The Botany Railway Company Act 26 Vic (NSW)

Bouxr Ranwar An Act to establish and incorporate a Company to be called the " Botany Railway Company " and to enable the said Company to construct and work a line of Railway from Botany in the Colony of New South Wales and the Great Southern Railway at or near Newtown in the said Colony. [17th December, 1862.] Preamble. HEREAS it would be of great public advantage that a line of Railway should be constructed and maintained between Botany Bay in the Colony of New South Wales and the Great Southern Railway . at or near Newtown in the said Colony for the more regular expeditious and economical conveyance of passengers and goods of the said places and for the better development of the natural resources of the neighbouring districts And whereas a joint stock Company called the 'Botany Rail- way Company" has been lately established in the said Colony And whereas it was agreed that they whilst holding shares in the capital of the said Company should be and continue until dissolved a joint stock Company or partnership under the name and title of the " Botany Railway Company "' for the purpose of constructing maintaining and working such railway and all proper works appliances and conveniences connected therewith and for the purpose of carrying on and regulating the business thereof as well and maintaining all such requisites matters and things as are necessary thereto And whereas it was further agreed that the capital of the said Company should consist of twelve thousand five hundred pounds to be contributed in two thousand five hundred shares of five pounds each and also with power in case it shall be deemed expedient at a general meeting of shareholders to raise any further sum of money by way of loan or 1862. 26° VIC. 51 Botany Railway Company. or mortgage for the purposes of the Company so that the same shall not at any time exceed one-third of the amount of the paid up capital of the Company And whereas the said Company is desirous of being incorporated and of obtaining the authority of Parliament for carrying out the objects aforesaid And whereas it is expedient that the said Company should be incorporated accordingly and that the said Company should be authorized by Legislative enactment to construct maintain and work the said railway subject to the provisions hereinafter contained Be it therefore enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled and by the authority of the same as follows :— 1. That such and so many persons as have already become and all meorporation of other persons who shall hereafter become shareholders in the said under- Company. taking and their several and respective successors executors administrators and assigns shall be and hereby are incorporated into a Company for constructing maintaining and working the said railway and such exten- sions thereof and all other works by this Act authorized subject to the rules regulations and provisions hereinafter mentioned and for these purposes shall be and are one body corporate by the name of the " Botany Railway Company" and by that name shall have perpetual succession and a common seal and shall and may grant and receive and suc and be sued plead and be impleaded in all Courts whatsoever at law and in equity and shall have power and authority from and after the passing of this Act and at all times hereafter to purchase from the owners thereof and from all parties having an interest therein or enabled by this Act to sell and convey the same all the lands by this Act authorized to be taken and to hold such lands to them and to their successors for the use of the said undertaking and works and generally for carrying into effect the provisions of this Act and also to sell dispose and deal with the said lands in manner by this Act directed without incurring any penalty or forfeiture. 2. The capital or joint stock for the time being and all the funds Capital and shares to and property of the said Company and the several shares therein and the b¢ Personalty. profits and advantages to be derived therefrom shall be and be deemed personal estate and be transmitted accordingly. 3. The Company shall not be bound in any manner by any trust Company not bound or equitable interests or demands affecting any shares standing in the * 7tice trusts. name of any person as the ostensible proprictor thereof or be required to take any notice of such trusts or equitable interests or demands but the receipts of the person in whose name the shares shall stand in the books of the Company shall notwithstanding such trusts or equitable interests or demands and notice thereof to the Company be a good valid and con- elusive discharge to the Company for or in respect of any dividend or other money payable by the Company in respect of such share anda transfer of the said shares by the person in whose name such shares shall so stand shall notwithstanding as «aforesaid be binding and conclusive as far as may concern the said Company against all persons claiming by virtue of such trusts or equitable interests or demands Provided always that it shall be competent to the Directors of the Company if they shall think fit so to do to withhold payment of the dividends on any such shares and refuse to allow or recognize the transfer of such shares in any case in which the Company shall have had notice of any claims under any alleged trust or equitable interest or demand And provided also that nothing herein contained shall be deemed or taken to interfere with or abridge the right and power of the Court of Equity to restrain the pay- ment of any such dividend or other money payable by the Company in respect of any such shares or the transfer of any such shares or to direct the payment of any such dividends or other money not already paid by the Company or the transfer of such shares to such person as the said Court may think fit. 4, Provisions as to actions and suits for calls and instalments, The share register to be evidence of ownership. Contracts &c. under the deed of settle- ment before Act. Liability of share- holders. Use of seal. Power to borrow on mortgage. 