New South Wales: Minmi and Hexham Railway Act 1854 (NSW)

Mam avo Hex At) Act to authorize the continuation of a Rail- Ratiway. Preamble. way from Minmi to Hexham. [7th November, 1854. ] LY 7 TTEREAS John Eales and John Christian of Berry Park in the county of Northumberland Esquires have opencd coal mines and established collieries at Minmi in the said county and in order to facili- tate communication between the said coal mines and collicrics and the Hunter River are constructing a railway between Minmi and Hexham to be called "The Minmi and Hexham Railway" And whereas part of the said railway must be made upon and pass through land situate in the said county the property of John Malcolm of the city of Sydney gentleman but over which the said railway cannot be continued with- out legislative authority And whereas the other proprictors interested namely William Dougall Christie William Charles Wentworth and James Mitchell Esquires have each conceded to the said John Eales and John Christian the land required from them respectively for the proposed railway under the conviction that it would improve the value of their properties and otherwise benefit them And whereas the said coal mines and collieries of the said John Eales and John Christian are likely to prove beneficial to the Colony and the public are concerned in promoting such an increase in and facilities for the supply of coal for local consumption steam navigation and export as would result from the completion of the said railway And whercas the Minmi and Hexham Railway cannot be continued to the terminus at Hexham without crossing the Hunter River Railway Company's line on the level and the Ifunter River Railway Company have consented to such crossing on the conditions hereinafter expressed And whereas it is desirable to authorize by legislative enactment the continuation of the Minmi and Hexham Railway subject to the provisions hereinafter contained upon payment of compensation to the said John Malcolm for such portion of his land as may be required to be occupied thereby Be 1854. 18 VIC. Minmi and Hexham Roilway. Be it therefore enacted by His Excellency the Governor General of New South Wales with the advice and consent of the Legislative Council thereof— 1. It shall be lawful for the promoters to make and continuc a Continuing railway railway from the south boundary of the said John Malcolm's land in gy the line described in the Schedule hereunto annexed but so that such railway shall not oceupy in any part thereof a greater space in breadth than sixty-six fect including the supports abutments and foundations thereof Provided also that the railway shall be constructed and brought into use within the term of five years from the passing of this Act. 2. The ground and soil of so much of the site of the railway as si passes over the. land of the said John Maleolm together with such pr over land of John alcolin. te of railway shall be vested in the omoters without right of ingress egress and regress upon the adj acent land as may be conveyance. necessary for the 'making and repair thereof sll be vested by virtue of this Act and without the necessity of any conveyance in the pro- moters for the purposes of the railway Provided that if in the exercise of the powers hereby granted it be found necessary to cross cut through raise sink or use any part of any road whether carriage-road or horse- road so as to render it impassable for or dangerous or inconvenient. to the persons entitled to the use thereof the promoters shall before the commencement of any such operations cause a sufficient road to be made instead of any road interfered with and shall at their own expense maintain such substituted road in a state as convenient as the road interfered with or as nearly so as may be And the promoters before they use the said land of the said John Malcolin for any of the purposes aforesaid shall if required so to do separate the same by a sufficient fenec from the land adjoining thereto with such gates as may be required for the convenient occupation of such land and shall also to all private roads used by them as aforesaid put up fences and gates in like manner i 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 promoters as to the necessity for such fences and gates such gates shall be put up by the promoters as any two Justices "of the Peace shall deem necessary for the Purposes aforesaid on application being made to them. . The railway shall be at all times open to the public upon ® payment of atoll to the promoters of sixpence per ton per mile in? respect of every ton of goods for every transit the party secking transit supplying his own trucks or wagons and the promoters sup- plying locomotive power (being thereunto required by the party sceking transit twenty-four hours at least previously) and such supply of locomotive power shall not be compulsory on the promoters unless the party seeking transit guarantee and bring two hundred tons at the least during the twelve working hours to be mentioned in such notice But it shall be compulsory on the promoters to carry any quantity not less than forty tons if the locomotive be actually at work and all trucks when emptied shall be conveyed on their return free of cost The railway