New South Wales: The Botany Railway Company Act 26 Vic (NSW)

Bouxr Ranwar An Act to establish and incorporate a Company to be called the " Botany Railway Company " and to enable the said Company to construct and work a line of Railway from Botany in the Colony of New South Wales and the Great Southern Railway at or near Newtown in the said Colony. [17th December, 1862.] Preamble. HEREAS it would be of great public advantage that a line of Railway should be constructed and maintained between Botany Bay in the Colony of New South Wales and the Great Southern Railway . at or near Newtown in the said Colony for the more regular expeditious and economical conveyance of passengers and goods of the said places and for the better development of the natural resources of the neighbouring districts And whereas a joint stock Company called the 'Botany Rail- way Company" has been lately established in the said Colony And whereas it was agreed that they whilst holding shares in the capital of the said Company should be and continue until dissolved a joint stock Company or partnership under the name and title of the " Botany Railway Company "' for the purpose of constructing maintaining and working such railway and all proper works appliances and conveniences connected therewith and for the purpose of carrying on and regulating the business thereof as well and maintaining all such requisites matters and things as are necessary thereto And whereas it was further agreed that the capital of the said Company should consist of twelve thousand five hundred pounds to be contributed in two thousand five hundred shares of five pounds each and also with power in case it shall be deemed expedient at a general meeting of shareholders to raise any further sum of money by way of loan or 1862. 26° VIC. 51 Botany Railway Company. or mortgage for the purposes of the Company so that the same shall not at any time exceed one-third of the amount of the paid up capital of the Company And whereas the said Company is desirous of being incorporated and of obtaining the authority of Parliament for carrying out the objects aforesaid And whereas it is expedient that the said Company should be incorporated accordingly and that the said Company should be authorized by Legislative enactment to construct maintain and work the said railway subject to the provisions hereinafter contained Be it therefore enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled and by the authority of the same as follows :— 1. That such and so many persons as have already become and all meorporation of other persons who shall hereafter become shareholders in the said under- Company. taking and their several and respective successors executors administrators and assigns shall be and hereby are incorporated into a Company for constructing maintaining and working the said railway and such exten- sions thereof and all other works by this Act authorized subject to the rules regulations and provisions hereinafter mentioned and for these purposes shall be and are one body corporate by the name of the " Botany Railway Company" and by that name shall have perpetual succession and a common seal and shall and may grant and receive and suc and be sued plead and be impleaded in all Courts whatsoever at law and in equity and shall have power and authority from and after the passing of this Act and at all times hereafter to purchase from the owners thereof and from all parties having an interest therein or enabled by this Act to sell and convey the same all the lands by this Act authorized to be taken and to hold such lands to them and to their successors for the use of the said undertaking and works and generally for carrying into effect the provisions of this Act and also to sell dispose and deal with the said lands in manner by this Act directed without incurring any penalty or forfeiture. 2. The capital or joint stock for the time being and all the funds Capital and shares to and property of the said Company and the several shares therein and the b¢ Personalty. profits and advantages to be derived therefrom shall be and be deemed personal estate and be transmitted accordingly. 3. The Company shall not be bound in any manner by any trust Company not bound or equitable interests or demands affecting any shares standing in the * 7tice trusts. name of any person as the ostensible proprictor thereof or be required to take any notice of such trusts or equitable interests or demands but the receipts of the person in whose name the shares shall stand in the books of the Company shall notwithstanding such trusts or equitable interests or demands and notice thereof to the Company be a good valid and con- elusive discharge to the Company for or in respect of any dividend or other money payable by the Company in respect of such share anda transfer of the said shares by the person in whose name such shares shall so stand shall notwithstanding as «aforesaid be binding and conclusive as far as may concern the said Company against all persons claiming by virtue of such trusts or equitable interests or demands Provided always that it shall be competent to the Directors of the Company if they shall think fit so to do to withhold payment of the dividends on any such shares and refuse to allow or recognize the transfer of such shares in any case in which the Company shall have had notice of any claims under any alleged trust or equitable interest or demand And provided also that nothing herein contained shall be deemed or taken to interfere with or abridge the right and power of the Court of Equity to restrain the pay- ment of any such dividend or other money payable by the Company in respect of any such shares or the transfer of any such shares or to direct the payment of any such dividends or other money not already paid by the Company or the transfer of such shares to such person as the said Court may think fit. 4, Provisions as to actions and suits for calls and instalments, The share register to be evidence of ownership. Contracts &c. under the deed of settle- ment before Act. Liability of share- holders. Use of seal. Power to borrow on mortgage. 26° VIC. 1862. Botany Railway Company. 4. In any action or suit to be brought by the said Corporation against any proprietor or proprietors of any share or shares in the capital of the said Corporation to recover any sum or sums of money due and payable to the said Corporation for or by reason of any instalment or instalments call or calls made by virtue of this Act it shall be sufficient for the said Corporation to declare and allege the defendant or defendants being a proprietor or proprietors of such or so many share or shares in the capital of the said Corporation is or are indebted to the said Corporation in such sum or sums of money as the instalment or instalments call or calls in arrear shall amount to for such and so many instalment or instal- ments call or calls of such or so many sum or sums of money upon such or so many share or shares belonging to the said defendant or defendants (as the case may be) whereby an action hath accrued to the said Company without setting forth any special matter and on the trial of such action or suit it shall not be necessary to prove how or in what manner such instalment or instalments call or calls becaine or were made payable or any other matter except that the defendant or defendants was or were a holder or proprietor or holders or proprietors of one or more share or shares in the capital of the said Corporation and that such instalment or instal- ments call or calls was or were in fact due and that the time fixed for the payment thereof was given und the said Corporation shall be thereupon entitled to recover what shall appear due. 5. The share register of the said Company shall at all times be prima facie evidence to show who are the proprietors for the time being of the capital thereof and the number of shares held by each proprietor. 