Scottish Australian Mining Company (Limited) Railway Act of 1893 56 Vic (NSW)

An Act to enable a Company, called the ser "Seottish Australian Mining Company ™sr: (Limited)," to construct a railway frome their Durham colliery, in the parish of Kahibah, to communieate with the Great Northern Railway. [13¢h June, 1893.] A 7 ILEREAS the " Scottish Australian Mining Company (Limited)" Preamble. (hereinafter designated "the Company") have opened coal- mines and established collierics on lands situate in the parish of Kahibah, in the county of Northumberland, and, in order to facilitate communication between the said coal-mines and colliery and the Great Northern Railway, are desirous of constructing a railway from the said coal-mines to the said Great Northern Railway; but as part of such proposed railway is intended to be made upon and pass through lands Authority to construci railway, and connect same with Great Northern Railway. 56° VIC. 1895. "Scottish Australian Mining C Company (Limited) Railway. lands of the said county believed to be the property of the Crown, bodies corporate, and private persons respectively, the same cannot be made without legislative authority: And whereas the said coal-mines and colliery are likely to prove beneficial to the Colony, and the public are concerned in promoting such an increase in and facilities tor the supply of coal for local consumption, steam navigation, and export as would result from the construction of the said proposed railway, and the traffic on the Great Northern Railway would be inereased thereby, it is therefore advisable to authorise by legislative enactment the 'construction of the said railway, subject to the provisions hereinafter contained, upon payment of compensation to the several parties through whose lands 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 Qucen'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 Company to make, construct, anc maintain a railway from its Durham colliery, in the parish of Kahibah to communicate with the Great Northern Railway, that is to say, a line of railway to commence at a point outside the boundary of the Great Northern Government Railway from Sydney to Newcastle, distan from Neweastle about six miles seventy-seven chains, in portion number cighty-nine, parish of Kahibah, county of Northumberland; and continuing thence south-westerly through portion number thirty nine, selected by Vincent Stone, to the southern boundary; thence southerly and south-easterly through portions eighty-five A, selected by Thomas Phillips and James Edwards, to the southern boundary of . same; thence sou easterly through portion forty-four, onee the property of J. J. Hill and since subdivided, across allotments and roads to road on southern boundary of same; thence southerly through portion one hundred and twenty-six, leased to John Robyns and others, to the northern boundary of portion one hundred and six, leased to Messieurs Robyns, Hill, Price, and Williams; thence southerly to western boundary of portion one hundred and five, leased to Messieurs Robyns, Hill, "Price, and Williams; thenee southerly and south-casterly and across road to northern boundary of part of mineral leases eighteen thousand six hundred and seventy- -six and eighteen thousand seven hundred and sixty-one, once occupied by the Australasian Coal Company, now B. J. Finck; thence south- easter y to the western boundary of portion number one hundred and seven, the property of the Waratah Coal Company; thence south-casterly to western boundary of portion number six, selected by D. O'Brien ; thence south-easterly to southern boundary of same across road to northern boundary of portion number one hundred and nineteen, leased to the "Scottish Australian Mining Company (Limited)"; thence south-easterly across road and easterly o western boundary of portion number one hundred and fourteen, leased to the "Scottish Australian Mining Company (Limited)"; thence casterly to northern boundary of portion number one hundred and fifteen, leased to the * Scottish Australian Mining Company (Limited)"; thence south- easterly and southerly to northern boundary of portion number one hundred and sixteen, leased to 'South Burwood Coal Mining Company (Limited)"; thence south-easterly to northern boundary of portion number one hundred and thirteen, leased to the "Scottish Australian Mining Company (Limited)"; thenee south-easterly and easterly to the terminus upon said last-mentioned portion. It shall also be lawful for the Company to contract with the Railway Commissioners of ) 1893. 56° VIC. "Scottish Australian Mining Company (Limited) Railway. of New South Wales as the constructing authority to effect a commu- nication between the railway hereby authorised and the said Great Northern Railway in the manner provided tor in the one hundred and twelfth seetion of the " Public Works Act of 1888," such railway to be in the direction described in the Schedule, but so that the same shall not at any place occupy in any part thereof (except near its junction with the said Great Northern. Railway) a greater space in breadth than one hundred and thirty-two feet. And also that the Company may, within. three years after the passing of this Act, take and occupy five acres of land or any lesser area at the junction of the said railway with the aforesaid Great Northern Railw ay, but not so as to encroach on or include any property now vested in the said Railway Commissioners. . The ground and soil of so much of the site of the railway site of railway shall as passes over the lands of the said owners of lands respectively and be vested in the ? Company without conveyance, over Crown lands, together with such rights of ingress, egress, and regress upon the adjacent Jand as may be necessary for the making and repair thereof, and also the aforesaid five acres of land or lesser area when separated and feneed in, shall, subject to the payment of compen- sation as herein provided for, 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 or rights over any lands vested in the Railway Commissioners of New South Wales 