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Cases.

Construction of

enactment of the statute; but it is admitted, that there is no express

provision to this effect, nor does it appear to us that there is any sufPermanent Bridges. ficient ground for holding that such a provision is to be implied; the

expression, “ unless the same shall be lowered at their own expense, on both sides of such bridge," upon which the Court of Queen's Bench appears to have placed some reliance, as tending to shew that the whole road was included, appearing to us to apply, not to the right hand side and the left hand side of the bridge, as a person passes under it, but to the part of the road lowered as it descends to the bridge on one side, and ascends from it on the other. The company are undoubtedly bound, in making their alteration, to make it in the manner most convenient to the public. This is required, not only by the nature of the powers confided to them, but by the express condition annexed to the exercise of those powers by the statute, (s. 94). That statute authorises them, amongst other things, to raise or sink any roads or ways, and to do and execute all other matters and things necessary or convenient for constructing the railway and works, doing as little damage as may be in the execution of the several powers granted to them; and by the subsequent statute those powers are continued, and rendered applicable to all the objects of the latter act; but subject to this restriction of consulting, as far as possible, public and private convenience. We see no sufficient reason for implying any condition not expressly required by the terms of the 38th section. As to any argument arising from a notion of inconvenience from the mode in which the works have been performed, that matter is concluded by the finding of the jury, which is full and explicit on this point. Judgment reversed.

Construction of a special act as to the width of a bridge erected over a highway.

Regina v. The London and Birmingham Railway Company, (1 Railway Cases, 317).]-By the London and Birmingham Railway Act, the company are empowered to make roads over the railway, and, for that purpose, to alter the course of or raise any road or way. Sect. 63 provides, that when any turnpike road or public carriage road shall be carried over the railway, the road shall be of the clear width of fifteen feet, within the fences of the bridge ; and by sect. 67, where any part of any carriage or horse-road shall be cut through, raised, sunk, or taken, the company shall cause another good and sufficient road to he made instead thereof, as convenient for passengers and carriages as the former. The company diverted a highway, and erected a bridge to carry it over the railway. The original road was

Cases.

Construction of Permanent Bridges.

forty feet wide, and the substituted one only twenty-seven, less convenient for driving sheep and cattle. The span of the bridge was thirty-three feet, but it was continued with wing-walls and parapets to the distance of 168 feet; and the width of the road on the bridge and between the parapets was only sixteen feet.

It was decided by Lord Denman, C. J., at Nisi Prius, that the new road, being narrower, was not as convenient as the old one, nor a good and sufficient road within the meaning of the 67th section, the act intending it to be as convenient for a drift-way as for passengers and carriages. Held, also, that fifteen feet is the maximum width required by the act for such bridges; but that the company had no right to contract the road by the wing-walls and parapets beyond the span of the bridge.

A return that a

Regina v. The Birmingham and Gloucester Railway Company, Construction of a (2 Q. B. 47; 2 Railway Cases, 694).]-By a railway act a com- the width of the pany were empowered, subject to the provisions and restrictions bridge erceted

across a railway. of the act, to make or construct, upon, across, under or over the

railway company railway, such roads as the company should think proper. By cannot obey a writ sect. 41, when any part of any road, either public or private, bad, should be cut through, raised, sunk, taken, or so much injured by the company as to be impassable or inconvenient, the company, before any such road should be so cut through, raised, &c., were to cause another road to be set out and made instead thereof, as convenient as the said road so cut through, raised, &c., or as near thereto as might be; and where the road cut through, raised, &c. should be a turnpike road, the substituted road, if temporary, was to be set out and made, and the principal road restored, within six months after commencing the operation. By sect 47, where any bridge should be erected for carrying any turnpike road, public highway, or occupation road over the railway, the road over such bridge was not to be less than fifteen feet. A mandamus, reciting that the company had, in November, 1838, (after the compulsory powers given to the company for taking land had expired), cut through and taken part of a turnpike-road, forty feet wide, and had made a bridge thereon for carrying it over the railway, the said bridge and the approaches (which were about 150 yards in length on each side of the bridge) being about thirty feet wide only, commanded the company to restore the turnpike road according to the act.

Held, by the Court of Queen's Bench, that the company were

Cases.

Construction of Permanent Bridges.

bound to make the approaches as wide as the turnpike road had been. And held no sufficient return, that the approaches, though of a less width, were as convenient to the public as they could be made in execution of the powers of the act, and as convenient to the public as the original road had been ; or that the company could not now widen the approaches without taking and purchasing more land ; that their compulsory powers of purchasing under the act had expired before they were called upon to widen; and that they had not then, nor have since had, the power to take or purchase land for such purpose. In the judgment of the Court, the following remarks were made on the case The Attorney-General v. The London and Southampton Railway Company, (1 Railway Cases, 302; ante, 371):-“ It remains for us to notice a case cited in the course of the argument, in which, as was said, the Vice-Chancellor has put a different construction upon a clause in another act of Parliament resembling the present. It is true that his Honor does, in that case, intimate incidentally such an opinion as has been attributed to him : the question before him then being, whether he should declare by his order a certain archwork of the said company to be a nuisance, and prohibit them from further prosecuting their works, because they were about to abridge the width of a public highway. The point, however, which now comes before us seems to have been very slightly touched in the argument, and was wholly unnecessary for the decision of the Vice-Chancellor, which was, that, provided the said arch be not less' than the width prescribed by the act of Parliament, he did not feel himself justified in making the order desired. The Vice-Chancellor also gives as a further reason for not making that order, that many other methods were open to raise the question (alluding especially to an indictment for a nuisance) without his interference. We cannot, therefore, consider this to have been the deliberate judgment of the Vice-Chancellor upon this subject."