26° VIC. 1862. Botany Railway Company. 4. In any action or suit to be brought by the said Corporation against any proprietor or proprietors of any share or shares in the capital of the said Corporation to recover any sum or sums of money due and payable to the said Corporation for or by reason of any instalment or instalments call or calls made by virtue of this Act it shall be sufficient for the said Corporation to declare and allege the defendant or defendants being a proprietor or proprietors of such or so many share or shares in the capital of the said Corporation is or are indebted to the said Corporation in such sum or sums of money as the instalment or instalments call or calls in arrear shall amount to for such and so many instalment or instal- ments call or calls of such or so many sum or sums of money upon such or so many share or shares belonging to the said defendant or defendants (as the case may be) whereby an action hath accrued to the said Company without setting forth any special matter and on the trial of such action or suit it shall not be necessary to prove how or in what manner such instalment or instalments call or calls becaine or were made payable or any other matter except that the defendant or defendants was or were a holder or proprietor or holders or proprietors of one or more share or shares in the capital of the said Corporation and that such instalment or instal- ments call or calls was or were in fact due and that the time fixed for the payment thereof was given und the said Corporation shall be thereupon entitled to recover what shall appear due. 5. The share register of the said Company shall at all times be prima facie evidence to show who are the proprietors for the time being of the capital thereof and the number of shares held by each proprietor. 6. Nothing herein contained shall prejudice or be deemed to prejudice any call made or any contract or other deed matter or thing entered into made or done by the provisional committee of the said Company before this Act shall come into operation but the same call contract act deed matter or thing shall be as valid and effectual to all intents and purposes as if the said Company had been incorporated before the same call contract act deed matter or thing had been entered into or done. 7. The shareholders to be liable only for the amount of their subscribed capital. 8. The directors for the time being shall have the custody of the common seal of the Company and the form thereof and all other matters relating thereto shall from time to time be determined at meetings of directors and the directors present at any such meeting shall have power to use the common seal for the affairs and concerns of the Company and under such seal to empower any person without such seal to execute any deed and to do all or any other such matters and things as may be required to be done and executed in behalf of the Company but it shall not be necessary to use the common seal in respect of any of the ordinary business of the Company or for the appointment of any attorney or solicitor for the prosecution of any action suit or other proceeding or of any officer or servant of the Company and such seal may be affixed to any deed or document by the hand of any person whom the directors shall appoint in that behalf and the affixing thereof shall be attested by one director and the person so appointed and in case any conveyance or other instrument is executed in consideration of a sum of money therein stated to have been paid to the Company such execution shail operate only as an escrow until the treasurer or other officer charged with the receipt of money on behalf of the Company shall have certified under hand at the foot thereof that such consideration money has been duly paid. 9. It shall and may be lawful for the said Company from time to time to borrow by way of loan such sum or sums of money and at such rate of interest thereon as may be considered advisable at any general meeting of the shareholders but such sum or sums of money shall not at any time exceed one-third of the amount of the capital of the said Company then ar oo 1862. 