New South Wales: Tarrawingee Tramway Act of 1890 54 Vic (NSW)

An Act to authorize James Smith Reid, of * Adelaide, in the Colony of South Australia, gentleman, his heirs, executors, adminis- trators, and assigns, to construct and maintain a Tramway from his Flux Quar- ries, in the parish of Tarrawingee, county of Farnell, in the Colony of New South Wales, and to use horse, steam, or other motive power upon the said Tramway, and to carry all fluxing material from his said Flux Quarries, in the parish of Tarra- wingee aforesaid, by way of May Bell Mine, in the said Colony, to a point at Broken Hill, in the Colony aforesaid, con- necting with the Tramway system of the Broken Hill Mines. [1st September, 1890. ] 'ARRAWINGEE TRAMWAY. ATILEREAS large quantities of fluxing material exist and arc Preanble. being quarricd at the aforesaid flux quarries, in the parish of Tarrawingee. And whereas for the purpose of facilitating the carriage of the said fluxing material from the said quarrics the said James Smith Reid is desirous of constructing a single or double tramway for horse, steam, or other traction, over, across, and along the lands described in the Schedule hereto, from the said flux quarries, in the said parish of Tarrawingee, toa point at Broken Jill, in the said Colony. And whereas such tramway cannot be made without Legislative authority. And whereas the construction of the said proposed tramway would be largely for the benefit of the mining public by materially assisting to lessen the expense of developing the great silver and lead mining industry Authovity to construct tramway, Levels of line. Tramway to remain property of James Smith Reid, his heirs, executors, administrators, and assigns. Authorized persons to have rights over streets. Carriage. To employ horse, steam, or other motive power. Power to enter upon adjoining lands to repair accidents subject to certain restrictions, 54, VIC. 1890. Tarrawingee Tramway. industry in the Barrier Ranges, and it is therefore advisable to authorize, by Legislative enactment, the construction of the said proposed tramuvay, subject to the provisions hereinafter contained. Be it therefore enacted by the Queen's Most Excellent Majesty, hy and with the advice and consent of the Legislative Council and Legis- lative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows :— 1. It shall be lawful for the said James Smith Reid, his heirs, executors, administrators, and assigns, upon the terms and conditions and subject to the provisions hereinafter contained, to make and con- struct a tramway for the carrying of the said fluxing material from the said quarries in the said parish of 'Tarrawingee aforesaid by the route, and along and over the roads, strects, lands, and reserves, both public and private, described in the Schedule hereto, and to take and use so much of the said roads, streets, lands, and reserves, both public and private, as may be required for the purposes of such tramway but so that the same shall not occupy in part thereof on private lands a greater space in breadth than sixteen feet, and on public lands in breadth sixty-six feet, including the support and foundations thereof. 2. The gauge of the said tramway shall be three fect six inches, and where it traverses public thoroughfares shall be laid at about the general level of such thoroughfares and so that the rails shall not project above the surface thereat ; ; and the said James Smith Reid, his heirs, executors, administrators, or assigns, shall maintain n perfect order and repair the said tramway, and the pavements f the same between the rails of the said tramway, and for the space one foot six inches on each side of the said rails, and furthermore shall erect and maintain all necessary causeways in connection with the said tram. 8. 'The tramway and the material thereof shall not cease to be the property of the said James Smith Reid, his heirs, executors, administrators, and assigns by reason of the same being laid as afore- said. ee 9° 4. The said James Smith Reid, his heirs, exceutors, adminis- trators, and assigns, and all other persons duly authorized, shall have all necessary rights over the roads, streets, and lands described in. the Schedule to this Act as are required for the construction, repair, com- pletion, and use of the said tramway. Provided that there shall be no interference with ordinary traflie beyond what is reasonable and mocess'y for such purpose. The tramway shall be for the use of persons engaged in tlic saic using industry only, and shall be confined to the conveyance of such fluxing material as aforesaid from the quarries of the s said James Smith Reid aforesaid. G6. It shall be lawful for the persons using the said tramway to employ horses, steam, or other motive power; and carriages, wagyons, or trucks to be drawn thereby, and to carry fluxing material upon the said tramway. 