the bridge was constructed, the Aire and Calder Navigation would have three arches, which would give a large waterway, yet the building of them might leave a considerable obstruction to the navigation; therefore the Legislature determined that there should be a limited obstruction, even during the period of making the bridge. Now, the most ordinary observer must have noticed, that bridges cannot be erected without centres before the key-stone is put in to support the arch. Then, inasmuch as, by the 34th section, the underside of the opening at the key-stone was described as "not being less than thirty-feet above the ordinary level of the water," it occurred to the Legislature that it could not be possible, during the erection, to leave so high a waterway, and that, possibly, unless some temporary erection were permitted, the builders might erect piles to support the centres, and bring the centres so low as to materially impede the navigation; and, therefore, by the 38th section, they enacted, that the company should, during the construction of the bridges, or the necessary repairs thereof, leave an open uninterrupted navigable waterway of not less than thirty feet in width and twenty feet in height, above the ordinary surfacewater, if the undertakers should consider it necessary; and, further, they provided that the towing-paths, where convenient, should remain, and a space should be left during the construction sufficient to prevent damage to the adjacent lands. That was the 38th clause, and, with the exception of the 38th and 34th clauses, there are no clauses material as to the construction of the bridges. The substance of these enactments is, that the company may construct bridges in a particular manner over the river, and may obstruct the river, (in the progress of their works), provided they leave a sufficient quantity of water. Then come the 32nd and 44th sections, which protect the rights of the Aire and Calder Navigation Company. By the latter section it is enacted, that nothing shall affect the rights of the undertakers, or authorise or empower the railway company to obstruct Cases. Construction of the navigation of the river, or to divert the waters, "save as hereinbefore provided;" that is to say, except during the time mentioned Temporary Bridges. in the 38th section. Therefore, if the undertakers shew that the temporary bridge is not for the purpose of making a permanent bridge, or that it is so constructed as to encroach on the towing-path, or not to leave a waterway of thirty feet by twenty, or not a sufficient space besides that, so as to carry off the water of the river, it would be an "apparatus," which, though coming under the 94th section, could not, coupling the 94th section with these, be permitted to be erected; but I apprehend it comes within the required conditions; that is to say, that it is for the purpose of erecting a permanent bridge, and that it does leave sufficient waterway within the meaning of these sections: and, if all these circumstances concur, then the only question is, whether the circumstance of its being also used for some other purpose, for which alone it would not be competent to use it, is to make any difference in the present case. Now, if that further use made it more inconvenient to the navigation company than if it were only used for one purpose, I think there would be ground for the interference of the Court against the railway company; and, taking that to be the principle of the present decision, let us look to the affidavits, to see whether they shew any such inconvenience. [The learned Judge referred to the affidavits.] But it is said, there are several circumstances to shew that this was not bonâ fide; and the plaintiffs rely on the negotiation which took place between the parties, which ended in an agreement, into which a clause was sought to be introduced, which was struck out; and they say that such clause was for making temporary bridges for embankments. Now, treating it as general for the purpose of making embankments, -treating it so, I do not think it competent for the company to erect temporary bridges for the purpose of making embankments, if, in carrying over the materials for that purpose, they obstruct the navigation of the Aire and Calder; but that they may do so, if, having already a right to obstruct the navigation by building temporary bridges, they do not, by using those bridges for raising embankments, make any additional obstruction; and in this I think that this case differs from the case before the Lord Chancellor (a). There his Lordship held, that the Birmingham Railway had the power to erect temporary bridges, on the condition that they should not ob (a) When M. R., see ante, 364. |