6. Nothing herein contained shall prejudice or be deemed to prejudice any call made or any contract or other deed matter or thing entered into made or done by the provisional committee of the said Company before this Act shall come into operation but the same call contract act deed matter or thing shall be as valid and effectual to all intents and purposes as if the said Company had been incorporated before the same call contract act deed matter or thing had been entered into or done. 7. The shareholders to be liable only for the amount of their subscribed capital. 8. The directors for the time being shall have the custody of the common seal of the Company and the form thereof and all other matters relating thereto shall from time to time be determined at meetings of directors and the directors present at any such meeting shall have power to use the common seal for the affairs and concerns of the Company and under such seal to empower any person without such seal to execute any deed and to do all or any other such matters and things as may be required to be done and executed in behalf of the Company but it shall not be necessary to use the common seal in respect of any of the ordinary business of the Company or for the appointment of any attorney or solicitor for the prosecution of any action suit or other proceeding or of any officer or servant of the Company and such seal may be affixed to any deed or document by the hand of any person whom the directors shall appoint in that behalf and the affixing thereof shall be attested by one director and the person so appointed and in case any conveyance or other instrument is executed in consideration of a sum of money therein stated to have been paid to the Company such execution shail operate only as an escrow until the treasurer or other officer charged with the receipt of money on behalf of the Company shall have certified under hand at the foot thereof that such consideration money has been duly paid. 9. It shall and may be lawful for the said Company from time to time to borrow by way of loan such sum or sums of money and at such rate of interest thereon as may be considered advisable at any general meeting of the shareholders but such sum or sums of money shall not at any time exceed one-third of the amount of the capital of the said Company then ar oo 1862. 26° VIC. Botany Railway Company. then actually paid up and for such purpose to mortgage or assign the property of the Company and the rates or tolls arising by virtue of this Act or any part thereof as a security for any sum of money to be borrowed as aforesaid and the interest payable thereon and in case the said interest or any part thereof shall be behind and unpaid for the space of one calendar month next after the same shall have become due and payable as aforesaid Remedy in case of and the same shall not be paid within fourteen days next after demand non-payment. thereof in writing shall have been made to the Company or left at the office of the Company it shall be lawful for two or more Justices of the Peace acting in and for the said Colony and they are hereby required on application made to them by or on behalf of any mortgagee or assignee whose interest shall be so in arvear by an order under their hands to appoint a receiver or receivers to collect the whole or such parts of such yates as are liable to pay such interest so due and unpaid as aforesaid and the money so te be received by such person or persons is hereby declared to be so much money received by or to the use of the person to whom such interest shall then be due until the same together with all costs and charges incurred in collecting and receiving the said rates shall be fully paid and satisfied and after such interest costs and charges shall have been fully paid and discharged the power and authority of such receiver or receivers shall forthwith cease and determine but nothing herein contained shall preclude such mortgagee or assignee as aforesaid from suing for and recovering such interest and costs by an action of debt in the Supreme Court. 10. For the purpose of regulating the conduct of the officers and Power to make servants of the Company and for providing for the duc management of °Y* the affairs of the Company in all respects whatsoever and for the protection of the railway and other works of the Company from trespass and injury and for regulating the travelling upon and using and working of the railways it shall be lawful for the Company subject to the provisions herein mentioned from time to time to make by-laws and regulations Provided that such by-laws be not repugnant to the laws of the Colony or to the provisions of this Act and such by-laws shall be reduced into writing and shall have affixed thereto the common seal of the Company and any person offending against any such by-law or regulation shall summary conviction upon conviction before any two Justices of the Peace forfeit for every such fenders. offence any sum not exceeding five pounds to be stated in such by-laws and regulations as a penalty for any such offence and if the infraction or non-observance of any such by-law or regulation as aforesaid be attended with danger or annoyance to the publie or hindrance to the Company in the lawful use of the railway it shall be lawful for the Company summarily to interfere to obviate or remove such danger annoyance or hindrance and that without prejudice to any penalty incurred by the infraction of any such by-law and the substance of such by-laws shall be printed or painted py-taws to he on boards and placed and continued in a legible state in some conspicuous exhibited. part of every station and place of business belonging to the Company according to the nature or subject matter of such by-laws so that notice thereof nay be given to all parties affected thereby and no penalty imposed by any such by-law shall be recoverable unless the same shall have been published and kept published as aforesaid. Il. Such by-laws when so published and affixed shall be binding Justification of acts upon and be observed by all parties and shall be sufficient to justify all Ute byl persons acting under the same and for proof of the publication of any such Proof of publication. by-laws it shall be sufficient to prove that a printed paper or painted board containing a copy of such by-laws was affixed and continued in the manner by this Act directed and in case of its being displaced or rendered illegible then that such paper or board was replaced or renewed as soon as conveniently could be Provided that all such of the said by-laws and regulations as shall be applicable to other persons than the members of the said Company and its officers agents servants and workmen shall not be Approval of Gover- nor necessary. Railway may be made as soon as £8,000 capital sub- scribed and £3,000 paid up. Before commencing railway survey to be made and book of reference. Map and buok of reference to be open to inspection of public. 