shall be at all times open to the public upon payment of a toll to the promoters of four-pence per ton per mile in respect of every ton of goods for every transit if the party sccking transit supply the locomotive power as well as trucks or wagons Provided that so long as the promoters shall supply locomotive power no othcr person shall use locomotive power on the line Provided that if the railway shall be damaged by parties who shall themselves use the railway for transit and supply locomotive power the promoters shall be entitled to compensation for such damage to be recovered either by action in the Supreme Court of New South Wales or if such damage do not execed 3D the ailway open to the public. Power to divert or alter roads. Bridges to be con- structed where rail- way crosses high- way. Provisions in cases where roads are crossed on a level. 18° VIC. 1854. Minmi and Hexham Railway. the sum of twenty pounds summarily before two Justices and in esti- mating such damage the promoters shall be entitled not only to compensation for the cost of repairing and restoring the railway but to the consequential damage (if any) sustained by reason of the suspension of transit After the railway shall have been opened for transit the promoters shall continue to provide the locomotive power required for using the same (accidents excepted) until twenty-eight days notice shall have been given by them by advertisement in the Mew South Wales Government Gazette that they intend after the expiration of a day to be named in such notice to suspend or discontinue working the line or supplying the necessary locomotive power thereon whereupon it shall be lawful for any person entitled to use the railway to provide locomotive power such person paying the toll hereinbefore mentioned to be payable in such event Provided that any person interested in using the railway upon giving three calendar months previous notice in writing of his intention so to do to the promoters may make appli- cation to the Executive Council of New South Wales to reduce the _ tolls limited by this Act and to create a new scale applicable to the traffic on the said railway such new scale being below the scale limited by this Act and it shall thereupon be lawful for the said Council to reduce the tolls as in the judgment of the said Council shall be reason- able Provided that the clear divisible profits of the railway shall be annually made good to the promoters at the rate of twenty pounds for every one hundred pounds by the year of the capital proved by the promoters to have been expended by them in or about the construction of the railway after debiting the railway with the cost of maintaining the line in proper working order and crediting the railway with the carriage obtained by the promoters at the rates aforesaid. 4. For the purposes and subject to the provisions hereinafter contained it shall be lawful for the promoters their deputics agents servants and workmen and all other persons by them authorized and empowered to divert or alter the course of any road or way crossing the railway or to raise or sink any road or way in order the more con- veniently to carry the same over or under or by the side of the railway. 5. If the line of railway cross any public highway or parish road then either such road shall be carried over the railway or the railway shall be carried over such road by means of a bridge of the height and width and with the ascent or descent by this Act in that behalf hereinafter provided and such bridge with the immediate approaches and all other necessary works connected therewith shall be executed by and be at all times thereafter maintained at the expense of the promoters Provided that with the consent of two Justices as after mentioned it shall be lawful for the promoters to carry the railway across any highway on the level. 6. If the railway cross any public highway or parish road on a level the promoters shall erect and at all times maintain good and sufficient gates across such road on each side of the railway where the same shall communicate therewith and shall employ proper persons to open and shut such gates and such gates shall be kept constantly closed across such roads on both sides of the railway except during the time when horses cattle carts or carriages passing along the same shall have to cross such railway and such gates shall be of such dimen- sions and so constructed as when closed to fence in the railway and prevent cattle or horses passing along the road from entering upon the railway and the person intrusted with the care of such gates shall cause the same to be closed as soon as such horses cattle carts or carriages shall have passed through the same under a penalty of forty shillings fer every default therein Provided always that it shall be lawful for the Government Inspector of Railways (if any) in any case in 1854. 