Mittagong Coal-mining Company's Railway Act of 1884 48 Vic (NSW)

Mrrracone Coat- MINING COMPANY'S RartLway. Preamble. Authority to con- struct railway and connect same with Great Southern Railway. 48° VIC. 1884. Mittagong Coal-mining Company's Railway. . An Act to enable a Company called the " Mit- tagong Coal-mining Company (Limited)" to constructa Railway from the Mittagong Coal-mine to the Great Southern Railway. [3ist October, 1884. | JALEREAS certain persons now residing in the Colony of New ' South Wales have opened coal-mincs and established collieries on certain lands situate at Mittagong in the parish of Jellore in the Colony of New South Wales and with others have formed themselves into aCompany called the "Mittagong Coal-mining Company (Limited)" and in order to facilitate communication between the said coal-mines and the Great Southern Railway such Company is desirous of con- structing a railway from their said coal-mine to the Great Southern Railway but as part of such proposed railway is intended to be made upon and pass through lands believed to be the property of the Crown and private persons respectively the same cannot be made without Legislative authority And whereas the said coal-mines are likely to prove beneficial to the Colony and the public are concerned in pro- moting such an inerease in and facilities for the supply of coal for local consumption steam navigation and export as would result from the construction of the said proposed railway and the traffie on the Great Southern Railway would be increased thereby it is therefore desirable to authorize by Legislative enactment the construction of the said rail- way subject to the provisions hereinafter contained upon payment of compensation to the several partics through whose land the same shall pass for such portion of their respective lands as may be required to be taken and occupied thereby 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. It shall be lawful for the said Company to make and con- struct a railway from the southern boundary of their said lands unto and through the lands belonging to the Crown and unto and through lands known as belonging to the "Australian Kerosene Oil and Mineral Company (Limited)" and unto and through lands known as belonging to Alfred Welby and unto and through lands known as belonging to David Lines and Hiram Hines and unto and through lands known as belonging to Ilenry Vaughan and unto and. thr ough lands known as belonging to the " Fitzroy Bessemer Stecl Iematite Iron and Coal Company (Limited) and to effect a junction if necessary between said line and'the Great Southern Railway in accordance with section nincty- nine of the " Government Railways Act of 1858" such railway to be in the direction described in the Schedule but so that the same shall not occupy at any part thereof (except near the junction of the Great Southern Railvw: ay) a greater space in breadth than sixty-six fect Provided that such space in breadth shall not include any 'portion of the land now belonging to or used by the ' Australian Kerosene Oil and Mineral Company "(Limited)" nearer than sixteen feet from the centre of the Joadja Creck Railway And also that the said Company may take and occupy three acres of land or any lesser area at the junction of the said railway with the Great Southern Railway Pro- vided always that such three acres or any such lesser areca shall not include 1884. 48° VIC. 119 Mittagong Coal-mining Company's Railway. include any portion of the land now belonging to or uscd by the " Australian Kerosene Oil and Mineral Company (Limitcd)" for the purposes of their railway at the junction of the Joadja Creck Railway with the Great Southern Railway. . The ground and soil of so much of the site of the railway as Site of railway shall passes over the lands of the said owncrs of lands respectively and over Company in the Crown Land together with such rights of ingress egress and regress conveyance. upon. the adjacent land as may be necessary for the ma king and. repair thereof except as to any land belonging to or used by the " Australian Kerosene Oil and Mineral Company (Limited)" within sixteen fect of the centre of the Joadja Creek Railway shall be vested by virtue of this Act and without the necessity of any conveyance in the Company for the purposes of the railway Provided that no lands vested in the Commissioncr for Railways or in the " Australian Kerosene Oil and Mineral Company (Limited)" within sixteen fect of the centre of the Joadja Creek Railway shall by virtue of this Act be vested in the Company and nothing herein contained shall prevent the said owners from carrying on any mining operations bencath the said railway which shall not interfere with the safety of the said railway and the traflic thereon and the Company shall have no further right to the soil of the said lands beneath the surface than shall be "requisite for the formation and repair of the said road by cutting embanking sinking wells or otherwise Provided that the said railway shall be constructec and brought into use within two years after the passing of this Act and that in default thereof or if after its completion the said railway shall cease to be used for two years continuously all the said lands anc all the said Company's interest and estate therein shall revert without any conveyance to the original owners thercof their heirs and assigns Provided also that if in the exercise of tho powers hereby granted. it be found necessary to cross cut through sink raise or use any part o any road whether carriage road or horse road so as to render it impassible for or dangerous or inconvenicnt to the persons entitled to the use thereof the Company shall