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Regulations at the railway be improperly loaded, or suffered to obstruct
as to of Rail
the railway, it may be unloaded or removed, and all expenses must be paid by the owner; and the company are not liable for any damage or loss occasioned by unloading or removing a carriage or goods, except for their wilful or negligent acts, or any wrongful detainer (x). The owners of engines and carriages on the railway are answerable for any trespass or damage done by them or their servants, and servants may be convicted before two justices; and the owner may recover any money paid by him, from his servant, in the manner prescribed (y).
Regulations as to leasing railways.
V. Railway Companies are under various restrictions with reference to their powers of leasing a railway. The Railways Clauses Consolidation Act enacts, that, "where a company are authorised by their special act to lease the railway, or any part thereof, the lease to be executed in pursuance of such authority shall contain all usual and proper covenants on the part of the lessee for maintaining the part of the railway contained in the lease in good and efficient repair and working condition during the continuance thereof, and for so leaving the same at the expiration of the term, and all such other provisions, conditions, covenants, and agreements, as are usually inserted in leases of a like nature; and such lease entitles the company or person to whom it is granted to the free use of the railway or portion of railway comprised therein, and of all the powers and privileges granted to, and which might otherwise be exercised and enjoyed by the company, or the directors thereof, or their officers, agents, or servants, with regard to
(a) 8 Vict. c. 20, ss. 122, 123, post, App., 190.
(y) Id., ss. 124, 125, post, App.,
the possession, enjoyment, and management of the railway, Regulations as to or of the part thereof comprised in such lease, and the tolls to be taken thereon, shall be exercised and enjoyed by the lessee, and the officers and servants of such lessee, under the same regulations and restrictions as are by that or the special act imposed on the company, and their directors, officers, and servants; and such lessee shall, with respect to the railway comprised in such lease, be subject to all the obligations by that or the special act imposed on the company (q).
Many of the special railway acts passed during the early part of the session 1845, contained general powers, enabling railway companies to grant or accept a lease, sale, or transfer of their own or other lines of railway; but, it being afterwards considered that these powers ought not to have been granted, a statute was passed towards the close of that session, which enacts, that "it shall not be lawful for such companies, by virtue of any powers contained in any act passed in the then present session, to make or grant, or for any other railway company or party, by virtue of any such powers, to accept, a sale, lease, or other transfer of any railway, unless under the authority of a distinct provision in some act of Parliament to that effect, specifying by name the railway to be so leased, sold, or transferred, and the company or party by whom such lease, sale, or transfer may be respectively made, granted, or accepted "(r).
(q) Id., ss. 112, 113, post, App., 187.
(r) 8 & 9 Vict. c. 96, post, App. The above-mentioned restrictions of the powers to lease railways arise from a jealousy, which has induced the legislature to institute inquiries, as to the effects likely to be produced by the amalgamation of railways. In the Report of the railway department
of the Board of Trade, dated 7 May,
"The present unsettled state of
the Lords of the
VI. If, after the end of twenty-one years from the pass
Treasury to pur- ing of any railway act of the then or any subsequent session
revise the scale of tolls.
precipitately allowed, unless in cases where the advantage to the public is perfectly manifest.
"These observations apply princi. pally to the case of amalgamations between railways which have been originally projected and sanctioned as independent undertakings. There is another class of cases where new lines are brought forward by the aid of, and in alliance with, existing companies, who subscribe a portion of the capital, or guarantee a certain return upon it, and take powers to lease or purchase the line when made. In such cases, it is evident that greater latitude must be allowed, as otherwise the inducement to the existing company to support the new line would be, in a great measure, withdrawn, and in many cases the undertaking could not otherwise be supported. In such cases, it would appear to be fair to allow an existing company, promoting a line sanctioned as an useful undertaking, in exchange for a guarantie on their part to complete what they undertake, to purchase or amalgamate with themselves such small lines as may be considered natural branches of the parent line, and to lease, for a long period, such larger schemes as they may have promoted.
"Where such new schemes, however, are of sufficient magnitude to support themselves independently, and are not so intimately connected with the parent line as to be necessarily worked along with it, it may, in some cases, be advisable to make some provision for the existence of a degree of independence and local
management in the new concern ; and also for limiting the period during which the union of interest is to exist without the necessity of a fresh application to Parliament."