18° VIC. 395 Minmi and Hexham Railway. in which he shall be satisfied that it will be more conducive to the public safety that the gates on any level crossing over any such road should be kept closed across the railw: ay to order that such gates shall be kept so closed instead of across the road and in such case such gatos shall be kept constantly closed across the railway except when cngincs or carriages passing along the railway shall have occasion to cross such road in the same manner and under the like penalty as above directed. with respect to the gates being kept closed across the road. 7. In case of accidents or slips happening or being appre- Power at nen hended to the cuttings embankments or other works of the said rail- repait accidents way it shall be law{ul for the promoters and their workmen and subject to certain servants to enter upon the land adjoining thereto at any time whatso- ever for the purpose of repairing or preventing such accidents and to do such works as may he necessary for the purpose but in every such case the promoters shall within forty-cight hours after such entry make a report to the Government Inspector of Railways if any and if not then to the nearest Bench of Magistrates specifying the nature of such accident or apprehended accident and of the works necessary to be done and such powers shall ecase and determine if the said Government Inspector or Bench of Magistrates shall after considering the said report certify that their exercise is not necessary for the public safety Provided also that such works shall be as little' i injurious to the said adjoining lands as the nature of the accident or appre- hended accident will admit of and shall be executed with all possible dispatch and full compensation shall be made to the owners and occupiers of such lands for the loss or injury or inconvenience sustained by them respectively by reason of such works the amount of which compensation in case of any dispute about the same shall be settled by arbitrators in the manner hereinafter mentioned And provided 'also that no land shall be taken permanently for any such works otherwise than is herein provided with respect to the lands originally taken for the purpose of making the said railway. 8. Every bridge to be erected for the purpose of earrying the a notion of railway over any road shall be built in conformity with the followi ing "vores regulations (that is to say)— ° The width of the arch shall be such as to leave thereunder a clear space of not less than thirty-five feet if the arch be over a public highway and of twenty-five feet if over a parish road and of twelve feet if over a private road. The clear height of the arch from the surface of the road shall not be less than sixteen fect for a space of twelve fect if the arch be over a turnpike road and fifteen feet for a space of ten feet if over a public carriage road and in each of such cases the clear height at the springing of the arch shall not be less than twelve fcet tie clear height of the arch for a space of nine fect shall not be less than fourteen fect over a private road. The descent made in the road in order to earry the same under the bridge shall not be more than one foot in thirty feet if the bridge be over a public highway one foot in twenty feet if over a parish road and one foot in sixteen feet if over a private road not being a tramyroad or railroad or if the same be a tramroad or railroad the descent. shall not be greater than the ruling gradient of such tramroad or railroad. 9. Every bridge erected for carrying any road over the railway Ponstruction of shall be built in conformity with the following regulations (that is to midges over railroad. say }— There The width of the bridges need not exceed the width of the road in certain cases. Existing inclination of roads crogsed or diverted need not be improved, t Works for benefit of owncrs, Gates bridges &ec. Fences. 18' VIC. 1854. Minmi and Hexham Railway. There shall be a good and sufficient fence on cach side of the bridge of not less height than four feet and on cach side of the immediate approaches of such bridge of not less than three feet. The road over the bridge shall have a clear space between the fences thereof of thirty-five feet if the road be a public highway and twenty-five feet if a parish road and twelve fect if a private road. The ascent shall not be more than one foot in thirty fect if the road be a turnpike road one foot in twenty feet if a parish road and one foot in sixteen feet if a private road not being a tramroad or railroad or if the same be a tramroad or railroad the ascent shall not be greater than the ruling gradient of such tramroad or railroad. 10. Provided always that in all cases where the average avail- able width for the passing of carriages of any existing road within fifty yards of the points of crossing the same is less than the width hereinbefore prescribed for bridges over or under the railway the width of such bridges need not be greater than such average available width of such roads but so nevertheless that such bridges be not of less width in case of a public highway or parish road than tweuty feet Provided also that if at any time after the construction of the railway the average available w idth of any such road shall be increased heyond the width of such bridge on cither side thereof the promoters shall be bound at their own expense to increase the width of the said bridge to such extent as they may be required by the trustees or surveyors of such road not exceeding the width of such road as so widened or the maximum width herein prescribed for a bridge in the like case over or under the railway. 