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way it authorizes. 1st, The persons of whom the act in general speaks, are the proprietors and occupiers of certain particular descriptions of property in the neighbourhood of the main railway. As the provision is obviously intended for the benefit and convenience of those who may be proprietors, and from time to time proprietors of such property, it cannot, it seems, be confined simply to such persons as fill that character at the time of the passing of the act, or the making of the main railway, but embraces all who subsequently succeed in their (t) place. 2nd, As to the species of railways the above power authorizes. Where the act speaks in general terms of any railways or roads, those terms cannot be qualified or cut down by showing that only a particular description of railway was in use at the passing of the act, so as to confine parties to that description exclusively of all others. (u)

86. Where the power is given in the first instance to the company, and in their default to adjoining owners, occupiers, &c., but the amount of tolls is limited in either case to a certain rate, unless where persons, in order to induce the company to undertake the work, choose to agree with them for a higher rate, which they are permitted within certain limits to do, it is a fraud at once upon the company and the legislature for neighbouring owners of property to agree together to construct a railway under the statutory power thus given, and when made, to use it for certain specific purposes connected with

(t) Bishop v. North, 21 Law Journ. Exch. 362; S. C. 11 M. & W. 418. See also Monkland and Kirkintilloch Railway Company v. Dixon, 3 R. Cas. 292.

(u) Bishop v. North, ubi supra.

their property, paying a higher rate of toll than that prescribed by the act. (x) The covenant accordingly securing the higher rate of toll ought not to be specifically enforced by injunction; (x) and even independently of any question of fraud, such a covenant is not, it seems, binding on the assigns of any original covenantor, as it is not a covenant that runs with the land and this even though the covenant makes express mention of " assigns." (x)

87. Where the above power extends generally to the carrying branch railways across or along any road within the given limits, semble this must be understood, not as conferring on the grantee an absolute authority to deal with such roads as he may please, or as may best suit his own convenience, but as subject to the limitation, that where a branch railway is laid down upon another road, sufficient space shall be left independently of it for the public to pass. (y)

Or if the power given to the company to make the principal line be subject to certain restrictions in the case of roads, the power in question may be considered with reference to those restrictions, and as qualified by them, so as to make it incumbent on a party wishing to take any part of a public road for the use of his branch railway to comply with such restrictions. (z)

88. Accordingly, where in pursuance of the supposed power, a party lays down a branch railway upon a public road in such a manner as to obstruct, hinder and inconvenience the public, and this without complying with the restrictions imposed on the (1) Keppell v. Bailey, 2 My. & K. 517.

(y) Judgment of Parke, J. in Rex v. Morris, 1 B. & Ad. 441. (2) Rex v. Morris, ubi supra.

company, supposing any such to exist, such branch railway is a public nuisance, and indictable as such. And the party cannot justify the obstruction in such a case on the ground of the facility given by the railway to the traffic of the neighbourhood, the use of it being permitted to the public on paying a toll; because no man has a right to tell the public that they shall discontinue the use of such carriages as they have been accustomed to employ, and adopt another kind, in order to pass along a new description of road, paying him for so doing. (a)

But if the party can show a compliance on his part with the conditions imposed by the act on the powers of the company, semble that may operate as a justification of the supposed nuisance; as, for + instance (where what is required of the company before interfering with any existing road is to make a new one in lieu of the old), that he did, before doing any thing to the obstruction of the old road, give to the public a new one as convenient as the old. (b)

89. Supposing the original formation of any such branch line of railway to be authorized by an act, it would seem highly questionable, whether, after the determination of the powers under which such railway is constructed, either it may be by the repeal of the act, or by its expiration it being originally only temporary, the right of keeping up such railway continues any longer. (c)

90. 2dly, OF SUBSIDIARY OR INCIDENTAL POWERS, and herein, 1st, of the general powers of contracting, incidental to a railway company. These powers

(a) Rex v. Morris, 1 B. & Ad. 441.

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then cannot, it is conceived, be taken to be absolute and unlimited, like those of a private individual, but must be restricted to the objects of the company's incorporation. A railway company, therefore (in the absence of any express provision of their act of incorporation), cannot in general make bills and notes, (d) or grant annuities, or raise money by way of loan, &c., the nature of the objects for which they are incorporated not requiring that they should possess this power. (e)

91. 2dly, Of the powers of purchasing and taking land, and erecting works, &c. Powers of this class are divisible into two heads, according as they are exercisable or not against the consent of the parties whose interests they are calculated to affect.

92. 1st, then, of the latter class, or of what may perhaps be termed the enabling powers, (ƒ) inasmuch

(d) The issuing of loan notes, &c. by railway companies is now prohibited under a penalty, by the 7 & 8 Vict. c. 85, s. 19, though those issued before the passing of that act may be renewed for any period or periods not exceeding five years from the passing of the act. Loan notes, &c. issued or contracted to be issued before July the 12th, 1844, are to be paid when due, subject as before provided in the act (see same act, s. 20), and are to be registered. Ib. s. 21. See act given in the Appendix.

(e) Broughton v. The Manchester Water Works Company, 3 B. & Ald. 1; judgment of Denman, C. J. in Clarke v. The Imperial Gas Light and Coke Company, 4 B. & Ad. 315. See case considered, post, Chap. VI. where railway company were in the habit of forwarding passengers by the railway to places beyond their terminus by steam boat.

(f) As to provisions of Lands Clauses Consolidation Act, relative to purchase of lands by agreement generally, see act, s. 6-11, post, App.; and as to power to purchase lands for additional accommodation, see same act, s. 12-14; also as to power to purchase lands for additional stations, &c., see Railway

as they are confined to the enabling the company to bargain for the necessary lands, way leaves, &c. and to the enlarging the powers of those who may be willing to deal with them; as, for instance, by authorizing tenants for life only to convey the fee simple, and the like. In the character of this class of powers, there is but little matter for investigation; as in general they go no further than to enable the company to purchase land for the benefit of the undertaking generally, or for additional stations, &c. in particular; they cannot, of course, be taken to authorize a bargain for land, which is not wanted for the purpose of the railway, but there must be an express authority given by parliament for the purpose. (d)

93. Next, of the former class of powers, or of what may be termed compulsory powers. Before however adverting to this immediate head of inquiry, there is a preliminary question that obviously requires to be considered, viz. whether a railway company in any given case possesses compulsory powers of taking land, &c., or not; for, although in general, powers of purchasing land, &c. are made exercisable without, or even against, the will of the parties interested, still they are not invariably so; as the projectors may think that they shall be able to obtain, by way of treaty, all that they require for the purposes of their railway, and so may be content

Clauses Consolidation Act, s. 45, post, App. In cases of parties under disability, &c. the Lands Clauses Consolidation Act, s. 9, requires that the amount of compensation be ascertained by valuation, and paid into the bank.

(d) See judgment of Lord Abinger, C. B., in Penney v. Great Western Railway Company, 1 H. & Hurl. 247.

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