Page images

racter and construction of the bridge, as for instance, touching the height and dimensions of the arch generally, the inclinations of all ascents and descents to and from such bridge, and the like. To consider then the effect of such regulations, suppose a railway company, in crossing a public street, are required to make a viaduct or bridge, extending over the whole width of the street, and with a certain given height under it, above the level of the street, &c., a viaduct composed of arches, supported upon piers or buttresses, erected for that purpose in the street, cannot, as it should seem, be taken to satisfy the meaning of the legislature, but there must be a bridge or viaduct so constructed as that, in whatever way it is made, the entire width of the street is left clear and unobstructed. (a) Even though the bridge be a temporary one, as for instance, where it is erected for the purpose of conveying spoil earth from one part on the line of railway to another, it still must comply with the regulations of the act. (b)

128. Where a railway act speaks of a bridge of given dimensions as the means of crossing a railway, this must not be understood to include the approaches to such bridge on either side. The power therefore of crossing a road by a bridge of a given breadth, gives no right to narrow the road beyond the span of the bridge, by extending the parapet walls, but the company are bound to make the road

(a) Att. Gen. v. Manchester and Leeds Railway Company, 1 Railway Cas. 447.

(b) Att. Gen. v. Eastern Counties Railway Company, 3 Railway Cas. 337.

of the original width up to the very point where the bridge commences. (c)

129. Of the inclination of the ascents and descents to and from bridges. (d) A railway act usually provides what is to be the maximum rate of this inclination, or at any rate that it is not to exceed the steepness of the old road. In applying the latter branch of the above provision to the case of a diverted road, the relative steepness of the new and old road is to be determined, not by their comparative acclivity, measuring the whole length of each from the commencement to the end of the deviation, but by a comparison of the rate of ascent on the new road, from the place of diversion below the bridge, to the crown of the arch of such bridge, with the rate of ascent on the old road from the same place to the corresponding point on that road. Although an act speak of the present inclination of the road which is to cross the railway, and in the line of which the bridge is to be built, as the limit of steepness, this applies as well to a bridge built on a diverted road, as to one built on the site of a previously existing road. By the term "present inclination" in such case is to be understood the inclination of the old road as it may exist at the time of its being taken by the company. (e)

(c) Reg. v. The London and Birmingham Railway Company, 1 Railway Cas. 325; see also Reg. v. The Birmingham and Gloucester Railway Company, 2 Railway Cas. 695; S. C. 2 A. & E. N. S. 51, n. (a).

(d) As to the provisions of Railways Clauses Consolidation Act (8 Vict. c. 20), on this head, see act, ss. 49, 50, 52, post, Appendix.

(e) Att. Gen. v. The London and Southampton Railway Company, 1 Railway Cas. 284.

130. In providing for the mode of dealing with roads, the legislature we have seen usually makes a distinction between turnpike and other roads. By a turnpike road in such a case, is, it seems, to be understood, a road where there is a right to set up gates and take tolls. (ƒ)

131. We are led in the next place to the consideration of another kind of restriction, viz. that which gives to the parties interested in any pre-existing avenue of communication a jurisdiction to determine how a road, highway, &c., which it is proposed to alter or divert, is to be made, and requires that all shall be done to those parties' satisfaction. There are two things to be here considered; 1st, the scope and extent of such an enactment; 2nd, its operation in qualifying the powers of the company.

132. 1st. The extent of such a restriction, and the cases in which it applies, must of course depend on the terms of the particular act of parliament by which it is imposed. Where an act directed that all alterations of certain roads within a parish were to be made under the directions of the surveyors of the parish, the Vice-Chancellor seems to have thought it fairly questionable, whether any authority was given to the surveyors in the case of a diversion of one of the roads in question, the legislature in other parts of the act plainly distinguishing between an alteration and a diversion. (g)

133. 2nd. Under a restriction of the above kind,

(f) The Company of Proprietors of Northam Bridge and Roads v. The London and Southampton Railway Company, 1 Railway Cas. 672; S. C. 6 M. & W. 428.

(g) London and Brighton Railway Company v. Blake, 2 Railway Cas. 322.

the parties, in whose favour it is introduced, clearly have an authority (of course not to be capriciously exercised) to determine what is a proper road to be made by the company. As incidental thereto, they necessarily enjoy a right to apply to the proper court to have a road made in a proper manner directly; as for instance, if they apply by mandamus; or they may apply to a court of equity, and so restrain the company from making the road in question otherwise than as it ought reasonably to be to their satisfaction. But, although the parties in question are thus privileged to regulate in some degree what is to be done by the company touching the formation of roads, this does not entitle them, in case they are not pleased with something done by the company, to take the law into their own hands, and stop the proceedings of the company. Where therefore the surveyors of the roads of a parish, who under a railway act claimed a jurisdiction to decide about the formation of all roads in the parish, threatened to put up fences on the sides of a temporary diverted road at the point where it was crossed by the railway, in order to stop the company from crossing such temporary road with engines, &c. in a manner dangerous to the public, it was held that they had no right under the act to interfere with the railway in the manner proposed, but that they ought to have applied for an injunction or a mandamus against the company. (h)

Where the county surveyor was made under a railway act the ultimate referee of the manner in which a bridge was to be built by one railway com

(h) The London and Brighton Railway Company v. Blake, 2 Railway Cas. 322.

pany across the line of another, it was held that he had not exhausted his authority by a decision not in conformity with the act of parliament, but that he might make a second. (i)

134. The next class of provisions that it is proposed to consider, are those ordinarily introduced into railway acts for the protection of messuages, buildings, and other property of a like description, or appurtenant to or connected with the above. These are distinguishable according to the object which they contemplate, viz. according as they prohibit the company from taking property of the kind in question either absolutely, or except upon certain conditions; or else render it compulsory upon them in certain cases to take it; or prescribe some particular mode of proceeding touching the property in ques


135. First, then, a railway act usually provides that no houses, buildings, &c. are to be taken for the purposes of the act, other than those specified in the schedule, without the consent in writing of the proprietor. The substantial inquiry in construing the above provision, is as to the quality of the property intended by the act to be protected. Now such a provision evidently has reference to the privilege universally accorded by the law of this country to buildings inhabited by man. These consequently, it is natural to conceive, constitute the principal things contemplated by the legislature in inserting

(i) Clarence Railway Company v. Great North of England, Clarence and Hartlepool Junction Railway Company, 23 Law Journ. Exch. 137; S. C. 13 M. & W. 706; Great North of England, &c. Railway Company v. Clarence Railway Company, 1 Coll. 507.

« EelmineJätka »