riages, or such other roads as the Commissioners of 8 & 9 VICT. c. 20. Ireland: The expression" surveyor," applied to a road or high-" Surveyor," way, shall, as to railways in Ireland, include the county surveyor: The expression the poor," overseers of the poor," when applied Overseers of to Ireland, shall include the poor-law guardians of Ireland. the electoral division and the clerk of the guardians of the union through which such railway may pass. (a) It seems doubtful whether an easement may be treated under Easements. the Consolidation Acts, as "land" for the purposes of compensation, &c. See per Lord Cranworth in Pinchin v. London and Blackwall Railway Co., 5 De G. M. & G. 861, 862, and the notes to s. 68 of the Lands Clauses Act, 1845, ante, p. 193. His Lordship thought it clear that rights of way, of common, and Rights of way, of turbary, were not to be so treated: (Ibid.) common and turbary. As to the power to acquire an easement for the purpose of making Junctions. a junction, see the notes to s. 16, post. (b) This section "does not in any way limit or restrain the con- Tolls. struction of the word tolls,-it does not assume to define it; it merely specifies certain payments which it shall be held to include, even if rse they could not be brought within any correct definition of it. Further, it is necessary to extend the construction beyond the strict technical meaning of toll per se; for toll per se, without the addition of thorough or traverse, or some adjunct applying it to the passage of goods or passengers, would be simply insensible with reference to a railway. It must clearly, therefore, mean, at least, a payment, the consideration of which is the passage of passengers, carriages, or goods on the railway :" (Judgment of the Court of Exchequer, in Great Northern Railway Co. v. South Yorkshire Railway Co., 9 Exch. 644; 7 R. C. 773.) (e) As to the meaning of the word "town," see Carington v. "Town.” Wycombe Railway Co., L. R. 2 Eq. 825, 833, and the notes to s. 128 of the Lands Clauses Act, 1845, p. 295, ante. ground of in waived. (d) This is merely declaratory of the common law that any inter- Justices. ested justice is incapacitated from acting, but it does not make Objection on interest in the justice an absolute disqualification, so that the ob- terest may be jection grounded upon it cannot be waived by consent of the parties. Therefore when on the hearing of a complaint under s. 58, post, an objection to a justice on the ground of interest is waived by the parties, the justice has jurisdiction, and an objection of want of jurisdiction cannot afterwards be raised: (Wakefield Board of Health v. West Riding and Grimsby Railway Co., L. R. 1 Q. B. 84; 35 L. J. (M. C.) 69; 14 W. R. 100; 13 L. T. N. S. 590; Grand Junction Canal Co. v. Dimes, 2 M'N. & G. 285; Reg. v. Rand, L. R. 1 Q. B. 230; 35 L. J. (M. C.) 147. (e) By s. 14 of 2 & 3 Vict. c. 71, it is enacted, that any one of the "Two justices." 8 & 9 VICT. c. 20. metropolitan police magistrates may do alone any act, at a metropolitan police-court, which by any law in force, or by any law not One metropolitan police magistrate containing any express enactment to the contrary, thereafter to be enacted, was or should be enacted to be done by more than one justice. has the same power as two under the Rail Regulation of Right of owner of private rail (f) The Railway Companies Act, 1867, (30 & 31 Vict, c. 127,) by s. 3 is restricted to railway companies, that is to say, companies" constituted by act of Parliament, or by certificate under act of Parliament, for the purpose of constructing, maintaining, or working a railway, (either alone or in conjunction with any other purpose.") The term "company," as used in the Regulation of Railways Act, 1868, (31 & 32 Vict. c. 119,) means a company incorporated either before or after the passing of that act, for the purpose of constructing, maintaining, or working a railway in the United Kingdom, (either alone or in conjunction with any other purpose,) and includes, except when otherwise expressed, any individual or individuals not incorporated, who are owners or lessees of a railway in the United Kingdom, or parties to an agreement for working a railway in the United Kingdom. As to the right of an owner of a private railway to use it for the way to take tolls. purpose of carrying passengers and goods, and taking tolls as a common railway carrier, see Hughes v. Chester and Holyhead Railway Co., 1 Dr. & Sm. 524; 3 De G. F. & J. 352; 31 L. J. (Ch.) 97; 10 W. R. 219. "Railway." Stations. Short title of the act. Form in which portions of this corporated in other acts. (g) By the Regulation of Railways Act, 1868, (31 & 32 Vict. c. 119,) the word "railway" means the whole or any portion of a railway or tramway, whether worked by steam or otherwise, (s. 2.) The description of the word "railway," as meaning the railway and works by the special act authorised to be constructed, is to be taken as implying an authority to make all those works which shall be necessary for the purposes of traffic within s. 16, and a station is clearly one of them: (Cother v. North Staffordshire Railway Co., 2 Ph. 469; 5 R. C. 187.) But although stations may form part of