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the contractors. It was held that under this stipulation, supposing the contemplated contingency should arise, and the seven days' notice be given, the company would clearly be at liberty to make use of all the implements and materials then in use by the contractors in and about the works, whether they continued to be on this or that precise spot. The same contract further provided that the company should have a lien on such implements, materials, &c. as might for the time being be in or upon the lands and grounds whereon the bridge was to be built. It was held that under the above stipulations the company acquired a lien in the nature of a shifting lien, attaching on materials, &c. as they were brought upon the ground, and lost if they were removed elsewhere not wrongfully, though the loss of the lien on the articles so removed did not affect it as to what remained, or which from time to time might be brought on; and that as to the places where the lien would attach, it was not to be limited literally to the spot forming the site of the intended bridge, but was to be taken to extend to all places in which the building of the bridge was in the popular sense carrying on, if such place was in the possession of the company; that the lien accordingly attached on materials, &c. deposited on the line of the railway, and also on land adjoining the railway and in the possession of the company, but not on materials, &c. lying on a temporary railway made by the builders over lands not belonging to the company for the convenience of conveying materials, nor on the materials of the temporary railway itself, nor again on a crane erected at the extremity of such temporary railway, though the latter classes of
articles the company, at the expiration of the notice above alluded to, had a right to retain and use about the work. (a)
SUB-SECT. 4.-Of the Duties and Obligations of a Railway Company.
185. It is proposed in the present section to treat of the duties and obligations of railway companies. These may be considered under two heads; first, such as are immediately cast upon them by their statute of incorporation, whether in express terms or by implication; and secondly, such as mediately flow from the same source, being the result of the position in which the company are placed by acting upon the powers of their statute.
186. 1st. OF DUTIES IMMEDIATELY IMPOSED BY STATUTE. This species of duties admits of a threefold division, according to the character of the parties to whom they are due; first, duties owing to the public; secondly, duties owing to that portion of the public, who are the owners of the adjoining property; thirdly, duties owing at once to the public and to the individual shareholders. First, then, as to the first class. Acts of parliament, which, like railway or canal acts, confer large and extensive powers for the execution of public works, cannot be considered as entailing no duties on those who obtain them, as offering, in short, a mere boon, which the projected company may accept or reject, or partially accept and partially reject, at their sole will and pleasure.
(a) Hawthorn v. The Newcastle-upon-Tyne and North Shields Railway Company, ubi supra.
Such acts, on the contrary, as we have already had occasion to observe, are regarded in the light of contracts made by the legislature on behalf of every person interested in any thing to be done under them. Those consequently who come to parliament to obtain them thereby in effect undertake that they shall do and submit to whatever the legislature empowers and compels them to do; (b) and this as well with reference to the interests of the public as to that of individuals. To apply these principles more immediately to railway companies, inasmuch as what the legislature usually contemplates in incorporating a company of this nature is the making and maintaining of a line of railway between certain given termini; the duties in general imposed by the law on such companies as incident to their creation can be no less than that of making and maintaining the railway in the line contemplated by the legislature. The circumstances under which such acts are obtained greatly tend to corroborate this view. Certain individuals go to parliament, and apply for an act to make a railway. To induce the legislature to accede to their application, and to grant them the necessary powers, they represent themselves to be capable of performing certain works, and undertake to do so. It is upon the faith of such representation and undertaking that they obtain their act, and the great powers of occupying land and raising money which it bestows. They cannot after this be permitted to allege, by way of
(b) Blakemore v. The Glamorganshire Canal Navigation, 1 M. & K. 162; judgment of Lord Denman, C. J., in Reg. v. Eastern Counties Railway Company, 1 R. Cas. 509; S. C. 2 R. Cas. 260; 10 A. & E. 531; 2 Per. & D. 648.
excuse for the non-performance of what is contemplated by the act, the difficulty or impossibility attending the execution according to the prescribed terms; (since such difficulties, be they more or less, should have been duly estimated by the undertakers before they pledged themselves to the execution for the sake of obtaining their act); or a regard to the pecuniary interests of the company, the majority being satisfied with the dividends already accruing, and unwilling to risk a further expenditure; neither can they claim to exercise an unlimited option over the works, abandoning one part and executing another at their will and pleasure. By their acceptance at the hands of the legislature of the very large and extensive powers ordinarily conferred by a railway act, for what cannot but be regarded as public purposes, they become clothed with the character of public trustees; and as such, in case of any neglect or failure to exercise such powers in compliance with such purposes, they may be compelled to do so within reasonable limits by a court of justice. (c) Accordingly, where the conduct of a company is such as evinces that they have no bonâ fide intention of completing their works according to the requisites of their act, a mandamus, it seems, will lie to them to enforce their taking the necessary steps for that purpose. As for instance, if their works appear to be in a great state of forwardness on one part of the line, while nothing is doing on another, even as respects the preliminary measure of purchasing the necessary land (d). In order, however, to succeed in
(c) Judgment of Lord Denman, C. J., in Reg. v. Eastern Counties Railway Company, ubi supra.
(d) Reg. v. The Eastern Counties Railway Company, ubi supra.
an application for a mandamus, it is not enough for the prosecutors to state facts, which, though they raise a suspicion, yet fall short of proof that the company has abandoned all intention of completing their line according to the meaning of the act. As for instance, where the gravamen of the complaint in effect amounted simply to this, that the company had refused to purchase lands at the time a particular shareholder had requested them to do so. (e)
187. Although a railway company cannot in general excuse itself from the performance of the works contemplated by its act of incorporation, on the score of the insufficiency of its funds, or on account of the difficulty or impossibility attending the execution of the design, still if it appeared that the company was restrained from proceeding by the injunction of a court of equity, it is conceived that this would be held by a court of law a sufficient answer to any application to compel the further prosecution of its works.
188. A further branch of the same class of duties is that of maintaining the railway. By this must be understood, if not the absolutely (ƒ) repairing of
In Reg. v. Great North of England Railway Company a rule nisi was obtained for a mandamus to the company to compel them to complete their line, they having done little or nothing to carry out a particular portion of it; but the applicant having subsequently obtained his object under an act of parliament, no further proceedings were taken in the case. Great difficulty, it may be remarked, was felt in the case, as to whether the applicant was entitled to a mandamus at all, he having no property on the line of the railway, but only in its vicinity. - November 20th, 1841.
(f) In Reg. v. Bristol Dock Company, 2 A. & E. N. S. 64,