26° VIC. 1862. Botany Railway Company. be binding on such other persons until two months after they shall have been laid before the Governor of the Colony unless the said Governor shall before such period have signified his approbation thereof and that the said Governor shall have power at any time to disallow such by-law or regulation and thereupon the same shall not have and shall cease to have any force or effect in the law. 12. As soon as eight thousand pounds of the capital of the Company shall have been actually subscribed for and three thousand pounds of the said capital shall have been actually paid up but not sooner it shall be lawful for the said Company and they are hereby empowered and authorized by themselves the deputies agents officers workmen and servants to commence construct and maintain a single or double line of railway with all proper works and conveniences connected therewith commencing at such point at or near Botany Bay aforesaid and terminating at such points at the Great Southern Railway in or near to Newtown aforesaid as may appear most suitable and proper to the Board of Directors of the said Company And it shall also be lawful for the said Company and they are hereby empowered to effect a junction with the Great Southern Railway at or near to Newtown as aforesaid and to make and maintain any lateral or branch railway from the railway aforesaid or from such continuation or extension thereof as aforesaid and to procure and own such carriages engines steam- boats vessels and all other such works and conveniences as may be necessary for the purposes of the Company and to carry into effect the provisions of this Act and also to arrange and agree with the Minister for Public Works or with the Commissioner for Railways or other person or persons having the control or direction of the Great Southern Railway for such haulage and traction power and for the use of such trucks waggons and carriages as the said Company may require and on such equitable terms as to hire as may be mutually agreed and to make such other arrangements for the convenience and accommodation of the traffic on either line as circumstances may render necessary. 18. Before commencing the line of railway by this Act authorized to be made or any such branch as aforesaid the Company shall by some qualified engineer by them to be appointed cause to be made and taken levels and surveys of the country and lands through which such line of railway or extension or branch is to be carried together with a map or plan of the said line and of the lands through which it is to pass and also a book of reference in which shall be set forth a description of the said several lands and the names of the proprietors thereof so far as the same shall be known or can with reasonable diligence be ascertained setting forth the bearings of such railway or of such extension or branch as the case may require and the nature and quality state of cultivation and in- closures (if any) and the quantity of such land which may be required for the purpose of making such railway And the said map or plan and book of reference shall be kept in the office of the Company or some convenient office at Sydney and true copies thereof signed by the Chairman of the Directors shall be deposited with the Clerk of Petty Sessions at Sydney aforesaid and in case of the extension of the said railway or the forma- tion of any branches in connection therewith the like copies shall be deposited with the Clerks of the Petty Sessions of any and every other dis- trict into or through which any such extension or branch shall be intended to be carried and such map or plan and book of reference and such copies thereof respectively shall be open at all convenient times for public exam- ination from the day of the date on which such notice as aforesaid or notice of such extension or branch railway being about to be made (as the case may require) shall be first published and all persons shall have free liberty and permission at all proper and convenient times to view and examine the said map or plan and book of reference or copies as aforesaid. 14. 1862, 26° VIC. 55 Botany Railway Company. 14. The Company shall by advertisement in the Government Notice before com- Gazette and in one or more of the Sydney newspapers at least forty days Mencins railway. before the commencement of the formation of such railway give notice that they intend to make the said railway between certain places therein specified according to a map or plan to be seen at the office of the said Company or at some other convenient office at Sydney and at the office of the said Clerk of Petty Sessions. 15. No advantage shall be taken of or against the Company or Unintentional mis. : . : A : ake in book of any interruption be given to the making of such railway or other works on yeference not to account of any omission mis-statement or erroncous description in the Vvitiste proceeding. book of reference but it shall be lawful for the Company by themselves their deputies agents officers surveyors servants and workmen to enter into and upon and take and use for the purposes of this Act any lands or grounds set out and described in the said map or plan notwithstanding any such omission mis-statement or erroneous description in case it shall appear to any two Justices of the Peace acting for the district or place in which such lands or grounds shall be situated and be certified by writing under their hands that such omission mis-statement or erroncous descrip- tion proceeded from mistake and not from fraud. 16. For the purposes and subject to the provisions of this Act it authority to make shall be lawful for the Company their successors deputies agents servants Twa works &e, and workmen and all other persons by them authorized to enter upon and into the lands and grounds of any person whatsoever and to survey and take levels of the same or any part thereof and to ascertain stake or set out take and appropriate for the purposes herein mentioned such parts thereof as may be necessary and proper for the laying out making con- structing and the convenient operation of the said railway and any exten- sion or branch thereof and all other works matters and conveniences con- nected therewith as are hereby authorized to be made and in and upon such lands adjoining or contiguous thereto to bore dig cut trench embank sough remove or lay take carry away and use any ecurth clay soil stone timber trees roots of trees beds of gravel or sand or any other material or things which may be dug raised or obtained therein or otherwise in making the said railway and other works by this Act authorized or which may hinder prevent or obstruct the making maintaining altering repairing or using the same respectively and it shall not be necessary for the Company to make any previous agreement with or to apply for or obtain the previous consent of the owner or occupier of any such lands for any of the pur- poses aforesaid and also to make build erect or construct bank excavate cut and set up in upon across under or over any such railway or other works or upon any lands streets hills valleys roads rivers canals brooks streams or other waters adjoining the same such and so many inclined