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Construction of Temporary Bridges.

struct the navigation. In this case, it seems to me that the company have no right to make any bridge for any other purpose than that of carrying into effect the works which they are allowed to make, but that, in carrying those works bonâ fide into effect, they may use the bridge for another purpose, if the consequence is no further impediment to the navigation. I come, therefore, to the conclusion, that this bridge was reasonably and bonâ fide erected for the double purpose; and that, as the double purpose produces no more inconvenience at present than the single purpose would, the injunction must be dissolved; but, if the company keep the temporary bridge after the erection of the other, or in any manner malâ fide, they will be in a situation of difficulty. Injunction dissolved.

VII. Cases relating to the Construction of Permanent


Manser v.

The Northern and Eastern Counties Railway Company, To what extent a

railway company (2 Railway Cases, 380).]-A railway company, in the progress of may interfere

with a river navi. their works, proposed to cross a mill-stream by a bridge, to be sup- gation by erecting

a bridge. ported in the centre of the mill-stream by two piles, placed sixteen feet apart. The bridge was to be six feet in height above the level of the water. The plaintiff, the owner of the mill, asserted that the height was insufficient to allow the barges to pass under, and also that placing piles in the stream would impede the flow of the water, and thereby stop the working of the mill. The company adduced affidavits of engineers to shew that the level of the railway, and the nature of the ground upon which the embankments were founded, prevented them from making the bridge of a greater height; and they also shewed, that, over a public navigable river which was connected with the mill-stream, there were some bridges only six feet high; and moreover, that, at the time of the passing of their act, there was over this mill-stream a bridge of that height, though such bridge had since been pulled down by the plaintiff, and re-erected of a greater height; and that the flow of the water would be in no way impeded by the piles. The plaintiff adduced affidavits of engineers to shew, that, although some of the bridges over the navigable river were of the height of six feet only, yet that the water under them could be lowered by waste-gates ; that, to obtain a perfect level on the line of



Construction of Permanent Bridges.

the railway, the embankments, and consequently the bridge over the mill-stream, ought to be raised two feet. It was decided, by the Vice-Chancellor of England, that, the act authorising the company to conduct their works, doing as little damage as possible, the plaintiff, under the circumstances stated, was not entitled to require the company to build the bridge at the height of more than six feet. The plaintiff appealed.

Lord Cottenham, C., said, in delivering judgment, “ I cannot safely dispose of this case upon the evidence now before me without examining the affidavits more minutely. I certainly feel, as I have in all these cases, that I myself am much less capable to make an order that would be perfectly just between the parties than might be obtained by calling in some professional assistance, indifferent to both parties, who would state to me what the result of them is, on the exercise of that engineering science which I do not possess, even if certified as to the facts. But I have no doubt whatever upon

the construction of the act. The company undoubtedly have powers to take land, if they think proper, within the limits prescribed by the act; and I will assume that they have a right to adopt any level which they please ; but then they cannot do that capriciously; and, having got into a certain level, they cannot part with that level and come down on the plaintiff's stream of water and destroy the interest in that stream of water without some very cogent reason for so doing. The only way to try that is to take a case, and I will take this case. Here they say they have left sufficient space, and have not so interfered with the water as to create a damage to the parties interested in the navigation of it; but if that be the construction of the act, they had a right to come down and de stroy the navigation, or to bring their bridge so close to the surface of the water as entirely to impede the navigation. That could not be done except in cases of extreme necessity; and the act has clearly and carefully, and also very intelligibly, laid down the rule that they are to follow. They may do what is necessary for the purpose carrying through the works which the act authorises them to carry on, but, in doing that, they must do as little damage as may be. It they cannot carry on the works without doing certain damage, if it is land, they are bound to purchase it; if it is not land, but some interest which is affected by it, they are bound to compensate the party in money; but if the damage to be done is not a necessary consequence of the works they are to carry on, then this Court, being


Construction of Permanent Bridges.

apprised of what is in progress, will interpose to prevent it: because, in that case, it is an excess of the power given by the act; the act only authorising them to carry on their works, doing as little damage as may be. If they think proper to carry on the works, doing more damage than the necessity of the case requires, then the Court will interfere. That being the construction which I have always put on these acts, and which, I believe, all other judges have done, the question is, whether this case comes within that rule of construction. I find in this case, certainly, a very peculiar state of facts, because I find the railroad proceeding up to certain points on each side of the locus in quo on a certain level, and then the level is altered, and assumes a lower level, and is gradually lowered, until it reaches the particular point in question, which I understand to be the lowest point of the level on which the railroad runs; and from this particular point it rises to the level which it pursues in other places. I certainly have not been at all satisfied of the existence of the necessity that the company should adopt that course. It has been attempted to be explained on the affidavits, and it may possibly be so; but it has not satisfied my mind that there is any necessity for that; nor have I been able to comprehend how it is that the bank upon which the railroad is to run may be safely carried to the height to which it has been carried, and cannot safely be carried a foot higher. It is so stated in the affidavits; and that raises a proposition so difficult to comprehend, considering the weight which these railroads are destined to carry, that I must confess I have great doubt whether I can act upon any such assumption.” [His Lordship then proposed a reference to a disinterested engineer of eminence; and the case was ultimately compromised.]