26° VIC. Botany Railway Company. then actually paid up and for such purpose to mortgage or assign the property of the Company and the rates or tolls arising by virtue of this Act or any part thereof as a security for any sum of money to be borrowed as aforesaid and the interest payable thereon and in case the said interest or any part thereof shall be behind and unpaid for the space of one calendar month next after the same shall have become due and payable as aforesaid Remedy in case of and the same shall not be paid within fourteen days next after demand non-payment. thereof in writing shall have been made to the Company or left at the office of the Company it shall be lawful for two or more Justices of the Peace acting in and for the said Colony and they are hereby required on application made to them by or on behalf of any mortgagee or assignee whose interest shall be so in arvear by an order under their hands to appoint a receiver or receivers to collect the whole or such parts of such yates as are liable to pay such interest so due and unpaid as aforesaid and the money so te be received by such person or persons is hereby declared to be so much money received by or to the use of the person to whom such interest shall then be due until the same together with all costs and charges incurred in collecting and receiving the said rates shall be fully paid and satisfied and after such interest costs and charges shall have been fully paid and discharged the power and authority of such receiver or receivers shall forthwith cease and determine but nothing herein contained shall preclude such mortgagee or assignee as aforesaid from suing for and recovering such interest and costs by an action of debt in the Supreme Court. 10. For the purpose of regulating the conduct of the officers and Power to make servants of the Company and for providing for the duc management of °Y* the affairs of the Company in all respects whatsoever and for the protection of the railway and other works of the Company from trespass and injury and for regulating the travelling upon and using and working of the railways it shall be lawful for the Company subject to the provisions herein mentioned from time to time to make by-laws and regulations Provided that such by-laws be not repugnant to the laws of the Colony or to the provisions of this Act and such by-laws shall be reduced into writing and shall have affixed thereto the common seal of the Company and any person offending against any such by-law or regulation shall summary conviction upon conviction before any two Justices of the Peace forfeit for every such fenders. offence any sum not exceeding five pounds to be stated in such by-laws and regulations as a penalty for any such offence and if the infraction or non-observance of any such by-law or regulation as aforesaid be attended with danger or annoyance to the publie or hindrance to the Company in the lawful use of the railway it shall be lawful for the Company summarily to interfere to obviate or remove such danger annoyance or hindrance and that without prejudice to any penalty incurred by the infraction of any such by-law and the substance of such by-laws shall be printed or painted py-taws to he on boards and placed and continued in a legible state in some conspicuous exhibited. part of every station and place of business belonging to the Company according to the nature or subject matter of such by-laws so that notice thereof nay be given to all parties affected thereby and no penalty imposed by any such by-law shall be recoverable unless the same shall have been published and kept published as aforesaid. Il. Such by-laws when so published and affixed shall be binding Justification of acts upon and be observed by all parties and shall be sufficient to justify all Ute byl persons acting under the same and for proof of the publication of any such Proof of publication. by-laws it shall be sufficient to prove that a printed paper or painted board containing a copy of such by-laws was affixed and continued in the manner by this Act directed and in case of its being displaced or rendered illegible then that such paper or board was replaced or renewed as soon as conveniently could be Provided that all such of the said by-laws and regulations as shall be applicable to other persons than the members of the said Company and its officers agents servants and workmen shall not be Approval of Gover- nor necessary. Railway may be made as soon as £8,000 capital sub- scribed and £3,000 paid up. Before commencing railway survey to be made and book of reference. Map and buok of reference to be open to inspection of public. 26° VIC. 1862. Botany Railway Company. be binding on such other persons until two months after they shall have been laid before the Governor of the Colony unless the said Governor shall before such period have signified his approbation thereof and that the said Governor shall have power at any time to disallow such by-law or regulation and thereupon the same shall not have and shall cease to have any force or effect in the law. 12. As soon as eight thousand pounds of the capital of the Company shall have been actually subscribed for and three thousand pounds of the said capital shall have been actually paid up but not sooner it shall be lawful for the said Company and they are hereby empowered and authorized by themselves the deputies agents officers workmen and servants to commence construct and maintain a single or double line of railway with all proper works and conveniences connected therewith commencing at such point at or near Botany Bay aforesaid and terminating at such points at the Great Southern Railway in or near to Newtown aforesaid as may appear most suitable and proper to the Board of Directors of the said Company And it shall also be lawful for the said Company and they are hereby empowered to effect a junction with the Great Southern Railway at or near to Newtown as aforesaid