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ART. IX. PRACTICAL SUGGESTIONS TO PROMOTERS OF RAILWAYS.

Report from the Select Committee of the House of Lords appointed to take into consideration the Practicability and the Expediency of establishing some Principle of Compensation to be made to the Owners of Real Property whose Lands, &c. may be compulsorily taken for the Construction of Public Railways; and also further to take into consideration the Question of Severance and that of Injury to Residences; and to report thereon to the House; together with the Minutes of Evidence taken before the said Committee. Session 1845.

WE propose here to give a short practical summary of the duties of solicitors and others employed to carry Railway Bills through Parliament; an entirely new department of professional business, which has become so important, and yet is so little understood, that a few pages may, we think, be reasonably devoted to it.

Without further preface, then, and without any apology for the poverty of our materials, let us observe, that after the railway company has been formed, the first duty of their solicitor is (in conjunction with the engineer) to put himself in communication with the principal landowners on the proposed line. We say the principal landowners; because it will not often be possible for him to confer with them all. His object will be to ascertain how the line can best be laid out so as to suit their convenience, and even to meet their wishes, and gratify their feelings, consistently with a due regard to the public accommodation. Infinite benefit will result in all cases from a due attention to this preliminary formula, while, on the other hand, a neglect of it may have the effect of exposing the promoters to an expensive opposition in both Houses of Parliament; and this not upon substantial grounds of injury, or real difference of opinion, but from mere pique and resentment operating on the minds of powerful proprietors, whose hostility might easily have been disarmed by the

manifestation beforehand of a proper disposition to consult their inclinations. The discretion of the solicitor, therefore, and, we may add, of the engineer, on these occasions, will entitle them to the gratitude of the promoters, who in general are not ambitious of a too copious evacuation of their capital in the costly arena of a parliamentary committee. Several instances, occurring in the present session, might be cited to show the expediency of the conciliatory, we had almost said propitiatory, course which we now recommend. In one case an eminent engineer, by persisting in carrying an obnoxious line through the estate and close to the residence of an aged and much venerated peer in the north of England, provoked the son of that nobleman to set up a plan for a rival railway, which, for a time, placed the original scheme in jeopardy. In another case the landowners, roused by the blind obstinacy of a dogged and perverse engineer, came to Parliament in a body, and compelled the promoters to make such important deviations in nearly the whole length of the line as proved practically an abandonment of their scheme for the present year. Enough, therefore, on this head.

The line being definitively adjusted, the next step is to prepare notices of the intention to apply to Parliament; and these must be inserted in the Gazette and country newspapers for three successive weeks in the months of October or November immediately anterior to the session in which application for the bill is to be made. Of the notices, the formal parts will be best attended to by the parliamentary agents for the bill. It is the solicitor's province to see that the parishes, &c. are accurately inserted; in which respect any omission or mistake may prove of serious consequence. The termini should be stated with as much precision as the plans will allow; for any material elongation or curtailment of the line after publication of the notices will not be permitted. And, in general, it may be said to be a rule to incorporate in the notice all such particulars of the objects and intentions of the company as it may behove the public to be made acquainted with.

' Commons' Standing Orders, No. 15.

Concurrently with the preparation of these notices, what are called the books of reference should be proceeded with; and these require the greatest care and circumspection on the part of the solicitor-no part of his duty being more onerous, or more troublesome and irksome in its performance. For not only is the operation in itself very difficult, but, in general, the labour is rendered still more oppressive by the dilatory supineness of engineers and surveyors, who almost invariably put off, till the last moment, the delivery of their plans; and thus sufficient opportunity is not allowed the solicitor for obtaining the requisite information; it being indispensable that every separate property, however small or insignificant, be duly numbered and "referenced" in the manner pointed out by the standing orders. The slightest omission or inaccuracy may produce great inconvenience-for Parliament will not grant compulsory powers to the company to purchase any property not specified in the reference book; and this will make it necessary to apply to the Legislature again, in another session, for the requisite authority-a contingency which even the greatest vigilance may, and often does, fail to avert. Hence the staple objection before standing-order committees is omissions and defects in the reference books.

ment.