the "railway,” still it is doubtful whether they do so for all purposes, e. g., to enable parties having the right to run trains on the line, to have also the use of the stations. See Midland Railway Co. v. Ambergate Railway Co., 10 Hare, 359; and s. 92, post. IV. And be it enacted, That in citing this act in other acts of Parliament, and in legal instruments, it shall be sufficient to use the expression, "The Railways Clauses Consolidation Act, 1845." V. And whereas it may be convenient, in some cases, to act may be in- incorporate with acts hereafter to be passed, some portion only of the provisions of this act; be it therefore enacted, That, for the purpose of making any such incorporation, it shall be sufficient in any such act to enact that the clauses of this act with respect to the matter so proposed to be incorporated, (describing such matter as it is described in 8 & 9 Vier. o. 20, this act, in the words introductory to the enactment with respect to such matter,) shall be incorporated with such act, and thereupon all the clauses and provisions of this act with respect to the matter so incorporated shall, save so far as they shall be expressly varied or excepted by such act, form part of such act, and such act shall be construed as if the substance of such clauses and provisions were set forth therein with reference to the matter to which such act shall relate. CONSTRUCTION OF RAILWAY. railway. of the railway the provisions of Consolidation And with respect to the construction of the railway and Construction of the works connected therewith, be it enacted as follows:VI. In exercising the power given to the company by The construction the special act to construct the railway (a), and to take to be subject to lands (b) for that purpose, the company shall be subject this act and the to the provisions and restrictions contained in this act and Lands Clauses in the said Lands Clauses Consolidation Act; and the Act. company shall make to the owners and occupiers of and all other parties interested in any lands taken or used for the purposes of the railway, or injuriously affected by the construction thereof, full compensation (c) for the value of the lands so taken or used, and for all damage sustained by such owners, occupiers, and other parties, by reason of the exercise, as regards such lands, of the powers by this or the special act, or any act incorporated therewith, vested in the company; and, except where otherwise provided by this or the special act (d), the amount of such compensation shall be ascertained and determined in the manner provided by the said Lands Clauses Consolidation Act for determining questions of compensation with regard to lands purchased or taken under the provisions thereof; and all the provisions of the said last-mentioned act shall be applicable to determining the amount of any such compensation, and to enforcing the payment or other satisfaction thereof. (a) Where the language of the special act authorising the con- Where language struction of a railway is merely permissive, as that "it shall be law- of special act is permissive only. ful" for the company to construct the railway, it is now settled, (though a different opinion at one time prevailed,) that there is no obligation on the company to make the railway, or even to complete it after they have constructed one portion of it: (York, &c., & 9 VICT. c. 20. Railway Co., v. Reg., 1 El. & Bl. 858; 7 R. C. 459; 22 L. J. (Q. B.) 225; Edinburgh, &c., Railway Co., v. Phillips, 2 MQ. H. L. 524; Scottish North-Eastern Railway Co. v. Stewart, 3 M'Q. H. L. 382; Great Western Railway Co. v. Reg., 1 El. & Bl. 874.) Where language is imperative. Mandamus. Other remedies. Action for damages. Indictment. Sufficiency of returns to man damus to construct. Capital not subscribed. Line become unnecessary. Information by eral. Company are If, however, the language of the special act be imperative, the company may be compelled by mandamus to execute the work: (R. v. Severn and Wye Railway Co., 2 B. & Ald. 646; Great Western Railway Co. v. Reg., 1 El. & Bl. 874.) The mandamus may be obtained by a landowner whose lands are required for the purposes of the railway: (Ibid. ;) and a mandamus appears to be the proper remedy in such a case: (See Leominster Canal Navigation v. Shrewsbury, &c., Railway Co., 3 K. & J. 654 ; 26 L. J. (Ch.) 764.) Where, however, there is a neglect of a statutory provision by a company, any person who suffers a special injury thereby may maintain an action against them for the injury suffered. Thus an ironmaster was held entitled to recover damages for an injury sustained by the neglect of a company to convert a tramway in his neighbourhood into a railway: (Booth v. Monmouthshire Railway, &c., Co., 17 L. T. 154; see also Chamberlaine v. Chester, &c., Railway Co., 1 Exch. 870.) There is also a remedy by indictment for breaches of statutory obligation: (R. v. Birmingham, &c., Railing Co., 3 Q. B. 223; 3 R. C. 148; R. v. Great North of England Rail. way Co., 9 Q. B. 315.) It is a sufficient return to such a mandamus as is referred to above, that the time for the exercise of the company's compulsory powers of purchase has expired: (Reg. v. London and