before the commencement of any such opcrations cause a sufficient road to be made instead of any road interfered with and shall at their own expense maintain such substituted road in a state as convenient as the road interfered with or as nearly as may be And the Company before they use the said lands of the said owners of land respectively and the said Crown Land. for any of the purposes aforesaid shall separate the same by a sufficient fence from the land adjoining thereto with such gates as may be required for the convenient occupation of such land and pay the value agreed upon or assessed for the resumption of such lands and shall also to all private roads used by them as aforesaid put up fences and gates in like manner in all cases where the same may be necessary to prevent the straying of cattle from or upon the Jands 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 for or sufficiency of such fences and gates then the said Company shall put up and erect such fences and gates as any two Justices of the Peace shall deem necessary and stilicient for the purposes aforesaid on application being made to them Provided always and that it shall not be lawful for the said Company to put up and erect any fences or gates nearer than sixteen feet from the centre of the Joadja Creek Railway. 3. The railway shall be open to the public use upon payment Railway open to the of a toll to the Company of a sum not excecding the rate per ton PY" per mile charged by the Commissioner for Railways in respect of every ton of goods for every transit the party secking transit supplying and loading his own or the Government trucks and waggons and the Company £20 Branch railways, Power to divert or alter roads. 48° VIC. 1884., Mittagong Coal-mining Company's Railway. Company or the Government supplying locomotive power and all trucks when emptied shall be conveyed on their return frec of cost Provided always that it shall not be compulsory on the Company to supply locomotive power unless the party seeking transit guarantee and bring thirty-six tons at least during the twelve working' hours and give notice of same at lcast twenty-four hours previously The railway shall at all times be open to the public upon payment of a toll to the Company of a sum not excceding one halfpenny per ton per mile in respect of every ton of goods for every transit if the party secking transit or Commissioner for Railways supply the locomotive power as well as the trucks and waggons Provided that so long as the Company shall be willing to supply locomotive power no other person shall use locomotive power on the linc other than the Commissioner for Railways Provided that if the railway shall be damaged by parties who shall themsclves use the railway for transit and supply locomotive power the Company shall he entitled to compensation for such damage to be recovered cither by action in the Supreme Court of New South Wales or if such damage do not exceed the sum of twenty pounds summarily hefore two Justices and in estimating such damage the Company shall be entitled only to compensation for the cost of repairing and restoring the railway but not to the consequential damage (if any) sustained by reason of the suspension of transit or otherwise. 4, And be it enacted that it shall be lawful for the owners or 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 Company 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 without injury to the said railway and without inconvenience to the traffic thereupon and the Company shall not take any rate or toll or other moncys 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 Company 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 thirty or bridge nor inany tunnel 'The persons making or using such branch railways shall be subject to all by-laws and regulations of the Company from time to time made with respect to passing upon or crossing the railway 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 Company under the direction of their enginecr Provided always that nothing in this clause shall in any way interfere with disturb or effect any rights liberties or powers belonging to or exercised by the '" Australian Kerosene Oil and Mineral Company (Limited)." 5. For the purposes and subject to the provisions hereinafter contained it shall be lawful for the Company their deputies agents servants and workmen and all other persons by them authorized and empowered to divert or alter the course of any road or way other than the Joadja Creck Railway crossing the railway or to raise or sink any road or way other than the Joadja Creek Railway in order the more conveniently to carry the same over or under or by the side of the railway. 6. 1884. 48° VIC. 121 Mittagong Coal-mining Company's Railway. 6. If the Company do not cause another sufficient road to be so Penalty for not made before they interfere with any such existing road as aforesaid substituting a roads they shall forfcit twenty pounds for every day 'during which such substituted road shall not be made after the existing yoad shall have been interrupted and such penalty shail be paid to the Trustees Commis- sioners surveyor or other persons having the management of such road if a public road and shall be applied for the purposes thereof or in case of a private road the same shall be paid to the owner thereof and every such penalty shall be recoverable with costs by action in any Court at the instance of the Trustees Commissioner surveyor or other persons as aforesaid or in case of a private road at the instance of the owner thereof. 