planes tunnels embankments aqucducts bridges roadways passages con- duits drains piers arches deep cuttings and fences as the Company shall think proper and also to alter the course of any rivers canals brooks streams or watercourses during such times as may be necessary for con- structing tunnels bridges or passages over or under the same or for any other necessary purpose and also to divert and alter the course of any roads or ways or to raise or sink any roads or ways in order the more con- venicntly to carry the same over or under or by the side of any such rail- way and to make drains or conduits into through or under any lands adjoining such railway for the purpose of conveying water from or to the same and also in or upon such railway or any lands adjoining or near thereto to erect and make such toll and other houses warchouses yards stations engines and other works and conveniences connected with such railway as the said Company shall think proper and also from time to time to alter repair and amend or discontinue the beforementioned works or any of them and to substitute others in their stead and where any such railway shall pass through any wood land or forest it shall be lawful for the Company Extent of lands authorized to be taken. Company may buy additional lands, 26° VIC. 1862, Botany Railway Company. Company to fell or remove any trees standing thereon within the distance of one hundred yards from either side of such railway which by their liability to be thrown down or from their falling may obstruct or impair the said railway and also to enter upon and use any existing private road being a road grayelled or formed with stones or other hard material and not being an avenue or planted or ornamental or an approach to any mansion house and generally to do and execute all other matters and things necessary or convenient for constructing maintaining altering or repairing and using such railway and other works by this Act authorized they the said Company their agents servants and workmen doing as little damage as may be in the execution of the several powers to them hereby granted and the said Company if required so to do making full satisfaction in manner hercinafter mentioned to the owners and proprietors of and to all persons interested in any lands or hereditaments which shall have been taken used or injured for all damage to be by them sustained in or by the execution of all or any of the powers hereby granted and this Act shall be sufficient to indemnify the Company and all other persons for what, they or any of them sball do by virtue of the powers hereby granted subject nevertheless to such provisions and restrictions as are herein con- tained. 17. The lands to be taken or used for the line of railway hereby authorized and all extensions and branches thereof shall not exceed one hundred yards in width except where a greater width shall be judged necessary for an approach to the railway or for waggons and other carriages to turn remain stand in lie or pass each other and for raising embankments for crossing valleys and low grounds or in cutting through high ground or for the erection or establishment of any fixed or permanent machinery toll-house warehouses or other erections and buildings or for excavating removing or depositing earth or other materials Pro- vided always that nothing herein contained shall authorize the Company or any person acting under their authority to take injure or damage for the purposes of this Act any messuage dwelling house or other permanent building or the immediate appurtenance thereof without the consent in writing of the owner and occupier thereof respectively until after the expiration of six calendar months from the time the Company shall have given notice to the owner of the same being required for the purpose of this Act as hereinafter mentioned And if in the exercise of the powers heréby granted it be found necessary to cross cut through raise sink or use any part of any road whether public or private so as to render it impassable for or dangerous to passengers or carriages or to the persons entitled to the use of it the Company shall before the commencement of such operations cause a sufficient road to be made instead of the road to be interfered with and shall at their own expense maintain a substituted road in as good a stute for passengers and carriages as the road interfered with as nearly so as possible. 18. It shall he lawful for the Company in addition to the lands authorized to be taken compulsorily by them as aforesaid to contract with any person willing to sell the same for the purchase of any lands for the purpose of making and providing additional stations yards and places for the accommodation of passengers and for receiving depositing and loading and unloading goods or cattle to be conveyed upon the railway or along any canals constructed by the Company and for the erection of weighing' machines to the houses and buildings and conveniences and for any other purpose that may be deemed requisite or convenient for the use of the railway or for the general promotion of the objects of the Company in connection with the undertaking or the works hereby authorized and it shall be Jawful for all parties who under the provisions hereinbefore con- tained would be enabled to sell and convey the lands so authorized to be purchased for the last mentioned purposes And it shall be lawful for the 1862. 26° VIC. 57 Botany Railway Company. the Company to sell the lands which they have so acquired for extra- Power to Company ordinary purposes aforesaid or any part thereof in such manner and for ' *! 84% such considerations and to such persons as the Company may think fit and again to purchase other lands for the like purposes and afterwards to sell the same and from time to time but the total quantity of land to be held at any one time by the Company for the purposes aforesaid shall not exceed two hundred acres. 19. It shall be lawful for all parties being scised possessed of or Persons who may entitled to any such lands or any estate or interest thercin to scll and Covey * Company: convey and release the same to the Company and to enter into all neces- sary agreements for that purpose and particularly it shall be lawful for all or any of the following parties so seised possessed or entitled as aforesaid so to sell convey or release (that is to say) all corporations tenants in tail or for life married women seised in their own rights or entitled to dower guardian committees of lunatics and idiots trustees or offees in trust for charitable or other purposes executors and administrators and all parties for the time being entitled to the receipt of the rents and profits of any such lands in possession or subject to any estate in dower or to any lease for life or for lives and year. or for years or any less interest and the power so to sell and convey or release as aforesaid may lawfully be exer- cised by all such parties other than married women entitled to dower or lessees for life or lives and years or for years or for any less interest not only on behalf of themselves their respective heirs executors adminis- trators and successors but also for and on behalf of every person entitled in reversion remainder or expectancy after them or in defeasance of the estates of such parties and as to such married women whether they be of full age or not as if they were sele and of full age and as to such guardians on behalf of their wards and as to such committees on behalf of the lunatics and idiots of whom they are committees respectively and that to the same extent as such wives wards lunatics and idiots respectively could have exercised the same power under the authority of this Act as if they had respectively been under no disability and as to such trustees executors or administrators on behalf of their cestuisque trust whether infants issue unborn lunatics feme couverts or other persons and that to the same extent as such cestuisque trust could have exercised the same powers under the authority of this Act as if they had respectively been under no disability. 