a greater width may be required for either embankments or cuttings.

Semble, that the company have not, under these clauses, power by compulsory process to purchase land for the purpose of making an embankment upon other and lower land on a different part of the line.

A point involving questions of practical science being in dispute, and the affidavits being conflicting, the evidence was, at the suggestion of the Court, and with the consent of both parties, referred to an engineer for his report on the question in dispute, and the conclusion of the engineer with respect to the facts was adopted by, and made the ground of the order of, the court.

A railway company will not be prevented by injunction from taking lands for purposes warranted by their act, on the ground that, previously to the filing of the bill, and before the necessity of taking it for such purposes was made known to the plaintiff, the company had endeavoured to take the same lands for other purposes not so warranted.

Ambiguous words in an act of Parliament, authorising a public company to take land by compulsory process, are to be construed against the company and in favour of private property. (See ante, 166, n. (e)).

Rowe v. Shilson, (4 B. & Adol. 726).]—An embankment company was, by an act of Parliament, (not limited in duration), empowered to make a road, and to erect turnpikes upon or across "any lanes or ways leading or that might thereafter lead out of the same," and to take tolls at such turnpikes. By subsequent acts, another company was empowered to make a railway, and it was enacted, that all persons should have free liberty to use the same, with carriages properly constructed, upon payment only of such rates and tolls as should be demanded by the railway company, not exceeding the sums mentioned in that act. The railway was afterwards made, and it crossed the embankment company's road. It was decided, that the railway, though made and opened to the public by act of Parliament, was a way" within the meaning of the first-mentioned act. Secondly, that the clause in favour of the public in the railway act did not take away the vested right of the embankment company to their tolls; and, consequently, that they might take toll of persons crossing their road upon the railway.

Cases.

Miscellaneous.

When a railway

company are liable

to pay tolls for crossing a turnpike road,

Cases.

Miscellaneous.

The Attorney-General v. The Eastern Counties Railway Company, (3 Railway Cases, 337).]—By sect. 100 of a Railway Act, it was enacted, "That where any bridge shall be erected by the said company, for the purpose of carrying the said rail way over or across any the provisions of a turnpike road, the span of the arch of such bridge shall be formed,

A temporary bridge across a turnpike road

held to be within

section in a rail

way act; but an injunction was refused, and, in lieu thereof, the company were put under certain terms.

Where money was paid on the withdrawal of the opposition of a land

bill pending in Parliament,Held, upon the

and shall at all times be and be continued, of such width as to leave a clear and open space under every arch of not less than twenty-five feet, and of a height from the surface of such turnpike road to the centre of such arch of not less than sixteen feet, and the descent under any such bridge shall not exceed one foot in thirty feet," &c.

It appeared that the company erected a temporary bridge across a turnpike road, by the side of a permanent bridge, for the purpose of carrying spare earth over the road, whereby the road was narrowed to less than twenty-five feet under the bridge; and an injunction was thereupon applied for to prevent the company from using the bridge.

Sir Knight Bruce, V. C.-I am of opinion, that, although the bridge is a temporary one, and adjoining the regularly made bridge, yet the 100th section has not been complied with, and, on that ground at least, what has been done is illegal; and, taking the whole act together, I think there has been an infraction of the law, and that, too, without any favourable circumstances. No case of great practical inconvenience has been made out, and I do not think it necessary, considering all the matters before me, nor do I think it necessarily the duty of the Court, to interfere by injunction. The Court will exercise its discretion according to circumstances, and, although there may have been an infraction of the law, it will endeavour to do substantial justice to one party without imposing unnecessary hardship on the other, especially in a case where the legal tribunals are open. [His Honor suspended the injunction, and put the company under certain terms.]

Regina v. The York and North Midland Railway Company, (14 Law Journ. 277, Q. B.)]-Under a special Railway Act, the company owner to a railway were required, by sect. 88, "to make proper watering-places for cattle, in all cases where, by means of the railway, the cattle of any persons Occupying lands adjacent thereto should be deprived of access to their ancient watering-places, and to supply the same with water." After this act passed, and during the progress through Parliament of a subsequent act for amending the first act, by an indenture made between the railway company and Sir W. M. Milner, in consideration,

construction of the

agreement entered into between the parties, that the railway company were bound to make proper watering-places for cattle in certain fields intersected by the railway.

amongst other things, of Sir W. M.'s withdrawing all opposition to the latter bill, the company covenanted "that they would pay to Sir W. M., as and for the special damage to be thereby occasioned to his estate, and particularly to his mansion house, the sum of 5000l.; and that, whenever any close, &c. of Sir W. M. should be intersected by the said railway, the different parts adjoining should be thrown together and properly levelled, &c.; and that the company should, at their own expense, make and complete such good and sufficient fences, drains, gates, stiles, and other conveniences as might be necessary for the re-dividing of the fields which might be intersected by the railway, and for laying them to the adjoining fields of the same estates for the purpose of convenient occupation; or, otherwise, would pay the said Sir W. M. the costs incurred by him in so doing." The 50007. was paid by the company, and, under the indenture, Sir W. M. had given notice to the company to make certain fences, drains, crossings, gates, and also ponds in portions of the lands which had been intersected and cut off from the ancient watering-places by reason of the making of the railway. On the refusal of the company to make such ponds or watering-places, a mandamus was applied for.

