The Queen, on the prosecution of C. Edwards, - Plaintiff in Error; the Directors, etc., of the South-Eastern Railway, - Defendants in Error
| Jurisdiction | England & Wales |
| Judgment Date | 14 July 1853 |
| Date | 14 July 1853 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 545
House of Lords
Mews' Dig. v. 161, 192, 203, 207; xi. 1413. S.C. 17 Jur. 901; and, below, 17 Q.B. 485; 20 L.J. Q.B. 428.
Mandamus - Railway Bridge - Option - Pleading - Practice - Costs.
[471] The QUEEN, on the prosecution of C. EDWARDS,-Plaintiff in Error; the DIRECTORS, etc., of the South-Eastern Railway,-Defendants in Error [June 29, July 4, 14, 1853.] [Mews' Dig. v. 161, 192, 203, 207; xi. 1413. S.C. 17 Jur. 901; and, below, 17 Q.B. 485; 20 L.J. Q.B. 428.] Mandamus-Railway Bridge-Option-Pleading-Practice-Costs. Under the 8th and 9th Viet. c. 20, s. 46, a railway company has the option, when its line of railway crosses a turnpike road or a public highway (except when otherwise provided by the special Act), either to carry the road over the railway or the railway over the road. A mandamus to command the company to do one of these two things is therefore defective unless it shows, on the face of it, circumstances which establish the impossibility of the company exercising this option. Where such a mandamus had been issued, and the return had merely traversed that the road was a public road, and the issue thus raised had been found against the company, and a peremptory mandamus had been awarded : Held, that on a writ of error, the Court of Error being satisfied that the man- H.L. x. 545 18 IVH.L.C., 472 REG. V. SOUTH-EASTERN BY. [1853] damus itself ought not to have issued, had properly reversed the whole judgment. By the Judges: Upon a judgment awarding a peremptory mandamus, the costs are not those awarded at the discretion of the Court, under sec. 6 of 1 Win. 4, c. 21, but are the general costs under sec. 4 of that statute. In 1849, a writ of mandamus was issued to the defendants, which recited that a railway made by the defendants " crossed not on a level, a certain public highway, situate and being in the parish of Plumstead, in the county of Kent, called the Plumstead Villas Koad, by means of a certain trench or cutting 20 feet deep and 65 feet wide," and that " the permanent way thereof is laid down therein, and the said public way is thereby cut through and destroyed, and rendered wholly impassable for passengers and carriages." The mandamus then recited that reasonable time had been given to the defendants [472] to enable them to carry the road over the railway, but that they had refused to do so, and it commanded them " to cause the said public highway to be carried over the said railway by means of a bridge, in conformity with the regulations " contained in 8 and 9 Viet. c. 20, the " Railway Clauses' Consolidation Act, 1845," * the directions in which were then in detail set out. The defendants made a return, " that the said way or road in the said writ mentioned, was not a public highway as in the said writ is in that behalf alleged." Issue was taken on this traverse. The case was tried at the summer assizes at Maidstone, in 1850, before the Lord Chief Baron, when a verdict was returned for the Crown, finding that the Plumstead Villas Road was a public highway. A rule for a new trial was applied for and refused, and judgment was signed in November, 1850. The defendants brought a writ of error in the Exchequer Chamber, and the errors assigned were, that it was not stated that the alleged highway was such at the time of the passing of the Company's special Act,-that no sufficient damage was alleged,-and that by the writ the defendants had not the option of carrying the road over the railway or of carrying the railway over the road, according to the statute (8 and 9 Viet. c. 20); but were deprived of that option. The Court of Exchequer reversed the judgment of the Queen's Bench (20 Law Journ. Q.B. 428), and the present writ of error was brought on that reversal. The Judges were summoned, and Mr. Baron Parke, Mr. Baron Alderson, Mr. Justice Coleridge, Mr. Justice Wightman, Mr. Justice Cresswell, Mr. Justice Erie, Mr. [473] Justice Talfourd, Mr. Baron Platt, Mr. Justice Williams, Mr. Baron Martin, and Mr. Justice Croinpton attended. Mr. Bramwell and Mr. Needham (Mr. Raymond was with them), for the plaintiff in error.-The point now to be considered is, whether, by the effect of the " Railway Clauses' Consolidation Act, 1845," the defendants had an option to carry the bridge over or under the line of railway. It may be admitted that, as a general rule, the 46th section of the 8th and 9th Viet. c. 20, gives them an option; but that general rule is subject to exceptions arising from circumstances. If circumstances alone could decide the question, the depth of the cutting, as set forth on the face of the proceedings, shows that it is absurd to suppose that the defendants can be at liberty to carry this bridge under the railway. Some of the exceptions present themselves in the sections which relate to...
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