The Australasia Coal Mining Company's Railway Act of 1875 39 Vic (NSW)

An Act to enable the " Australasia Coal Com- 4°mus3,c pany Limited" to construct a Railway from certain Collieries near Neweastle to and to connect the same with the Great. Northern Railway. [9th August, 1875.] V V7 ILEREAS the " Australasia Coal Company Limited" being a Preamble. Company incorporated under the Act twenty-seventh Victoria number one hundred and ninety of the Colony of Victoria is possessed of or entitled to certain large tracts of land situate on Winding Creek in the parish of Neweastle in the county of Northumberland in the Colony of New South Wales on which there are extensive fields of valuable coal And whereas the said Company in order to facilitate communication between the said lands and the Great Northern Railway is desirous of constructing certain railways that is to say a line of railway to commence at the Great Northern Railway at a point about two and a half (2!) miles distant from the Port of Newcastle and passing in a north-westerly and south-westerly direction through the two thousand acre grant of the Australian Agricultural Company thence south- westerly through thirty-nine acres and two hundred and seventy acres respectively Authority to con- struct railways. 39° VIC. 1875. Australasia Coal Company. respectively supposed to be leased by Messieuxs. Morehead and Young for coal mining purposes thence south-westerly through three hundred and ten aeres supposed to he held under lease for coal miuing purposes by Messieurs James Brown and Alexander Brown crossing the old Hartley Vale Railway (not now in use) at a point about seventy-eight chains from the point of commencement of the said Australasia Coal Mining Company's proposed railway thence south- westerly through a one hundred and fifty-six acres of land held under lease by the Waratah Coal Company and crossing the proposed railway of the said Company at a point about one hundred and seventeen chains from the point of commencement of the aforesaid Australasia Coal Company's proposed line of railway and tl ence continuing south- westerly through one hundred and twenty-nine acres of freehold land the property of the said Waratah Coal Company thence south-westerly through eighty-four acres also leased by the Waratah Coal Company thence south-westerly through six hundred and forty acres the property of Messieurs James Brown and Alexander Brown thence in a south- westerly direction through six hundred and forty acres the property of the Lambton or Scottish Australian Company thence south-westerly through two thousand six hundred and sixty acres the property of the Waratah Coal Company entering the two hundred and three acre block of land of the said Australasia Coal Mining Company at the eastern boundary thereof continuing thence south-westerly through the said two hundred and three acres to the south-west corner of the same thence south-westerly through forty acres known as Morley's land thence south-westerly through forty acres the freehold land of the said Australasia Coal Mining Compary thence continuing south-westerly through eight hundred and fifty-one acres of the said Australasia Coal Mining Company's land to the western boundary thereof And whereas the said coal is likely to rove beneficial to the Colony and the public are concerned in promot:ng such an increase 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 traffic on the Great Northern Railway would be greatly increased thereby it is therefore desirable to authorize by Legislative enactment the construction of tae 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 portions of their respective lands as may be required to be 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 Australasia Coal Mining Company to make construct and maintain the following railway that is to say a line of railway to commence at the Great Northern Railway at a point about two and a half miles distant from the port of Newcastle and passing in a north-westerly and south-westerly direction through the two thousand acre grant of the Australian Agricultural Company thence south-westerly through thirty-nine acres and two hundred and seventy acres respectively supposed to be leased by Messieurs Morehead and Young for coal-mining purposes thence south-westerly through three hundred and ten acres supposed to be held under lease for coal-mining purposes by Messieurs James Brown and Alexander Brown crossing the old Hartley Vale Railway 'not now in use) at a point about seventy-eight chains from the point of commencement of the said Australasia Coal Mining Company's proposed railway thence south-westerly through one hundred and fifty-six acres of land held under lease by the Waratah Coal Company and crossing the proposed 1875. 39° VIC. Australasia Coal Company. proposed railway of the said Company at a point about one hundred and seventeen chains from the point of commencement of the aforesaid Australasia Coal Mining Company's proposed line of railway thence continuing south-westerly through one hundred and twenty-nine acres of freehold land the property of the said Waratah Coal Company thence south-westerly through eighty-four acres also leased by the Waratah Coal Company thence south-westerly throughsix hundred and forty acres the property of Messieurs James Brown and Alexander Brown thence in a south-westerly direction through six hundred and forty acres the pro- perty of the Lambton or Scottish Australian Company thence south- westerly through two thousand six hundred and sixty acres the property of the Waratah Coal Company entering the two hundred and three acre block of land of the said Australasia Coal Mining Company's land at the eastern boundary thereof continuing thence south-westerly through the said two hundred and three acres to the south-west corner of the same thence south-westerly through forty acres known as Morley's land thence south-westerly through forty acres the freehold land of the said Australasia Coal Mining Company thence continuing south-westerly through eight hundred and fifty-one acres of the said Australasia Coal Mining Company's land to the western bound- ary thereof the entire length of the proposed line of railway from the Great Northern Railway being about six miles and of the width of one chain or sixty-six feet And for that purpose the said Company shall subject to the provisions hereinafter contained have power to cross any existing lines of railway now upon the said pro- posed line of railway on the level in such manner as shall be approved by the Superintendent of Permanent-way and Works on the Great Northern Railway and the rails for such crossing shall be laid down at the expense of the said Company