141. 3rdly. As to the assessment; a railway act sometimes requires that, where damage to a mansion is in question, the inquisition shall be taken by a special jury. The trying by a common jury in such a case would seem to amount to an excess of jurisdiction, that might perhaps be taken to subject the company to an action of trespass, or (in the absence of any provision to the contrary) be a ground for setting aside the proceedings. (q)

142. Another class of provisions, bearing a close analogy to those last mentioned, and of a very obvious tendency, are those which restrain a railway company from approaching within a given distance of premises with their line of rail, works, &c. There are two things to which such a prohibition is usually made to extend; 1st, the making of any railroad, tram, or other roads, within the prescribed limits; 2nd, the making or establishing any station, yard, &c. within the same. The principal thing prohibited by the former clause being a railway or tramroad, the other words, notwithstanding their generality, must be so construed as to preserve the unity of the idea; they can only therefore be understood to mean something ejusdem generis with the principal matter prohibited, viz. some new channel of communication enabling the public to pass to the railroad. The making or opening a mere passage or pathway, communicating at the one end with a public road, and at the other with the railway, and allowing passengers to pass along it to the railway for the purpose of being taken up and set down by

(q) Reg. v. The Bristol and Exeter Railway Company, 2 Railway Cas. 102; S. C. 11 A. & E. 202, n. (u).

the trains, stopping at the end of the passage, does not therefore fall within the prohibition. (r)

143. The second thing forbidden is the constructing any station, waiting place, &c. within the prescribed limits. This branch of the prohibition does not preclude the company from stopping and taking up or setting down passengers within such limits. (s) Neither can a mere passage way, along which passengers are allowed to pass at particular times to the railway, but not to wait there, nor an hired room in the house of another party, though employed by the company for the ordinary purposes of a waiting room, &c. be construed as falling within the forbidden description. (r)

144. But where the company erected a platform and made steps leading down to it from the top of the embankment of the railway, and took up and set down passengers there, and otherwise used the platform as a station, and also commenced making a carriage road from a certain lane to the top of the embankment, it was held that the road, platform and steps collectively constituted a station (t). It was also held, that the steps would come under the head of "machinery," or "machinery or other erection," spoken of in the prohibitory clause, and therefore fell within the same; and that a permanent ladder would be an erection within the meaning of the same clause. (t)

(r) The Provost of Eton College v. The Great Western Railway Company, 1 Railway Cas. 200; S. C. 3 Jur. 163.

(s) Ib.; Lord Petre v. Eastern Counties Railway Company, 3 Railway Cas. 367.

(t) Lord Petre v. Eastern Counties Railway Company, 3 Railway Cas. 367.

145. Sometimes the prohibition is couched in more comprehensive terms, and made to include not simply certain specific classes of things, but generally all buildings or conveniences for the deposit, &c. of goods, articles, &c. The erection of an engine-house, stable, water-tank, and cottages within the forbidden distance, would seem to be a clear infringement of a prohibition couched in the terms last supposed. (u)

146. Even though the prohibitory clause, in enumerating those things which are meant to be forbidden, be found to annex the term public by way of prefix to such enumeration, yet this would not, it seems, materially affect its operation. In the first place, the term in question can hardly be construed to govern and affect all the words of enumeration used in the clause; and even assuming it to do so, still it cannot, it should seem, be considered as exclusively applicable to things of public resort, or such as are immediately used by the company in the discharge of what may be termed the public duty they have undertaken, but may fairly be extended to all things tending even mediately to the same purpose; such, for instance, as buildings and conveniences for keeping and repairing, &c. all machines, utensils, &c. which are requisite to keep the line of railway, or the machinery on the line, in order for the use of the public. (u)

147. The next class of provisions that it is proposed to notice, are those relating to minerals (x), and

(u) Gordon v. Cheltenham and Great Western Railway Company, 2 Railway Cas. 800, 872; S. C. 5 Beav. 229.

(x) As to provisions of Railways Clauses Consolidation Act on this head (8 Vict. c. 20), see act, s. 77-85, post, Appendix.

intended for the protection of the owners of mines and minerals lying in the route of the railway. Under a railway act, the company in general take no property in the mines and minerals under the lands purchased by them, except so far as may be required for the purposes of their act, but the original proprietors may work them, provided that in so doing no damage is wilfully done to the railway, and the mines are not worked in an improper manner. The company at the same time have the option of purchasing so much of the strata as lies under or within a given distance of the railway, upon notice of the proprietor's intention to commence working such part of the minerals. This option, however, the company are usually required to exercise within a given time after the receipt of the above notice, or else it determines, and then the owner becomes as fully entitled to get this as any other part of the mineral strata in question. The general effect of the above provision seems to be, to throw upon the company all risk attendant on the future working of the mines. Accordingly, if, from the general nature of the soil, the course and position of the mineral strata, &c. there are substantial grounds to apprehend that such working will endanger the railway, they must take care to guard against the danger by the due exercise of the option reserved to them. If they neglect to do this, they are then at the mercy of the mine owner, who may work as freely as if no railway existed, provided that in so doing he abstain from wilful damage, and any improper method of working.

148. Sometimes the power of working the mines is given only on the condition that the owner do no

damage to the railway, or that he make good the same. Under this latter provision the risk of future working must, it seems, fall upon the mine owner; he must, consequently, take care for the future in working his mine to do no damage to the railway, or, if he does, he must repair it; and if, in order to avoid so doing, he is obliged to interrupt the working of his mine, or to work it in a more expensive manner than what would otherwise have been necessary, or is otherwise put to inconvenience, he cannot nevertheless claim any compensation from the company (y).

(y) Rex v. Leeds and Selby Railway Company, 3 A. & E. 683. As to analogous provisions in canal acts, see Dudley Canal Company v. Grazebrook, 1 B. & Ad. 59; Wyrley and Essington Navigation Company v. Bradley, 7 East, 368. There a canal act provided that the canal company should not be entitled, on purchasing lands for making a canal, to any coal mines, &c. under the same, but that such mines should belong to the same persons as would have been entitled to them if the act had not been made; but it required the owners to give notice to the company of their intention to work their mines within ten yards of the canal, and that the company might inspect the mines and might stop the further working of them, paying compensation to the owners; it was held that the right of the owners to work within the ten yards was left as before the act, if after notice given by them to the company the latter did not purchase out their rights; and that the canal being damaged by the nearer approach of the mine, after such notice and nonpurchase, no action lay against the coalowner for such injury, which happened by default of the company in not purchasing. Where under a canal act the Company required a certain breadth of coal on each side of the canal to be left, held, that lessee of coal entitled to compensation for loss he sustained by not working, that is, to the value of the coal when gotten, deducting the expense of getting it out, and this independent of the compensation to the reversioner for