20. When the Company shall have made and completed the map Notice to be given to or plan and book of reference hereinbefore required to be made they shall oriea land give notice of the lands taken ascertained set out and required for the said railway to all the parties interested in such lands or to the parties enabled by this Act to sell and convey or release the same or such of the said parties as shall after diligent inquiry be known to the Company and by such notice shall demand from such parties the particulars of their estate and interest in such lands and of the claims made by them in respect thereof and every such notice shall state the particulars of the land so taken set out or required as aforesaid and that the Company are willing to treat for the purchase of such of the said lands as the Company are not by this Act authorized to take without the consent of the owners and as to the compensation to be made to all parties for the lands taken and the damage that may be sustained by them by reason of the execution of the works And all notices required to be served by the Company upon the parties interested in or entitled to sell any such lands shall cither be served personally on such parties or left at their last usual place of abode 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 land or if there be no such occupier shall be affixed upon some conspicuous part of such land and if any such party be a corporation aggregate such notice The Tike on core shall be left at the principal office of business of such corporation or if no P"*"°"* h such Service of notices, 58 26° VIC. 1862. Botany Railway Company. such office can after diligent inquiry be found shall be served on some - principal member or officer of such corporation and such notice shall also be left with the occupier of such land or if there be no such occupier shall be fixed upon some conspicuous part of such land. Settlement of com- 21. If for twenty-one days after the service of such notice any pensation ifno agree- such party shall fail to state the particulars of his claim in respect of any such lands or to treat with the Company in respect thereof or if such party and the Company shall not agree as to the amount of the compen- sation to be paid by the Company for the interest in such lands belonging to such party or which he is by this Act enabled to sell 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 in the manner hereinafter Waiver ofclaim, provided for settling cases of disputed compensation Provided always that if no claim shall be made within twelve months after such notice as aforesaid by the party entitled to make such claim the same shall be deemed to have been waived and abandoned. Arbitration as to 22. In all cases where any difference shall arise or if no agree- compensation, ment can be come to between the Company and the owners of any lands or of any interest in any such lands taken or required for or injuriously affected by the works of such railways or by the execution of any of the powers hereby granted (including among such owners all parties by this Act enabled to sell or convey lands as to) the value of such lands or any interest therein as to the compensation to be made in respect thereof the amount of compensation to be paid by the Company in every case shall he settled by arbitrators in the manner hereinafter mentioned. Provided always that the said arbitrators in assessing such compensation are authorized and empowered and shall take into consideration the enhancement in value of the adjoining land belong- ing to the party to whom compensation is to be made by the effect of such railway in reduction of such compensation. Arbitrators on eacn 23. When any question of disputed compensation or any side—in what eases. i sonte or matter authorized or directed by this Act to be settled by arbitration shall have arisen then unless both parties shall concur in the appointment of a single arbjtrator each 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 made on the part of the Company under their common seal and on the part of any other party under the hand of such party or if such party be a corporation aggregate under the common seal of such corporation 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 Submission for arbie Whom the same shall be made and after any such appointment shall have tration. been made neither party shall have the power to revoke the same without the consent of the other nor shall the death of either party to such Not revocable. submission 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 Tequest in writing (in which shall be stated the matter so required to be referred to arbitration) 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 One arbitrator may and having himself appointed an arbitrator may appoint such arbitrator to be appointed for both act, on behalf of both parties and such arbitrator may proceed to hear and em determine the matters which shall be in dispute and in such case the award of such single arbitrator shall be final and conclusive except as 'New appointment in hereinafter provided And if before the matters so referred shall be case of death or determined any arbitrator appointed by either party 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 1862. 26° VIC. . 59 - Botany Rail way Company. 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. 24. When more than one arbitrator shall have been appointed such Appointment of um- arbitrators shall before they enter upon the matters referred to them Pi? Py arbitrators. 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 become incapable to act or refuse or for seven days neglect to act after being called upon to do so by the arbitrators they shall forthwith after such death incapacity refusal or neglect appoint another umpire in his place and the decision of every such umpire on a matter so referred to him shall be final And if in either of the cases aforesaid the arbitrators shall refuse -yyo tke in case of or shall for seven days after request of either party to such arbitration their neglect &. neglect to appoint an umpire it shall be lawful for any Judge of the Supreme Court on the application of cither party to such arbi- tration to appoint an umpire on the matters on which the arbitrators shall differ or which shall be referred to him under this Act shall be final And if when a single arbitrator shall have been appointed such arbitrator peath &c. of sule shall die or become incapable to act before he shall have made his award arbitrator provided or shall refuse or shall for fourteen days neglect to act 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 And if where more than one arbitrator shall have been appointed either of the Refusal of onc of the arbitrators refuse or for seven days neglect to act the other arbitrator may @tbitrators. proceed alone and the decision of such other arbitrator shall be as effectual as if he had been the single arbitrator appointed by both parties And if Expiry of time with- where more than one arbitrator shall have been appointed the matters ™ *"*"* referred shall not be decided within the time appointed or within such extended time if not being greater in the whole than six months 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 appointed aforesaid. 