References to Board of Trade as to Works. 377 if they shall think fit, to decide the same accordingly, and 8 & 9 VICT. c. 20. to authorise, by certificate in writing, any arrangement or mode of construction in regard to any such road, bridge, or other work which shall appear to them either to be in substantial compliance with the provisions of this and the special act, or to be calculated to afford equal or greater accommodation to the public using such road, bridge, or other work; and after any such certificate shall have been given by the Board of Trade, the road, bridge, or other work therein mentioned shall be constructed by the company in conformity with the terms of such certificate, and being so constructed shall be deemed to be constructed in conformity with the provisions of this and the special act: Provided always, that no such certificate shall be granted by the Board of Trade unless they shall be satisfied that existing private rights or interests will not be injuriously affected thereby. (a) As an instance of the cases in which the Board of Trade may References under be referred to under this section, see Pearce v. Wycombe Railway this section. Co., 7 R. C. 902; 1 Drew. 244, in which the company transgressed their limits of deviation during the progress of their works, and gave no notice of such deviation to the landowner, the reference being agreed to by both parties, although a bill for an injunction had been filed. of certificates of notices, &c. LXVII. And be it enacted, that all regulations, certi- Authentication ficates, notices, and other documents in writing purporting the Board of to be made or issued by or by the authority of the Board Trade, service of of Trade, and signed by some officer appointed for that purpose by the Board of Trade, shall for the purposes of this and the special act, and any act incorporated therewith, be deemed to have been so made and issued, and that without proof of the authority of the person signing the same, or of the signature thereto, which matters shall be presumed until the contrary be proved; and service of any such document, by leaving the same at one of the principal offices of the railway company, or by sending the same by post, addressed to the secretary at such office, shall be deemed good service upon the company; and all notices and other documents required by this or the special act to be given to or laid before the Board of Trade shall be delivered at, or sent by post addressed to, the office of the Board of Trade in London. 8 & 9 VICT. c. 20. Works for Pro tection and Ac Lands. WORKS FOR PROTECTION, AND ACCOMMODATION WORKS. And with respect to works for the accommodation of commodation of lands adjoining the railway, be it enacted as follows:LXVIII. (a) The company shall make and at all times thereafter maintain the following works for the accommodation of the owners and occupiers of lands adjoining the railway; that is to say, Gates, bridges, &c. : Fences (b): Drains: Watering-places. Such and so many convenient gates, bridges, arches, Also all necessary arches, tunnels, culverts, drains, or Also proper watering-places for cattle where by reason of the railway the cattle of any person occupying any lands lying near thereto shall be deprived of access to their former watering-places; and such watering Accommodation Works-Agreement to construct them. 379 places shall be so made as to be at all times as suf-8 & 9 VICT. c. 20. Provided always, that the company shall not be required works. (a) The present section and s. 69 are in substitution for s. 10 of Accommodation 5 & 6 Vict. c. 55: (Per Jervis, C. J., Manchester, &c., Railway Co. v. Wallis, 23 L. J. (Č. P.) 87 ; 14 C. B. 220.) The question whether works made by the company are works for the accommodation of the owners or occupiers of the adjoining lands within the meaning of the statute, is a question to be determined at the time of making the works: (Reg. v. Fisher, 3 B. & S. 191; 32 L. J. M. C. 12.) Therefore, where certain persons were owners of mines extending under a railway, and the company had made drains upon their line for their own purposes and before the mines had been worked at all, but which when kept open and clear carried off water which otherwise percolated through the strata into the mines and interfered with the working of the mines, it was held that the drains were not accommodation works within the meaning of this section, and that justices had no