under and subject to the approval of such superintendent and for that purpose to lay down such rails and execute such other works as shall be necessary for the purpose of such crossings Provided that the said Company shall before they shall be at liberty to cross the said railways respectively erect upon their own land and at all times thereafter maintain a suitable station or lodge at the place where the said railways shall cross on the level and shall also erect and maintain all necessary signals that is to say the signals in the first Schedule hereto at each of the crossings referred to and the said Company shall employ and con- stantly keep employed at their own expense at the said crossings fit and proper persons to attend to such signa's and the persons so employed shall act under and in accordance with the regulations in the second Schedule hereto set forth No preference shall be given to the trains of any Company but the train first approaching a crossing shall have the signals lowered to enable it to pass Provided also that it shall be lawful to deviate from the said line of railway as described as aforesaid at a distance of ten chains on either side thereof respec- tively but not to any greater distance without the previous sanction of Parliament. 2. Such lands as shall be taken under the provisions of this Act Site of railway shall for the purposes of the said railway together with such rights of for the working and repair thereof shall he vested by virtue of this Act and without the necessity of any conveyance in the Australasia Coal Mining Company Provided that nothing herein contained shall prevent the owners of the lands to be appropriated for the purposes of such railway from carrying on any mining operations beneath the said railway which shall not interfere with the safety of the said railway and the traffic thereon and that the said Australasia Coal Mining Company shall have no further right to the soil of the lands b beneath be vested in the Company without ingress egress and regress upon the adjacent lands as may be necessary conveyance. Railway open to the public, Branch railways. 39° VIC. 1875. Australasia Coal Company. beneath the surface than shall be requisite for the formation and repair of the said railway and for cutting and banking or otherwise Provided also that ifin the exercise of the powers hereby granted it be found necessary to cut through raise such or use any part of any road whether carriage road or horse road so as to render it impossible for or dangerous or inconvenient to the persons entitled to the use thereof the said Australasia Coal Mining Company shall before the commencement of any such operation cause a sufficient road to be made instead of any such road interfered with aad shall at the expense of the said Company maintain such substituted road in a state as convenient as the road interfered with or as nearly as may be and the said Company before they use the said lands through which the said proposed line of railway is intended to pass 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 lands and shall also to all private roads usel by the said Company 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 reads and land and the said Australasia Coal Mining Company as to necessity of such fences and gates such fences and gates shall be put up by the said Company as any two Justices of the Peace shall deem necessary for the purposes aforesaid on application being made to them. 3. The said railway shall be open to the public upon payment of one penny and one half-penny per ton per mile for every transit the person secking transit to supply steam locomotive power trucks waggons et cetera and to load and unload the same Provided that if the' Company shall employ locomotive engines of their own upon the said railway then in such case the Company shall supply the locomotive power to persons seeking transit and shall be entitled to charge the sum of two-pence per ton per mile for every transit but the empty trucks to be conveyed on their return free of cost Provided that if the said railway shall be damaged in any way by parties using the same the Company shall be entitled to compensation for such damage to be recovered in the Supreme or any other competent Court and in estimating such damage the Company shall be entitled only to com- pensation for the cost of repairing and restoring such railway but not to the consequential damage if any sustained by reason of the sus- pension of transit. 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 said Company to lay down upon their own lands any collateral branches of railway to communicate with the said railwey for the purpose of bringing carriages to or from or upon the said railway and the said 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 said 'Company 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 said 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 1875, 39° VIC. Australasia Coal Company. upon any incline 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 said Company from time to time made with respect to passing upon or crossing the said railway and otherwise and the persons making or using such branch railways shall be bound to construct and from time to time as necessity may require to remove the off-set plates and switches according to the most approved plan adopted by the said Company under the direction of their engineer. 5. For the purposes and subject to the provisions hereinattor Power to divert or contained it shall be lawful for the Said Company their deputies agents ®t roads. servants and workmen and all other persons by them authorized and empowered to divert or alter the course of any road or way crossing the railway or to raise or sink any road or way in. order the more con- veniently to carry the same over or under or by the side of the said railway. 6. If the said Company do not cause another sufficient road to Penalty for not: sub- be so made before they interfere with any such existing road as aforc- said they shall forfeit. ten pounds for every day during which such substituted voad shall not be made after the existing road shall have been interrupted and such penalty shall be paid to the trustees com- missioners 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 any such penalty shall be recoverable with costs by action in any competent Court. 