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Rules applicable to has been said that the jurisdiction of the Court in granting ex parte injunctions is a very hazardous one, and one which, though often used to preserve property, may be often used to the injury of others; and it is right that a strict hand should be held over those who come with such applications (d).
And it has been lately decided, that it is no objection to an injunction that it is mandatory in its effects, although only prohibitory in form. Thus in The Great North of England, Clarence, and Hartlepool Junction Railway Company v. The Clarence Railway Company (e), the principal question between the parties was upon the construction of the act of Parliament under which the plaintiffs claimed to act; whether, assuming that the plaintiffs had a right to make a bridge, pursuant to a certain plan, over the defendants' railway, no part of the permanent supports of such bridge being intended to rest upon the defendants' land, the plaintiffs had a right, by way of temporary easement, to erect poles and other temporary constructions upon land adjacent to the defendants' railway, and to pass and re-pass across such railway, doing no vexatious acts, compensating for all damage, and not interfering with the regular traffic of the defendants' railway. The defendants, in order to prevent the plaintiffs from so temporarily using their land, had built up a wall, which effectually prevented the plaintiffs from carrying on their works; and the bill prayed an injunction to restrain the defendants from continuing to maintain such wall, and from preventing the defendants from making their bridge, &c. The Court refused to grant the injunction until satisfied by the opinion of a court of law that the plaintiffs had a legal right to build the bridge, and also a legal right to use the defendants' land by way of
(d) The Attorney-General v. The Mayor of Liverpool, 1 My. & Cr. 210.
(e) 1 Coll. 507; see also, 10 Jurist, 278.
the granting of Injunctions.
temporary easement. But the Court of Exchequer, having Rules applicable to certified that the plaintiffs had both such legal rights, the Lord Chancellor, (supporting the view of Knight Bruce, V. C., that it was no objection to the injunction that it was in effect of a mandatory character), made the order nearly in the terms of the prayer of the bill. To the same effect is Lord Mexborough v. Bower (f), in which an injunction was granted to restrain the defendant (who had cut certain channels from one coal field into another, in derogation of an agreement with the plaintiff) from permitting the communication to continue open.
Lastly, it is to be observed, that the jurisdiction of equity to restrain a railway company from so dealing in the course of its operations as to injure the property of another, is not taken away because it happens that the act incorporating the company points out, specifically; a mode in which a party complaining of its acts may obtain compensation (g),
It now only remains to notice some instances in which injunctions have been applied for with a view to restrain parties connected with the management of railway companies, from proceeding with the business entrusted to them; and it will be seen that such applications are frequently met by demurrers, on the ground of a want of equity, or a want of parties. The peculiar importance of these cases at this time seems to justify a statement of them in detail; and this appears also to be a convenient place for inserting several recent decisions, as reported in a valuable periodical, which shew generally the jurisdiction exercised by the Courts of Equity over railway companies.
(ƒ) 7 Beav. 127.
(g) Coates v. The Clarence Rail
way Company, 1 R. & My. 181;
Cases in Equity.
which the Court
Semble, it is the
duty of a railway
as to all
settle those agree
ments before they
begin to construct any part of the railway.
Gray v. The Liverpool and Bury Railway Company, (10 Jurist, £64, March 16th and 29th, 1846).]—The plaintiffs were the owners of cotton-mills and lands thereto adjoining, situate at Darcey Lever, in railway companies the county of Lancaster; and the above company, in their original by injunction, displans, proposed to carry their line through the buildings and lands immediately connected with the mills, so as to intersect them. This, those things which however, was not sanctioned by the Legislature; and after opposition depend upon agreements with by the plaintiffs, and some attempts between the company and the individuals, to plaintiffs to compromise the matter, the following clauses were inserted into the act of incorporation, for the protection of the plaintiffs: -By the 92nd clause, after reciting that the plaintiffs were the owners and occupiers of certain mills, lands, and buildings situate at Darcey Lever, through which the line of railway, as delineated in the plans and sections referred to in the act, passed, it was enacted that it should not be lawful for the company, without the consent of the plaintiffs, to construct the railway nearer to the said mills, lands, and buildings, or any of them, than the south-east end of Lever Bridge, delineated on the plans, and therein numbered 1. And the 93rd clause provided, that the company should not, in or during the construction or progress of the railway or works, divert, obstruct, or in any way injure the goits belonging to the plaintiffs, connected with their works at Darcey Lever, nor disturb the carrying on of the plaintiffs' works, under certain penalties therein mentioned. Some communication, shortly after the act passed, took place between the plaintiffs and the company respecting the construction of the railway over the lands in question, but no agreement was entered into; and the company, without first obtaining the consent of the plaintiffs, entered upon the land of the plaintiffs adjoining the land on which the mills were situate, but separated therefrom by a public road; and they marked out a line running from west to east from the south-east end of Lever Bridge, which crossed the river Tonge, parallel to the line originally delineated on their plans, but removed therefrom about the same space, for the most part, as the south-east end of Lever Bridge was distant from that point of their original line which was nearest to the south-east end of the bridge. The mills were situated in a southeasterly direction from the bridge. The plaintiffs filed their bill for
an injunction, which they now applied for. They contended, that the company could not take without their consent any part of the lands belonging to them at Darcey Lever, although not immediately connected with the mills, or essential to carrying on their works; and
Cases in Equity.