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 hereby authorised which shall not interfere with the safety of such railway and the traffic 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 repairs of the said railway by cutting, embanking, sinking wells, or otherwise: Provided also, that 'if in the exercise of the powers hereby granted, it be found necessary to cross-cut through, sink, raise, or use any part of any road, whether carriage road or horse road, so as to render it nmpassable for or dangerous or inconvenient to the persons entitled to the use thereof, the Company shall, before the commencement of any such operations, cause a sufficient road to be made instead of any road interfered with, and shall at their own expense maintain such substituted road in a state as convenient as the road interfered with or as nearly as may be. And the Company before they use the said lands of the said owners of land and the said Crown lands respectively for any of the purposes aforesaid shall, if required so to do, 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 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 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 for 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 for the purposes aforesaid on application being made to them. iy to the Company of a sum not exceeding twopence per ton per mile on freight. for every transit, the party seeking transit supplying and loading and unloading his own trucks or waggons and the Company supplying locomotive power, and all trucks when emptied shall be conveyed on their return free of charge: Provided always that. it shall not be compulsory on the Company to supply locomotive power unless the party secking transit guarantee and bring one hundred tons J of 3. The railway shall, when construc 'ted, be maintained and kept Raitway open to the in repair, and shall he open to the public use upon payment of a toll public: Branch railways. Power to divert or alter roads, 56° VIC. 1893. Scottish . Australian Mining Company (Limited) Raihoay. of freight at least during the eight working hours and give notice of same at Jeast 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 exceeding one penny half-penny per ton per mile on freight for every transit, except in the case of the Railway Commissioners, the party seeking transit supply the locomotive power as well as the trucks and waggons, and load and unload the same, such toll to cover the return of empty trains: Provided that so long as the Company shall be willing to supply locomotive power no other person, except as afore- said, shall use locomotive power on the line: Provided that if the railway shall be damaged by parties who shall themselves use the railway for transit and supply locomotive power the Company shall be entitled to compensation for such damage, to be recovered either by action in the Supreme Court of New South W ales, or if such damage do not exceed the sum of twenty pounds summarily before two Justices, and in estimating such damage the Company shall be entitled not only to compensation 'for the cost of repairing and restoring the railway but to the consequential damage (if any) sustained by reason of the suspension of transit or otherwise. Incase the Railw. ay Commissioners shall make use of the railway hereby authorised or any branch railway the tolls payable by them shall be one-half of the above rates. 4. And be it enacted that it shall be lawful for the owners or occupiers of the lands traversed by the said railway or for the Company, with the sanction of the Governor and Executive Council, 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 moneys for the passing of any passengers, goods, cr 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 branch railway shall run parallel to any line of Govern- ment railway or to the said railway hereby authorised. 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 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 Company 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 Company under the direction of their engineer. 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 authorised and empowered to divert or alter the course of any road, street, or way crossing the railway, or to raise or sink any road or way in order the more conveniently to carry the same over or under or by the side of the railway. 1893. 56° VIC. 83 Scottish Austr lian Mining "Company (Limited) Railway. 6. It the Company do not cause another sufficient road or Penalty for not strect to be so made before they interfere with any such existing road * bstifuting a road, or strect as aforesaid they shall forfeit ten pounds for every day during whieh such substituted road shall not be made after the existing road or strect shall have been interrupted, and such penalty shall be paid to the trustees, commissioners, surveyor, or other persons having the management of such road or street, if a public road, and shall be applied for the purposes thereof, or in case of a private road or street the same shall be paid to the owner thereof, and every such penalty shall be recoverable with costs by action in the Supreme Court. 7. If in the course of making the railway the Company shall Road repairs. use or interfere with any road or street they shall from time fo time make goo all damage done by them to such road or street, and if any question shall arise as to the damage done to any such road or street hy the Company, or as to the repair thereof by them, such question shali be referred to the determination of two Justices, and such Justices may direct such repairs to be made 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 directions any penalty not exceeding five pounds per day as to such Justices shall seem fit, and any such penalty shall be paid to the Commissioners for Roads, or other person or authority having the management of the road or strect interfered with by the Company, if a public road, and be applied for the purposes of such road or street, or if a private road or street the same shall be paid to the owner thereof: 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 or street 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 occupiers 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 reccived or agreed to receive 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 to cross the railway. 