25. The said arbitrators or their umpire may call for the produc- Production of docu. | tion of any documents in the possession or power of either party which ™°' % Pitter. they or he may think necessary for determining the question in dispute or may examine the parties or their witnesses on oath and administer the oaths necessary for that purpose but before any arbitrator or umpire shall enter into the consideration of any matters referred to him he shall in the pectaration to be presence of a Justice of the Peace make and subscribe the following made by arbitrators declaration that is to say :— and umpire. I A.B. do solemnly and sincerely declare that I have no interest either directly or indirectly in the property in question and 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 Act entitled the "' Botany Railway Company's Act' (Signed) A. B. Made and subscribed in the presence of 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 shall be guilty of a misdemeanor And it is hereby Costs how to be also enacted that all the costs of any such arbitration and incident thereto home to be settled by the arbitrators shall be borne by the Company unless the arbitrators shall award the same or a Jess sum than shall have been offered by the Company in which case each party shall bear his own costs incident to the arbitration and award shall be borne by the claimant and the arbitrator shall direct the payment of the same accordingly Provided that Award to be de- livered to Company. May be made a rule of Court. Not to be set aside for irregularity. Compensation how to be ascertained where party absent &e. 26° VIC. 1862. Botany Railway Company. that if either 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 to be paid. 26. The arbitrators shall deliver their award in writing to the Company and the Company shall retain the same and shall forthwith on demand 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 And the submission to any such arbitration may be made a rule of the Supreme Court on the application of either of the parties And no award made with respect to any question referred to arbitration under the pro- visions of this Act shall be set aside for irregularity or error in matter of form. 27. The purchase money or compensation to be paid for any lands to be purchased or taken by the Company from any party who by reason of his absence or that of his legal representative from the Colony is prevented from treating or who cannot after diligent inquiry be found and the compensation to be paid for any permanent injury to such lands shall be such as shall be determined by the valuation of a surveyor to - be nominated and appointed by any two Justices of the Peace upon Surveyor's declara- tion. Payment of compen- sation when. Application of pur- chase money. Payment into Court, application made by the Company for such purpose and such surveyor shall determine the same accordingly and shall annex to his valuation a declaration in writing subscribed by himself of the correctness thereof And before such surveyor shall enter upon the duty of making such valuation as aforesaid he shall in the presence of such Justices make and subscribe the declaration following 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. A. B. Made and subscribed in the presence of And if any surveyor shall corruptly make such declaration or having made such declaration shall wilfully act contrary thereto he shall be guilty of a misdemeanor and the said nomination and declaration shall be delivered to the Company to be kept for the purpose and in the manner hereinbefore provided in case of awards and all the expenses of and incident to every such valuation shall be borne by the Company. 28. In all cases where compensation shall be determined as afore- said the Directors shall at the next half-yearly meeting of the Company lay before the meeting the said valuation and the Company is hereby required to pay the amount of the said compensation to the party lawfully entitled thereto or to-his agent duly authorized in his behalf within fourteen days next after such half-ycarly meeting of the Company and demand of the same And if the purchase money or compensation shall be payable in respect of any lands or any interest therein purchased by the Company from any corporation tenant for life or intail married woman seised in her own right or entitled to dower guardian committee of lunatics or idiot trustee executor or administrator or person having a partial or qualified interest only in such lands and not entitled to sell or convey the same except under the provisions of this Act and the compensation to be paid for any permanent damage to any such lands amount to or exceed the sum of two hundred pounds the same shall be paid into the hands of the Master in Equity to be by him deposited in one of the banks in the city of Sydney to account thereof the Master in Equity ew parte the " Botany Railway Company" in the matter of A.B. (the party entitled) pursuant to the method prescribed by any Act or by any rule for the time being in force for regulating moneys paid into the Supreme Court in its equitable 1862. 26° VIC. Botany Railway Company. equitable jurisdiction and such money shall remain so deposited until the same be applied to some one or more of the following purposes that is to say — In the redemption of the quit rent or the discharge of any debt or incumbrance affecting the land in respect of which such money shall have been paid or affecting other lands settled therewith to the same or the like uses trusts or purposes or In the purchase of other lands Government debentures or other stock to be conveyed limited or settled upon the like uses trusts and purposes and in the same manner as the lands in respect of which such money shall have been paid stood settled or If such money shall be paid in respect of any buildings taken under the authority of this Act or injured by the proximity of the works in removing or replacing such buildings or substituting others in their stead in such manner as the Supreme Court or the Primary Judge in Equity shall direct or Tn payment to any party becoming absolutely entitled to such money. And such money may be so applied as aforesaid upon an order of the said Court or Judge made on the petition of the party who would have been entitled to the rents and profits of the land in respect of which such money shall have been deposited and until the money can be so applied it may upon the like order be invested by the said Master in Equity in the purchase of shares in the Company hereby incorporated or in the purchase of Government or real securities and the interest dividends and annual proceeds thereof paid to the party who would for the time being have been entitled