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8 & 9 Vict. c. 20.
of such order on the company, it shall not be lawful for them to take or use, without the previous consent in writing of the owner thereof, any of the lands or materials which by such order they are ordered not to take or use. By sect. 37, if the objection so made as aforesaid be on the ground that other lands lying contiguous to those proposed to be taken, and being sufficient in quantity, and such as the company are hereinbefore authorized to use for the purposes aforesaid, would be more fitting to be used by the company, and if in such case the company shall refuse to occupy such other lands in lieu of those mentioned in the notice, any justice, on the application of such owner or occupier, may summon the company and the owners and occupiers of such other lands, to appear before two justices, not being more than fourteen days after such application, nor less than ten days from the service of such summons ;--and on the appearance of the parties, or, in the absence of any of them, upon proof of due service of the summons, such justices may determine summarily which of the said lands shall be used by the company for the purposes aforesaid, and may authorize the company to occupy and use the same accordingly. By sect. 38, if in the case last mentioned it shall appear to such justices, upon the inquiry before them, that the lands of any other party not summoned before them, being sufficient in quantity, and such as the company are hereinbefore authorized to take or use for the purposes aforesaid, would be more fitting to be used by the company than the lands of the person who shall have been so summoned as aforesaid, the said justices may adjourn such inquiry, and summon such other person to appear before them at any time, not being more than fourteen days from such inquiry, nor less than seven days from the service of such summons ;-and on the appearance of the parties, or, in the absence of any of them on proof of due service of the summons, such justices may determine finally which lands shall be used for the purposes aforesaid, and may authorize the company to occupy and use the same accordingly. By sect. 39, before entering upon any such lands as shall be required for spoil banks or for side cuttings, or for obtaining materials or forming roads as aforesaid, the company shall, if required by the owner or occupier thereof, seven days at least before the expiration of the notice to take such lands, find two sufficient persons, to be approved of by a justice in case the parties differ, who shall enter into a bond to such owner or occupier in a penalty of such amount as shall be approved of by such justice, in case the parties differ, conditioned for the payment of such compensation as may become payable in respect of the same.
Fences and Gates for Lands and Private Roads severed.] By sect. 40, before the company shall use any such lands they shall, if
required so to do by the owner or occupier thereof, separate the 8 & 9 Vict. same by a sufficient fence from the lands adjoining thereto, with C. 20. such gates as may be required by the said owner or occupier for the convenient occupation of such lands, and shall also, to all private roads used by them as aforesaid, put up fences and gates in like manner, in all cases where the same may be necessary to prevent the straying of cattle from or upon the lands traversed by such roads, -and in case of any difference between the owners or occupiers of such roads and lands and the company as to the necessity of such fences and gates, such fences and gates as any two magistrates shall deem necessary, on application being made to them in like manner as hereinbefore is provided in respect to the use of such roads. By sect. 41, if any land shall be taken or used Sect. 41. by the company for the purpose of getting materials therefrom for the construction or repair of the railway, or the accommodation works connected therewith, they shall work the same in such manner as the surveyor or agent of the owner of such land shall direct, or, in case of disagreement between such surveyor or agent and the company, in such manner as any justice shall direct, on the application of either party, after notice of the hearing of the application shall have been given to the other party.
Rent and Damages for temporary Occupation of Lands.] To be fixed by two justices if the parties differ (ss. 42, 43).
Disputes as to Tolls.] To be settled by one justice (s. 100).
Removal of Trees dangerous to Railways.] By 31 & 32 Vict. c. 119, 31 & 32 Vict. s. 24, “If any tree standing near to a railway shall be in danger of c. 119, s. 24. falling on the railway so as to obstruct the traffic, it shall be lawful for any two justices on the complaint of the company which works such railway to cause such tree to be removed or otherwise dealt with as such justices may order, and the justices making such order may award compensation to be made by the company making such complaint to the owner of the tree so ordered to be removed or otherwise dealt with as such justices shall think proper, and the amount of such compensation shall be recoverable in like manner as compensation recoverable before justices under · The Railways Clauses Consolidation Act, 1845.'”