7. If in the course of making the railway the Company shall Road repairs. use or interfere with any road they shallfrom time to time make good all damage done by them to such road and if any question shall arise as to the "damage done to any such road by the Company or as to the repair thercof by them such question shall be referred 'to the deter- mination of two Justices and such Justices may direct such repairs to be made in the state of such road in respect of damage done by the Company and within such period as they may think reasonable and may impose on the Company for not carrying into effect such repairs any penalty not execeding ten pounds per day as to such Justices shall scem fit and any such penalty shall be paid to the surveyor or other person having the management of the road interfered with by the Company if a public road and be applied for the purposes of such road or if a private road the same shall be paid to the owner thereof and every such penalty shall be recoverable with costs by action in any Court at the instance of the surveyor or other person or owner as aforesaid Provided always the said Justices shall have regard to and shall make full allowance for any tolls that may have been paid by the Company on such road in the course of the using thereof. 8. Until the Company shall have made the bridges or other Owners' crossing. proper communications which they shall under the provisions herein contained have been required to make between lands intersected by the railway and no longer the owners and oceupicrs of such lands and any other persons whose right-of-way shall be affected by the want of such communications and their respective servants may at all times freely pass and repass with carriages horses and other animals directly but not otherwise across any part of the railway made in or through their respective lands solely for the purpose of occupying the same lands or for the exercise of such right-of-way and so as not to obstruct the passage along the railway or to damage the same Nevertheless if the owner or occupier of any such lands have in his arrangements with the Company received compensation for or on account of any such communications instead of the same being formed such owner or occupier or those claiming under him shall not be entitled so te cross the railway. 9. If the railway cross any public highway or parish road or Provisions in cases the Joadja Creck Railway on a level the Company shall erect and at where Fonds oe ul times maintain good aud sullicient gates across such road on each side of the railway "where the same shall communicate therewith and shall employ proper persons to open and shut such gates and such gates shall be kept constantly closed across such roads on both sides of the railway except during the time when horses cattle carts or carriages passing along the same shall have to cross such railway and such gates shall be of such dimensions and so constructed as when closed to fence in the railway and prevent cattle or horses passing along the road from entering upon the railway and the person entrusted with the care of such gates shall cause the same to be closed as soon as such 429 48° VIC, 1884. Mittagong Coal-mining Company's Railway. such horses cattle carts or carriages shall have passed through the same under a penalty not exceeding forty shillings for every default therein such penalty to be recov erable summarily. with costs before two Justices Provided always that it shall be lawful for the Seerctary for Public Works in any case in which he shall be satisfied that it will be more conducive to the public safety that the gates on any level crossing over any such road shall be kept closed across the railway to order that such gates shall be kept so closed instead of across the road and in such ease such gates shall be kept constantly closed across the railway except when engines or carriages passing along the railway shall have occasion to cross such road in the same manner and undcr the like penalty as above directed with respect to the gates being kept closed across the road. Power to enter upon 10. In case of accidents or slips happening or being apprehended see ae dente to the cuttings embankments or other works of the said railway it shall subject to certain be lawful for the Company and their workmen and servants to enter restrictions. upon the land adjoining thercto other than the lands of or belonging to the " Australian Kerosene Oil and Mineral Company (Limited)" or their assigns within sixteen feet of the centre of the Joadja Creck Railway 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 shall within forty-cight hours after such entry make a report to the Secretary for Public Works specifying the nature of such accident or apprchended accident and of the works necessary to be done and such powers shall cease and determine if the said Sceretary 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 dispatch and full compensation shall be made to the owners and occupiers of such lands for the loss or injury or inconvenience sustained by them respectively by reason of such works the amount of which compensation in case of any dispute about the same shall be settled by arbitrators in the manner hereinafter mentioned And provided also that no land shall be taken permanently for any such works otherwise than is herein provided with respect to the lands originally taken for the purpose of making the said railway. Construction of 11. Every bridge to he erected for the purpose of carrying the rode railway over any road shall be built in conformity with the following 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 fect if the arch be over a public highway and of twenty fect if over a parish road and of twelve feet if over a private road. The clear height of the arch from the surface of the road shall not be less than sixteen feet for a space of twelve fect if the arch be over a main road and fifteen feet for a space of ten fect 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 onc foot in twenty fect if over a parish road and one foot in sixteen feet if over a private road not being a tramroad or railroad or if the same be a tramroad or railroad the descent shall not be greater than the ruling gradient of such tramroad or railroad. 