and to make and maintain any lateral or branch railway from the railway aforesaid or from such continuation or extension thereof as aforesaid and to procure and own such carriages engines steam- boats vessels and all other such works and conveniences as may be necessary for the purposes of the Company and to carry into effect the provisions of this Act and also to arrange and agree with the Minister for Public Works or with the Commissioner for Railways or other person or persons having the control or direction of the Great Southern Railway for such haulage and traction power and for the use of such trucks waggons and carriages as the said Company may require and on such equitable terms as to hire as may be mutually agreed and to make such other arrangements for the convenience and accommodation of the traffic on either line as circumstances may render necessary. 18. Before commencing the line of railway by this Act authorized to be made or any such branch as aforesaid the Company shall by some qualified engineer by them to be appointed cause to be made and taken levels and surveys of the country and lands through which such line of railway or extension or branch is to be carried together with a map or plan of the said line and of the lands through which it is to pass and also a book of reference in which shall be set forth a description of the said several lands and the names of the proprietors thereof so far as the same shall be known or can with reasonable diligence be ascertained setting forth the bearings of such railway or of such extension or branch as the case may require and the nature and quality state of cultivation and in- closures (if any) and the quantity of such land which may be required for the purpose of making such railway And the said map or plan and book of reference shall be kept in the office of the Company or some convenient office at Sydney and true copies thereof signed by the Chairman of the Directors shall be deposited with the Clerk of Petty Sessions at Sydney aforesaid and in case of the extension of the said railway or the forma- tion of any branches in connection therewith the like copies shall be deposited with the Clerks of the Petty Sessions of any and every other dis- trict into or through which any such extension or branch shall be intended to be carried and such map or plan and book of reference and such copies thereof respectively shall be open at all convenient times for public exam- ination from the day of the date on which such notice as aforesaid or notice of such extension or branch railway being about to be made (as the case may require) shall be first published and all persons shall have free liberty and permission at all proper and convenient times to view and examine the said map or plan and book of reference or copies as aforesaid. 14. 1862, 26° VIC. 55 Botany Railway Company. 14. The Company shall by advertisement in the Government Notice before com- Gazette and in one or more of the Sydney newspapers at least forty days Mencins railway. before the commencement of the formation of such railway give notice that they intend to make the said railway between certain places therein specified according to a map or plan to be seen at the office of the said Company or at some other convenient office at Sydney and at the office of the said Clerk of Petty Sessions. 15. No advantage shall be taken of or against the Company or Unintentional mis. : . : A : ake in book of any interruption be given to the making of such railway or other works on yeference not to account of any omission mis-statement or erroncous description in the Vvitiste proceeding. book of reference but it shall be lawful for the Company by themselves their deputies agents officers surveyors servants and workmen to enter into and upon and take and use for the purposes of this Act any lands or grounds set out and described in the said map or plan notwithstanding any such omission mis-statement or erroneous description in case it shall appear to any two Justices of the Peace acting for the district or place in which such lands or grounds shall be situated and be certified by writing under their hands that such omission mis-statement or erroncous descrip- tion proceeded from mistake and not from fraud. 16. For the purposes and subject to the provisions of this Act it authority to make shall be lawful for the Company their successors deputies agents servants Twa works &e, and workmen and all other persons by them authorized to enter upon and into the lands and grounds of any person whatsoever and to survey and take levels of the same or any part thereof and to ascertain stake or set out take and appropriate for the purposes herein mentioned such parts thereof as may be necessary and proper for the laying out making con- structing and the convenient operation of the said railway and any exten- sion or branch thereof and all other works matters and conveniences con- nected therewith as are hereby authorized to be made and in and upon such lands adjoining or contiguous thereto to bore dig cut trench embank sough remove or lay take carry away and use any ecurth clay soil stone timber trees roots of trees beds of gravel or sand or any other material or things which may be dug raised or obtained therein or otherwise in making the said railway and other works by this Act authorized or which may hinder prevent or obstruct the making maintaining