Gray v. The
that the company could not advance further than the south-east end of Lever Bridge, as by doing so they must enter upon lands belonging to the plaintiffs. The company, on the other hand, insisted that the Liverpool and Bury object of the Legislature was only to prevent the company from interfering with the mills and lands immediately adjoining thereto, and not to prevent them from constructing their railway over other lands of the plaintiffs not essential to the working of the mills; that the effect of plaintiffs' construction would be, to prevent the railway from being made without the plaintiffs' consent, because beyond Lever Bridge the whole of the land between the deviation lines belonged to the plaintiffs. This would clearly be contrary to the primary object of the Legislature, which was, that a railway should at all events be made.
Lord Langdale, M. R.-I think it is exceedingly to be regretted that the parties here have not been able to come to some sort of arrangement or compromise, so as to prevent this litigation, and prevent the necessity of any order. However, as they have been so unfortunate as not to be able to do so, it is for me to give the best opinion that I can. In these cases it is always to be borne in mind that these acts of Parliament are acts of sovereign and imperial power, operating in the most harsh shape in which that power can be applied in civil matters. Solicited as they are by individuals, for the purpose of private speculation and individual benefit, they are not passed by the Legislature otherwise than on the notion that they contribute to the public good so materially as to make it even for the general benefit to violate the private property of individuals. For the sake of that which is supposed to be the public good, (and, upon the construction of a particular act which has passed, we are bound to consider it for the public good on the whole), it is thought fit to take away from private individuals that which is undoubtedly their own absolute property, and that, too, at a price which is to be fixed by authority, (if need be), without any voice of their own. Whoever considers the effect of what is thus done, must see the consequences which frequently do happen to individuals: that to which they have, perhaps, attached their fortunes and all their interest in life may be taken from them by an absolute exercise of imperial power, and the whole of their circumstances and situation in life may be entirely altered for a sum of money to be fixed by somebody else. This Court has, I believe, always looked on these things in the light I have now mentioned. Again and again, though not so frequently as of late years,
Cases in Equity.
Gray v. The
Liverpool and Bury
these matters have been under consideration. At one time the doctrine held in this Court was, that, unless those who had obtained the powers could satisfactorily shew that they had the means of completing that undertaking, the whole, and not a part, of which was alleged to be for the public good, they should not be allowed to invade any man's property in the execution of only a part. The hardship imposed on individuals, I think, and I am glad to think there is reason to believe, has of late years been subject to a great deal more anxious consideration than it used to be. Probably the frequency of these applications and the vast extent of the works have occasioned that particular consideration. I think one may say it has almost become a rule, that, where the property of the party does not possess any peculiar value, Parliament will apply that which has become almost a general rule in such cases; but, if the property does possess some peculiar value, if the railway is to pass over a portion of property more valued than any other, and to which the owner may be considered to be more peculiarly attached, in such cases Parliament will facilitate and encourage agreements between the parties who possess such property and those who desire to take it away; and, in cases in which those agreements cannot be at once formed, will refer the parties to an agreement to be subsequently entered into between themselves. And so it appears to have been in this particular case. In the course of the last year the promoters of a railway from Liverpool to Wigan, Bolton, and Bury were soliciting an act of Parliament to construct a railway which passed through property belonging to and occupied by the plaintiffs in this cause. The plaintiffs, conceiving that this property was of peculiar value, which was not to be determined upon according to the general rules which are adopted in cases where there is no specific and peculiar value, opposed the bill. It appears from the evidence offered now, that the opposition was successful; that, unless some arrangement could be formed, some agreement entered into between them, the bill would not have passed subjecting them to the ordinary rules which are established in such cases. In that state of things an attempt was made for a compromise and agreement. Most unhappily, I think, for the interest of all persons who are concerned in this matter, that was not successful; but it is plain, and whether it is said in the evidence or not, I certainly do presume, that they were both of them in such a state of mind after the communications they had had with each other, that they believed they could come to an agreement. I do not say there was anything