jurisdiction under s. 69 to order the company to maintain and keep them in repair: the injury caused by the acts of the company was matter for an action: (Ibid.) This section refers to what might be expected to occur upon the surface of the land, and not below the surface: (Ibid.) Section refers to surface damage only. Accommodation regard to present These sections apply to the mere present use of the land, be it agricultural or otherwise, and not to any prospective use of it; SO works to be orthat, if land, part of which is taken by a railway company, is agricul- dered only with tural, the justices can order accommodation works only with refer- mode of using ence to the land as used for agricultural purposes, and not with land. reference to a prospective use for building purposes: (Reg. v. Brown, L. R. 2 Q. B. 630.) The compensation jury, valuing it as building Compensation land, may estimate the damage done by severance without any re- for severance gard to the power of justices to order accommodation works under regard to such these sections: (Ibid.) incurred without works. modation works. The cases in Equity upon this section turn almost exclusively Contracts with upon questions relating to agreements entered into between railway regard to accomcompanies and landowners, and to the jurisdiction of the Court of Chancery to enforce such agreements. That such a jurisdiction is vested in the Court is shown by the Specific performcase of Storer v. Great Western Railway Co., (2 Y. & C. 48,) in which ance. 8 & 9 VICT. c. 20. an agreement to make a "neat archway" at such places as the "Neat archway." plaintiff should appoint was ordered to be specifically performed. So also, inquiries at Chambers were directed as to what "roads, Inquiries at Chambers as to ways, and slips for cattle" were necessary upon the construction of an agreement for the purchase of land, subject to the construction of such works by the company: (Sanderson v. Cockermouth Railway Co., 11 Bea. 498; 7 R. C. 613; 19 L. J. (Ch.) 503.) works. Repairs. Obligation to restore levels. Notice of works required to be executed. Difficulty or expense to the com pany do not affect right to specific performance. Agreements should incor porate Railways Clauses Act. A similar order was made in another case in which a contract for land and for the construction of a "siding, with all convenient approaches" was in question, although the Court could not superintend the carrying out of such an agreement: (Lytton v. Great Northern Railway Co., 2 K. & J. 394; 2 Jur. N. S. 436; 4 W. R. 441 ; but see South Wales Railway Co. v. Wythes, 1 K. & J. 186; 5 De G. M. & G. 880.) The question as to repairs of such works is, on each occasion on which a complaint arises, the subject of further inquiry: (Ibid.) Where the company agreed to restore the original level after intersecting a certain ropery, they were compelled to restore the surface so as to be available for all purposes to which it might have been applied before the construction of the railway, and not for the purposes of a ropery only: (Harby v. East and West India Docks and Birmingham Junction Railway Co., 1 De G. M. & G. 290.) And a landowner having withdrawn his opposition to a bill upon the faith of an agreement, by which the company were to make a certain road and an approach in a particular manner, the company were not allowed to alter the level of their line, and to vary the course and gradient of the road; and specific performance was, on appeal, decreed, although inconvenience to the public from an interference with the traffic rendered unavoidable by such a decree might ensue : (Raphael v. Thames Valley Railway Co., L. R. 2 Ch. App. 147; L. R. 2 Eq. 37; 36 L. J. (Ch.) 209; 15 W. R. 322; 16 L. T. Ñ. S. 1.) If, however, the agreement for the construction of accommodation works contains a provision that notice of such works as the plaintiff may require shall be made within a fixed time, the Court holds that time is of the essence of the contract; and where this omission had in fact taken place, and the time for the exercise of the parliamentary powers had expired under s. 73, and rendered the 68th section inoperative, the House of Lords refused to grant specific performance, or to import a new agreement so as to give to the plaintiff "all necessary and proper crossings," as asked by his bill (Darnley v. London, Chatham, and Dover Railway Co., L. R. 2 H. L. 43; 1 De G. J. & Sm. 204; 3 De