altering repairing or using the same respectively and it shall not be necessary for the Company to make any previous agreement with or to apply for or obtain the previous consent of the owner or occupier of any such lands for any of the pur- poses aforesaid and also to make build erect or construct bank excavate cut and set up in upon across under or over any such railway or other works or upon any lands streets hills valleys roads rivers canals brooks streams or other waters adjoining the same such and so many inclined planes tunnels embankments aqucducts bridges roadways passages con- duits drains piers arches deep cuttings and fences as the Company shall think proper and also to alter the course of any rivers canals brooks streams or watercourses during such times as may be necessary for con- structing tunnels bridges or passages over or under the same or for any other necessary purpose and also to divert and alter the course of any roads or ways or to raise or sink any roads or ways in order the more con- venicntly to carry the same over or under or by the side of any such rail- way and to make drains or conduits into through or under any lands adjoining such railway for the purpose of conveying water from or to the same and also in or upon such railway or any lands adjoining or near thereto to erect and make such toll and other houses warchouses yards stations engines and other works and conveniences connected with such railway as the said Company shall think proper and also from time to time to alter repair and amend or discontinue the beforementioned works or any of them and to substitute others in their stead and where any such railway shall pass through any wood land or forest it shall be lawful for the Company Extent of lands authorized to be taken. Company may buy additional lands, 26° VIC. 1862, Botany Railway Company. Company to fell or remove any trees standing thereon within the distance of one hundred yards from either side of such railway which by their liability to be thrown down or from their falling may obstruct or impair the said railway and also to enter upon and use any existing private road being a road grayelled or formed with stones or other hard material and not being an avenue or planted or ornamental or an approach to any mansion house and generally to do and execute all other matters and things necessary or convenient for constructing maintaining altering or repairing and using such railway and other works by this Act authorized they the said Company their agents servants and workmen doing as little damage as may be in the execution of the several powers to them hereby granted and the said Company if required so to do making full satisfaction in manner hercinafter mentioned to the owners and proprietors of and to all persons interested in any lands or hereditaments which shall have been taken used or injured for all damage to be by them sustained in or by the execution of all or any of the powers hereby granted and this Act shall be sufficient to indemnify the Company and all other persons for what, they or any of them sball do by virtue of the powers hereby granted subject nevertheless to such provisions and restrictions as are herein con- tained. 17. The lands to be taken or used for the line of railway hereby authorized and all extensions and branches thereof shall not exceed one hundred yards in width except where a greater width shall be judged necessary for an approach to the railway or for waggons and other carriages to turn remain stand in lie or pass each other and for raising embankments for crossing valleys and low grounds or in cutting through high ground or for the erection or establishment of any fixed or permanent machinery toll-house warehouses or other erections and buildings or for excavating removing or depositing earth or other materials Pro- vided always that nothing herein contained shall authorize the Company or any person acting under their authority to take injure or damage for the purposes of this Act any messuage dwelling house or other permanent building or the immediate appurtenance thereof without the consent in writing of the owner and occupier thereof respectively until after the expiration of six calendar months from the time the Company shall have given notice to the owner of the same being required for the purpose of this Act as hereinafter mentioned And if in the exercise of the powers heréby granted it be found necessary to cross cut through raise sink or use any part of any road whether public or private so as to render it impassable for or dangerous to passengers or carriages or to the persons entitled to the use of it the Company shall before the commencement of such operations cause a sufficient road to be made instead of the road to be interfered with and shall at their own expense maintain a substituted road in as good a stute for passengers and carriages as the road interfered with as nearly so as possible. 