The Attorney-General v. The London and Southampton Railway Construction of a Company, (9 Sim. 78; 1 Railway Cases, 302).]—The London and the width of a Southampton Railway Act (sect. 9) empowered the company to make, railway bridge. in, upon, across, under, or over any lands, streets, hills, vallies, and roads, such inclined planes, tunnels, embankments, bridges, arches, and piers, as the company should think proper, according to the provisions and subject to the restrictions of the act. Sect. 74 provided, that, where any bridge should be erected by the company for the purpose of carrying the railway over or across any turnpike road on other public highway, the span of the arch should be of such width as to leave a clear and open space under every such arch of not less


than fifteen feet. Sect. 77 provided, that where, in the exercise of Construction of

the powers of the act, any part of any carriage or horse-road, either Permanent Bridges. public or private, should be found necessary to be cut through,

diverted, raised, sunk, taken, or so much injured as to be impassable, the company should previously thereto cause a sufficient road to be made instead thereof, as convenient for passengers and carriages as the road to be cut through, or as near thereto as might be. The company erected a bridge over a turnpike road, at a place where the width of the then existing road was forty feet; and, owing to such bridge crossing the road obliquely, and to the piers of the bridge being built on the road, the passage under the arch of the bridge left a width of road of twenty-four feet only for a distance of 160 feet :Held, by the Vice-Chancellor of England, that the restrictions imposed by the 77th section applied only to a case where a road might be either temporarily or permanently diverted; that, under the 9th section, the company were empowered to erect any piers or necessary buildings for a bridge, provided they left a width under such bridge of fifteen feet, as provided for by the 74th section. (See the observations made on this case by the Court of Queen's Bench, R. v. The Birmingham and Gloucester Railway Company, 2 Q. B. 47, post, 376).

Construction of a special act as to the width of a road under a railway bridge.

Regina v. The Manchester and Leeds Railway Company, (3Q. B. 528; 3 Railway Cases, 633).]-By a railway act, a company were empowered to divert, raise, sink, or deepen any roads, to carry the same over, under, or by the side of the railway, subject to the provisions and restrictions of the act. By another act (enabling the company to vary their line) they were authorised (s. 38) to carry the line of railway across a certain turnpike road by means of a bridge of the width of thirty feet at the least, and for that purpose to lower the then present bed of the road, but in so doing were required to leave a certain inclination on each side of the bridge, and headway under it, and to re-lay and re-form the road. The company made a bridge thirty feet wide, over a turnpike road forty-two feet wide, consisting of thirty feet carriage-way, and two footways of six feet each. They lowered the carriage-way of the road, but left the footways at their original level. On the trial of certain traverses to a return to a mandamus which had issued to the company re-form the road, and to lower it the whole width of forty-two feet, the jury found, 1st, That the company had not so lowered the road; 2nd, that they had re


Comstruction of Permanent Bridges.

formed the road, in compliance with the act; and 3rd, that the road so made by the company was more commodious to the public than if the whole road had been lowered to the full width of forty-two feet. The Court of Queen's Bench decided (vide 1 Railway Cases, 523; 2 Ibid. 711) that the word “road” meant the whole road, including footpaths, and, therefore, that the company had not re-formed the road as required by the act; and that the finding of the jury upon the last issue, as to its being more commodious, was not sufficient to dispense with a compliance with the language and meaning of the act; but, upon a writ of error brought in the Exchequer Chamber, the judgment of the Court of Queen's Bench on the first point was reversed.

Tindal, C. J., after stating the object of the mandamus, the material facts of the case, and the finding of the jury, said-Upon this state of facts, the main question in the case arose, viz. whether the company were bound, by the act of Parliament referred to in the return, to excavate the road to the full width of the former road. On the part of the prosecutors it was contended, that not only the carriage-road, but the footpath also, ought to be excavated to the full former width of the road ; and the judgment of the Queen's Bench is in conformity therewith. The question, so far as this point is concerned, appears to be, whether the expression in the 38th section of the stat.—“the bed of the said turnpike road”—is confined to that part of the road which, in another part of the same section, is called the carriageroad, or whether it comprises not only the carriage-road, but the footpath also. And we are of opinion, that, looking to the object and purpose for which the bed of the turnpike road is directed to be lowered, the statute intends no more by that expression than the carriage-road. That purpose is, to enable carriages to pass with perfect safety, by giving them a clear and uninterrupted headway of eighteen feet at the least under the bridge ; an object which is perfectly attainable without making, and is wholly independent of, a corresponding alteration in the level of the footway. But a further question remains: and it was urged, that, however the case may be with respect to the footway, the carriage-road ought at all events to be lowered to the full width of the former carriage-road, which is found by the jury not to have been done. If the section just referred to had contained any express enactment to that effect, it could not be contended that the superior convenience to the public of the road as made would furnish an excuse for a deviation from the express

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