The proper deposits being made, a written application must next be sent to the owners, lessees, and occupiers named in the reference book, requesting of them to state, in writing, their assent, dissent, or neutrality, as regards the proposed line; so that the same may be reported to ParliaIf no opposition is announced, the solicitor's task will be comparatively easy; but where the answers returned intimate dissent, the highest exercise of discretion will be necessary, in order, if possible, to effect amicable arrangements, so as to prevent actual opposition in committee. In general, we believe it is prudent to make large concessions to parties seeking compensation. The most experienced solicitors act on this principle. To be satisfied of the prudence of such a course, one has only to reflect on the enormous expense of which a protracted contest is invariably the parent in a parliamentary tribunal. To avert, or even to mitigate, this evil, considerable sacrifices may wisely be made. For not only

are expense and delay produced by opposition, but even the merits of the line and its expediency, in a public point of view, are apt to be underrated or lost sight of when it appears that a great many local or individual interests are likely to be injured by it. It ought, therefore, to be the study and constant endeavour of the solicitor for the bill, up to the latest moment, to extinguish or weaken opposition by offering equitable and liberal terms wherever there is even a chance of any reasonable accommodation being effected. What are called, in the new nomenclature of Parliament, residentiary interests, ought particularly to be dealt with on the fairest and largest principles of concession; not only because cases founded on claims of that description are in themselves entitled to extraordinary favour, but because in both Houses, but especially in the Lords, there is now the strongest disposition to protect them.

At the same time we may remark, that the only good purpose to be attained by making bargains with landowners before obtaining the act is, to prevent them from opposing the bill in its progress through Parliament. Where there is no appearance or probability of actual opposition, all such dealings should be deferred until the act has been obtained. And even where landowners, or others, state objections to the proposed line, the practical question for the consideration of the solicitor, after all, is this—Are the complainants likely to petition, or will they be satisfied with mere grumbling? In the latter case, it is quite unnecessary to treat with them until the bill has been passed.

Much light is thrown on the arcana of railway practice by the Report of a Select Committee of the House of Lords, which we have placed at the head of this article. One of the witnesses examined, Mr. John Clutton, the solicitor of the South Eastern Railway Company, carries the matter somewhat farther than we are disposed to agree with him; for he states, undisguisedly, that

"It is only parties who have some influence in opposing railway companies that are settled with before the passing of the bill.

"Some means of giving you trouble in the committee?

"Yes. With small proprietors, and I would class with them all the middle

men, the costs of a petition to parliament are so heavy that they are all afraid of it.

"What do you mean by the middle men?

"I mean the proprietors of small estates; men having a hundred or two or three hundred acres.

“Do you attach the same degree of importance now, as in the earlier years of railways, to the number of assentient or dissentient proprietors given in?

"I do not attach any importance to them, unless they have either influence or money to oppose the railway. Assent or dissent does not appear to me at all important under ordinary circumstances." 1

Another witness, Mr. John Duncan, the solicitor of the Eastern Counties Railway, being asked by what rule he governs himself in dealing with a dissentient landowner before going into committee, observes,

"I should say it depends upon the weight of the landowner's opposition and influence. If we have any fear that he is likely to defeat the bill, I think we then look at that as a special case for a settlement; and in settling we are not very nice about the price that we pay; and also where we feel that we can save expense by stopping opposition, we likewise settle on that ground frequently. It is the same thing to us whether we spend the money in the one shape or another.

"How do you estimate the probability of a party being able to defeat the bill in parliament?

"I can hardly say how we estimate it, but in each case we know pretty well what extent of difficulty a man can occasion to us by fighting day after day in a committee. There is always the view adopted by the promoters of a bill, that where there is a judgment going to take place upon conflicting evidence, the bill may be defeated; and that is sufficient to induce us to try to get rid of opposition.

"It is better for you to pay a little more to some landowners than to pay counsel day after day in the committee?

"There is no doubt we often look at the matter in that light.

“Have you often a bargain with the landowners before you come before the committee?

"In some cases.

It is not nearly so much done as it was in 1836. In 1836, and partially in 1837, it was done much more than it now is.

“Have you given larger sums to persons who were considered to have influence in the Houses of Parliament than to others?

"I should not wish to say in the Houses of Parliament; I should not like to individualise at all. I merely state, that in order to get rid of opposition to bills we have sometimes given large sums."

The next thing (we are not now speaking in the precise order of time), will be the preparation of what are called traffic tables, to show, in the first place, the insufficiency for agricultural, commercial, manufacturing, or other purposes,

1 Minutes of Evidence, p. 18.

2 Minutes of Evidence, p. 13.

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