In connexion with this subject, it may be here remarked, that, in the session of 1846, a select committee was appointed by the House of Commons, "To consider the principle of amalgamation as applied to the railway and canal bills then under the consideration of Parliament." reports have been issued by this committee, and the following extracts point out the course of legislation which is recommended by the committee. In their first report, dated 8 April, 1846, the committee observe, "That, in discharging the duty imposed upon them, they have in the first instance applied themselves to the task of ascertaining how many of the railway and canal bills now before Parliament contain clauses involving the principle of amalgamation. It has been found difficult, if not impossible, to form a correct estimate of their number; but, making allowance for error, and exclusive of the Irish bills, it may be stated that they amount to about 161 for England, and about 56 for Scotland. Of this number, 37 are bills for the amalgamation, by purchase, lease, or otherwise, of existing railway companies with each other; 32, of railways with canals; 155 for the formation of new lines, and their amalgamation with existing companies or with each other. Amongst the last will be found bills containing clauses which give a general power of
the Lords of the Treasury to pur
of Parliament, (7 & 8 Vict., 1844), the clear annual profits or nating divisible upon the subscribed and paid-up capital stock of such railway, upon the average of the three then last pre
leasing the tolls, or leasing or selling the works or lines, with the view of effecting amalgamation at some future time with any company or companies which may be disposed to take advantage of the power so given; also bills which, containing clauses with a somewhat similar object, are, however, restricted to the option of two or more companies therein specified.
"In addition to and not included in the above list, there are several bills in which powers are taken by existing companies to contribute to the funds for the execution of the works of new lines; thereby securing, in proportion to the sums subscribed, a permanent influence in the future management of the company.
"Your Committee are by no means disposed to regard with undue jealousy, the principle of amalgamation. The benefits arising from it, if conducted within proper limits and under judicious regulations, are indisputable.
"To the suggestions and to the opinions expressed in the Report made by the railway department of the Board of Trade, on the 7th May, 1845, (see ante, 417), your Committee are disposed to give their general concurrence."
The Committee then make certain suggestions, with the view to carry out the principles recommended by the Report.
On the 4th May, 1846, the Committee agreed to their second Report. The following are extracts :
"Your Committee have stated, in their former Report, that there are
about thirty-two bills before Parliament, in which power is sought to effect the amalgamation of canals with railways. These may be classed under the following heads :-First, bills for the amalgamation, by lease, purchase, or otherwise, of entire lines of canal with competing lines of railway. Secondly, bills for the amalgamation of some canal forming a link in a chain of water communication, with a line of railway competing with the whole chain. Thirdly, bills for converting canals into railways."
The Committee then state, that the present extent of inland navigation in Great Britain, by means of canals, is estimated to be about 2,500 miles. After making some observations on the effects produced by the competition between railways and canals, the Committee say, "The general conclusion, therefore, to which your Committee have come is, that it would not be politic altogether to refuse the sanction of Parliament to the amalgamation of railways with canals. They would, however, strongly impress upon the attention of the committees to whom bills, whether for the amalgamation of canals with railways, or for the conversion of canals into railways, may be referred, that a most searching inquiry should be instituted into the merits of each case; and that their sanction should be given only in those instances in which it shall have been clearly proved that the amalgamation can be effected without prejudice to the public."
Treasury to purchase Railways,
Powers enabling ceding years, shall equal or exceed 107 per cent., the Lords of the Treasury may, upon giving three months' notice to the company, revise the scale of tolls, fares, and charges limited by the act relating to the railway, and fix such a new scale as shall be likely to reduce the divisible profits to 107. per cent. ; but no revised scale can take effect unless accompanied by a guarantee that the divisible profits, in case of any deficiency therein, shall be annually made good to the said rate of 107. per cent.; and it is also provided, that a revised scale shall not be again revised, or the guarantee withdrawn, otherwise than with the consent of the company, for the further period of twenty-one years(s).
Or the Lords of the Treasury, at the end of the said period of twenty-one years, (whatever be the rate of divisible profits), may, upon giving three months' notice to the company, purchase any such railway, upon payment of a sum equal to twenty-five years' purchase of the annual divisible profits, or, in certain cases, at a price to be fixed by arbitration; but no option to purchase can be exercised whilst a revised scale of tolls is in force (t).
The above-mentioned option of revision or purchase is not applicable to any railway authorised to be made by any act passed previous to the session 7 & 8 Vict. c. 85, , or to any new branch of such railway, if less than five miles in length. It is also provided, that the option to purchase any new branch shall not be exercised without including the railway also (u).
The directors of railways within the provisions above mentioned, are required to keep certain accounts of their receipts during the three years next preceding the period at
(s) 7 & 8 Vict. c. 85, s. 1, post, App., 28.
(1) Id., s. 2, post, App., 28. (u) Id., s. 3, post, App., 28.