18. It shall he lawful for the Company in addition to the lands authorized to be taken compulsorily by them as aforesaid to contract with any person willing to sell the same for the purchase of any lands for the purpose of making and providing additional stations yards and places for the accommodation of passengers and for receiving depositing and loading and unloading goods or cattle to be conveyed upon the railway or along any canals constructed by the Company and for the erection of weighing' machines to the houses and buildings and conveniences and for any other purpose that may be deemed requisite or convenient for the use of the railway or for the general promotion of the objects of the Company in connection with the undertaking or the works hereby authorized and it shall be Jawful for all parties who under the provisions hereinbefore con- tained would be enabled to sell and convey the lands so authorized to be purchased for the last mentioned purposes And it shall be lawful for the 1862. 26° VIC. 57 Botany Railway Company. the Company to sell the lands which they have so acquired for extra- Power to Company ordinary purposes aforesaid or any part thereof in such manner and for ' *! 84% such considerations and to such persons as the Company may think fit and again to purchase other lands for the like purposes and afterwards to sell the same and from time to time but the total quantity of land to be held at any one time by the Company for the purposes aforesaid shall not exceed two hundred acres. 19. It shall be lawful for all parties being scised possessed of or Persons who may entitled to any such lands or any estate or interest thercin to scll and Covey * Company: convey and release the same to the Company and to enter into all neces- sary agreements for that purpose and particularly it shall be lawful for all or any of the following parties so seised possessed or entitled as aforesaid so to sell convey or release (that is to say) all corporations tenants in tail or for life married women seised in their own rights or entitled to dower guardian committees of lunatics and idiots trustees or offees in trust for charitable or other purposes executors and administrators and all parties for the time being entitled to the receipt of the rents and profits of any such lands in possession or subject to any estate in dower or to any lease for life or for lives and year. or for years or any less interest and the power so to sell and convey or release as aforesaid may lawfully be exer- cised by all such parties other than married women entitled to dower or lessees for life or lives and years or for years or for any less interest not only on behalf of themselves their respective heirs executors adminis- trators and successors but also for and on behalf of every person entitled in reversion remainder or expectancy after them or in defeasance of the estates of such parties and as to such married women whether they be of full age or not as if they were sele and of full age and as to such guardians on behalf of their wards and as to such committees on behalf of the lunatics and idiots of whom they are committees respectively and that to the same extent as such wives wards lunatics and idiots respectively could have exercised the same power under the authority of this Act as if they had respectively been under no disability and as to such trustees executors or administrators on behalf of their cestuisque trust whether infants issue unborn lunatics feme couverts or other persons and that to the same extent as such cestuisque trust could have exercised the same powers under the authority of this Act as if they had respectively been under no disability. 20. When the Company shall have made and completed the map Notice to be given to or plan and book of reference hereinbefore required to be made they shall oriea land give notice of the lands taken ascertained set out and required for the said railway to all the parties interested in such lands or to the parties enabled by this Act to sell and convey or release the same or such of the said parties as shall after diligent inquiry be known to the Company and by such notice shall demand from such parties the particulars of their estate and interest in such lands and of the claims made by them in respect thereof and every such notice shall state the particulars of the land so taken set out or required as aforesaid and that the Company are willing to treat for the purchase of such of the said lands as the Company are not by this Act authorized to take without the consent of the owners and as to the compensation to be made to all parties for the lands taken and the damage that may be sustained by them by reason of the execution of the works And all notices required to be served by the Company upon the parties interested in or entitled to sell any such lands shall cither be served personally on such parties or left at their last usual place of abode and in case any such parties shall be absent from the Colony or cannot be found after diligent inquiry shall be left with the occupier of such land or if there be no such occupier shall be affixed upon some conspicuous part of such land and if any such party be a corporation aggregate such notice The Tike on core shall be left at the principal office of business of such corporation or if no P"*"°"* h such Service of notices, 58 26° VIC. 1862. Botany Railway Company. such office can after diligent inquiry be found shall be served on some - principal member or officer of such corporation and such notice shall also be left with the occupier of such land or if there be no such occupier shall be fixed upon some conspicuous part of such land. Settlement of com- 21. If for twenty-one days after the service of such notice any pensation ifno agree- such party shall fail to state the particulars of his claim in respect of