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General powers to construct the railway and works.
II. It is now proposed to consider the general powers contained in the Consolidation Act, to enable the company to construct the railway and other necessary works.
These powers are of a very extensive nature. The Railway Clauses Consolidation Act enacts, "That, subject to the provisions and restrictions in that act and the special act contained, or in any act incorporated therewith, it shall be lawful for the company, for the purpose of constructing the railway, or the accommodation works connected therewith thereinafter mentioned, to execute any of the following works (that is to say):
They may make or construct, in, upon, across, under,
or over any lands (1), or any streets, hills, valleys, roads, railroads, or tram-roads, rivers, canals, brooks, streams, or other waters, within the lands described in the said plans, or mentioned in the said books of reference, or any correction thereof, such temporary or permanent inclined planes, tunnels, embankments, aqueducts, bridges, roads, ways, passages, conduits, drains, piers, arches, cuttings, and fences, as they think proper (m):
They may alter the course of any rivers not navigable, brooks, streams, or watercourses, and of any branches of navigable rivers, such branches not being themselves navigable, within such lands, for the purpose
() As to the powers enabling the company to take temporary possession of lands and roads, see ante, 165, 176; as to the obligation to take the whole of a house or small parcels of land, ante, 165; as to taking lands lying on the sea shore, ante, 151; as to lands lying over minerals, ante, 152, 188. The company may also, in addition to the lands which they are authorised to take compul
sorily, contract for the purchase of any land near the railway, not exceeding in the whole the prescribed number of acres, for extraordinary purposes, that is to say, for providing stations, yards, warehouses, roads, &c. 8 Vict. c. 20, s. 45, post, App.,
(m) See the cases as to temporary and other bridges, collected, post, 363, 369; as to roads, 381.
construct the Railway and Works.
of constructing and maintaining tunnels, bridges, General Powers to passages, or other works over or under the same, and divert or alter, as well temporarily as permanently, the course of any such rivers or streams of water, roads, streets, or ways, or raise or sink the level of any such rivers or streams, roads, streets, or ways, in order the more conveniently to carry the same over or under, or by the side of the railway, as they may think proper: They may make drains or conduits into, through, or under any lands adjoining the railway, for the purpose of conveying water from or to the railway (n): They may erect and construct such houses, warehouses, offices, and other buildings, yards, stations (0), wharfs, engines, machinery, apparatus, and other works and conveniences, as they think proper: They may from time to time alter, repair, or discontinue the before-mentioned works, or any of them, and substitute others in their stead; and
They may do all other acts necessary for making,
Provided always, that, in the exercise of the powers by
this or the special act granted, the company shall do
(n) The Drainage Commissioners in Ireland are empowered to protect lands in Ireland, subject to floods, &c., from sustaining any injury by the formation of railway works. 8 Vict.
c. 20, ss. 25 to 29, post, App., 165,
(0) See the cases as to the con-
General Powers to construct the Railway and Works.
If, therefore, a railway company carry on their works in such a way as to cause more damage than the necessity of the case requires, a court of equity will restrain them; for, although the company are not to be prevented from doing anything which is necessary to the due prosecution of their undertaking, they may not, on the other hand, prosecute it in such a manner as to do unnecessary damage to others. Thus, where a railway company were proceeding to erect an arch over a mill-race, for the purpose of sustaining an embankment on which the railway was to be constructed, and it appeared that injury would be done to the mill if the arch were of the proposed dimensions, but that the injury would be avoided if the arch were of certain larger dimensions, an injunction was granted to restrain the company from making over the mill-race an arch of less than certain specified dimensions (p).
Limitations of general powers in executing engineering works.
Deviations from the levels.
III. But the general powers thus conferred are restrained by provisions inserted in the act, for the purpose of requiring that certain engineering works connected with the railway shall be executed in a specified manner.
Thus, in making the railway, it is not lawful for the company to deviate from the levels of the railway as referred to the common datum line described in the section approved of by Parliament, and as marked on the same, to any extent exceeding in any place five feet, or, in passing through a town, village, street, or land continuously built upon, two feet, without the previous consent in writing of
(p) Coats v. The Clarence Railway Co., 1 Russ. & M. 181; see also Manser v. The Northern and Eastern
Railway Co., 2 Railway Cases, 380, post, 369.
the owners and occupiers of the land in which such deviation is intended to be made; or, in case any street or public highway shall be affected by such deviation, then the same shall not be made without the like consent of the trustees or commissioners having the control of such street or public highway, or, if there be no such trustees or commissioners, without the like consent of two or more justices of the peace in petty sessions assembled for that purpose, and acting for the district in which such street or public highway may be situated, or without the like consent of the commissioners for any public sewers, or the proprietors of any canal, navigation, gas-works, or water-works affected by such deviation: Provided always, that it shall be lawful for the company to deviate from the said levels to a further extent without such consent as aforesaid, by lowering solid embankments or viaducts, provided that the requisite height of headway, as prescribed by act of Parliament, be left for roads, streets, or canals passing under the same; Provided also, that notice of every petty sessions to be holden for the purpose of obtaining such consent of two justices as is hereinbefore required, shall, fourteen days previous to the holding of such petty sessions, be given in some newspaper circulating in the county, and also be affixed upon the door of the parish church in which such deviation or alteration is intended to be made, or, if there be no church, some other place to which notices are usually affixed. (Id., s. 11, post, App., 160).
Before it shall be lawful for the company to make any greater deviation from the level than five feet, or, in town, village, street, or land continuously built upon, two feet, after having obtained such consent as aforesaid, it shall be incumbent on the company to give notice of such intended deviation by public advertisement, inserted once at
Limitations of General Powers
Arehes, viaducts, and tunnels.
Gradients and curves.
least in two newspapers, or twice at least in one newspaper, circulating in the district or neighbourhood where such deviation is intended to be made, three weeks at least before commencing to make such deviation; and it shall be lawful for the owner of any lands prejudicially affected thereby, at any time before the commencement of the making of such deviation, to apply to the Board of Trade, after giving ten days' notice to the company, to decide whether, having regard to the interests of such applicants, such proposed deviation is proper to be made; and it shall be lawful for the Board of Trade, if they think fit, to decide such question accordingly, and, by their certificate in writing, either to disallow the making of such deviation or to authorise the making thereof, either simply or with any such modification as shall seem proper to the Board of Trade; and, after any such certificate shall have been given by the Board of Trade, it shall not be lawful for the company to make such deviations, except in conformity with such certificate. (Id., s. 12, post, App., 161).
So, with respect to arches, viaducts, and tunnels, it is provided, that, where in any place it is intended to carry the railway on an arch or arches or other viaduct, as marked on the said plan or section, the same shall be made accordingly; and where a tunnel is marked on the said plan or section, as intended to be made at any place, the same shall be made accordingly, unless the owners, lessees, and occupiers of the land in which such tunnel is intended to be made shall consent that the same shall not be so made. (Id., s. 13, post, App., 161).
And, as to gradients and curves, tunnels, or other engineering works, it is enacted, that it shall not be lawful for the company to deviate from or alter the gradients, curves, tunnels, or other engineering works described in