11. Provided also that if the mesne inclination of any road within two hundred and fifty yards of the point of crossing the same or the inclination of such portion of any road as may require to be altered or for which another road shall be substituted shall be steeper than the inclination hereinbefore required to be preserved by the promoters then the promoters may carry any such road over or under the railway or may construct such altcred or substituted road at an inclination not steeper than the said mesne inclination of the road so to be crossed or of the road so requiring to be altered or for which another road shall be substituted. 12. The promoters shall make and at all times thereafter main- tain the following works for the accommodation of the owners and occupiers of lands adjoining the railway (that is to say)— Such and so many convenient gates bridges arches culverts and passages over under or by the sides of or leading to or from the railway as shall be necessary for the purpose of making good any interruptions caused by the railway to the use of the lands through which the railway shall be made and such works shall be made forthwith' after the part of the railway passing over such lands shall have been, laid out or formed or during the formation thereof. Also sufficient posts rails hedges ditches mounds or other fences for separating the land taken for the use of the railway from the adjoining lands not taken and protecting such jands from trespass or the cattle of the owners or occupiers thereof from straying thereon by reason of the railway together with all necessary gates made to open towards such adjoining lands and not towards the railway and all necessary stiles and such posts rails and other fences 1854. 18° VIC. Ninmi and Hexham Railway. fences shall be made forthwith after the taking of any such lands if the owners thercof shall so require and the said other works as soon as conveniently may be. Also all necessary arches tunnels culverts drains or other Drains. passages cither over or under or by the sides of the railway of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the making of the railway or as nearly so as may be and such works shall be made from time to time as the railway works proceed. Also proper watering places for cattle or compensation in licu Watering places. thereof where by reason of the railway the cattle of any person occupying any lands lying near thereto shall be deprived of access to their former watering places and such watering places shall be so made as to be at all times sufficiently supplicd with water as therctofore and as if the railway had not been made or as nearly so as may be and the said promoters shall make all necessary watercourses and drains for the purpose of conveying water to the said watering places. Provided always that the promoters shall not be required to make such accommodation works in such a manner as would prevent or obstruct. the working or using of the railway nor to make any accommodation works with respect to which the owners and occupicrs of the lands shall have agrecd to receive and shell have been paid compensation instead of the making them. 13. Tf any person omit to shut and fasten any gate sct up at. cither side of the railway for the accommodation of the owners or occupiers of the adjoining lands so soon as he and the carriage cattle ov other animals under his eare have passed through the same he shall forfeit for every such offence any sum not exeeeding forty shillings. 14. If within twenty-cight days after the passing of this Act the said John Malcolm and the promoters shall not agree as to the amount of the compensation to be paid by them for the said land helongine to the said John Malcolm or for any damage that may be sustained by him by reason of the execution of the works the amount of such compensation shall be settled by arbitrators in manner herein- after mentioned. 15. The promoters shall (subject to the provisions hereinafter contained) have power to cross the company's railway on the level in such manner as shall be directed hy the enginecr of the company for the time being and the rails for such crossing shall be laid down by the promoters or by the company if they shall think fit at the expense of theZpromoters under and subject to the direction of such engineer Provided that the promoters shall before they shall be at liberty to cross the said railway erect upon their own land and at all times thereafter maintain a suitable station or lodge at the place where the said railway shall cross the company's railway on the level and shall also erect and maintain good and sufficient gates across the railway on each side of the company's railway where the same shall com- municate therewith such gates to be erected in accordance with and under the direction and to the satisfaction of the company's engincer And the promotcrs shall employ and constantly keep employed at their own expense at the said station or lodge fit and proper persons to open and shut such gates and the persons so employed shall be under the control of the engineer and officers of the company And the promoters shall make compensation and satisfaction to the company (the amount of such compensation and satisfaction to be ascertained and recovered in case of difference in the manner hercin- after Penalty on persons omitting to fasten gates. Compensation clause, Company's protec- tion clause. 