7. If in the course of making the said railway the said Company Road repairs. shall use or interfere with any road they shall from time to time make good all damages done by them to such road and if any question shall arise as to the damage done to any such road by the said Company or as to the repair thereof by them such question shall be referred to the determination of two Justices and such Justices may direct such repairs to be made upon such road in respect of damage done by the said Company and within such period as they may deem reasonable and may impose on the said Company for not carrying into effect such directions any penalty not excecding five pounds as to such trustees shall seem fit and any such penalty shall be paid to the surveyor or other person having the manage- ment of the road interfered with by the said Company if a public road and be applied for the purposes of such road and if a private road the same shall be paid to the owner thereof Provided always that the said Justices shall have regard to and make full allowance for any tolls that may have been paid by the said Company on such road in the course of using the same. stituting a road. 8. If the said line of railway cross any public highway or Bridges to be con- parish road then either such road shail be carried over the railway or the railway shall be carried over such road in either case by means of a bridge of the length and width and with the ascent or descent by this Act in that behalf hercinafter provided And such bridge with the immediate approaches and all other necessary works connected therewith shall be executed by and be at all times thereafter main- tained at the expense of the said Company Provided that with the consent of the Governor with the advice of the Executive Council it shall be lawful for the said Company to carry the railway across any highway on the level. structed where rail- way crosses highway. If the railway cross any public highway or parish road_ on Provisions in cases a level "the said Company shall erect and at all times maintain good and sufficient gates across such road on each side of the railway where the where roads are crossed on a level, Power to enter upon adjoining lands to repair accidents subject to certain restrictions, Construction of bridges over roads. 39° VIC. 1875. Australasia Coal Company. the same shall communicate therewith and shall employ proper per- sons to open and shut such gates and such gates shall be kept con- stantly closed across such roads on both sides of the railway except during when horses cattle carts or carriages pass ng along the same shal have to cross such railway and such gates sha:1 be of such dimensions and so constructed as when closed to fence in the railway and preven 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 shal have passed through the same under a penalty of forty shillings for every default therein Provided always that it shall be lawful for the Secretary for Public Works in any case to order that such gates shal be kept "closed across the railway instead of across the voad and in such case such gates shall be kept constantly c!osed across the railway except when engines or carriages or other vehicles passing along the railway shall have occasion to cross such road in the same manner and under the like penalties as above directed with respect to the gates being kept closed aeross the road. 10. In case of accidents or slips happening or being appre- hended to the cuttings or embankments or other "works of the said railway it shall be lawful for the said Compiny and their workmen and servants to enter upon the land adjoining thereto at any time whatsoever for the purpose of repairing or preventing such accidents and to do such works as may be necessary for the purpose Provided always that such works shall be as little injuricus 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 compen- sation shall be made to the owner or occupie1 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 arbitration 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. 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 the space of twelve feet if the arch be over a turnpike road and fifteen feet for the space of ten feet if over a public carriage roal and in event of such cases the clear height at the springing of the arch shall not be less than twelve feet the clear beight of the arch fora 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 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. 1875. 39° VIC. 21 Australasia Coal Company. 12. Every bridge erected for carrying any road over the railway Construction of —__ shall be built in conformity with the following regulations (that is to bridges overrailrouds say)— There shall be a good and sufficient fence on each side of the bridge of not less than four feet and on each side of the immediate approaches of such bridge of not less than three feet The road over the bridge shall have a clear space between the fences thereof of thirty-five feet if the road be a public highway and twenty-five fect 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 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. 13. Provided always that if the mesne inclination of any Existing inclination road within two hundred and fifty yards of the point of crossing the of roads crossed or same or the inclination of such portion of any road as may require t0 improved. be altered or for which another road shall be substituted shall be steeper than the inclination hereinbefore required to be preserved by the said Company then the said 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 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. 14, The said Company shall make and at all times thereafter works for bencfit of maintain the following works for the accommodation of the owners ows. and occupiers of lands adjoining the railway (that is say)— Such and so many gates bridges arches culverts and passages Over Gates bridges &e. under or by the side of or leading to or from the railway as shall be necessary for the purpose of making good any inter- ruptions caused by the railway to the use of the lands through which the railway shall be made and such works shall be made forthwith after the part of the railway passing over such lands shall have been laid out or formed during the formation thereof All sufficient posts rails hedges ditches Fences, mounds or other fences for separating the lands 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 occupicrs 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 sunk 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 Drains. either over or under or by the sides of the railway of such dimensions as will be sufficient at all times to carry the water as clearly from the lands lying near or affected by the rail- way 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 said 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 accom- modation works with respect to which the owners and occupiers of the lands shall have agreed to receive and shall have been paid compensa- tion instead of the making them. 15. Penalty on persons omitting to shut gates. Minerals not to pass. Compensation claim. Appointment of arbitrators. Vacancy of arbitrator to be supplied. Appoin'ment of umpire. 