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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 (f) 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.

(e) Ibid.

(f) In Reg. v. Bristol Dock Company, 2 A. & E. N. S. 64,

the line of railway, at any rate the keeping it in such a state as to all essentials, that the public may have the use of it as a railway. Any positive act accordingly on the part of the company, which should tend directly to the destruction of the railway, and the depriving the public of the use of it as such, would clearly be an infringement of this duty. Accordingly, where a railway company took up a part of the railway, a mandamus was issued to compel them to reinstate and lay it down again. (d)

189. Another and closely analogous branch of duty, is that which relates to the keeping the line of railway free from impediments. The company construct the railway for their own profit, and open it to the public upon the payment of tolls. The common law in such a case imposes a duty on the company, not perhaps absolutely to free it from obstruction, but to take reasonable care that all who shall choose to use it may do so without danger to their lives or property. (e)

190. The second class of the above duties are those which are imposed by the legislature in favour of the proprietors of the adjoining lands. Such is the duty of fencing off the railway from the adjoining lands, of making (f) proper communications across

the court held the dock company liable to repair their works, the statute incorporating the company expressly requiring the company to make and maintain the same.

(d) Rex v. The Severn and Wye Railway Company, 2 B. & Ald. 646.

(e) See judgment of Tindal, C. J., in The Company of Proprietors of the Lancaster Canal Navigation v. Parnaby and others, 1 Railway Cas. 712; S. C. 11 A. & E. 223; 3 Per. & D. 162.

(f) As to the making of proper communications, see ante, p.

the railway for the accommodation of such lands, and making and maintaining adequate drains to carry off the water from the same, and the like.

191. The third class of the above duties are those which the corporate body owe at once to the public and to the individual shareholders. Such is the duty of doing nothing in their corporate capacity but what they are authorized to do by the legislature; but in all things adhering faithfully to the objects of their incorporation. Should a railway company therefore attempt to employ their corporate powers, funds, credit, &c. for the accomplishment of purposes not within the scope of their institution, this would be such a clear violation of duty on their part, as to subject them to be restrained by a court of equity, (g) even on the application of a single shareholder. But although a court of equity would restrain a railway company from thus acting contrary to the laws of their existing constitution, yet it would not, it seems, interfere to prevent such a body from applying in their coporate capacity to parliament, and from using their corporate seal and resources to obtain the sanction of the legislature to the remodelling of their constitution, or to a material alteration and extension of their objects and powers, the right to take proceedings in parliament in the way suggested being incident to a corporate body such as that under consideration. (h)

121, et seq., and post, Cap. 6. As to provisions of Railways Clauses Consolidation Act, 8 Vict. c. 20, on the same point, see act, s. 68 to 75, post, App.

(g) Ware v. The Grand Junction Water Works Company, 2 Russ. & M. 483.

(h) Ibid.

192. Under this same head may likewise be reckoned the duty of making calls and likewise of enforcing payment of calls already made, when the state of the company's funds is such as requires the exercise of the power with which the legislature has entrusted them for that purpose.(i)

193. NEXT, OF THE SECOND CLASS OF DUTIES, viz. such as are the result not so much of the company's act of incorporation, as of the new relations incidental thereto, viz. their duties as owners of the property, whether real or personal, which they are compelled, &c. to purchase for the purposes of the railway. Viewed then as owners of property, a railway company are liable to the like obligations as any ordinary proprietor, saving of course so far as is otherwise provided for by their statute of incorporation. They are bound therefore to abstain from the doing any thing on, or making any use of, their own land, which may prejudice their neighbour. And the same rule applies in regard of their employment of things moveable.

SUB-SECT. 5.-Of the Burthens of a Railway

Company. (k)

194. A railway company, viewed as owners or occupiers of the line of railway, are liable to all rates, charges and other burthens ordinarily incidental to the ownership or occupation of realty, so far, that is to say, as is not otherwise provided for

(i) See Reg. v. Victoria Park Company, 1 A. & E. N. S. 288. (k) As to liability of companies under Lands Clauses Consolidation Act, 8 Vict. c. 18, to make good land tax and poor's rate, until works completed and assessed thereto, see act, s. 133, post, App.

by their act of incorporation. A railway company, accordingly, in the occupation of their own line of railway, are liable to be rated for the same to the relief of the poor. This renders necessary an inquiry into the principle of rating railways, and herein, first, of the general principle; secondly, of the variations engrafted on it by particular statutes. former question includes two points :

The

First, what is to be deemed subject-matter of rate, and to be included accordingly in the estimate of rateable value; and, secondly, upon what principle the rate is to be apportioned among the different portions of the line lying in different parishes.

195. GENERAL PRINCIPLE OF RATING.-First. What to be brought into rate. A railway company then is rateable upon the net annual value of the railway, that is to say, at such an amount as a tenant from year to year might fairly be expected to pay for the railway by way of net rent, assuming him to have the same power of using the railway, and the like privileges and advantages as the company. (1)

Supposing, therefore, that the land and buildings of the company become themselves more valuable and capable of commanding a higher rent in consequence of the facility afforded by the occupation of them to the carrying on of a lucrative trade and earning the profits on the fares, in whatever proportion this is the case, the rate ought to be raised accordingly. (1) Hence it would seem a proper mode for calculating

(1) Reg. v. London and South Western Railway Company, 2 R. Cas. 629; S. C. 1 A. & E. N. S. 558; 2 G. & D. 49 ; Reg. v. Grand Junction Railway Company, 22 Law J., Mag. Cas. 94: S. C. 4 A. & E. N. S. 18; 4 Railw. Cas. 1.

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