Construction of a special act as to the ascent to a bridge.

The Attorney-General v. The London and Southampton Railway Company, (1 Railway Cases, 283).]--The London and Southampton Railway Act directs, that, where any bridge shall be erected for the purpose of carrying any turnpike road over or across the railway, the ascent to such bridge shall not be more than one foot in thirty feet, except where the “ present inclination” of such turnpike road shall be steeper, in which case the inclination of such road shall not be steeper than the present inclination of such road.

Cases.

Construction of Permanent Bridges.

The Vice-Chancellor of England decided, that the expression “present inclination” is to be referred to the inclination of a road at the time when taken by the company; that the exception applies as well to a bridge built on a new or diverted road made by the company, as to a bridge built on the site of a previously existing turnpike road; that the relative steepness of a new or diverted road, and of an old road, is to be determined, not by their comparative acclivity, measuring the whole length of each from the commencement to the end of the deviation, but by a comparison of the rate of ascent on the new road from the place of diversion below the bridge to the crown of the arch of such bridge, with the rate of ascent on the old road from the same place, to the point on the old road at which, if the two roads had been parallel, the same distance would be attained.

paving act.

Regina v. The Eastern Counties Railway Company, (2 Q. B. 569; When a street may 3 Railway Cases, 22).]—By a railway act, a company were empowered tain the necessary to raise or lower any roads or ways, in order the more conveniently bridge, notwith.. to carry the same over or under or by the side of the railway. By visions of a local sect. 100, where any bridge should be erected by the company over any public carriage road, not being a turnpike road, the centre of the arch must be of a height from the surface of the road of not less than sixteen feet. By sect. 120, nothing in that act is to derogate from any of the rights or privileges of any parish over which the railway shall pass, acting under any local act. By a local paving act it was enacted, “ That no person shall alter the form of any pavements which shall be now made by virtue of this act without the consent of the commissioners, or in anywise encroach thereon, or put up any posts, boards,” &c. A mandamus having issued, a return was made, and the question raised was, whether the railway company were authorised to lower the pavement of a street, for the purpose of giving sufficient headway to a bridge.

Coleridge, J.-The commissioners do not dispute the right to carry the railway on the arch, nor is it alleged that the proposed lowering of the pavement would make the descent more than one foot in twenty ; but they deny the right to alter, or in any—the slightestdegree to meddle with, the pavement. If the question stood on the two clauses alone, there could be no doubt. The 9th in express terms contemplates the lowering of the roads, and the 100th, when it limits the steepness of descent under an arch, clearly looks to an alteration of level to be produced by the railway works. If there were a natural

Cascs.

Construction of Permanent Bridges.

bound to make the approaches as wide as the turnpike road had been. And held no sufficient return, that the approaches, though of a less width, were as convenient to the public as they could be made in execution of the powers of the act, and as convenient to the public as the original road had been; or that the company could not now widen the approaches without taking and purchasing more land ; that their compulsory powers of purchasing under the act had expired before they were called upon to widen ; and that they had not then, nor have since had, the power to take or purchase land for such purpose. In the judgment of the Court, the following remarks were made on the case The Attorney-General v. The London and Southampton Railway Company, (1 Railway Cases, 302; ante, 371):4" It remains for us to notice a case cited in the course of the argument, in which, as was said, the Vice-Chancellor has put a different construction upon a clause in another act of Parliament resembling the present. It is true that his Honor does, in that case, intimate incidentally such an opinion as has been attributed to him : the question before him then being, whether he should declare by his order a certain archwork of the said company to be a nuisance, and prohibit them from further prosecuting their works, because they were about to abridge the width of a public highway. The point, however, which now comes before us seems to have been very slightly touched in the argument, and was wholly unnecessary for the decision of the Vice-Chancellor, which was, that, provided the said arch be not less' than the width prescribed by the act of Parliament, he did not feel himself justified in making the order desired. The Vice-Chancellor also gives as a further reason for not making that order, that many other methods were open to raise the question (alluding especially to an indictment for a nuisance) without his interference. We cannot, therefore, consider this to have been the deliberate judgment of the Vice-Chancellor upon this subject."

Construction of a special act as to the ascent to a bridge.

The Attorney-General v. The London and Southampton Railway Company, (1 Railway Cases, 283).]--The London and Southampton Railway Act directs, that, where any bridge shall be erected for the purpose of carrying any turnpike road over or across the railway, the ascent to such bridge shall not be more than one foot in thirty feet, except where the “ present inclination" of such turnpike road shall be steeper, in which case the inclination of such road shall not be steeper than the present inclination of such road.

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