9. If the railway cross any public highway or parish road on 4 Provisions in ease level, the Company shall erect and at all times maintain good and wher roads ve sufficient gates across such road on each side of the railway where the 8 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 vailway, 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 horses, cattle, carts, or carriages shall have passed through the same under a penalty not exceeding forty shillings for every default therein: Provided always that it shall be lawful for the Secretary for Public Works in any case in Power to enter upon ng lands to repair ace:dents subject to certain restrictions. Construction of bridge over roads, Construction of bridges over railroads, Scot: ish Australian Mining Company (Limited) L. lway. 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 railw ay to order that such gates shall be kept so closed instead of across the road, and in case 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 under the like penalty as above directed with respect to the gates being kept closed across the road. 10. Incase of accidents or slips happening or being apprehended te the cuttings, embankments, or other works of the said railway, it shall be lawful for the Company and their workmen and servants to enter upon the land adjoining thereto, except land vested in the Railway Commissioners, at any time whatsoever for the purpose of repairing or preventing sucn accidents and to do such works thereon as may be necessary for the purpose, but in every such case the Company shall within forty-eight hours after such entry make a report. to the Secretary for Public Works specifying the nature of such accident or apprehended accident and of the works necessary to be done, and such powers shall cease and determine if the said Secretary shall after considering the said report certify that thew 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 lands for the loss or injury or inconvenience sustained by them respectively by reason of such works, the amount of which compensation i in case of any dispute about the same shall be settled by arbitration in the manner hercinatter 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. 11. Every bridge to be erected for the purpose of carrying the 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 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 not be less than sixteen feet for a space of twelve feet if the arch be over a main road, and fifteen feet for a space of ten feet if over a public carriage road, and in each of such cases the clear height at the springing of the arch shall not be less than twelve feet, the clear height of the arch for the 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 fect if the bridge be over a public highway, one foot in twenty feet if over a parish road, and one foot in sixteen feet if over a private road, not being a 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. Every bridge erected for carrying any road over the railway shall be built in conformity with the following regulations, that is to say :— " There shall bea good and sufficient 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 of not less than three feet. The 1893. 56° VIC. 85 Scottish « Australian Mining Company (Limited) R ailway. The read over the bridge shall have a clear space between the fences thereof of thirty- five fect 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 feet if the road be a main 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 gradicnt of such tramroad or railroad. 13. Provided always that in all cases where the average avail- The width of the able width for the passing of carriages of any existing road within fifty aoe eed ett yards of the points of crossing the same is less than the width herein- the road in certair, before prescribed for bridges over or under the reilway the width of @* such bridges need not be greater than such average available width of such roads, but so, nev ertheless, that such bridges be not. of less width in case of a public highway or parish road than tw enty feet: Provided also that if at any time 'after the construction of the yailway the average available width of any such road' shall be increased 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 he required by the trustees or surveyors of such road, not exceeding the width of such road as so widened, or the maximum width herein preseribed for a bridge in the like case over or under the railway. 14. Provided also that if the mesne inclination of any road Existing inclination within two hundred and fifty yards of the points of crossing the same, of ronds croseed or or the inclination of such portion of any road as may be required to be improved. 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. 15. The Company shall make, and at all times thereafter works for benefit maintain, 'the following works for the accommodation of the owners of owners, and occupiers of lands : adjoining the railway, that is to say :— Such and so many gates, bridges, arches, culverts, and passages Gates, bridges, &e. over, under, or by the sides. of or leading to or from the railway as shall he necessary for the purpose of making good any interruptions caused by the railway to the use 'of the lands through which the railway shall be made; and such works shall be made forthwith alter the part of the railway passing over such lands shall have heen laid out or formed during the formation thercof. All sufficient posts, rails, hedges, ditches, mounds, or other fences 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 thercof shall so require, and "the said other works as soon as convenient] v may be. Also all necessary arches, tunnels, culverts, drains, or other passages, Drains. either over or under or by the sides of the railway, of such dimensions Penalty on persons omitting to fasten gates. Minerals not to pass. Compensation clause, Appointment of arbitrators, Vacancy of arbitrator to be supplied. 