398 18° VIC. 1854. Minmi and Hexham Railway. after provided) for temporary permanent or recurring injury and all other damage loss costs charges and inconvenience which may be in anywise occasioned to the company by such crossing or by the laying or repair of the said rails or the non-performance by the said promoters of any of the matters and things hereby required to be performed by them or otherwise and if the promoters and the company shall not agree as to the amount of compensation to be paid by the promoters to the company for laying down such rails or for or in respect of or in relation to any of the matters and things aforesaid then such amount shall be ascertained by arbitrators in the manner hereinafter provided in case the said John Malcolm and the promoters shall not agree as to the amount to be paid by them for the land belonging to the said John Malcolm Provided that the costs of such arbitration shall be borne by the promoters and if such amount when ascertained be not paid by the promoters to the company on demand the same may be recovered from the promoters by the company in an action of debt or by any other proceeding for enforcing performance of awards in the Supreme Court of New South Wales. 16. Unless both parties shall concur in the appointment of a single arbitrator cach party on the request of the other party shall nominate and appoint an arbitrator to whom such dispute or other matter shall be referred and every appointment of an arbitrator shall be under the hand of such party and such appointment shall be delivered to the arbitrator or arbitrators and shall be deemed a sub- mission to arbitration on the part of the party by whom the same shall be made and after any such appointment shall have been made neither party shall have power to revoke the same without the consent of the other nor shall the death of cither party operate as a revocation and if for the space of fourteen days after any such dispute or other matter shall have arisen and after a request in writing shall have been served by the one party on the other party to appoint an arbitrator such last- mentioned party fail to appoint such arbitrator then upon such failure the party making the request and having himself appointed an arbi- trator may appoint such arbitrator to act on behalf of both partics and such arbitrator may proceed to hear and dctermine the matters which shall be in dispute and in such case the award or determination of such single arbitrator shall be final and conclusive. eae ye sunplicl 17. If before the matter so referred shall be determined any arbitrator appointed by either party shall die or become incapable or refuse or for fourteen days neglect to act as arbitrator the party by whom such arbitrator was appointed may nominate and appoint in writing some other person to act in his place and if for the space of seven days after notice in writing from the other party for that purpose he fail to do so the remaining or other arbitrator may proeced alone and every arbitrator so to be substituted as aforesaid shall have the same powers and authorities as were vested in the former arbi- trator at the time of such his death refusal neglect or disability as Appointment of arbitrators. aforesaid. Appointment of 18. Where more than one arbitrator shall have been appointed umpire. such arbitrators shall before they enter upon the matters referred to them nominate and appoint by writing under their hands an umpire to decide any matters on which they shall differ or which shall be referred to them under the provisions of this Act and if such umpire shall die or refuse or for seven days negleet to act after being called upon to do so by the arbitrators they shall forthwith after such death refusal or neglect appoint another umpire in his place and the decision of every such umpire on the matters so referred to him shall be final. One of the Judges of 19. If in cither of the cases aforesaid the arbitrators shall bee Araneae A yefuse or shall for seven days after request of cither party to such neglect. arbitration 1854. 18° VIC. 399 Minmi and Hexham Railway. arbitration neglect to appoint an umpire it shall be lawful for any of the Judges of the Supreme Court on the application of cither party to such arbitration to appoint an umpire and the decision of such umpire on the matters on which the arbitrators shall differ or which shall be referred to him under this Act shall be final. 20. If when a single arbitrator shall have becn appointed such ee ot death of arbitrator shall dic or become inc apable or shall refuse or for fourteen muatter to begin de days neglect to act before he shall have made his award the matters "°° referred to him shall be determined by arbitration under the provisions of this Act in the same manner as if such arbitrator had not been appointed. 21. If where more than onc arbitrator shall have been appointed If either arbitrator cither of the arbitrators shall refuse or for seven days ncglect to act other to proceed the other arbitrator may procced alone and the decision. of "such other & part arbitrator shall be as effectual as if he had been the single arbitrator appointed by both parties. 