IV. Repair of Roads, Bridges, &c. by Company. Roads.] By 8 & 9 Vict. c. 20, s. 58, “If in the course of making 8 & 9 Vict. the railway the company shall use or interfere with any road, they c. 20. shall from time to time make good all damage done by them to Sect. 58. such road ;--and if any question shall arise as to the damage done to any such road by the company, or as to the repair thereof by them, such question shall be referred to the determination of two justices;—and such justices may direct such repairs to be made in the state of such road, in respect of the damage done by the com
8 & 9 Vict. c. 20.
Sects. 61, 62.
pany, and within such period as they think reasonable, and the same two justices, Reg. v. Rawson and Horton, 15 Law T., N. S. 179] may impose on the company, for not carrying into effect such repairs, any penalty not exceeding £5 per day as to such justices shall seem just; and such penalty shall be paid to the surveyor or other person having the management of the road interfered with by the public, if a public road, and be applied for the purposes of such road, or if a private road, the same shall be paid to the owner thereof :-provided always, that in determining any such question with regard to a turnpike road the said justices shall have regard to, and shall make full allowance for, any tolls that may have been paid by the company on such road in the course of the using thereof." 145
An appeal is given against the justices' determination by sect. 60, ante, p. 1574.
Ascents, Handrails, &c. on Level Crossings.] By sect. 61, the company is to make sufficient approaches and fences to bridleways and footways crossed on the level; and by sect. 62, if the company fail to make convenient ascents and descents, or other convenient approaches and handrails, fences, gates and stiles, two justices, on the application of the surveyor of roads, or of any two householders within the parish or district where such crossing shall be situate, after not less than ten days' notice to the company, may order the company to make such ascent and descent or other approach, or such handrails, fences, gates or stiles as aforesaid, within a period to be limited for that purpose;—and if the company fail to comply with such order, they are to forfeit £5 for every day that they fail so to do;--and the justices by whom any such penalty is imposed may order the whole or any part thereof to be applied, in such manner and by such person as they think fit, in executing the work in respect whereof such penalty was incurred. (Vide cases in Note 143, ante, p. 1372). Form of Order, No.6, Oke's "Formulist," 6th ed. p.932.]
Bridges, Fences, Gates, dc. out of Repair.] By sect. 65, where the company are required to maintain or keep in repair any bridge, fence, approach, gate or other work executed by them, two justices, on the application of the surveyor of roads, or of any two house
145 In London and North Testern Rail. Co. v. Wetherall (20 L. J., Q. B. 337, V. C. 23, it was held that an order of justices under this section, directing a railway company to repair damage done by them to a road, Need not specify the particulars of the damage done, or of the repairs ondered, i it states the length of road injured, and directs the damages de vues to be mxde good. Also, that such an order as well as a conviction Biziging & perairy for its disobedience, may include sereral roads stence in the same parish. See also Test Riding Rasi. Co. v. Take the Ini Busvah v Evi: 33 LJ.S.S.M. C. 174. [Forms of Complaint, Ozdur tvarition, and Distress Warrant, Yos, 1-5, Oke's “ Formaiist,'* ez po
holders of the parish or district where such work may be situate, 8 & 9 Vict. complaining that
any such work is out of repair, after not less than c. 20. ten days' notice to the company, may order the company to put such work into complete repair within a period to be limited for that purpose;—and if the company fail to comply with such order, they are to forfeit £5 for every day they shall fail so to do;-and the justices by whom any such penalty is imposed may order the whole or any part thereof to be applied in such manner and by such persons as they think fit, in putting such work into repair. [Form of order, No. 7, Oke's “Formulist,” 6th edit. p. 933.]
