execution of any of the works connected with any portion 8 & 9 VICT. c. 20. of the railway without having first obtained such a certificate as aforesaid respecting such portion of the railway, under the hands of the said commissioners or any two of them, as aforesaid; nor shall the company be at liberty to deviate from such certificate in respect to such works, nor to execute the same otherwise than in conformity therewith, without the previous approbation in writing of the said commissioners.

cation to the

the execution of

XXVII. It shall be lawful for the said commissioners Summary appli to apply by petition in a summary way to the Court of Court of ChanChancery, complaining of any omission on the part of the cery to enforce company to submit such plans, sections, and surveys to such works. the said commissioners as aforesaid, or of the omission to construct any such bridge, culvert, tunnel, or other works for the passage of water, in such manner as shall be so certified by the said commissioners, and thereupon it shall be lawful for the said Court to direct such works to be made or constructed by the company in such manner as shall be conformable to the certificate of the said commissioners, and to the said Court shall seem necessary or proper, and to make from time to time such further or other order for restraining the company or any other persons from proceeding with any of the works connected with such portion of railway, except in conformity with the certificate of the said commissioners, and to issue any writ or injunction for the purpose aforesaid; and such Court shall have power to award costs to be paid by such company or

persons.

powers of the

XXVIII. Nothing in this or the special act shall ex-Saving of the tend or be construed to prejudice or affect the powers or Drainage Comauthorities of the commissioners acting in execution of the missioners. said act of the sixth year of her present Majesty, but all such powers shall be in full force as to the formation of any cut, river, or watercourse across the railway, but such power shall not be exercised so as to prevent or obstruct the working or using of the railway.

Commissioners

XXIX. And whereas it is expedient to encourage the The Drainage establishment of manufactories to be worked by water in Ireland to power in Ireland: Be it therefore enacted, That whenever have power to

decide questions

as to the execution of works, or to execute works for carrying watercourses

way.

8 & 9 VICT. C. 20. it may be requisite for the formation of a watercourse for manufacturing purposes to construct an arch, culvert, tunnel, or watercourse beneath or an aqueduct above any railway in Ireland, and that differences shall have arisen across the rail between the directors of such railway and the person interested in obtaining the water power either as to the manner in which such works shall be executed, or the amount of compensation which should be paid, it shall be lawful to refer the questions in issue to the commissioners acting under the said recited act of the fifth and sixth years of the reign of Her Majesty Queen Victoria, and their decision thereon shall be final and conclusive; and if the said commissioners shall be of opinion that the proposed works can be executed without injury to the railway, and if they shall think proper so to do, they may undertake the execution of so much of the said works as shall be in connexion with such railway, at the expense of the parties for whose benefit the watercourse shall be made, with the same powers and authorities as are given by the said act for the execution of any works for drainage.

Temporary use of lands.

Company may occupy temporarily private roads within five hundred yards of the railway.

TEMPORARY USE OF LANDS.

And with respect to the temporary occupation of lands near the railway during the construction thereof, be it enacted as follows:

XXX. Subject to the provisions herein and in the special act contained, it shall be lawful for the company, at any time before the expiration of the period by the special act limited for the completion of the railway, to enter upon and use any existing private road, being a road gravelled or formed with stones or other hard materials, and not being an avenue or a planted or ornamental road. or an approach to any mansion-house, within the prescribed limits, if any, or, if no limits be prescribed, not being more than five hundred yards distant from the centre of the railway as delineated on the plans; but before the company shall enter upon or use any such existing road, they shall give three weeks' notice of their intention to the owners and occupiers (a) of such road, and of the lands over which the same shall pass, and shall in such notice state the time during which and the purposes for which they intend to occupy such road, and shall pay to the owners

and occupiers of such road, and of the lands through which 8 & 9 VICT, C. 20. the same shall pass, such compensation for the use and occupation of such road, either in a gross sum of money or by half-yearly instalments, as shall be agreed upon between such owners and occupiers respectively and the company, or in case they differ about the compensation the same shall be settled by two justices, in the same manner as any compensation not exceeding fifty pounds is directed to be settled by the said Lands Clauses Consolidation Act.

(a) Where a tenant holding land for a term of years, with a strict Ejectment. clause against alienation or subletting, assigns a part of the land to a company for a temporary purpose, the landlord may maintain ejectment against both the company and the tenant for the forfeiture: (Legg v. Belfast, &c., Railway Co., 1 Ir. C. L. R. 124 n.)

and occupiers of

roads should be

XXXI. It shall be lawful for the owners and occupiers Power to owners of any such road, and of the lands over which the same road and land to passes, within ten days after the service of the aforesaid object that other notice, by notice in writing to the company, to object to taken. the company making use of such road, on the ground that other roads, such as the company are hereinbefore authorised to use for the purposes aforesaid, or that some public road would be more fitting to be used for the same; and upon the objection being so made such proceedings may be had as are hereinafter mentioned with respect to lands temporarily occupied by the company, in respect of which three weeks' notice is hereinafter required to be given, and in the same manner as if in the provisions relative to such proceedings in the word road or roads, or the words road and the land over which the same passes, as the case may require, had been substituted in such provisions for the word lands.