22. If where morc than one arbitrator shall have been appointed ¥ Arbitrators fail to and where neither of them shall refuse or neglect to act as aforesaid within twenty-one such arbitrators shall fail to make their award within twenty-one days a Pane after the day on which the last of such arbitrators shall have been ® appointed or within such extended time (if any) as shall have been appointed for that purpose by both of such arbitrators under their hands the matters referred to them shall be determined by the umpire to be appointed as aforesaid. 23. The said arbitrators or their umpire may call for the Powersof arbitrators production of any documents in the possession or power of cither party which they or he may think necessary for determining the question in dispute and may examine the parties or their witnesses on oath and administer the oaths neccssary for that purpose. 24. Before any arbitrator or umpire shall enter into the con- Arbitrator or umpire sideration of any matters referred to him he shall in the presence of 4 for faithful discharge Justice of the Peace make and subscribe the following declaration *"y- (that is say)— "TJ A. B. do solemnly and sincerely declare that I will faithfully " and honestly and to the best of my skill and ability hear "and determine the matters referred to me under the pro- * visions of 'The Minmi and Hexham Railway Act.' " Made and subscribed in the presence of A. B." And such declaration shall be annexed to the award when made and if Penalty for mis- any arbitrator or umpire having made such declaration shall wilfully "°"™"* act contrary thereto he shall be guilty of a misdemeanor. 25. All the costs of any such arbitration and incident thereto Cost of arbitration to be settled by the arbitrators shall be borne by the promoters unless bev & be bome. the arbitrators shall award the same or a less sum than shall have been offered by the promoters in which case each party shall bear his own costs incident to the arbitration and the costs of the arbitrators shall be borne by the parties in equal proportions unless the amount awarded shall be one-fourth less than the amount in which case the whole costs shall be paid by the claimant Provided that if cither party shall be dissatisfied with the costs allowed by the arbitrators as aforesaid the costs may be taxed by the Prothonotary or other proper officer of the Supreme Court and the amount allowed by such officer shall be the amount of costs to be paid. 26. The arbitrators shall deliver their award in writing to the Award to be promoters who shall retain the same and shall forthwith on demand promotes." at. their own expense furnish a copy thereof to the other party and shall at all times on demand produce the said award and allow the same to be inspected or examined by such party or any person appointed by him for that purpose. 27. Submission may be made a rule of Court. Award not void through error in form, Interpretation clause. 18° VIC. 1854. Penrith Nepean Bridge. 27. The submission to any such arbitration may be made a rule of the Supreme Court on the application of either of the parties. 28. No award made with respect to any question referred to arbitration under the provisions of this Act shall be set aside for irregularity or error in matter of form. 29. The following words and expressions in this Act shall have the meaning hereby assigned to them unless there be something either in the subject or context repugnant to such construction The word " promoters"' shall mean the said John Eales and John Christian their heirs and assigns the word "railway"? shall mean the " Minmi and | Hexham Railway" the word "company" shall mean. the " Hunter River Railway Company '"' and in citing this Act it shall be sufficient to use the expression "The Minmi and Ifexham Railway Act" the word "Justice" shall mean Justice of the Peace in and for the terri- tory of New South Wales and who shall not be interested in the matter requiring the cognizance of such Justice and where any matter shall be authorized or required to be done by two Justices the expression "two Justices" shall mean two Justices assembled and acting together in Petty Sessions and where under the provisions of this Act any notice shall be required to be given to the owner of any land or where any act shall be authorized or required to be done with the consent of any such owner the word "owner" shall be understood to mean any person or corporation who under the provisions of this Act would be enabled to sell land to the promoters. SCHEDULE. Commencing on the south boundary line of the said John Malcolm's six hundred and forty acres being the north boundary line of William Charles Wentworth's six hundred and forty acres being a line bearing north thirty-seven degrecs cast or thereabouts and continuing in that direction for a distance of one thousand three hundred and seventy-five yards (more or less) to the east boundary line of the said Julin Malcolim's said six hundred and forty acres which said last-mentioned boundary line divides the same from the said William Charles Wentworth's one thousand acres.