pany's compulsory powers of purchasing and taking land. (a)

462. Legal proceedings. (b) The Board of Trade

(a) 5 & 6 Vict. c. 55, s. 15, App.

(b) The Board of Trade has been called upon in several cases to exert the powers vested in it by Lord Seymour's Act, in order to prevent alleged deviations on the part of railway companies from the provisions of their acts and of the general law, but it has not been found necessary to institute any prosecution for that purpose.

In April, 1841, an application was made to the railway department of the Board, to interfere for the purpose of preventing the Glasgow and Greenock Railway Company from indirectly becoming steam boat proprietors, for the purpose of forwarding passengers by the railway to places beyond Greenock, and acquiring a monopoly of the whole passenger traffic on the Clyde. After a full consideration of the circumstances, it was determined that this was not a case in which the Board of Trade could interfere, on the following grounds, which may be stated as illustrative of the principles upon which their lordships have acted in the exercise of the power of instituting prosecutions against railway companies, vested in them by Lord Seymour's Act, &c., in cases where personal safety is not concerned :

1st. That this power, being of an extraordinary nature, is only to be exercised in cases where it is quite clear, 1st, that the conduct of the railway company is illegal; 2nd, that it is contrary to public policy and injurious to public interests.

2nd. That in the present case neither of these points was sufficiently established, for although it is clearly illegal for a company incorporated for a specific purpose, such as making a railway, to undertake a different and distinct branch of business, yet in the present instance it might be fairly a question whether the employing steam boats to forward passengers from the terminus of the railway was not incidental to the main business and a public convenience; and at any rate it did not appear that whatever might be the ultimate object of the railway company any loss was in the meantime sustained by the public, but rather

Q

have a further jurisdiction to decide in certain cases on the propriety of taking legal proceedings against railway companies. Whenever it shall appear to the Board that any of the provisions of the several acts of parliament regulating any railway company, or the provisions of any general act relating to railways, have not been complied with on the part of any railway company or any of its officers, or that any railway company has acted or is acting in a manner unauthorized by the provisions of the act or acts of parliament relating to such railway, or in excess of the powers given and objects defined by the said act or acts, and it shall also appear to the

that a certain class of passengers were conveyed part of the distance at lower fares than had been charged before the opening of the railway.

The next application was one complaining of the conduct of the Clarence Railway Company, in having illegally laid down a new branch across a public road under circumstances involving great danger. The inspector-general was instructed to visit the line, and from his report, which with the complainant's memorial and other documents relative to the affair are given in the Appendix, p. 286, it appeared that the branch line complained of was absolutely necessary, in order to conduct the traffic upon the railway in safety, and that with certain precautions and alterations pointed out in the report there was no reason to apprehend that the public safety would be endangered. Under these circumstances it was considered, that although the right of the railway company to cross the highway might be doubtful, yet as the measure was on the whole conducive to the public safety the Board of Trade should not interfere, on condition of receiving an assurance from the railway company that the various precautions specified in the inspector-general's report should be complied with. This assurance was given and proper steps were to be taken to ascertain that it was duly fulfilled.-Report of Officers of Railway Department, 1842, P. xxi.

Board that it would be for the public advantage that the company should be restrained from so acting, the Board are to certify the same to the proper law officer of the crown, who shall thereupon proceed against the company according to the circumstances of the case, viz. by information, action, &c. for penalties, &c. in cases of mere nonfeasance, or in cases of acts of commission by suit in equity, &c. for an injunction, &c. (c) No such certificate is to be given, until twenty-one days after notice to the company of the intention to give the same; and no legal proceedings are to be taken under the authority of the Board, except upon such certificate, and within one year after the commission of the offence. (d)

II. Provisions for the Enlargement of Powers of Railway Companies.

463. The Board of Trade may empower any railway company, in case of any accident or slip happening or being apprehended to any cutting, embankment or other work belonging to them, to enter upon any lands adjoining their railway for the purpose of repairing or preventing such accident, and to do such works as may be necessary for the purpose. In cases of necessity, the company may enter, &c., without having obtained the previous sanction of the Board. In every such case, however, the company must, within forty-eight hours after such entry, report the particulars to the Board; and such powers determine, if the Board, after considering the report, certify that their exercise is not

(c) 7 & 8 Vict. c. 85, s. 17, App. (d) Ibid. s. 18, App.

necessary for the public safety. The works are to

be as little injurious to the adjoining lands as the nature of the case admits, and are to be executed with all possible dispatch; and full compensation is to be made to owners and occupiers, the amount in case of dispute to be determined in the manner prescribed by the company's act for settling cases of disputed compensation generally. (e)

464. After the expiration of the company's compulsory powers, it is sometimes found necessary for the public safety that additional land should be taken for the purpose of giving increased width to the embankments and inclination to the slopes of railways, or for making approaches to bridges or archways, or for doing such works for the repair or prevention of accidents as hereinbefore described. Where the Board of Trade certify that this is the case, the company's compulsory powers of taking land, &c., as regards the land mentioned in the certificate, revive for the further period mentioned in such certificate. Before applying, however, for such certificate, fourteen days' notice in writing must be given by the company in the manner prescribed by their act for serving notices on land owners, to the

(e) 5 & 6 Vict. c. 55, s. 14, App. Where a slip took place on the line of railway, and the company thereupon entered upon the adjoining land and began digging without permission, and without subsequently reporting the same to the Board of Trade, this was ruled not to be within the above section; but it being proved by affidavit that the steps taken by the company were necessary for the public safety, and there having been a subsequent treating between the parties, an injunction was refused, but the company with the consent of their counsel was ordered to pay into court a certain sum of money; Tower v. Eastern Counties Railway Company, 3 Railw. Cas. 381.

parties interested in the land, or such of them as are known to the company, and any of those parties, if they apply within that time, are to be heard by the Board before granting the certificate; and if the application is refused, the directors may be required by the Board to pay the expenses incurred in resisting the application. (ƒ)

(f) 5 & 6 Vict. c. 55, s. 15, App. The passing of the act, 5 & 6 Vict. c. 55, for the better regulation of railways, has led to several applications from railway companies for powers to take land required for purposes of public safety. The first and most important of these applications was from the London and Croydon Railway Company, who memorialized the Board to grant a certificate reviving their compulsory powers of purchasing several parcels of land, amounting in the whole to fifty-four acres, two roods and twenty perches, for the purpose of widening the cutting at New Cross and Forest Hill, where so many slips had taken place. Objections to this application having been lodged on the part of the Earl of St. Germans and other proprietors of the land in question, the representatives of the railway company and of the objecting parties were heard before the vicepresident of the Board of Trade; but as the inspector-general reported his decided opinion that the whole of the land was required for purposes connected with the public safety, and conces sions were made on the part of the company which satisfied the principal parties, the objections were not insisted upon, and a certificate was given, by which the compulsory powers of purchasing contained in the Croydon Company's Acts were, as regarded the portions of land in question, revived for a period of twelve months. In the course of the discussion a question was raised, whether land required for the purpose of throwing to spoil the earth cut away in the process of widening slopes came within the meaning of the fifteenth clause of the 5 & 6 Vict. c. 55; but as it appeared from the report of the inspector-general that the creation of a spoil bank in the vicinity of the cutting was in the case in question essential for the public safety, and in fact part and parcel of the integral process of widening the