The Queen against The Birmingham and Gloucester Railway Company

JurisdictionEngland & Wales
Judgment Date01 January 1842
Date01 January 1842
CourtCourt of the Queen's Bench

English Reports Citation: 114 E.R. 21

IN THE QUEEN'S BENCH

The Queen against The Birmingham and Gloucester Railway Company

S. C. 1 G. & D. 324; 2 railw. Cas. 694; 10 L. J. Q. B. 322; 4 Jur. 966.

[47] the queen against the birmingham and gloucester railway company. Monday, June 14th, 1841. A Railway Act (6 & 7 W. 4, c. xiv.) provided that, where any part of any road should be cut through, taken, &c., in exercise of the powera given to the railway company, they should first make another road instead thereof, as convenient for passengers and carriages as the former road ; and that, where such road was turnpike, " the substituted road, if temporary, shall be set out and made, and the principal road shall be restored, within six calendar months after the commencement of the operation." And that, where any bridge should be erected for carrying any turnpike road over the railway, " the road over such bridge" should be not less than fifteen feet wide. The level of the ascent of every such bridge was also regulated. The company made a bridge fifteen feet wide, with approaches at each end (187 and 126 yards long respectively), for conveying a turnpike road over the railway, and took part of the former turnpike road for the purpose of making the approaches, which were carried along and within the space which that road had occupied. On mandamus to the company to make and restore such part of the turnpike road according to the statute, alleging that the trustees of the road had duly required them to do so within six calendar months after commencement of the operation : Held that the company were bound to make the approaches as wide as the turnpike road had been. And, Held no sufficient return, that the approaches, though of a less width, were as convenient to the public as they could be made in execution of the powers of the Act, and as convenient to the public as the original road had been : or, that the company could not now widen the approaches without taking and purchasing more land ; that their compulsory powers of purchasing under the Act had expired before they were called upon to widen ; and that they had not then, nor have since had, the power to take or purchase land for such purpose. [S. C. 1 G. & D. 324; 2 Railw. Gas. 694; 10 L. J. Q. B. 322; 4 Jur. 966.] Mandamus. The writ recited that, by stat. 6 W. 4 (6 & 7 W. 4, c. xiv., local and personal, public, " for making a railway from Birmingham to Gloucester, with a branch therefrom,") it was enacted (s. 1) that certain persons, their successors, &c., should be a company for making and maintaining the said railway and branch, and for that 22 THE QUEEN V. BIRMINGHAM AND GLOUCESTER BLY. CO. 2 4 B. . purpose should be one body corporate, &c. The writ then set out the following clauses. Sect. 29, which euacts, " That for the purposes and subject o the provisions and restrictions of this Act it shall .be lawful for the said company, their ageuts and workmen, and all other persons by them authorised, and they are hereby empowered, to enter into and upon the lands of any corporation or person whatsoever, and to survey and take the levels of the same or of any part thereof, and to set out and appropriate for the purposes of this Act such parts thereof as they are by this Acb em-[48]-powered to take or use; and in or upon such lands, or any lands adjoining thereto, to bore, sink, dig, cut, embank, and sough, and to remove or lay, and also to use, work, and manufacture, any earth, stone, rubbish, trees, gravel, or sand, or any other materials or things which may be dug or obtained therein, or otherwise, in the execution of any of the powers of this Act, and which may be proper or necessary for making, maintaining, altering, repairing, or using the said railway and other works by this Act authorised, or which may obstruct the making, maintaining, altering, repairing, or using the same respectively, according to the true intent and meaning of this Act; and also, for the purposes of and according to the provisions of this Act, to make or construct, in, upon, across, under, or over the said railway or other works, or any lands, streets, hills, valleys, roads, railroads or tramroads, rivers, canals, brooks, streams, or other waters, such inclined planes, tunnels, embankments, aqueducts, bridges, roads, ways, passes, conduits, drains, piers, arches, cuttings, and fences as the said company shall think proper; and also to alter the course of any rivers, canals, brooks, streams, or watercourses, during such time as may be necessary for constructing tunnels, bridges, or passages over or under the same, and also to divei'D or alter the course of any roads or ways, or to raise or sink any roads or ways, in order the more conveniently to carry the same over or under or by the side of the said railway " (a)1. Sect. 41, which provides and enacts, " That in all cases wherein, in the exercise of any of the powers hereby