7. Incase of accidents or slips happening or being apprehended. to the cuttings, embankments, or other works of the said tramway, it shall be lawful for the said James Smith Reid, his heirs, executors, administrators, and assigns, and his or their workmen and servants, to enter upon the land adjoining thereto at any time whatsoever for the purpose of repairing or preventing such accidents and to do such works as may be necessary for the purpose; but in every such case the said James Smith Reid, his heirs, exceutors, administrators, or assigns, shall, within fourteen days after such entry, make a report to the 1890. of VIC. 7 Tarrawingee Tramway. the Sceretary for Public Works specifying the nature of such accident or apprehended accident and of the works necessary to be done, and such powers shall cease and determine if the said Seeretary 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 injurious to the said adjoining lands as the nature of the accident or apprehended accident will admit of, and shall be executed with all ossible dispatch, and full compensation shall be made to the owners and oceupiers 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 vc settled by arbitrators in the manner hercinafter 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 traniway. The said James Smith Reid, his heirs, exceutors, adminis- James Smith Reid, his heirs, exec tors, rators, ad assiens shall not be entitled to any mines of coal, iron, gaministrators, and slate, or other minerals under any land whercof the surface is vested assigns not entitled to minerals, in him or them by virtue of this Act except only such parts thereof as shall be necessary to be dug or carried away in the construction of the works hereby authorized, and such mines shall not be deemed to vest in the said James Smith Reid, his heirs, executors, adiminis- trators, and assigns. Provided that where such tramway passes over Crown Lands, the said James Smith Reid, his heirs, executors, adminis- irators, and assigns shall pay to the Crown such annual rent, not execeding two shillings per acre, for such Crown Lands passed over by such tramway, as the Minister for Lands may direct. 9, Tf within twenty-cight days of the passing of this Act the Compensation to bo said persons through whose land the tramway shall pass, or any of them, felted by arbitr- and the said James Smith Reid, his heirs, executors, administrators, and assigns shall not agree as to the amount of compensation to be "paid by him or them for the said lands belonging to the said parties, or any of them, or for any damage that may be sustained by them or him, by reason. of the execution of the works, or if ¢ any other question as to compensation shall arise under this Act, the amount of such compensa- tion shall be settled by arbitrators in manner hercinafter mentioned (that is to say), unless both partics concur in the appointment of a single arbitrator, cach party on the request of the other shall nominate and appoint an arbitrator to whom such dispute or other matter shall be referred ; and any appointment of an arbitrator shall be under the hand and seal of such person or persons respectively ; and such appointment, shall be delivered to the arbitrator or arbitrators, and shall be deemed a submission 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 either party operate as a revocation ; and if for the space of fourteen days after such dispute or other matter shall have arisen, and after a request i in writing shall have been served by the one party on the other party to appoint { an arbitrator, such last- mentioned party shall fail to appoint such arbitrator, then upon such failure it shall be lawful for the Attorney-General for the time being of the said Colony, on the application of the party who has himsclf appointed an arbitrator, to appoint such arbitrator to act on behalf of both parties, and such arbitrator may procecd to hear and determine the matters which shall be in dispute, and in such case the award or determination of such single arbitrator shall be final and conclusive. 10. Tf before the "matte r so referred shall be determined any Proceedings in enso ° * of dizability of arbitrator appointed by either party shall dic, or become incapable, or arpitrater. refuse, or for fourteen days neglect to act as arbitrator, the party by whom Appointment of umpire. Neglect to appoint umpire. In case of disability of single arbitrator. Arbitrators failing to make their award, matters referred to umpire. Arbitrators may order production of documents, ke, Declaration by arbitrators or umpire, Cost of arbitration, how to be borne. 5f VIC. Tarrawingee Tramway. 1890. 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 proceed alone ; and every arbitrator so to be substituted as aforesaid shall have the same powers and authorities as were vested in the former arbitrator at the time of such his death, refusal, neglect, or disability as aforesaid. 11. Where more than one arbitrator shall have been appointed, such arbitrators shall, before they enter upon the matters referred to them, nominate and appoint in 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 dic, or refuse, or for seven days neglect to act after being called upon so to do by the arbitrators or either of them, they shall forthwit after such death, refusal, or neglect appoint another umpire in his place, and the decision of every such umpire upon the matters so referred to him shall be final. 12. If in either of the cases aforesaid the arbitrators shall refuse or for seven days after request of either party to such arbitrators neglect to appoint an umpire, it shall be lawful for the Attorney- General for the time being, 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 differ or which shall be referred to him under this Act shall be final. 