Deviations-Notice-Arches, Tunnels, &c. 327 owners of ad Board of Trade deviations. any town, village, street, or land continuously built upon, 8 & 9 VICT. c. 20. two feet, after having obtained such consent as aforesaid, it shall be incumbent on the company to give notice of such intended deviation by public advertisement, inserted once at least in two newspapers, or twice at least in one newspaper, circulating in the district or neighbourhood where such deviation is intended to be made, three weeks at least before commencing to make such deviation; and Power to the it shall be lawful for the owner of any lands prejudicially joining lands to affected (a) thereby, at any time before the commencement appeal to the of the making of such deviation, to apply to the Board of against such Trade, after giving ten days' notice to the company, to decide whether, having regard to the interests of such applicants, such proposed deviation is proper to be made; and it shall be lawful for the Board of Trade, if they think fit, to decide such question accordingly, and by their certificate in writing either to disallow the making of such deviation or to authorise the making thereof, either simply or with any such modification as shall seem proper to the Board of Trade; and after any such certificate shall have been given by the Board of Trade it shall not be lawful for the company to make such deviation, except in conformity with such certificate. affected." (u) It does not seem to be necessary that it should be proved that "Prejudicially lands are, or are likely to be, prejudicially affected in order to entitle a landowner to notice under this section. See Pearce v. Wycombe Railway Co., 1 Drew. 244; 7 R. C. 902, which case was, however, sent for the arbitration of the Board of Trade. For form of order allowing the reference, see 1 Drew. 246. As to the effect of acquiescence on the part of a landowner, see Acquiescence. Hopkins v. Great Northern Railway Co., 11 L. T. 306. &c., to be made as marked on XIII. Where in any place it is intended to carry the Arches, tunnels railway on an arch or arches or other viaduct, as marked on the said plan or section, the same shall be made accord- deposited plans ingly; and where a tunnel is marked on the said plan or section as intended to be made at any place, the same shall be made accordingly, unless the owners, lessees, and occupiers of the land in which such tunnel is intended to be made shall consent that the same shall not be so made (a). (a) Previously to the passing of the Railways Clauses Act, 1863, (post,, there could be no deviations where viaducts or tunnels were to be constructed unless the owners, &c., consented, it having been held (Little v. Newport, &c., Railway Co., 12 C. B. 752; 22 L. J. (C. P.) 39) that the power of deviation given by s. 15 of this act, 8 & 9 VICT. c. 20. post, p. 330, in ordinary cases did not arise where viaducts or tunnels were to be made. The present section allowed a tunnel to be dispensed with by consent, but not a viaduct. Deviations under Substitution of works not in plans, with con But by the Railways Clauses Act, 1863, (26 & 27 Vict. c. 92, s. 4.) it is enacted that, notwithstanding anything in the Railways Clauses Acts, 1845, respectively contained, the company, in the construction of the railway, may deviate from the line or level of any arch, tunnel, or viaduct described on the deposited plans or sections, so as the deviation be made within the limits of deviation shown on those plans, and subject to the limitations contained in ss. 11, 12, and 15 of those acts respectively, and so as the nature of the work described be not altered; and may also substitute any engineering work not shown on the deposited plans or sections for an Sent of Board of arch, tunnel, or viaduct, as shown thereon; provided that every such substitution be authorised by a certificate of the Board of Trade; and the Board of Trade may grant such certificate in case it appears to them, on due inquiry, that the company has acted in the matter Consent of land- with good faith; and that the owners, lessees, and occupiers of the lands in which the substitution is intended to be made consent thereto, and also that the safety and convenience of the public will not be diminished thereby; provided that nothing in the present section shall affect any power given to the company or to the Board of Trade by ss. 11, 12, 14, and 15 of the last-mentioned acts respectively. See the act, post. Trade. owners. Agreement to It would seem that an agreement with a landowner to construct construct works works in a way different from that authorised by the act, would