Lord Denman, C. J., delivered the judgment of the Court as follows (after stating the contents of the return, which set out the indenture).-The defendants say they executed the works required, except the ponds, and they conclude by alleging that the cutting off of ponds and watering-places, as stated in the writ, and damages occasioned thereby, were part of the special damages covered by the 50007.; and, further, that the ponds they are required to make were not conveniences within the meaning of the indenture last set forth. Sir W. M. has traversed both these assertions, to which the defendants have demurred. We do not enter into the technical objection raised, as we are of opinion the indenture furnishes no sufficient answer to the writ. The special damages, for which the 5000l. were paid, are evidently such as were peculiar to Sir W. M. in the alteration of the line, of whatever nature they may be, and not such damages as might happen to any person whose lands were intersected; such damages are, in the very clause of the indenture, pointed out as ordinary damages, and the 88th section of the act provides for them in terms. The indenture was made on the 1st of May, 1837, long after the act, which passed on the 21st of June, 1836, and the clause in the inden

Cases.

Miscellaneous.

Cases.

Miscellaneous.

Where works were executed for the

a navigation by contract, under a written specifica

tion, and, by reason

of the works therein specified having been ill done, an overflow of water was caused on the plaintiff's lands,

Held, that the con

tractors, and not

the commissioners,

were liable to be sued by the plaintiff.

ture seems almost exactly to refer to that section, among others, in the act. With respect to the other clauses in the indenture, it is plain the word "conveniences" there used does not apply to all things necessary for the occupation of the land, but to all things necessary for the re-dividing and laying the intersected closes to the adjoining land for the purpose of convenient occupation-it is the laying the lands together to which those words must be applied, not to making fences and other conveniences; added to which, the 88th section obliges the company to supply water, and gives them power to go even over the lands of a third person, which, if the clause of the indenture were to receive the construction of the defendants, would relate only to making ponds on the lands of Sir W. M. At all events, it cannot alter the obvious meaning of the indenture itself. Upon the whole, we are of opinion that the prosecutor is entitled to our judgment, and the peremptory writ of mandamus must issue.

Allen v. Hayward, (4 Railway Cases, 104).]-Action on the case commissioners of against the defendant, as clerk to the Commissioners of the Dartford and Crayford Navigation, acting under stat. 3 Vict. c. 10, for injuries done to the plaintiff's lands, by reason of an overflow of water which was caused through the negligent execution of certain works, charged to have been done by the defendants. It appeared, at the trial, that a resolution had been passed by the commissioners, directing their engineer to prepare a specification for certain works which they wished to have executed, and that various persons were invited to send in tenders for the execution of the works. Tenders were sent in; and, at a meeting of the commissioners, they unanimously resolved to accept the tender sent in by one Button. The secretary prepared the contract, which contained a clause, "that all such parts of the work to be done by Button as were not in a particular manner specified and described in the contract or plans and specifications, shall be executed in such manner as the surveyor of the said works for the time being shall direct, and in a good and workmanlike manner, under certain penalties. Button did the work under the contract, including the removal of a bank, which was specified and described in it, which bank he re-erected of insufficient materials; and afterwards let the water in prematurely, which sunk the bank, and went over it into the plaintiff's orchard. It was no part of the contract that he should let in the water."

It was contended, at the trial, that the contractor was not the servant of the commissioners, so as to make them liable for the consequences of his negligent execution of the works, and that the action was misconceived. The jury found a verdict for the plaintiff; and, a rule having been obtained to set the verdict aside and enter a nonsuit

Lord Denman, C.J., now delivered judgment.-"The grievance was the overflowing of the plaintiff's orchard by drains imperfectly made. A bank, placed at first too close to an extensive excavation, had been moved backward, but was re-erected of insufficient materials; water was prematurely admitted, which sunk the bank, and went over it into the plaintiff's land. If a proper cess had been made, the evidence was, that the water might have passed away without injury to the plaintiff. All this was done by Button, the contractor; and the defendant contended, that it was not in execution of the works contracted for. I directed the jury that the commissioners could not be liable, unless the damage was done in execution of the contract, stating my opinion that there would be a want of skill or care in being taken by surprise by a bad vein of soil, and not making the bank sufficiently strong to resist the water; but that if the improper introduction by Button of the water had caused the injury, that was not done by their authority, and that they were not liable in this action. The jury found for the plaintiff, and, we think, properly, on that point. It now seems to us, that, if the bank was in itself insufficient and unskilfully constructed, the maker of it is liable for the damage done, though that may have been directly caused by something wrong proceeding from another; and hence, that, if the commissioners constructed a weak and dangerous bank, they would be liable for the damage done by water improperly let in, whether by their servant, or by a stranger, or by some natural accident. Supposing this to be true, we are then brought to the question, whether the commissioners are responsible for this ill-construction,—whether the contractor is to be regarded as their servant, so that they may be called the makers of this work by his agency. On a careful reference to Laugher v. Pointer, (5 B. & C. 547), in which the opinions delivered by Lord Tenterden, C. J., and Littledale, J., must be taken to lay down the correct law: to Randleson v. Murray, (8 A. & E. 109); Quarman v. Burnett, (6 M. & W. 499); Milligan v. Wedge, (12 A. & E. 737); and Rapson v. Cubitt, (9 M. & W. 710), it seems perfectly clear, that, in an ordinary case, a contractor to do works of

Cuses

Miscellaneous.