13. If, when a single arbitrator shall have been appointed, such arbitrator shall die or become incapable, or shall refuse, or for fourteen 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. 14. If, when more than one arbitrator shall have been appointed, and when neither of them shall dic, become incapable, refuse, or neglect to act as aforesaid, such arbitrators shall fail to make their award within fourteen days after the day on which the last of such arbitrators shall have been appointed, or within such extended term (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. 15. The said arbitrator or arbitrators, or his or their umpire, may call for the production of any documents in the possession or power of either party, which they or he may think necessary for deter- mining the question in dispute, and may examine the parties or their witnesses on oath, and adininister the oaths necessary for that purpose. 16. Before any arbitrator or umpire shall enter upon the con- sideration of any matter referred to him he shall, in the presence of a Justice of the Peace, make and subscribe the following declaration, that is to say— I, 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 provisions of the " Tarrawingee Tramway -ct." Made and subscribed in the presence of = C.D. And such declaration shall be annexed to the award when made, and if any arbitrator or umpire having made such declaration shall wilfully act contrary thereto he shall be guilty of a misdemeanour. 17. All the costs of any such arbitration and incident thereto shall be in the diserction of the arbitrators, and the costs of the arbitrators shall be borne hy the partics in equal proportions, unless the 1890. 54 VIC. Tarrawingee Tramway. the amount awarded shall be one-fourth or more less than the amount which shall have been offered by the said James Smith Reid, his heirs, exceutors, administrators, and assigns, in which ease the whole costs of the arbitration, and also the costs of and incident to the said arbi- tration, shall be paid by the claimant. Drovided that, if either party shall be dissatisfied with the costs allowed by the said 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. 18. The arbitrator, arbitrators, or umpire shall deliver their or his award in writing to the said James Smith Reid, his heirs, executors, administrators, and assigns who shall retain the same, and shall forth- with, on demand, 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 he inspected or examined by such party or any person appointed by him for that purpose, and the amount awarded shall be paid within sixty days after the publication of the award. 19. The submission to any such arbitration may be made a rule of the Supreme Court on the application of cither of the parties. 20. No award made with respect to any question referred to arbitration under the provisions of this Act shall be sct aside for irregularity or error in matter of form. 21. The said James Smith Reid, his heirs, executors, adminis- trators, and assigns shall make compensation and satisfaction, to be ascertained and recovered in case of difference in the manner hereby provided, for temporary, permanent, or recurring injury, and all other damage, loss, costs, charges, and inconvenience which may in anywise he occasioned to the owners and occupiers of the lands through which the said tramway shall pass by the non-performance or negligent per- oun" formance by the said James Smith Reid, his heirs, executors, adminis- trators, and assigns of any of the matters or things hereby required or authorized to be performed by them. 2. In every ease where the said James Smith Reid, his heirs, executors, administrators, and assigns shall take temporary possession of lands by virtue of the powers hereby granted, it shall be incumbent on him or them, within three months after entry upon such land, upon being required so to do, to pay to the occupier of said lands the value of any crop or dressing that may be thercon, and damaged or injured by such entry, as well as full compensation for any other damage of a temporary nature which he may sustain by reason of such entry, and shall also from time to time during their occupation of the said lands pay half-yearly to such oceupicr, or to the owner of the lands, as the case may require, a rent, to be fixed by two Justices in case the partics differ; and shall also, within twelve months after such entry, pay to such owners and occupiers, or deposit in the bank for the benefit of all parties interested, as the case may require, compensation for all per- manent or other loss, damage, or injury that may have been sustained by them by reason of the exercise as regards the said lands of the powers hereby granted, including the full value of all clay, stone, gravel, sand, and other things taken from such lands. 