to the rents and profits of the land. 29. If the purchase moncy or compensation shall not amount to the sum of two hundred pounds and shall execed the sum of twenty pounds the same shall either be paid to the Master in Equity to be by him deposited and applied in manner hereinbefore directed with respect to stums amounting to or exceeding two hundred pounds or the same may lawfully be paid to two trustecs to be nominated by the parties entitled to the rents and profits of the land in respect whereof the same shall be payable such nominations to be signified by writing under the hand of the party so entitled and in case of the coverture in infancy lunacy or other incapacity of the parties entitled to such money such nomination may lawfully be made by their respective husbands guardians committees or trustces but such last-nentioned application of the moneys shall not be made unless the Company approve thercof and of the trustees named for the purpose and the moneys so paid to such trustees and the produce arising therefrom shall be by such trustees applicd in the manner herein- hefore directed with respect to money paid into the bank and it shall not be necessary to obtain any order of the Court for that purpose and if such moneys shall not exceed the sum of twenty pounds the same shall be paid to the parties entitled to the rents and profits of the land in respect whereof the same shall be payable for their own use and benefit or in case of coverture infancy lunacy or other incapacity of such parties then such moneys shall be paid for their use to the respective husbands guardians committees or trustees of such persons And all sums of money exceeding twenty pounds which may be payable by the Company in respect of the taking using or interfering with any lands under a contract or agreement with any person who shall not be entitled to dispose of such lands or the interest therein contracted to be sold by him absolutely for his own benefit shall be paid to the Master in Equity or the trustecs in manner aforesaid and it shall not be lawful for any contracting party not entitled as afore- said to retain to his own use any portion of the sums so agreed or contracted to be paid for or in respect of the taking using or interfering with Payment out of Court. 'To whom purchase moncy under two hundred pounds toe be paid. The like over twenty pounds under a Con- tract with Company. Payment in accor- dance with Act to discharge Company. Form of conveyances But lands to vest in Company when taken, Costs to he paid by Company. Costs may be taxed. Company to fence off their lands. Company to make and maintain con- venient ascents &c. 26° VIC. 1862. Botany Railway Company. with any such lands but all such moneys shall be deemed to have been contracted to be paid for and on account of the several parties interested in such lands as well in possession as in remainder reversion or expectancy Provided always that it shall be in the discretion of the Judges of the Supreme Court or the Primary Judge in Equity or the said trustees as the case may be to allot to any tenant for life or for any other partial or qualified estate for his own use a portion of the sum so deposited or so paid to such trustees as aforesaid as compensation for any injury incon- venience or annoyance which he may be considered to sustain independently of the actual value of the lands so to be taken and of the damage occa- sioned to the lands held therewith by reason of the taking of such lands and the making of the works And all payments which shall be made by the Company in any of the cases aforesaid to the parties entitled under this Act to receive the same shall be a good and valid discharge to the Company and they shall not be bound or required to see to the application of any such moneys or to the performance of any trusts. 30. Allconveyances of lands to be purchased under the provisions of this Act may be according to the form in the Schedule A to this Act annexed or in any other form which the Company may think fit and all such conveyances shall vest the lands thereby conveyed in the Company and shall bar and destroy all estates tail and all other estates rights titles remainders reversions limitations trusts and interests whatsoever of and in the lands comprised in such conveyance which shall have been purchased or compensated for by the consideration therein mentioned Provided always that after any lands which the Company are by this Act authorized to take shall have been ascertained set out and appropriated for the purposes of this Act such lands and all the right title estate use trust and interest of every person therein shall forthwith be vested in and become the sole property of the Company for ever for the purposes of this Act and it shall not be necessary for the Company to obtain a conveyance from the owner of or any person interested in such lands And the costs of all such conveyances shall be borne by the Company and such costs shall include all charges and expenses of what kind and nature soever incurred on the part of the seller as well as the purchaser in that behalf But if the Company and the party entitled to any such costs shall not agree as to the amount thereof such costs shall be taxed by the Master in Equity or other proper officer of the Supreme Court upon the appli- cation of either party and the Company shall pay what the said Master or other proper officer shall certify to be due in respect of such costs to the party entitled thereto or in default thereof it shall be lawful for any Judge of the Supreme Court to make an order for the payment of the same and the said costs may be recovered in the same way as any other costs payable under an order of the said Court or a Judge thereof and the expense of taxing such costs shall be borne by the Company. 31. Before the Company shall use any such lands for any of the purposes aforesaid they shall separate the same by a sufficient fence from the lands adjoining thereto with such gates as may be required for the convenient occupation of such lands and shall also to all private roads used by them as aforesaid put up fences and gates in the like manner 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 Company as to the necessity of such fences and gates such fences and gates shall be put up by the Company as any two Justices of the Peace shall deem necessary for the purpose aforesaid on application being made to them. 32. If the railway shall cross any parish or other minor public road on the level the Company shall make and at' all times maintain con- venient ascents and descents and other convenient approaches with hand- rails 1862. 26° VIC. 63 Botany Railway Company. rails or other fences and shall erect at all times good and sufficient gates on each side of the railway when the parish or other public road commu- nicates therewith. 33. In case of accidents or slips happening or being apprehended Power to enter upon to the cuttings embankments or other works of the said railway it shall pice beet * be lawful for the Company and their workmen and servants to enter upon accidents. 