56° VIC. 1893. Scottish Australian Mining Company yf (Limited) Railway ry. dimensions as will be sufficient at all times to convey the water as clearly from the lands laying 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. 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 to shut and fasten any gate set up at either side of the railway, for the accommodation of the owners or occupiers of the 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 ten pounds. 17. The Company shall not be entitled to any mines of coal, iron, stone, slate, or other minerals under any land w hereof 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 authorised. And such mines shall not be deemed to vest in the Company. 18. If within twenty-eight 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 com- pensation to be paid by the Company, for the said lands belonging to the said parties or any of them, or for any damage that may be sustained by them or him by reason of the execution of the works, or if any other question as to compensation shall rise under this Act, the amount of such compensation shall be settled by arbitrators in manner hereinafter mentioned, that is to say:—Unless both parties shall concur in the appointment of a single arbitrator, cach party on the request of the other party shall nominate and appoint an abritrator to whom such dispute cr other matter shall be referred. And every appointment ofan arbitrator shall be under the hand of such party. And such appointment shall be delivered to the arbitrator or arbitra- tors, and shall be deemed a submission to arbitration on the part of the party by whom the same shall be made. And after any such appointment shall have been made, neither party shall have power to revoke the same without the consent of the other, nor shall the death of cither party operate as a revocation. And if, for the space of fourteen days, after any such dispute or other matter shall have arisen, and after a request in writing shall have been served by the one party on the other party to appoint an arbitrator, such last-mentioned party fail to appoint such arbitrator, then upon such failure it shall be lawful for the Attorney-General for the time being of the said Colony, on the application of the party who has him- self appointed an arbitrator, to appoint an arbitrator to act on behalf of the other party. And such arbitrators may proceed to hear and determine the matters which shall be in dispute. And in such case the award or determination of such arbitrators shall be final and con- clusive. 19. If before the matter so referred shall be determined any arbitrator appointed by either party shall die, or become incapable, or refuse, or for fourteen days neglect to act as arbitrator, the party by whom such arbitrator was appointed may nominate and appoint in writing some other person to act in his place. And if for the space of seven "days after notice in writing from the other party for that purpose he fail to do so the remaining or other arbitrators may proceed alone. 1893. 56° VIC. 87 Scottish Austr alian lining Company (Limited) Railway. alone. And every arbitrator so to be substituted as afores: nid shal 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 : g I. * Junpire, such arbitrators shall, before they enter upon the matters referred to them, nominate and appoint by writing under their hands an wnpire t 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 shal die, or refuse, or for seven days neglect to act, after being called upon to do so by the arbitrators, or cither of them, 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 referre' to him shall be final. 21. If in either of the cases aforesaid the arbitrators shall refuse, Attomey-General to or for seven days after request of cither party to such arbitration (heii wnere on neglect 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. Lf when a single arbitrator shall have been appointed such In case of death of arbitrator shall die or become incapable, or shall refuse, or for fourteen i ee eee the days neglect to act before he shall have made his award, the matters d vers, 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. 23. If when more than one arbitrator shall have been appointed If cither arbitrator cither of the arbitrators shall refuse or for seven days neglect to act ye) ees the other arbitrator may proceed alone, and the decision of such other er parte, arbitrator shall be as effectual as if he had been the single arbitrator appointed by both parties. 24. 1f when more than one arbitrator shall have been appointed, Jf arbitrators fail to . . . . . mike their award and when neither of them shall dic, refuse, or neglect to act as afore- within twenty-one said, such arbitrators shall fail to make their award within twenty-one days the matter to go days after the day on which the last of such arbitrators shall have been tothe umpire, appointed, or within such extended time (if any) as shall have been appointed for that purpose by both of such arbitrators under their hands, the matters referred to them shall be determined by the umpire to be so appointed as aforesaid. 25. The said arbitrator or arbitrators, or their umpir e@, may cal] Powers of pbitrators for the production of.any documents in the possession or power of to call for Books, &e either party, which they or he may think necessary for determining the question in dispute, and may examine the parties or the witnesses on oath and administer the onths necessary for that purpose. 26. Before any arbitrator or umpire shall enter into the con- Arbitrator or umpire sideration of any matters referred to him, he shall in the presence of for fitful dicelaees a Justice of the Peace, make and subscribe the following declaration, of duty. 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 "Scottish Australian Mining Company (Limited), Railway Act of 1893." Made and subscribed in the presence of A.B. And such declaration shall be annexed to the award when mad