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. By Regina v. The Eastern Counties Railway Company, (2 Q. B. 569; 3 Railway Cases, 22).]—By a railway act, a company were empowered to raise or lower any roads or ways, in order the more conveniently to carry the same over or under or by the side of the railway. 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 Cases. Construction of Permanent Bridges. When a street may tain the necessary height under a bridge, notwithstanding the provisions of a local be lowered to ob paving act. Cases. Construction of descent of any conceivable steepness under an arch erected by the company, they would not be bound to reduce it to the limits prePermanent Bruges. scribed by the section. But it is said that the powers of the 9th section are expressly given, subject to the provisions and restrictions of the act, and that one of the provisions included in these general words is to be found in the 120th section, which provides that "nothing in the act shall extend to prejudice, derogate, or diminish any of the rights or privileges of any parish over which the railway shall pass, acting under and by virtue of any local act." The parish of Christ Church is then said to be within these words, because the paving, &c. are, by a local act, placed under the control of commissioners, in whom the pavements are vested. The same statute enacts, "that no person shall alter, or cause to be altered, the form of any pavement, which shall be new made by virtue of this act, without the consent of the commissioners, or in anywise encroach thereon." If this had been the whole section, it would have been very questionable whether it could have been construed so as to restrain the company from exercising powers plainly given under an act so long posterior in point of time, and which, in many instances, are so essential to the carrying out the purposes of their act. It would also be very questionable whether a local act, such as the one in question, comes within the meaning of the 120th section of the railway act. That section saves the rights and privileges of any parish acting under any local act,―words which seem not very applicable to the case of the paving and lighting of a parish being placed under the management of commissioners. This section, indeed, follows as a proviso on a section which gives a mode for indemnifying parishes as to their poor and other rates, where they would be otherwise diminished by the rendering houses and other property unrateable during the construction of the railway; and it seems rather intended to save the peculiar rights which local acts might have given to particular parishes, as to the modes of assessment and collection. But, without deciding the question on these suppositions, it seems to us that the point is clear when the whole section is looked at. After the words already cited, on which the prosecutors rely, these immediately follow: "or put up any step or steps, or erect any bulks or stalls, or place out any show-glasses, or make any dungholes or sawpits, or other matters or things, so as to be an encroachment, upon pain of forfeiting, for every such offence, any sum not exceeding 5l. It is clear, then, that this section was inserted merely as a police regulation, to prevent what are commonly called street nuisances and encroachments; and the words" form of the pavement" are well suited for such a purpose. To lower the street and re-lay the pavement in the same form and of the same dimensions, but on a different level, is scarcely to alter the form of the pavement; and we should be straining the words beyond their natural meaning to include a case never contemplated by the Legislature, if we were to give them the force contended for by the prosecutors. Their counsel also relied on a section in the same act which vests the property of the pavements in the commissioners; but this appears to us immaterial. The company, by what they propose to do, will not interfere with the property, which must, of course, in every case, be in some person or body; and the act which incorporates them expressly authorises them to lower roads. Judgment for the defendants. Regina v. Sharpe, (3 Railway Cases, 33).]—By a railway act, a company were empowered "to divert or alter any roads or ways, in order the more conveniently to carry the same over or under the railway." The company, in carrying a road under the railway, had erected a skew bridge, which diverted the road to an angle of 45°, instead of 34°, which was the angle made at that particular point by the old line of road. At the trial of an indictment against the company's engineer for so doing, Alderson, B., (having consulted Parke, B., (a)), directed the jury, that, as the only way for the company to resist the charge was, to shew that the bridge complained of had been built in conformity with the act of Parliament, the question in substance was, what was the most proper way to construe it. The word "conveniently" meant more conveniently upon the whole for carrying into effect the purposes of the act; and, if the work was done in a mode in which an experienced engineer would construct it, having reasonable regard to the interests both of the company and (a) Parke, B., said, that, in a case which had been tried before him as to the power which a company had to make a railway over a public highway, he laid it down, that, "if possible, the work must be constructed without any inconvenience to the public; but if it could not be done without