G. J. & Sm. 24; 9 Jur. N. S. 148; 33 L. J. (Ch.) 9.) Difficulty and expense of performing the contract do not necessarily form an objection to a decree for specific performance: (Storer V. Great Western Railway Co., 2 Y. & C. 48; Raphael v. Thames Valley Railway Co., L. R. 2 Ch. App. 147; L. R. 2 Eq. 37; 36 L. J. (Ch.) 209; 15 W. R. 322; 16 L. T. N. S. 1.) Agreements providing for the construction of accommodation works should incorporate the Railways Clauses Act if it is intended by the company to take the benefit of its provisions for the construction of the railway, such as those limiting the width of roads, bridges, &c. (Clarke v. Manchester, &c., Railway Co., 1 J. & H. 631.) Liability to make and maintain Fences. 381 A reference also to the Consolidation Acts in such agreements, pro- 8 & 9 VICT. C. 20. viding for arbitration as to works, will exonerate arbitrators from the Awards need not duty of including in their award matters specially provided for by include things the act (Skerratt v. North Staffordshire Railway Co., 5 R. C. 166.) provided for by (b) The liability of the company under this section is the same general act, as it would be at common law if they had been bound by prescrip- section same as Liability under tion to repair the fence-i.e., they are only bound to keep up the if bound by pre fence as against the cattle of owners or occupiers of the adjoining scription to relands (Manchester, &c., Railway Co. v. Wallis, 14 C. B. 220; 23 L. J. (C. P.) 85.) pair. The obligation on the company to maintain these works is How far obligaabsolute so far as respects the owners and occupiers of lands adjoin- tion is absolute. ing the railway; as between the company and passengers, the obligation on the company is to take all reasonable care to prevent cattle straying on to the line so as to endanger the safety of passengers (Burton v. North-Eastern Railway Co., 16 W. R. 1124; 18 L. T. N. S. 795.) company owns The obligation does not apply where the adjoining land belongs Obligation does to the company. Thus, where a railway company licensed the not apply where plaintiff, on payment of toll, to use with trucks and horses a adjoining land. tramway belonging to the company, which ran for some distance parallel to their line, being separated from it by a fence which was also their property, down to a point where the tramway crossed the railway, at which point the company had placed gates which could be shut, but which, according to the evidence, never were shut, and while so using the tramway, one of the plaintiff's horses, alarmed at an approaching train, swerved through one of the open gates on to the railway, and was there killed by the engine, it was held in an action against the company that a count founded on the present section could not be sustained: (Marfell v. South-Wales Railway Co., 29 L. J. (C. P.) 315.) line in such So a declaration, stating that the defendants were possessed of a Liability where railway and station and yard adjoining, through which cattle carried cattle stray on to by the railway to the station were obliged to pass in going from the cases. station to a highway, and that the company were bound to maintain good and sufficient fences between the railway and the yard, so as to prevent cattle lawfully in the yard from straying on the railway, and alleging a breach, owing to which plaintiff's bull was killed, was held bad, there being no such liability to fence as alleged: (Roberts v. Great-Western Railway Co., 4 C. B. N. S. 506; 27 L. J. (C. P.) 266; Hardcastle v. South Yorkshire, &c., Railway Co., 4 H. & N. 67; 28 L. J. (Ex.) 139; Hounsell v. Smyth, 7 C. B. N. S. 731; 29 L. J. (C. P.) 203; Binks v. South Yorkshire, &c., Railway Co., 32 L. J. (Q. B.) 26.) ing land: If cattle are unlawfully on the land of adjoining owners, and Cattle unlawthence stray on to the railway through defect of fences which the fully on adjoinrailway company is bound to maintain, the owner of the cattle cannot sustain an action against the company: (Ricketts v. East and West India Docks, &c., Railway Co., 12 C. B. 160; 21 L. J. (C. P.) 201.) Thus where cattle were straying along the highway, and thence As, where cattle got through a defective fence on to the railway, and were there in- stray from highjured, the company were held not liable: (Manchester, &c., Railway Co. v. Wallis, 14 C. B. 213; 7 R. C. 709.) But where a colt, after straying on to a highway, was being driven way on to line. |