23. If the owner of any lands required to be taken for the construction of the said tramway is absent from the Colony, or cannot upon diligent inquiry be found, or is under disability, or if any such lands are vested in persons who have respectively only limited or qualified interests therein, and who cannot enter into binding agrce- ments with the said James Smith Reid, his heirs, executors, adminis- trators, and assigns for the purchase of such lands, or join in submitting their claims for compensation to arbitration as hereinbefore provided, the purchase money or compensation payable by the said James aah b teid, Coats may be taxcd. Arbitrators or umpire to deliver award to James Smith Reid, his heirs, executors, ndminis- trators, and assigns, Compensation to he paid within sixty days after publica tion of award, Submission may be made a rule of Supreme Court. Award not to be set. aside for irregularity. Compensation in cuses of negligence. Compensation in causes of temporary possession, Proceedings in absence of owner, Justices to appoint surveyor in certain cases. Declaration by surveyor, Production of valuation, &e. Cost of valuation how borne. Compensation not exceeding £50 how to be dealt with. Compensation how dealt with in absence of owner, of VIC. 1890. Tarrawingee Tramway. Reid, his heirs, executors, administrators, and assigns, in respect of such lands shall be determined by the valuation of a surveyor, to be nominated as hereinafter mentioned. 24, Upon application by the said James Smith Reid, his heirs, executors, administrators, and assigns to two Justices, and upon such proof as may be satisfactory to them that there is no person in the Colony or to be found who can enter into a binding contract with the said James Smith Reid, his heirs, executors, administrators, and assigns, or join with the said James Smith Reid, his heirs, exccutors, administrators, and assigns in submitting his claims for compensation to arbitration in respect of any lands required to be taken for the construction of the said tramway, such Justices shall by writing under their hands nominate a licensed surveyor for determining such com- pensation as aforesaid, and such surveyor shall determine the same accordingly, and shall annex to his valuation a declaration in writing subscribed by him of the correctness thereof. 25. Before such surveyor shall center wpon the duty of making such valuation as aforesaid he shall in the presence of such Justices or one of them make and subscribe the following declaration at the foot of such nomination, that is to say :— I, A.B., do solemnly and sincerely declare that I will faithfully, impartially, and honestly, according to the best of my skill and ability, execute the duty of making the valuation hereby referred to me. Made and subscribed in the presence of A.B. And if any such surveyor shall corruptly make such declaration, or having made such declaration shall wilfully act contrary thereto, he shall be guilty of a misdemeanour. 26. The said nomination and declaration shall be annexed to the valuation to be made by such surveyor, and shall be preserved together therewith by the said James Smith Reid, his heirs, executors, adminis- trators, and assigns; and they shall at all times produce the said valuation and documents on demand to all partics interested in the lands comprised in such valuation. 27. All the expenses of and incident to any such valuation shall be borne by the said James Smith Reid, his heirs, executors, adminis- trators, and assigns. 28. If the amount of compensation determined by any such surveyor does not excecd the sum of fifty pounds, it shall, except in the cases where the owner is absent from the Colony, or cannot be found, be paid by the said James Smith Reid, his heirs, executors, adminis- trators, and assigns to the person or persons for the time being entitled to the rents and profits of lands in respect whereof the same shall be payable for their own use and benefit, or in the case of the coverture, infancy, idiotey, lunacy, or other incapacity of any such persons, then such money shall be paid for their use to their respective husbands, guardians, committees, or trustees of such persons. 29, If the amount of compensation determined by any such surveyor as aforesaid execeds the sum of fifty pounds, or in the cases where the owner is absent from the Colony, or cannot be found, whether it exceeds the sum of fifty pounds or not, it shall be paid by the said James Smith Reid, his heirs, executors, administrators, and assigns into the hands of the Master in Equity of the Supreme Court in the matter of this Act, in trust for the parties interested in the lands in respcct of which it is paid in; and a certificate from the Master of the fact of the money being so paid in shall be a sufficient discharge to the said James Smith Reid, his heirs, executors, administrators, and assigns, for the money so paid. Provided that all moneys so paid in shall be dealt with 1890. of VIC. | li Tarrawingee Tramway. with hy the Supreme Court in the same manner in all respects as moneys paid in under an Act passed in the twenty-first year of Her present Majesty, and entitled " An Act for better securing Trust Funds, and Jor the relief of Trustees." And shall be subject, in all respects, to the provisions of the said Act, and all rules of the said Court made thereunder. 