granted, any part of any carriage or horse road, [49] railway or tramroad, either public or private, shall be cut through, raised, sunk, taken, or so much injured as to be impassable or inconvenient for passengers or carriages or to the persons entitled to the use thereof, the said company shall, at their own expense, before any such road shall be so cut through, raised, sunk, taken, or injured as aforesaid, cause another good and sufficient road (as the case may require) to be set out and made instead thereof, as convenient for passengers and carriages as the said road so to ba cut through, raised, sunk, taken, or injured as aforesaid, or as near thereto as may be; and where the road cut through, raised, sunk, or injured shall be a turnpike road, the substituted road, if temporary, shall be set out and made, and the principal road shall be restored, within six calendar months after the commencement of the operation " (a)2. And Sect. 47, which enacts, "That where any bridge shall be erected for carrying any turnpike road, public highway, or occupation road over the said railway, the road over such bridge shall be formed and shall at all times be continued of such width as to leave a clear and open space between the fences of such road of not less than fifteen feet; and the ascent of every such bridge for the purpose of such turnpike road shall not be more than one foot in thirty feet, and for the purpose of any public highway not being a turnpike road not more than one foot in twenty feet, and with respect to any private carriage or occupation road not more than one foot in thirteen feet; and a good and sufficient fence shall be made on each side of every such [50] bridge, which fence shall not be less than four feet above the surface of suoh bridge." The writ then recited that the company, in execution of the powers, and for the purposes, of the Act, had cut through and taken a certain part of a certain turnpike road, leading from the bottom of the High Street, Cheltenham, to Tewkesbury, near to a place called the Moors in the parish of Cheltenham, such part of the said turnpike road so cut through and taken as aforesaid then being of the width of forty feet between the fences, that is to say, twenty nine feet in width maintained as a hard road for carriages, and the remaining eleven feet as a raised footway; and that they (a.)1 And to do all other things necessary or convenient for constructing, maintaining, &c., the railway, subject nevertheless to the provisions and restrictions after mentioned. (as)3 Sect. 46 prescribes the height and width of arches where a railway bridge crosses a carriage road; and regulates the level under the arch. 2 fl. B. II. THE QUEEN V. BIRMINGHAM AND GLOUCESTER RLY. CO. 23 bad caused to be erected, within the space occupied by the said turnpike road so cut through and taken as aforesaid, a certain bridge for carrying the said turnpike road orer the saidj railway, of the width of thirty feet four inches only between the fences of the said bridge, and without any footway by the side of the road over the said bridge; and that they had caused certain approaches to the said bridge to be made along the line of the said turnpike road and within the space occupied by the same; the approach on the Tewkesbury side of the bridge being 187 yards long, and the approach on the Cheltenham side 126 yards; and the approach on the Tewkesbury side being of the breadth of thirty feet two inches at the end next the bridge, and thence gradually increasing to the breadth of thirty nine feet eight inches, at the end farthest from the said bridge; and the approach on the Cheltenham side being of the breadth of thirty feet two inches at the end next the bridge, and thence gradually increasing to the breadth of thirty feet eight inches at the end farthest from the [51] bridge. That the company had made no footpath along either of the approaches. That they commenced the operation of cutting through and taking the said turnpike road on 22d November 1838. And that they were duly required by the trustees of the road to make and restore the same with a footway to the full breadth of forty feet as aforesaid within six calendar months after the commencement of the said operation, ag required by the Act, but had refused, &c. The writ therefore commanded the company as follows: "That immediately after the receipt of this our writ you make and restore, or cause to be made and restored, the said part of the said turnpike road, according to the force, form and effect of the said Act of Parliament, or that you shew us cause," &c. (a), Return. That the company have not, in execution of the powers of the said Act, and for the purposes thereof, cut through and taken the said part of the said turu-[62J-pike road in the writ mentioned, within the intent and meaning of the enactment 5 & 6 W. 4, c. xiv. a. 41. But that the company, in the execution of the powers to them given by the said Act, did judge it necessary to erect the said bridge, in the said writ of mandamus mentioned, for...

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