12. 1884. 48° VIC. 123 Mittagong Coal-mining Company's Railway. 12. Every bridge erceted for carrying any road over the railway Constraction of shall he built in conformity with the following regulations (that is to say)— There shall be a good and sufficient fence on each sideofthe bridge of not less height than four fect and on each side of the imme- diate approaches of such bridge of not less than three fect. The road over the bridge shall have a clear space between the The fences there bridges over railroad, 'of of thirty-five feet if the road be a public highway and twenty-five fect if a parish road and twelve fect if a private ascent shall road. not he more than one foot in thirty fect if the road be a main road one foot in twenty fect if a parish road and one foot in sixteen fect 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 tramro: ul or railroad. 13. Provided always that in all cases where the average available 'rhe width of the width for the passing of carriages of any existing road within fifty bridges need not. exceed the width of yards of the points of crossing the same is'less than the width hercin- the rout in certain before preseribed for bridges over or under the railway the width of such bridges need not be ereater than such average available width of such roads but so nevertheless that such br ides. be not of less width in case of a public highway or parish road than twenty fect Provided also that if at any time after the construction of the railway the average available width of any such road shall be inereased beyond the width of such bridge on cither side thereof 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 exeecding the width of such road as so widened or the road not maximum width under the railway. 14. Provided also that if the mesne inclination of any road fxisting inclination within two hundred a or the inclination of such portion of any road as may be preserved to improved. be alterec stecper tl the Com or for wh pany then herein preseribed for a bridge in the like case over or . a0 of roads crossed or nd fifty yards of the point of crossing the same diverted need not be ich another voad shall be substituted shall be ian the inclination hereinbefore required to be preserved by he 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 s 15, The Comp ollowing works for the accommodation of the owners and °™"™* of Jands adj tain the oceupicrs 1all be substituted. any shall make and at all times thereafter main- Works for benefit of oining the railway (that is to say)— Such and so many convenient gates bridges arches culverts and Gates bridges &e, passages over under by the sides of or leading to or from the railway as sl any interru lands throu 1all be necessary for the purpose of making good stions caused by the railway to the use of the gh which the railway shall be made and such works shall passing over x0 made forthwith after the part of the railway such lands shall have been laid out or formed or during the formation thereof. All sufficient posts rails hedges ditches mounds or other fences for Fences. separating the land taken for the use of the railway from the adjoining la nds 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 tow: ivds the railway and all necessary stiles and such posts 124: Drains, Watering-places. Penalty on persons omitting to fasten gates, Minerals not to pass. Compensation clause. Appointment of arbitrators. 48° VIC. . 1884. Mittagong Coal-mining "Company's Railway. posts rails and other fences shall be made forthwith after the taking of any such lands and the said other works as soon as conveniently may be Also all necessary arches tunnels culverts drains or other passages cither over or under or by the sides of the railway of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the making of the railway or as nearly so as may be and such works shall be made from time to time as the railway works proceed Also proper watering-places for cattle or compensation in licu thereof where by reason of the railway the cattle of any person oceupying any lands lying near thereto shall be deprived of access to their former watering-places and such watering-places shall be so made as to be at all times suffi- ciently 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 water- ing places Provided always that the Company shall not be required to make such accommodation works in such a manner as would prevent or obstruct the working or using of the railway nor to make any accommodation works with respect to which the owners and occupiers of the land shall have agreed to receive and shall have been paid compensation instead of the making them. 16. If any person omit tu shut and fasten any gate set up at either side of the railway for the accommodation of the owners or occu- piers of the adjoining lands so soon ashe and the carriage cattle or other animals (if any) under his care have passed through the same he shall forfeit for every such offence any sum not exceeding ten pounds which shall be recoverable summarily with costs before any two Justices. 17. The Company shall not he entitled to any mines of coal iron- stone slate or other minerals under any land whereof the surface is vested in 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 Company. 