North-Western Rai way Co., 16 Q. B. 864; 20 L. J. (Q. B.) 399;) unless after the issue of the writ there was time to give the necessary notices before the expiration of the period for the compulsory taking of the land: (Reg. v. York, &c., Railway Co., 16 Q. B. 886; 20 L. J. (Q. B.) 503) The impossibility of getting the capital subscribed for, as required by s. 16 of the Lands Clauses Act, 1845, ante, p. 155, has also been held a sufficient return to a mandamus to compel the making of a railway (R. v. Ambergate, &c., Railway Co., 1 El. & Bl. 372; 22 L J. (Q. B.) 191.) But that the line of railway has become unnecessary, or will prove unremunerative, or the absence of any reasonable probability that sufficient funds can be raised, has been held an insufficient return: (R. v. York, &c., Railway Co., 1 El & Bl. 178; 22 L. J. (Q. B.) 41. See Reg. v. Eastern Counties Railway Co., 10 A. & El. 531; 1 R. C. 509.) It seems that the non-completion of the railway is not a matter of public injury for which an information by the Attorney-General will lie (Attorney-General v. Birmingham Railway Co., 3 MN. & G. 453.) And it has been decided that the Court of Chancery will not interfere to prevent a declaration of a dividend on the ground that the railway is not open. (See Browne v. Monmouthshire Railing Co., 13 Bea. 32; and the notes to s. 120 of the Companies Clauses Act, 1845, ante, p. 108.) (b) The company are the judges of the lands they will take, but judges of what they must use their discretion bona fide, and not for collateral pur poses: (Stockton and Darlington Railway Co. v. Brown, 9 H. L 246.) lands are to be taken. Exercise of Power to take Land-Damage. 321 Thus they may not take land for the purpose of making an accom- 8 & 9 VICT. C. 20. modation road, in order to avoid paying compensation to a neigh- Must not use bouring landowner, whose property was injuriously affected by the powers for colproximity of the line: (Dodd v. Salisbury and Yeovil Railway Co., lateral purposes. 1 Giff. 158.) So also, a company is not permitted to take land for the mere Or for getting purpose of getting materials for the construction of their line; materials for line. Bentinck v. Norfolk Estuary Co., 8 De G. M. & G. 714; and see Webb v. Manchester and Leeds Railway Co., 4 My. & Cr. 116; 1 R. C. 576; and Flower v. London, Brighton, and South Coast Railway Co., 5 N. R. 424;) although the land so taken be within the limits Even though the of deviation: (Ecersfield v. Mid-Sussex Railway Co., 1 Giff. 153; the land be with3 De G. & J. 286.) in limits of deviation. same land. When power had been given to two railway companies to take conflicting the same piece of land, over which the plaintiffs had already con- powers to take structed their railway, the defendants were restrained from crossing the line until the question as to the conflicting powers had been tried at law (Manchester, Sheffield, and Lincolnshire Railway Co. v. Great Northern Railway Co., 9 Hare, 284.) If anything is to be made a matter of agreement between the Agreements as to railway company and the landowner as to the works to be executed, it should be done before the works are commenced: (Gray v. Liver pool and Bury Railway Co., 9 Bea. 391; 4 R. C. 235.) As to such agreements, and the extent to which they may limit the operation of railway acts, see notes to ss. 16 and 68, post. works. Lands Clauses (Compensation under s. 68 of the Lands Clauses Act, 1845, Compensation need not have been actually assessed before the commencement of under s. 68 of the works by the company: (Hutton v. London and South-Western Act. Radway Co., 7 Hare, 259; 18 L. J. (Ch.) 345.) An important question has arisen on the construction of this section, whether the owner of a house, none of whose lands have been taken for the purposes of the railway, is entitled to recover, against the company who constructed it, compensation for the injury to his house (not structural, but still depreciating its value) caused by vibration, smoke, and noise, in running locomotives with trains in the ordinary way, after the construction of the railway. The Court of Queen's Bench (consisting of Mellor and Lush, J.J.) held that the owner could not recover compensation for such injury. But this decision was reversed by the Court of Exchequer Chamber, consisting of Bramwell, B., Keating and Smith, J.J.; dissentiente, Channell, B.: (Brand v. Hammersmith and City Railway Co., 2 L. R. (Q. B.) 223.) In this case the railway had never since it was opened for traffic been worked by the defendants, (who were held liable to make compensation,) but by another railway company. See the notes to s. 68 of the Lands Clauses Act, 1845, for further information as to damage and compensation, ante, p. 192, et seq.; and the notes to s. 16, post, as to the mode of constructing the works by the company. ised, and dam (d)The distinction is now clearly established between damage Damage from from works authorised by statute, (where the party generally is works authorto have compensation, and the authority is a bar to the action,) age from negli and damage by reason of the work being negligently done, as to gence. which the owner's remedy by action remains: (Per Crompton, J., |