vious payment

XXXII. Subject to the provisions herein and in the Power to take special act contained, it shall be lawful for the company, temporary pos at any time before the expiration of the period by the without prespecial act limited for the completion of the railway, with- of price. out making any previous payment, tender, or deposit, to enter upon any lands within the prescribed limits, or, if no limits be prescribed, not being more than two hundred yards distant from the centre of the railway as delineated on the plans, and not being a garden, orchard, or plantation attached or belonging to a house, nor a park, planted

8 & 9 VICT. C. 20. Walk, avenue, or ground ornamentally planted, and not being nearer to the mansion-house of the owner of any such lands than the prescribed distance, or if no distance be prescribed, then not nearer than five hundred yards therefrom, and to occupy the said lands so long as may be necessary for the construction or repair of that portion of the railway, or of the accommodation works connected therewith, hereinafter mentioned, and to use the same for any of the following purposes; (that is to say,)

Digging materials.

For the purpose of taking earth or soil by side cuttings therefrom;

For the purpose of depositing spoil thereon;

For the purpose of obtaining materials (a) therefrom for the construction or repair of the railway or such accommodation works as aforesaid; or

For the purpose of forming roads thereon to or from or by the side of the railway:

And in exercise of the powers aforesaid it shall be lawful for the company to deposit and also to manufacture and work upon such lands materials of every kind used in constructing the railway, and also to dig and take from out of any such lands any clay, stone, gravel, sand, or other things that may be found therein useful or proper for constructing the railway or any such roads as aforesaid, and for the purposes aforesaid to erect thereon workshops, sheds, and other buildings of a temporary nature: Provided always, that nothing in this act contained shall exempt the company from an action for nuisance or other injury, if any done, in the exercise of the powers hereinbefore given, to the lands or habitations of any party other than the party whose lands shall be so taken or used for any of the purposes aforesaid: Provided also, that no stone or slate quarry, brick field, or other like place, which at the time of the passing of the special act shall be commonly worked or used for getting materials therefrom for the purpose of selling or disposing of the same, shall be taken or used by the company, either wholly or in part, for any of the purposes lastly hereinbefore mentioned."

(a) The permanent taking of land for the purpose of taking or excavating therefrom materials for the construction of the railway, would seem to be unlawful under the general provisions of the railways acts: (Bentinck v. Norfolk Estuary Co., 8 De G. M. & G. 714;) and that even where the land so attempted to be taken is

within the limits of deviation: (Eversfield v. Mid-Sussex Railway 8 & 9 VICT. C. 20. Co., 3 De G. & J. 286; 1 Giff. 153.)

which land

The 32d section of the Railways Clauses Act is limited strictly to Notice to state the temporary purposes mentioned in it; and although the com- purpose for pany are generally the judges of the land they intend to take under required. their compulsory powers, they will, it seems, not be allowed to give notice under this section, without specifying the particular purpose for which they require the land: (Poynder v. Great Northern Railray Co., 16 Sim. 3; 5 R. C. 201.) But see Lund v. Midland Railway Co., 34 L. J. (Ch.) 276, in which no such notice had been given, and the Master of the Rolls refused to restrain the company from taking the land, as he would not take it upon himself to say that it was not necessary for the purpose of the construction of the line. But the Lords Justices discharged his Honour's order, the motion being ordered to stand to the hearing, and the company undertaking not to proceed under the notice: Ibid. 277.)

Under s. 84 of the Lands Clauses Act, the company cannot enter upon, or permanently use any land until after they have paid for it, except for the purpose of taking levels, boring, and setting out the line of works, making compensation for damage caused by any such means. See ante, pp. 249-253.

notice previous

session.

XXXIII. In case any such lands shall be required Company to give for spoil banks or for side cuttings, or for obtaining ma- to such temterials for the construction or repair of the railway, the porary poscompany shall before entering thereon (except in the case of accident to the railway requiring immediate reparation) give three weeks' notice in writing to the owners and occupiers of such lands of their intention to enter upon the same for such purposes; and in case the said lands are required for any of the other purposes hereinbefore mentioned the company shall (except in the cases aforesaid) give ten days like notice thereof, and the company shall in such notices respectively state the substance of the provisions hereinafter contained respecting the right of such owner or occupier to require the company to purchase any such lands, or to receive compensation for the temporary occupation thereof, as the case may be.

which land to

The notice required under this section should specifically state Notice to specify for which of the purposes mentioned in the preceding section it is purpose for proposed to exercise the power of temporary user: (Poynder V. be used. Great Northern Railway Co., 16 Sim, 3; 5 R. C. 201; and see Lund v. Midland Railway Co., 34 L. J. (Ch.) 276.) See preceding section.

tices on owners

XXXIV. The said notice shall either be served per- Service of nosonally on such owners and occupiers, or left at their last and occupiers usual place of abode, if any such can, after diligent inquiry, of lands.