Great Northern Railway Company v McAlister
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 1897 |
| Date | 26 June 1897 |
| Docket Number | (1896. No. 594.) |
| Court | Chancery Division |
Chancery Division
Appeal.
V. C
Bradburn v. MorrisELR 3 Ch. D. 812.
Colley v. London & North Western Railway Co.ELR 5 Ex. D. 277.
The Queen v. BrownELR L. R. 2 Q. B. 630.
Wimbledon and Putney Commons Conservators v. DixonELR 1 Ch. D. 362.
Accommodation works — Level crossing — Agricultural user of land — Change of condition — Opening quarry — Traction engine —
VOL. I.] CHANCERY DIVISION. 587 have already observed, the words as applied to personal estate are V.-C. apt and clear, and they were used and rightly used as to the 1897. °wax money secured by the policy. The trusts of the one-eighth share v, were intended to follow the trusts of this money so far as applic- OWEN. able, and I hold this to mean that whatever interests the parties took in the money they were to take corresponding estates or interests in the realty. Therefore, as Sarah took in the events that happened an absolute interest in the money, she took an estate in fee in the real estate. I therefore hold that the plaintiff is entitled, as heir-at-law of Sarah Saphir, to the share of the real estate devised to her by the will of Elizabeth Owen. Solicitors for the plaintiff : D. 8f T. Fitzgerald. Solicitors for the defendant Schomberger : Hallowes 4Hamilton. Solicitor for the defendant Owen : Purefoy Poe. T. H. M. GREAT NORTHERN RAILWAY CO. v. M'ALISTER. V.-C. 1897. (1896. No. 594.) Feb. 10, 11. Accommodation works—Level crossing—Agricultural user of land—Change of Appeal. condition—Opening quarry—Traction engine—Railways Clauses Consoli- June 26. dation Act, 1845 (8 Vict. c. 20), ss. 68, 73. A level crossing was, pursuant to section 68 of the Railways Clauses ConÂsolidation Act, 1845 (8 Vict. c. 20), made over a railway which intersected lands used as an ordinary farm. The crossing was rarely used, and then only for farming purposes. Many years after the landowner opened a quarry, and sought to draw the stones by means of a traction engine and wagons over the crossing. The engine was nearly as broad as the gates of the crossing, and evidence was given that by reason of the situation of the railway, and the nature of the road approaching to the crossing, the latter was unsuitable for a traction engine, and that the user contemplated would involve danger to passing trains : Held, that the landowner was not entitled to use the crossing in the manner contemplated, and that he should be restrained by injunction from so doing. 588 THE IRISH REPORTS. [1897. V.- C. AcrioN by the Great Northern Railway Company (Ireland} 1897. for an injunction to restrain the defendant, his servants, and GT. NORTHN. agents from driving traction engines and wagons on to the plain- RAILWAY Co. v. tiffs' railway near Mountpleasant, in the county of Louth, and M'ALISTER. from bringing such engines and wagons on to a level crossing on the said railway. By the Dublin and Belfast Junction and Navan Branch RailÂway Act, 1845 (8 & 9 Viet. c. cxxx., loc. and pers.), which incorÂporated the Railways Clauses Consolidation Act, 1845 (8 Viet. c. 20), the Dublin and Belfast Junction Railway Company with a branch from Drogheda to Navan was incorporated, with power to construct a railway from Drogheda to Portadown, and for that purpose to acquire the necessary lands. The railway was to run through the lands of Faughart Upper in the county of Louth, the property of Robert M'Alister ; and he by deed dated the 9th September, 1846, in consideration of £50, conveyed to the Company part of the said lands containing 1A. OR, 12p. Irish plantation measure, together with all ways, rights, and appurtenances thereto belonging, and all such estate, right, title, and interest in and to the same as he was, or should become seized or possessed of, or was by the said Act empowered to convey. The part conveyed was high ground, and the Company made-a cutting through same, and constructed their railway along it. The railway entered the said lands at the south-west corner thereof, ran in a somewhat north-easterly direction, and left them. at about the centre of the northern boundary, separating much the larger portion of the land from the part on which M'Alister's house and farm buildings stood, and from communication with the road from Dundalk to Jonesborough which bounded the lands on the western side. The Company built a wooden bridge across the railway cutting, opposite M'Alister's house, and also conÂstructed a level crossing a short distance south of the bridge, with gates on either side of the railway. It did not appear how this level crossing came to be conÂstructed, and there was no evidence of any agreement or arbitraÂtion or award in reference thereto. The character of the lands was that of an ordinary farm. Under subsequent statutory powers, and ultimately by the Act V.-C. 40 & 41 Viet. c. lxx. (loc. and pers.), the Company became amal- . 