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Cases.

Diversion of Roads.

intimating, as his own opinion, that the road made by the company could not be deemed absolutely as convenient, even after allowing for the advantages which the public might have gained from it. But he stated, that the company were not, in his opinion, bound to lay out enorinous sums of money to procure a slight accommodation to some persons; and that the proper rule seemed to be, that, if they could not make the road as convenient as before without a very disproportionate and unwarrantable expenditure, they should make it as nearly so as they could; and he left it to them to say whether the new road was as convenient as before, or, if not, as nearly so as it might be. The jury found a verdict of guilty on two counts, (including that first mentioned), and not guilty on the others. A rule nisi for a new trial was afterwards obtained.

Lord Denman, C. J., said, in delivering judgment.-The defendants were convicted of a nuisance in obstructing a highway. They pleaded not guilty, and proved on the trial that the obstruction was caused by the exercise of certain powers conferred by their act of incorporation. Their offer to remedy the evil appeared to us so reasonable, that we pressed the prosecutors to accept it, and hoped to be spared the necessity of deciding the question of law by which the defendants sought to shew that what they have done is lawful. The prosecutors, however, who are the surveyors of the highways, crave our judgment on this point. The work complained of as a nuisance, and undoubtedly making one, is the cutting through of the carriage road. Now, there is no question as to their right to do this; and though they are required, when they do it, to cause another road to be set out and made instead of it, they argue that they are no longer indictable for a nuisance in doing the lawful act, however they may for disobedience of the law in neglecting to substitute another. The prosecutors reply by referring to the section (97) which requires the company to cause a new road to be made before they cut through the old. But the company rejoin, that, from the state of the earth there, it was impossible to do this, and could not be intended by the Legislature. This argument we think inadmissible, for reasons too obvious to require a full statement of them. The company have done what the act legalises only on a condition which they have not performed. They stand convicted of the nuisance, and shew no justification. The verdict will, therefore, not be disturbed; but we still hope that the parties may consent to an arrangement useful to the public.

authorised

Aldred v. The North Midland Railway Company, (1 Railway Cases, 404). The trustees of a turnpike road agreed to assent to a bill in Parliament for the formation of a railway, on the condition that the railway should pass over the road at a sufficient elevation, and that the road should not be lowered or otherwise prejudiced. This qualified assent was given in both houses of Parliament, and the bill passed. The 12th section of the act, among other powers, the company to raise and sink rivers or streams, roads or ways, in order the more conveniently to carry the same over or under or by the side of the railway, provided that the company should not divert, obstruct, or impound any river or water to the prejudice of any mill or manufactory. Sect. 72 enacted, that the arch of any bridge, for carrying the railway over or across any turnpike road, should be of a height, from the surface of such road to the centre of such arch, of not less than sixteen feet, provided that the descent under any such bridge should not exceed one foot in thirty feet. The act contained no particular proviso as to the road in question.

It was decided, by the Vice-Chancellor of England, that the modified assent of the road trustees-the terms of which were neither embodied in any agreement between the trustees and the company, nor adopted by the Legislature-afforded no equitable ground for restraining the company from enforcing, with regard to the road in question, all the powers conferred by the act; and that the company were authorised to sink the original surface of a turnpike road, in order to give the specified elevation to the arch of a bridge erected for carrying the railway over such road, notwithstanding that the effect, from the peculiar situation of the road, would be to render it liable to be occasionally flooded,

Edwards v. The Grand Junction Railway Company, (7 Sim. 342; 1 Railway Cases, 173).]—The directors of a company, for the incorporation of which a bill was pending in Parliament, had projected a railway to cross a certain turnpike road. The trustees of the road had taken measures for opposing the bill, unless certain clauses restricting, with regard to such road, the general powers proposed to be granted in the bill were introduced therein. The company, by their agent or manager, entered into an agreement with the trustees, to the effect, that, instead of such clauses being inserted in the act, the substance of them should be embodied in an agreement between the

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Cases.

intimating, as his own opinion, that the road made by the company Diversion of Roads. could not be deemed absolutely as convenient, even after allowing for the advantages which the public might have gained from it. But he stated, that the company were not, in his opinion, bound to lay out enorinous sums of money to procure a slight accommodation to some persons; and that the proper rule seemed to be, that, if they could not make the road as convenient as before without a very disproportionate and unwarrantable expenditure, they should make it as nearly so as they could; and he left it to them to say whether the new road was as convenient as before, or, if not, as nearly so as it might be. The jury found a verdict of guilty on two counts, (including that first mentioned), and not guilty on the others. A rule nisi for a new trial was afterwards obtained.