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 Company within forty- eight hours after such entry make a report to the Secretary for Public Works if any and if not 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 cease and determine if the said Secretary 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 injurious to the said adjoining lands as the nature of the accident or apprehended accident will admit of and shall be executed with all possible despatch and full compensation shall be made to the owners and occupiers of such land 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 than is herein provided with respect to the lands originally taken for the purpose of making the said railway. 34. Every bridge to be erected for the purpose of carrying the Bridges how to be railway over any road shall be built in conformity with the foliowing constructed over any 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 feet if the arch be over a public highway and of twenty 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 be not less than sixteen feet for a space of twelve feet if the arch be over a turnpike road and fifteen fect 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 feet the clear height of the arch for a space of nine feet shall not be less than fourteen feet over a private road. The descent made in the road in order to carry 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 if over a parish road and one foot in sixteen if over a private road not being a tramroad or if the same be a tramroad or railroad the descent shall not be greater than the ruling gradient of such tramroad or railroad. And every bridge erected for carrying any road over the railway shall be The like over built in conformity with the following regulations that is to say :-— railway. There shall be a good and suflicient fence on each side of the bridge of not less height than four feet and on each side of the immediate approaches of such bridge 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 high- way and twenty-five feet if a parish road and twelve feet 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. 365. Width of bridges need not exceed those of roads. Existing inclinations of roads need not be improved. Works for benefit of owners. Gates bridges &ce Fences. Drains. Watering places. But so as not to obstruct railway. Penalty for not closing gates, 26° VIC. 1862. Botany Railway Company. 35. Provided always that in all cases where the average available width for the passing of carriages of any existing road within fifty yards of the point of crossing the same is less than the width hereinbefore prescribed for bridges over or under the railway the width of the 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 twenty feet Provided also that if at any time after the construction of the railway the average available width of any such road shall be increased beyond the width of such bridge on either side thercof the Company 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 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 any such portion of any road as may be required to be altered or for which another road shall be substituted shall be steeper than the inclination hereinbefore required to be preserved by the Company then the Company may carry any such road over or under the railway or may construct such altered 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. 36. The Company shall make and at all times thereafter maintain the following works for the accommodation of the owners and occupiers of land adjoining the railway that is to say such and so many convenient gates bridges arches culverts and passages over and under or by the side of or leading to or from the railway as shall be necessary for the purpose of making good any interruptions caused by the railway for 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 for- mation thereof All 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 lands 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 shall be made forthwith after the taking of any such lands if the owners thereof shall so require and the said other works as soon as conveniently may be Also all necessary arches tunnels culverts drains or other passages either 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 all proper watering places for cattle or compensation in lieu 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 shall be so made as to be at all times sufficiently supplied with water as theretofore and as if the railway had not been made or as nearly so as may be and the said Company shall make all necessary watercourses and drains for the purpose of conveying water to the said watering places Provided always that the Company shall not be required to make any 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 occupiers of the lands shall have agreed to receive and shall have been paid compen- sation instead of the making them And provided also that if any person omit 1862. 26° VIC. Botany Railway Company. omit to shut and fasten any gate set up at either side of the railway for the accommodation of the owners or occupiers of the said adjoining lands so soon as he and the carriage cattle or other animals under his care have passed through the same he shall forfeit for every such offence any sum not exceeding forty shillings. 37. And be it enacted that it shall be lawful for the owners or Branch railways. occupiers of the lands traversed by the said railway to lay down upon their own lands any collateral branches of railway to communicate with the said railway for the purpose of bringing carriages to or from or upon the said railway and the promoters shall if required at the expense of such owners or occupiers make openings in the rails and such additional lines of railway as may be necessary for effecting such communication in places where the communication can be made with safety to the public and with- out injury to the said railway and without inconvenience to the traffic thereupon and the promoters shall not take any rate or toll or other moneys for the passing of any passengers goods or other things along any branch so to be made by any such owner or occupier or other person but this enactment shall be subject to the following restrictions and conditions (that is to say)— No such railway shall run parallel to the said railway the promoters shall not be bound to make any such openings in any place which they shall have set apart for any specific purpose with which such communication would interfere nor upon any inclined plane exceeding one in fifty or bridge nor in any tunnel. The persons making or using such branch railways shall be subject to all by-laws and regulations of the promoters from time to time made with respect to passing upon or crossing the rail- way and otherwise and the persons making or using such branch railways shall be bound to construct and from time to time as need may require to renew the off-set plates and switches according to the most approved plan adopted by the promoters under the direction of their engineer. 88. It shall be lawful for the Company from time to time and Power to take tolls. at all times hereafter to demand take receive and recover to and for the use of the Com any such tolls or dues at such rates per mile or other scales of charges as shall be established from time to time by the Directors of the Company for an of every descri d in respect of all passengers animals goods and property ption which shall be conveyed or transported upon such railway or any of its branches And such railway and its branches shall be open to and may be used by any person or person