Execution of Accommodation Works, Gates, &c., Drains, &c., for Owners and Occupiers.] By sect. 68, railway companies are required Sects. 68, 69. to maintain certain works, such as gates, bridges, fences, drains, and watering-places for the accommodation of the owners and occupiers of lands adjoining the railway. By sect. 69, if any difference arise respecting the kind or number of any such accommodation works, or the dimensions or sufficiency thereof, or respecting the maintaining thereof, the same is to be determined by two justices, who are also to appoint the time within which such works shall be commenced and executed by the company. [This does not extend to mines. Reg. v. Fisher, 32 L. J. (N. S.) M. C. 12; 7 Law T., N. S. 325.] By sect. 70, if for fourteen days next after the time appointed for the Sect. 70, 71. commencement of such works the company shall fail to commence them, or having commenced shall fail to proceed diligently to execute the same in a sufficient manner, the party aggrieved by such failure may himself execute the works or repairs; and the reasonable expenses thereof are to be repaid by the company to him;-and if there be any dispute about such expenses, the same is to be settled by two justices. See sect. 71, as to further accommodation works being made by owner, &c. at own cost, as authorized by two justices.
V. Disputed Cases of Compensation for Land taken or Damage
done. Temporary Occupation of Private Roads.] By 8 & 9 Vict. c. 20, Sect. 30. B. 30, subject to the provisions herein and in the special act contained, the company, at any time before the expiration of the period limited for the completion of the railway, may enter upon and use any existing private road, &c.;—but before the company shall enter upon or use any such existing road, they are to give three weeks' notice of their intention to the owners and occupiers of such road, and of the lands over which the same shall pass, and in such notice state the time during which, and the purposes for which, they intend to occupy such road, and pay to the owners and occupiers of such road, and of the lands through which the same shall pass, such compensation for the use and occupation of such road, either in a gross sum of money or by half-yearly instalments, as shall be agreed upon
8 & 9 Vict. between such owners and occupiers respectively and the compa c. 20.
or in case they differ about the compensation, the same is tă settled by two justices, in the same manner as any compensation, exceeding £50, is directed to be settled by the said Lands Clar
Consolidation Act. 146 Sects. 6, 16. Lands Clauses Act incorporated with 8 & 9 Vict. c. 20.] “The La
Clauses Consolidation Act, 1845," 8 & 9 Vict. c. 18, contains a vari of provisions as to settling cases of disputed compensation for la before justices, which see ante, pp. 1447, 1448, tit. “ Lands Clas Act.” By sect. 6 of this act, 8 & 9 Vict. c. 20 (and see also s. 1 in exercising the power given to the company by the special act construct the railway, and to take lands, the company shall be su ject to the provisions of the 8 & 9 Vict. c. 18, making compensati to owners and occupiers, “and, except where otherwise provided this or the special act, the amount of such compensation shall ascertained and determined in the manner provided by the s Lands Clauses Consolidation Act for determining questions of com pensation with regard to lands purchased or taken under the proj sions thereof." See Knock v. Metropolitan Rail. Co., 38 L. J. (N.
C. P. 78; 19 Law T., N. S. 239, as to what the compensation [31 Vict. c. 18, be for. (See also s. 44.) [By 31 Vict. c. 18 (which authorizes s. 15.] board of trade to grant an extension of time to railway compani
for the purchase of lands), s. 15, “justices . . . in estimating compensation to be made by the company to the owners or occupis of or persons interested in lands, shall have regard to and mai compensation for the additional damage (if any) sustained by the owners, occupiers or persons by reason of any extension of tim
under this act.”] Sect. 140. Mode of ascertaining Damages.] By sect. 140, "In all cases whes
any damages, costs or expenses are by this or the special act, a any act incorporated therewith, directed to be paid, and the method of ascertaining the amount or enforcing the payment thereof is da provided for, such amount, in case of dispute, shall be ascertaine and determined by two justices (see 31 Vict. c. 18, s. 15, supra); and if the amount so ascertained be not paid by the company other party liable to pay the same within seven days after demand.
the amount may be recovered by distress of the goods of the OceSect. 141. pany or other party liable as aforesaid.” By sect. 141, if sufficient
goods of the company cannot be found whereon to levy any so damages, costs and expenses payable by the company, the same may, if the amount thereof do not exceed £20, be recovered by distress of the goods of the treasurer of the company;—but no stack distress shall issue against the goods of such treasurer unless seran days' previous notice in writing, stating the amount so due, and
146 Vide tit. “Lands Clauses Act," ante, p. 1446.