30. If in any case in which, according to the provisions of the Cases of dispute Principal Act or of this Act, the said James Smith Reid, his heirs, Shorill may sssue executors, administrators, and assigns is authorized to enter upon and take possession of any lands required for the purposes of the said tramway, the owner or occupier of any such lands, or any other person, shall refuse to give up possession thereof, or hinder the said James Smith Reid, his heirs, executors, administrators, and assigns from entering upon or taking possession of the same, it shall be lawful for the said James Smith Reid, his heirs, executors, administrators, and assigns to issue his or their warrant to the Sheriff to deliver possession of the same to the persons appointed by the said James Smith Reid, his heirs, executors, administrators, and assigns in such warrant to receive the same, and upon receipt of such warrant the Sheriff shall deliver possession of any such lands accordingly, and the costs accruing hy reason of the issuing and execution of such warrant to be settled by the Sheriff shall be paid by the party so refusing to give possession, and the amount of such costs shall be deducted and retained by the said James Smith Reid, his heirs, executors, administrators, anc assigns from the compensation, if any, then payable to such person refusing to give possession, or if no such compensation shall be payable to such person, or if the same be less than the amount of such costs, then such costs, or the exeess thereof beyond the amoun of such compensation, if not paid on demand, shall be levied by distress, and upon application to any Justice of the Peace for tha yurpose he shall issue his warrant accordingly. 31. All notices required to be served by the said James Smith Service of notice on Reid, his heirs, executors, administrators, and assigns upon the parties °"™™ of Lands, interested in or entitled to sell any such lands shall either be serve: yersonally on such partics or left at their last usual place of abode (if any such can after diligent inquiry be found), and in case any such parties shall be absent from the Colony, or cannot be found after diligent inquiry, shall be left with the occupier of such lands, or if there be no such occupier shall be affixed upon some conspicuous part of such lands. 32. At any time the Governor, with the advice of the Exceutive Power of purchase Council, may, if he think fit, purchase such tramway upon. giving to of miley by the said James Smith Reid, his heirs, executors, administrators, and assigns, three months' notice, in writing, of his intention to do so. If the amount tendered for the purchase of the property be considered inadequate by the said James Smith Reid, his heirs, exccutors, administrators, and assigns, the amounts shall be ascertained by assessment in terms of the " Public Lands Acquisition Act." 38. It shall be lawful for the said James Smith Reid, his heirs, Power to assign. executors, administrators, and assigns at any time, by any deed or instrument in writing, to assign and transfer all the rights, powers, privileges, benefits, and advantages conferred upon him or them by this Act to any person or persons or to any duly incorporated company, and upon any such transfer or assignment being signed or executed the person or persons or duly incorporated company in whose favour such transfer or assignment is made shall then stand in the place of the said James Smith Reid, his heirs, executors, administrators, and assigns, and shall have all the rights, powers, benefits, privileges, and advantages conferred upon the said James Smith Reid, his heirs, executors, administrators, and assigns hy this Act. Commencement and completion of work. Short title. 54° VIC. 1890. Willoughby and Gordon Tramway Act Amending. 34. The work in connection with the construction of the said tramway hereby authorized must be commenced within six months from the passing of this Act, and the said tramway must be completed within two years from the date of the passing of this Act. 35. This Act may for all purposes be cited as the " Tarrawingce Tramway Act of 1890." SCHEDULE Commencing at a point to be determined in the extension of the Silverton Tram- way, on mineral lease ten, parish of Picton, county of Yancowinna; thenee bes ring north- easterly through mineral leases ten, one hundred and. six, thirty- seven, thirty-six, thirty-five, thirty- four, thirty-three, twenty-nine, forty-one, thirty- -nine, and forty, about two miles ; thence northerly through minéral leases forty, sixty-cight, and eighteen, and special leases eighty-eight four, cighty- cight eighteen, cighty -eight six, and eighty-eight nineteen, about seventy-three chains ; thence north. easterly through special leases ighty- eight sixteen and seventeen, and through Mount Gipps resumed area, about four miles; thence northerly through Mount Gipps leaschold area, about seven miles ; thence -enorth: easterly through mineral leases cighty-nine and seventeen, parish of Mount 'Gipps, through Albion town reserve and Mount Gipps leaxchold area, about nine miles; and thence north-westerly through Mount Gipps leasehold area and portion one, parish of Coon- haralba, about eightecn miles to mineral lease fifteen, parish of Tarrawingee, total distance from Broken Ifill, block ten, to Tarrawingee, about forty-one miles; limit of deviation desirable one and half miles on each side of the above line.