39° VIC. 1875. Australasia Coal Compan. 15. If any person omit to shut and fasien any gates set up at either side of the railway for the accommodstion 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. 16. The said Company shall not be 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 2xcept only such parts thereof as shall be necessary to be dug or carried away in the con- struction of the works hereby authorized and such mines shall not be deemed to vest in the said Company. 17. If within twenty-eight days of the vassing of this Act the said persons through whose lands the railway shall pass or any of them and the said Company shall not agree as to the amount of com- pensation other than that provided for by section thirty of this Act 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 o: if any other question as to compensation shall arise under this Act the amount of such compensation shall be settled by arbitrators in manner hereinafter mentioned (that is to say)— Unless both parties concur in the appointment of a single arbitrator each party on the request of the other shall nominate and appoint an arbitrator to whom such dispute or other matter shall be referred and any appointment of an arbitrator shall be under the hand of such party and such appointment shall be delivered to the arbitrator or arbitrators and shall be deemed a submission to «arbitration on the part of the party by whom the same shall be made and after any such appointment shall have been made neither party shall have power to revoke the same without the consent of the other nor shall the death of either party operate as a revoca- tion and if for the space of fourteen days after 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 shall fail to appoint such arbitrator then upon such failure it shall be lawful for the Attorney General for the time being of the said Colony on the application of the party who has himself appointed an arbitrator to appoint such arbitrator to act on behalf of both parties 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 be final and conclusive. 18. If before the matter so referred shall be determined any arbitrator appointed by either party shall die or become incapable or refuse or for fourteen days neglect to act as arbitrator the party by whom such arbitrator was appointed may nominate and appoint in writing some other person to act in his place and if for the space of seven days after notice in writing from the other party for that purpose he fail to do so the remaining or other arbitrator may procced 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. 19. Where more than one arbitrator shall have been appointed such arbitrator shall before they enter upon the matters referred to them nominate and appoint by writing under their hands an umpire to decide any matters on which they shall differ or which shall be referred to them under the provisions of this Act and if such wmpire shall die or 1875. 39° VIC. 23 Australasia Coal Company. or refuse or for seven days neglect to act after being called upon so to do by the arbitrators or either of them they shall 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. 90. If in either of the cases aforesaid the arbitrators shall refuse Attorney General to or for seven days after request of either party to such arbitrators 'Po uP 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 arbitrators to appoint an umpire and the decision of such umpire on the matters on which the arbitrators differ shall or which shall be referred to him under this Act shall be final. 21. If when a single arbitrator shall have been appointed such Im case of death of arbitrator shall die or become incapable or shall refuse or for fourteen re aimerenes days neglect to act before he shall have made his award the matters ¢e novo. 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. 22. If when more than one arbitrator shall have been appointed If arbitrators fail to make their award and when neither of them shall die become incapable refuse or neglect yithin fourteen days to act as aforesaid such arbitrators shall fail to make their award the matter to go to within fourteen days after the day on which the last of such arbitrators the umpire. shall have been appointed or within such extended term (if any) as shall have been appointed for that puxpose by both of such arbitrators under their hands the matters referred to them shall be determined by the umpire to be appointed as aforesaid. 23. The said arbitrator or arbitrators or his or their umpire Powers of arbitrators may call for the production of any documents in the possession or to call for books. power of cither party which they or he may think necessary for determining the questions in dispute and may examine the parties or their witnesses on oath and administer the oaths necessary for that purpose. 24, Before any arbitrator or umpire shall enter upon the con- Arbitrator or umpire sideration of any matter referred to him he shall in the presence of a" make declaration, 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 " Australasia Coal Mining Company's Act of 1875." Made and subscribed in the presence of A.B. And such declaration shall be annexed to the award when made and if any arbitrator or umpire having made such declaration shall wilfully act contrary thereto he shall be guilty of a misdemeanour. 25. All the costs of any such arbitration and incident thereto shal] Costs of arbitration, be in the discretion of the arbitrators and the costs of the arbitrators shall be borne by the partics in equal proportions unless the amount awarded shall be one-fourth less than the amount which shall have been offered by the said Company in which case the whole costs of the arbitrators and also the costs of and incident to the said arbitration shall be paid by the claimant Provided that ifeither party shall be dissatisfied with the costs allowed by the said arbitrators as aforesaid the costs may be taxed by the Prothonotary or other proper officer of the Supreme Court and the amount allowed by such officer shall be the amount of costs to be paid. 26. The arbitrator arbitrators or umpire shall deliver their or Award tobe delivered his award in writing to the said Company who shall retain the same 0 the said Company: and shall forthwith on demand at their own expense furnish a copy thereof 24: 39° VIC. 1875. Australasia Coal Company. 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