not bind the company: (Breynton v. London and North-Western Railway Co., 10 Bea. 238.) contrary to act. Plans to be where the Rail in special act. Under this section the span of a bridge, marked on the plan as of strictly followed forty-five feet, was not allowed to be reduced to thirty-five feet, the ways Clauses Act effect of the incorporation of the Railways Clauses Act being to take is incorporated the case out of the rule laid down in North British Railway Co. v. Tod, (12 Cl. & Fin. 722; 5 Bell, 184; 4 R. C. 449,) and other cases, in which it was held that the deposited plans and sections are not to be regarded as binding, except so far as the representation they contain is incorporated in and made part of the act of Parliament: (Attorney General v. Tewkesbury and Malvern Railway Co., 4 Giff. 333; 1 De G. J. & Sm. 423; 32 L. J. (Ch.) 482; 8 L. T. N. S. 196. Alteration of bridges where authorised deviation makes it unavoidable. Prescribed gradient cannot be changed. * But where the special act did not restrict a deviation to such an extent that the level of a bridge must, in consequence of such deviation, be raised, an information, not alleging wanton or capricious exercise of the powers vested in the railway company, was dismissed: (Attorney-General v. Great Western Railway Co., 1 W. N. 131; 14 W. R. 726.) Where, however, the special act contained a proviso, that the approach to a certain bridge should not have a less gradient than one in thirty, the Lords Justices, upon an information filed at the relation of a Board of Health, held that the railway company must be kept to their bargain, which was embodied in the act of Parliament, and that though the company, by keeping to the prescribed gradient, would have to pass over land which they had no power to take, * See supra, p.323. Deviations from Gradients, &c.—Engineering Works. 329 they could not be allowed to reduce the gradient to one in twenty : 8 & 9 VICT. o. 20. (Attorney-General v. Mid-Kent Railway Co., 2 W. N. 263.) It is not competent for a company, having power to construct an Unauthorised aqueduct through a tunnel, afterwards, in pursuance of the same works. powers, to acquire land on the surface for the erection of buildings forming part of their works: (Simpson v. South Staffordshire WaterWorks Co., 6 N. R. 184; 34 L. J. (Ĉh.) 380; 13 W. R. 729; 12 L. T. N. S. 360.) tions from gradients, curves, XIV. It shall not be lawful for the company to deviate Limiting deviafrom or alter the gradients, curves, tunnels, or other engineering works (a) described in the said plan or section, &c. except within the following limits, and under the following conditions; (that is to say,) Subject to the above provisions in regard to altering It shall be lawful for the company to diminish the work." The construction of a bridge is one of the "engineering A bridge is an works" referred to in this section; and it must therefore be made “engineering according to the deposited plan: (Attorney-General v. Tewkesbury and Malcern Railway Co., 4 Giff. 333; 1 De G. J. & Sm. 423; 32 L. J. (Ch.) 482; 8 L. T. N. S. 196. And see Reg. v. Caledonian Railway Co., 16 Q. B. 19.) "Engineering It is now, however, competent for any railway company incorpo- work" under the rated by a special act passed since the Railway Clauses Act, 1863, Railways Clauses Act, 1863. 8 & 9 VICT. c. 20. (26 & 27 Vict. c. 92,) to deviate from the line or level of any arch, tunnel, or viaduct described on the deposited plans or sections, so as the deviation be made within the limits of deviation shown on those plans, and subject to the limitations contained in ss. 11, 12, and 15 of the Railways Clauses Acts, 1845, respectively, and so as the nature of the works described be not altered; and also to substitute any engineering work not shown on the deposited plans or sections, for an arch, tunnel, or viaduct, as shown thereon, and authorised by the Board of Trade, who may grant a certificate in case it appears to them, on inquiry, that the company have acted in good faith, and that the owners, lessees, and occupiers of the lands in which the substitution is intended to be made consent thereto, and also that the safety of the public is not diminished thereby. Nothing in this section is to affect any power given to the company, or to the Board of Trade, by ss. 11, 12, or 15 of the act of 1845. See the act, post. Unavoidable change of gradients. To what works In a case not coming within the Railways Clauses Act, 1863, where the company had made a lateral deviation within their powers, but such deviation compelled them to raise the level of a bridge, no injunction was granted