18. If within twenty-cight days after the passing of this Act the said persons through whose lands the railway shall pass or any of them and the Company shall not agree as to the amount of compen- sation to be paid by 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 by reason of the severance of any portion of the said lands belonging to the said parties or any of them from any other portion of the same or if any other question as to compensation shall arise under this Act the amount of such compensation shall be settled by arbitrators in manner here- inafter mentioned (that is to say) Unless both partics shall concur in the appointment of a single arbitrator 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 under the hand of such party and such appointment shall be delivered to the arbitrator or arbitrators and shall be decmed 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 i) Cr 1884. 48 VIC. 1 Mittagong Coal-mining Company' ys Railway. the dcath of either party operate as a revocation and if for the space of fourteen days after any such dispute or other matter shall have arisen and after a request in writing shall have been served by the one party on the other party to appoint an arbitrator such last-mentioned party fail to appoint such arbitrator then upon such failure it shall be lawful for the Attorney-General for the time being of the said Colony on the application of the party who has himself appointed an arbitrator to appoint such arbitrator to act on behalf of both partics and such arbitrator may proceed to hear and determine the matters which shall be in dispute and in such case the award or determination of such single arbitrator shall he final and conclusive. 19. If before the matter so referred shall be determined any Vacancy of arbitra- arbitrator appointed by cither party shall die or become incapable or {te be supplied refuse or for fourteen days neglect to act as arbitrator the party by whom such arbitrator was appointed may nominate and appoint in writing some other person to act in his place and if for the space of seven "days after notice in writing from the other party for that purpose he fail to do so the remaining or other arbitrators 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. 20. Where more than one arbitrator shall have been appointed Appointment of such arbitrator shall before they enter upon the matters referred to "pire them nominate and appoint by writing under their hands an wnpire to decide any matters on which they shall differ or which shall be referred to them under the provisions of this Act And ifsuch umpire shall die 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 refusal or neglect appoint another umpire in his place and the decision of every such umpire on the matters so referred to him shall be final. 21. If in cither of the cases aforesai:l the arbitrator shall refuse Attorney-General to 2 . . . ae appoint umpire on or for scven days alter request of either party to such arbitration jestect, nevlect to appoint an umpire it shall be lawful for the Attorney- General for the time being on the application of either party to such arbitration to appoint an umpire and the decision of such umpire on the matters on which the arbitrators shall differ or which shall be referred to him under this Act shall be final. 22. If when a single arbitrator shall have heen appointed such In case of death of arbitrator shall die or become incapable or shall refuse or for fourteen sretlor te bewode days neglect to act before he shall have made his award the matters xovv. referred to him shall be determined by arbitration under the pro- visions of this Act in the same manner as if such arbitrator had not been appointed. 23. If where more than one arbitrator shall have been ap- If cither arbitrator pointed cither of the arbitrators shall refuse or for fourteen days wiles to proceed neglect to act the other arbitrator may procced alone and the decision ex parte. of such other arbitrator shall be as effectual as if he had been the single arbitrator appointed by both parties. 24. If where more than one arbitrator shall have been ap- Ifarbitrators fail to pointed and where neither of them shall refuse or neglect to act as ee cys aforesaid such arbitrators shall fail to make their aw ard within twenty- the matter to go to one days after the day on which the last of such arbitrators shall have the umpire, been appointed or within such extended time (if any) as shall have been appointed for that purpose by both of such arbitrators under their hands the matters referred to them shall be determined by the umpire to he appointed as aforesaid. 25. The said arbitrators or their umpire may eall for the pro- Powers of arbitrators duction of any documents in the possession or power of cither party 1%! for books &e. which Arbitrators or umpire to make a declaration for faithful discharge of duty. Penalty for miscon- duct, Costs of arbitration how to be borne. Award tobe delivered to the Company. Submission may be made a rule of Court. Award not void through error in form. Compensation for tempora ury permanent the said owners or recurring injurics. Compensation to be rade for temporary oveupation, 48° VIC. Mittagong Coal-mining Company's Railway. 1884. which they or he may think necessary for determining the question in dispute and may examine the parties or their witnesses on oath and administer the oaths necessary fur that purpose. 26. Before any arbitrator or umpire shall enter into the con- sideration of any matters yeferred 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 '* Mittagong Coal-mining Company's Railway Act." Made and subscribed in the presence of A.B. And