The Queen, on the Prosecution of the Trustees of the Manchester, Oldham and Austerlands Turnpike Roads, against The Manchester and Leeds Railway Company

JurisdictionEngland & Wales
Judgment Date21 June 1842
Date21 June 1842
CourtExchequer

English Reports Citation: 114 E.R. 609

IN THE EXCHEQUER CHAMBER.

The Queen, on the Prosecution of the Trustees of the Manchester, Oldham and Austerlands Turnpike Roads, against The Manchester and Leeds Railway Company

S. C. 3 G. & D. 269.

[528] in the exchequer chamber. (error from the queen's bench.) the queen, on the prosecution of the trustees of the manchester, OtDHAM AND AURTEKLANDS TURNPIKE ROADS, against THE MANCHESTER and leeds railway company. Tuesday, June 21at, 1842. Where a statute authorises a company to alter turnpike roads, but not to lower any such road unless they lower its whole breadth, and they, in executing such alteration, have lowered a turnpike road in the carriage way only, leaving the footpaths at their former level, whereupon a mandamus issues, requiring them to lower according to the statute: Held, by the Courts of Queen's Bench and Exchequer Chamber, not a good return, that the carriage and footways, as they now exist, are more convenient to the public and to the occupiers of the houses beside and near the road than if lowered as the writ requires. And, where, on traverse of such return, and issue thereon, a jury had found that the road, as then existing, was more convenient, &c., the Court of Queen's Bench awarded a peremptory mandamus non obstante veredicto, and refused to put the prosecutors to seek their remedy by indictment. Judgment having been given in B. R. that such peremptory mandamus should issue, and the prosecutors recover their costs, the Court of Exchequer Chamber (before stat. 6 & 7 Viet. c. 67), reviewed such judgment on writ of error, and reversed it, differing from the Court below on the construction of the local Act. [S. C. 3 G. & D. 269.] Mandamus to the above company, incorporated and invested with certain powers by stat. 6 & 7 W. 4, c. cxi., local and personal, public, " for making a railway from Manchester to Leeds." The writ recited this Act (parts of sects. 1 and .'!), and also sects. 2 and 38 of atat. 7 W. 4 & 1 Viet. c. xxiv, local and personal, public, " for K. B. xliii.-20 610 THE QUEEN V. THE MANCHESTER AND LEEDS HLY. CO. 8$. B. 529. enabling the Manchester and Leeds Railway Company to vary the line of such railway, and for amending and enlarging the powers and provisions of the Act relatiug thereto." Sect. 2 empowers them to vary the line; and, by sect. 38, after reciting that "the new line of the said railway will cross the turnpike road leading from Oldham to Rochdale at a different place from that specified in the said recited Act, and near to the new branch of the Rochdale Canal [529] in the parish of Rochdale, where the said turnpike road is nearly on a level, and it will be necessary to lower the bed of the said turnpike road at the place where the said railway will cross the same, in order to maintain a proper level in the line of the said railway, and to allow of a sufficient space under the bridge whereon the said railway is to be carried across the said turnpike road for the passage of coaches, waggons, and other carriages along the said road, and it is expedient that provision should be made for preserving a proper level in the line of the said turnpike road :" it is enacted "That it shall not be lawful for the aaid company to carry the line of the said railway, or to make the same across the said road, unless the same shall be carried and made at their own expense over the said road, by means of a bridge of the width of thirty feet at the least, for the purpose of forming a clear carriage road of twenty-four feet wide, and a footpath of six feet wide, exclusive of the pillars or piers which may be placed between the footpath and the carriage road, and of the height of eighteen feet at least from the surface of the said road, to the under side of the said bridge, so as to leave a clear and uninterrupted headway under the said bridge of eighteen feet at the least, and the said bridge on the under side thereof shall be made horizontal and not arched, for the whole space of twenty-four feet wide at the least over the said carriage road, and in ease it shall be expedient to lower the surface of the said road, for the purposes aforesaid, then it shall not be lawful for the said company to lower or alter the present bed of the said road, unless the same shall be lowered at their own expense on both sides of such bridge so that when the alteration shall be completed, the ascent on the said 630] road southwardly from the said bridge, so far as the alterations therein shall extend, shall not exceed one foot in height for every fifty feet in length, and so that the ascent of the said road northwardly from the said bridge shall not exceed one foot in every 100 feet on any part of the said road so to be made or altered, and the said company shall at their own expense make all new fences, drains and works, and alter all existing ones and relay and reform the said road, and perform all other matters and things that may be rendered necessary for the forming of the said railway," &c. The writ then stated that the defendants had built such bridge or viaduct, and had excavated and lowered the said road underneath it for the purpose of affording a passage with a requisite headway for carriages under the same, for the distance of 236 yards northwardly from the said bridge, and 201 yards southwardly : that the road, before such excavation, was of the breadth of forty-two feet throughout; and that defendants, in their excavations, had in no part lowered and excavated the said road to its former breadth of forty-two feet, but to the breadth of thirty-five feet only, northwardly, and twenty-four feet southwardly, and had commenced building walls along the sides of...

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