Lord Denman, C. J., said, in delivering judgment.-The defendants were convicted of a nuisance in obstructing a highway. They pleaded not guilty, and proved on the trial that the obstruction was caused by the exercise of certain powers conferred by their act of incorporation. Their offer to remedy the evil appeared to us so reasonable, that we pressed the prosecutors to accept it, and hoped to be spared the necessity of deciding the question of law by which the defendants sought to shew that what they have done is lawful. The prosecutors, however, who are the surveyors of the highways, crave our judgment on this point. The work complained of as a nuisance, and undoubtedly making one, is the cutting through of the carriage road. Now, there is no question as to their right to do this; and though they are required, when they do it, to cause another road to be set out and made instead of it, they argue that they are no longer indictable for a nuisance in doing the lawful act, however they may for disobedience of the law in neglecting to substitute another. The prosecutors reply by referring to the sec tion (97) which requires the company to cause a new road to be made before they cut through the old. But the company rejoin, that, from the state of the earth there, it was impossible to do this, and could not be intended by the Legislature. This argument we think inadmissible, for reasons too obvious to require a full statement of them. The company have done what the act legalises only on a condition which they have not performed. They stand convicted of the nuisance, and shew no justification. The verdict will, therefore, not be disturbed; but we still hope that the parties may consent to an arrangement useful to the public.

in

Cases.

Any special stipu

lations as to the

mode of constructing works should

be embodied in the railway act, or be

made the subject of an agreement between the parties.

Aldred v. The North Midland Railway Company, (1 Railway Cases, 404).]-The trustees of a turnpike road agreed to assent to a bill in Diversion of Roads. Parliament for the formation of a railway, on the condition that the railway should pass over the road at a sufficient elevation, and that the road should not be lowered or otherwise prejudiced. This qualified assent was given in both houses of Parliament, and the bill passed. The 12th section of the act, among other powers, authorised the company to raise and sink rivers or streams, roads or ways, order the more conveniently to carry the same over or under or by the side of the railway, provided that the company should not divert, obstruct, or impound any river or water to the prejudice of any mill or manufactory. Sect. 72 enacted, that the arch of any bridge, for carrying the railway over or across any turnpike road, should be of a height, from the surface of such road to the centre of such arch, of not less than sixteen feet, provided that the descent under any such bridge should not exceed one foot in thirty feet. The act contained no particular proviso as to the road in question.

It was decided, by the Vice-Chancellor of England, that the modified assent of the road trustees-the terms of which were neither embodied in any agreement between the trustees and the company, nor adopted by the Legislature-afforded no equitable ground for restraining the company from enforcing, with regard to the road in question, all the powers conferred by the act; and that the company were authorised to sink the original surface of a turnpike road, in order to give the specified elevation to the arch of a bridge erected for carrying the railway over such road, notwithstanding that the effect, from the peculiar situation of the road, would be to render it liable to be occasionally flooded.

Edwards v. The Grand Junction Railway Company, (7 Sim. 342; 1 Railway Cases, 173).]-The directors of a company, for the incorporation of which a bill was pending in Parliament, had projected a railway to cross a certain turnpike road. The trustees of the road had taken measures for opposing the bill, unless certain clauses restricting, with regard to such road, the general powers proposed to be granted in the bill were introduced therein. The company, by their agent or manager, entered into an agreement with the trustees, to the effect, that, instead of such clauses being inserted in the act, the substance of them should be embodied in an agreement between the

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Cases.

Diversion of Roads.

If surveyors of highways object to a road which has been substi

not authorised to obstruct it, but

they must enforce the usual legal remedies.

company and the trustees. One of the terms of such agreement was, that the trustees should not oppose the bill; and they accordingly made no opposition to it. The act passed without the restrictive clauses originally contemplated by the trustees. It was decided by the Vice-Chancellor of England, and also by the Lord Chancellor, affirming his Honor's decision, that the incorporated company could not, as against the trustees, exercise a power conferred by the act in violation of the terms of the agreement.

The London and Brighton Railway Company v. Blake, (2 Railway Cases, 322).]-The London and Brighton Railway Act, (s. 59), after tuted for a former reciting that it is intended to carry the railway across certain public road, they are roads or highways in the parish of C., and to alter the levels or present surface of such roads, enacts, that all alterations, whether temporary or permanent, of, in, or to any of the said public roads or highways, and all works connected therewith, of any kind or description whatsoever, and all bridges to be erected by the company, and all future repairs of such altered roads, or of any temporary roads, and the quality of the materials to be used and applied in or to such altered or temporary roads, and all future damage to such altered or temporary roads, shall be made, formed, completed, and finished under the superintendence, from time to time, and to the entire satisfaction of the board of surveyors of roads for the parish of C. By sect. 60, if the company shall, in the doing, making, forming, completing, and finishing of all or any or either of such alterations or works in, to, or belonging to the said public roads or highways in the parish of C., do or cause any injury or damage to any or either of the said road or roads, or to any part thereof, and shall not forthwith proceed to repair and make good such injury or damage to the satisfaction of the board of surveyors of the parish of C., or if the roads so to be altered shall not be properly made and completed and kept in repair, it shall be lawful for the said board of surveyors to cause such repairs to be done." The company made a diverted temporary road leading from one of the said roads, which diverted temporary road was crossed by the railway. The railway did not cross the old road, neither did the company alter the level or surface of the old road. The company also made and tendered to the surveyors a permanent diverted road, which the surveyors refused to approve of or accept. The company having, in the execution of their works, crossed the temporary diverted road with locomotive engines, the

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