braces all cases where there is a destruction of the usefulness of anything of the class in question as an avenue of communication; as for instance, where a company carried their works in front of a wharf, between it and the low water mark, so as to separate the frontage from the water, thereby causing great risk and inconvenience in the loading and unloading vessels, it was held that the owner had a right to have a new wharf erected for him by the company. (k)

115. So, likewise, the provision in question applies to a permanent as well as to a temporary diversion of a road. (1) And if a company set out a new road, and then proceed to injure, cut through, &c. that, they are compellable to set out another. (m)

116. 2dly. Of the extent to which the above clause must be taken to qualify the powers of the company, or, in other words, what it requires them to do, in order to satisfy the act. The clause in question then, we have seen, contemplates two cases, viz. that of a permanent diversion of a road, highway, &c., and that of a mere temporary diversion.

117. First, then, let us take the former case, viz. that where a permanent diversion is intended by the company. Looking at the requisites of the clause in question, the substantial question here is, whether the new road, wharf, quay, &c., is a good substi

(k) Bell v. Hull and Selby Railway Company, 2 Railway Cas. 279; S. C. 6 M. & W. 699.

(1) Per Patteson, J., Reg. v. Birmingham and Gloucester Railway Company, 2 Railway Cas. 704.

(m) See judgment of Vice-Chancellor in Attorney-General v. Eastern Counties Railway Company, 7 Jurist, 806; S. C. 3 Railway Cas. 337.

T

tution within the meaning of the act; or, in other words, is either absolutely as convenient as the old road, &c., or as nearly so as circumstances permit. The criterion on which the determination of this question must rest is sufficiently obvious, viz. on a comparative estimate of the several requisites of the new and old road, &c. respectively, for the purposes of traffic, such as their length, breadth, direction, level, and the like. If, upon such a balancing of their respective advantages and disadvantages, the new road is found to be in some respects better than the old, but in others less convenient, it then becomes a question whether what is gained in the one respect can be considered a fair equivalent for what is lost in the other.

118. A railway company were proposing to divert a road leading to the plaintiff's mill; the original road, it appeared, was broader, and more direct than the one to be substituted by the company, but these advantages were in a great degree neutralized by the danger and narrowness of its outlet communications, whereas the new line of road, though narrower and more circuitous, promised to be safer of ingress and egress. The Lord Chancellor seems to have inclined to the opinion, that the new road (taking into account all the circumstances of the case) was a good substitute for the old. (n)

119. If the new road is decidedly more inconvenient in some important particular, and there is no increase of convenience gained thereby in any other

(n) Illingworth v. The Manchester and Leeds Railway Company, 2 Railway Cas. 209, 210.

respect to counterbalance it, then, it seems, the new road cannot be considered to satisfy the provision in question. Where, therefore, a company made a substituted road twenty-seven feet broad, instead of forty, which was the width of the original road, and the new road was less convenient as a drift way, it was held clearly not to be authorized by the act. (0)

120. Generally speaking, the above question would seem to be more properly a question for a jury. Thus where a railway company, under the powers of their act, were intending to take part of an occupation road that ran through a farm, and had been immemorially used by the tenants of such farm, as a means of communication for agricultural purposes, and in lieu thereof, to set out a road making a circuit of six hundred yards, a proceeding which was calculated to interfere with a purpose to which the owner of the farm contemplated applying a certain portion of his land, the Lord Chancellor granted an injunction against any interference with the road in question, until it should be decided by a jury whether the road proposed to be substituted by the company were within the meaning of the act, a proper substitution for the road proposed to be taken. (p)

121. Although, upon a comparison of their absolute merits, the new is found to fall short of the old line of road, still, if such new line is as convenient as circumstances admit of its being made, it may be

(0) Reg. v. London and Birmingham Railway Company, 1 Railway Cas. 317.

(p) Kemp v. The London and Brighton Railway Company, 1 Railway Cas. 508.

enough to satisfy the act. In estimating those circumstances, regard can be had in general to physical causes and possibilities only, and the pecuniary interests or the convenience of the company cannot be taken into account. Still the rule is not to be stretched so far as to require the company to lay out enormous sums of money, to procure a slight accommodation to some persons; and therefore where a road cannot be made as convenient as before, without a disproportionate and unwarrantable expenditure, it may be enough to make it (q) as nearly so as they can, without entailing on themselves such a sacrifice.

122. It follows, from what has been here said, that where a company stand convicted of a breach of the above provision, they cannot excuse themselves on the score of their inability, &c. to comply with its requisites. Thus where a railway company were empowered to make a tunnel through a public street, first setting out a temporary substituted road, and by reason of the company being precluded by their act from taking land in a particular line, there could be no other substitution for the street in its original state, except by making a temporary bridge over the line of the tunnel in that direction, this was held not to excuse them from complying with the provisions of their act, but that it was incumbent on the company, if they made the tunnel through the street in question, to make in the first instance a temporary bridge in the line of the street. (r)

(9) Reg. v. Scott, 3 A. & E. N. S. 543; S. C. 3 Railw. Cas. 187.

(r) Spencer v. The London and Birmingham Railway Company, 1 Railway Cas. 169; see also Kemp v. The London

123. So likewise it would be no excuse for the company to allege the steepness of the land, and the state of the earth, as rendering it impossible to do what their act required ; (s) or that, by reason of the expiration of their powers, they were unable to take the necessaay land; (f) or that their statute did not authorize their injuring a particular description of property, and that they could not act up to the provisions of their statute, without injuring that very description of property. (t)

124. 2nd. Where the diversion is intended to be only temporary, in addition to the requisite just considered, the act (where it is a turnpike road that is taken, &c.) imposes the still further obligation of setting out the substituted road, and restoring the old road within a given period. (u) Where a company are thus required to restore a road, this, it seems, must be understood of a restoration of such road to its original width. (a) A company, therefore, whose powers are subjected to the above restrictions, are bound, in carrying a road over the railway, to make the road of the same width as it was before, up to the very point where the bridge

commences.

and Brighton Railway Company, 1 Railway Cas. 500; Manser v. The Northern and Eastern Counties Railway Company, 2 Railway Cas. 380.

(s) Reg. v. Scott, 3 Railw. Cas. 187; S. C. 3 A. & E. N. S.

543.

(t) Reg. v. The Birmingham and Gloucester Railway Company, 2 Railway Cas. 694; S. C. 2 A. & E. N. S. 61.

(u) As to provision of Railways Clauses Consolidation Act about restoring roads, see act, s. 56, post, Appendix.

(1) Reg. v. The Birmingham and Gloucester Railway Company, 2 Railway Cas. 694; S. C. 2 A. & E. N. S. 61.