some such inconvenience, it must be done with the least possible, according to the provisions mention- Cases. Construction of Permanent Bridges. Construction of special act as to the right to erect a bridge at a different angle from the former road. Cases. Construction of the public in the construction of it, it was to be looked upon as being in conformity with the intention of the act; that it was, Permanent Bridges. therefore, for the jury to say, whether there was any practical inconvenience arising to the public by the road being diverted more obliquely than before. If the public would sustain such inconvenience, then, as it was clear that the bridge could be so made, and no convenience was added to the public by its not being so made, the verdict should be for the Crown; but, if they thought that no material practical inconvenience was sustained by the public in having the present bridge instead of the other of 34°, as it would be across the original road, and that an experienced engineer would have so constructed it, having regard to the interests both of the public and the company, they had a right to make such a diversion in building the bridge, and the verdict should be for the defendant. The jury found a verdict for the defendant; and the Court of Queen's Bench decided that the ruling of the learned Judge was right, and refused to grant a new trial. When the cou struction of a submitted to a court of law. Northam Bridge and Roads Company v. The London and Southampton special act will be Railway Company, (6 M. & W. 428; 1 Railway Cases, 653).]—A railway act (ss. 70 and 71) provides for the crossing by the railway of roads, not being turnpike roads. The 72nd section provides, that a turnpike road which shall be crossed by the railway shall be raised or sunk so as to pass over or under the railway. The railway being proposed to cross the Northam-bridge-road in the mode provided for by the 70th and 71st sections, the plaintiffs, the proprietors of the road, filed their bill, insisting that the road was a turnpike road, and praying to restrain the railway company from crossing over or using the same until they should have complied with the 72nd section. On a motion for an injunction, the Vice-Chancellor of England, being of opinion that the road was not a turnpike road, and therefore not within the 72nd section, refused the motion, but, on the application of the plaintiffs, directed a case for the opinion of a court of law upon the question. A case was accordingly sent to the Court of Exchequer, and a certificate returned by the Judges of that court, stating, that the Northam-bridge-road was a turnpike road. An application by the railway company to send the legal question before another court of law was refused. Upon a motion for the injunction consequent upon the certificate, it was decided, that, as the object of the plaintiffs must be to procure for the public using the road a compliance with the 72nd section of the railway act, upon the railway company entering into an undertaking to proceed with and complete a bridge over the road with all possible despatch, an injunction ought not to be granted during the time that must necessarily elapse in building the bridge. Cases. Construction of Permanent Bridges. VIII. Cases relating to the Diversion of Roads. Regina v. Scott, (3 Q. B. 543; 3 Railway Cases, 187).]-By a railway act, a company was empowered (sect. 94) to divert or alter the course of any roads or ways, in order the more conveniently to carry the same over or under or by the side of the railway. By sect. 97, in all cases wherein, in the exercise of such power, any part of any carriage road, &c. should be found necessary to be cut through, raised, sunk, taken, or so much injured as to be impassable or inconvenient for passengers and carriages, &c., or to the persons entitled to the use thereof, the company should, at their own expense, before any such road, &c. should be so cut through, cause a good and sufficient carriage road, &c. to be set out and made instead thereof, as convenient for passengers and carriages as the former road, or as near thereto as might be. The company had diverted a highway, and obstructed the old road by building a wall across it, and had made a new road, which was neither as convenient to the public as the old one, nor as near thereto as might be. It was decided that the company were liable to be indicted in the common form, for so obstructing the highway. The company, when making their railway, stopped up the public highway mentioned in the indictment, called Goodier-lane, and made a branch, restoring the communication between the termini formerly connected by that lane, but by a different line. The new road was stated to be in some respects more convenient to the public than the old, but in others less so. The levels of the adjacent land made it impracticable to give a more convenient line consistently with the regulations of the act, unless at an expense which, it was said, would be unreasonably great, and quite disproportioned to the benefit which would accrue from it to any part of the public.-Maule, J., directed the jury to find a verdict of not guilty, if they thought that the company had done no more damage than was necessary, and had made the road as convenient as the former one, or as nearly so as might be; If a railway com pany stop up an old road, without substituting a new one, in pursuance of the provisions of a special act, they are liable to be indicted for a nuisance. |