on an information seeking to restrain the construction of the bridge in the way proposed, no wanton or capricious exercise of the powers vested in the company having been proved, and evidence being adduced that the line and the gradients would be improved by the course objected to: (Attor ney-General v. Great Western Railway Co., 1 W. N. 131; 14 W. R. 726.) This section does not apply to mere collateral works, such as this section ap- cross-roads or bridges for carrying them over the line, but to the plies. works on the line of the railway itself: (Attorney-General v. Tewkesbury and Malvern Railway Co., 4 Giff. 333; 1 De G. J. & Sm. 423; 32 L. J. (Ch.) 482.) Literal deviations. XV. It shall be lawful for the company to deviate from the line delineated on the plans so deposited, provided that no such deviation shall extend to a greater distance than the limits of deviation delineated upon the said plans (a), nor to a greater extent in passing through a town, village, or lands continuously built upon than ten yards, or elsewhere to a greater extent than one hundred yards from the said line, and that the railway by means of such deviation be not made to extend into the lands (b) of any person, whether owner, lessee, or occupier, whose name is not mentioned in the books of reference, without the previous consent in writing of such person, unless the name of such person shall have been omitted by mistake, and the fact that such omission proceeded from mistake shall have been certified in manner herein or in the special act provided for in cases of unintentional errors in the said books of reference. Deviations-Power to Construct Works. 331 which deviation (a) The deviation here referred to applies to the line of the rail- 8 & 9 VICT. C. 20. way only as laid down in the parliamentary plans: .e., the line of Line of railway railway actually laid down shall not deviate more than one hundred laid down in yards from the line laid down, and delineated in the parliamentary plan is line to plans, the medium filum via of each being the commencement and referred. termination in measuring those one hundred yards (Doe d. Armitstead v. North Staffordshire Railway Co., 16 Q. B. 526; 20 L. J. (Q. B.) 249.) The company are not prohibited by this section from taking (by consent) for collateral purposes, such as slopes and embankments, land beyond the limits of deviation here laid down for the line itself, if such land be scheduled in the company's act, and included in their plans and books of reference: (Ibid, Doe d. Payne v. Bristol, &c., Railway Co., 6 M. & W. 320; 2 R. C. 75.) deviation. (b) The mere affidavit of an engineer that it is necessary for the Evidence of company to take land within the limits of deviation, is not sufficient necessity for to warrant an exercise of their power: (Flower v. London, Brighton, and South Coast Railway Co., 5 N. R. 424.) for lands without A railway company was not allowed to proceed upon a notice to Notice to treat treat, comprising some land, part of a field, a portion of which was the limits of within, and a portion without the limits of deviation, as marked on deviation. the deposited plans: (Wrigley v. Lancashire and Yorkshire Railway Co., 4 Giff. 352; 9 Jur. N. S. 710.) A plaintiff may, by knowledge and acquiescence, lose his right to Acquiescence. relief in respect of excessive lateral deviation: (Hopkins v. Great Northern Railway Co., 11 L. T. 306.) executed. XVI. Subject to the provisions and restrictions in this works to be and the special act (a), and any act incorporated therewith, it shall be lawful for the company, for the purpose of constructing the railway (b), or the accommodation works connected therewith, hereinafter mentioned, to execute any of the following works; (that is to say,) They may make or construct, in, upon, across, under, or Inclined planes, over any lands, or any streets, hills, valleys, roads, &c. railroads, or tramroads, rivers, canals, brooks, streams, or other waters, within the lands described in the said. plans or mentioned in the said books of reference or any correction thereof, such temporary or permanent inclined planes, tunnels (c), embankments, aqueducts, bridges (d), roads (e), ways, passages, conduits, drains, piers, arches, cuttings, and fences as they think proper; They may alter the course of any rivers not navigable, Alteration of brooks, streams, or watercourses, and of any branches) of navigable rivers, such branches not being themselves navigable, within such lands, for the purpose of constructing and maintaining tunnels, bridges, passages, or other works over or under the same, and course of rivers, &c. |