1897 gamated with others under the name of Great Northern Railway R Company (Ireland). v, Alarm. The estate of Robert M'Alister in the lands became vested in 3,1 the defendant many years before action. The Mountpleasant station on the plaintiffs' railway, which was the next station north of Dundalk, and about four miles from it, was at the northern side of the defendant's land. The level crossÂing was about 300 yards south of the station, and some 250 yards from the south-west corner of the defendant's land : it was cut through the banks of the cutting, the approaches to it coming down the slopes. The crossing was within the Mountpleasant disÂtant signal, but it was not separately signalled. Most of the trains did not stop at Mountpleasant ; they passed it at full speed ; the block system was in use on the railway. There was a slight curve in the line from the station to the south-west corner of the defendant's land, and only portion of the level crossing was visible from the station. The railway had a fall towards the south. The road leading down from the defendant's buildings to the level crossing was curved, and on a steep gradient of 1 in 61. A. vehicle approaching the crossing from that side could not be seen from the station. The width of the gates at the level crossing was about 10 feet. The gate-posts were an inch or two more apart. Up to 1891 the public road from Dundalk crossed the railway just outside the south-west corner of the defendant's lands by a level crossing : there was a day watchman and a night watchman at that crossing. About 1891 the road was diverted, and it was carried underneath the railway a little more to the south, and there was no further need of a watchman : the gradient of the road under the railway was 1 in 17. The defendant, many years ago, used to take horses and carts across his level crossing. In later years he did not use it much, and for some fifteen or twenty years, or more, preceding 1895, he did not use it for any purpose. In about the year 1887, as the crossing was never used or kept in order, the Railway Company cut an open trench across it, at one side of the railway track, to carry 590 THE IRISH REPORTS. [1897. TT.- a off water ; and from that time until 1895, the level crossing was 1897. practically impassable. GT. NORTHN. Some fourteen to eighteen years ago the defendant opened a RAILWAY CO. V. quarry near the south-east corner of his land, which was there WALISTER. bounded by the land of a man named NPNeill. A private road ran through M'Neill's land to the public road from Dundalk to Newry. The defendant used to supply the Dundalk Town ComÂmissioners with stones. About eighteen years ago he bought a traction engine and wagons. He used them for drawing the stones : these were brought from the quarry by M'Neill's road, and thence to the public road. When there was occasion to take the traction engine from the defendant's house to the quarry, it was driven by the public level crossing, and thence by the public roads to APNeill's land. That was the only way to go by road from the defendant's house to the quarry ; it involved a round of about two miles; to go from the quarry to Dundalk by M'Neill's land, it was not necessary to pass the defendant's house. The traction engine was never taken across the defendant's level crossing, or the bridge ; the latter would not have been strong enough to bear the engine and a train of wagons. Traction engines constantly passed over the public crossing. There was a hillock some 15 or 20 feet high on defendant's land, between the quarry and the railway ; it was chiefly comÂposed of rock. About 1895, the defendant determined to quarry the rock, remove the stones, and level the ground. In that year he informed the plaintiffs' district engineer that he proÂposed to quarry there ; he said he intended to bring the traction engine over his level crossing. The engineer replied that the crossing was in a bad state of repair, and had not been used for twenty years, but that he would put it into repair : he did so as as well as he could, closing the drain, but he communicated with his superiors ; he did not give the defendant any permission to take the engine across. The plaintiffs thereupon gave notice to the defendant that they would not allow him to take the engine over the crossing ; he, however, persisted. The plaintiffs put new locks on the gates, but the defendant broke the looks. The plaintiffs gave evidence that there would be great danger Vo L. I.] CHANCERY DIVISION. 591 in allowing the traction engine and wagons to be taken over the V.-C. level crossing. The wagons would not conform to the curve of 1897. the approach to it : the curve would not affect an ordinary farm GT. NOR Co. cart, but it would a train of wagons. Moreover, the steep gradient v. made the approach most unsuitable for a traction engine ; it was M‘Ausrra. too steep even for farm carts. If the approach were straight, and not on a gradient, there would be no mechanical difficulty in driving a traction engine over the...
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