West Wallsend and Monk-Wearmouth Railway Act of 1886 50 Vic (NSW)

An Act to enable the West Wallsend Coal want? sso Company (Limited) and the Monk- ""xiwsc™ Wearmouth Colliery Estate Company of = ~~ Australia (Limited) to construct a Rail- way from the West Wallsend Coal-fields to the Sydney and Waratah Railway. [27th August, 1886. | IZEREAS certain persons now residing in the Colony of New Preamble. South Wales propose opening coal-mines and_ establishing collieries on a parcel of land situated near Newcastle in the parish of Teralba county of Northumberland and with others have formed them- selves into Companies called the "West Wallsend Coal Company (Limited) and the Monk-Wearmouth Colliery Estate Company of Aus- tralia (Limited)" and in order to facilitate communication between the said coal-mines and the Sydney and Waratah Railway such persons are desirous Authority to con- struct railway and connect same with Sydney and Waratah way from the Railway. Site of railway skall be vested in the Companies without conveyance, 50° VIC. West Wallsend and Monk-Wearmouth Railway. 1886. desirous of constructing a railway from their said coal-mines to the Sydney and Waratah Railway but as part of such proposed railway is intended to be made upon and pass through land 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 are likely to prove beneficial to the Colony and the public are concerned in promoting such an inerease in and facili- ties 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 Sydney and Waratah Railway would be inereased thereby It is therefore desirable to authorize by Legislative enactment the construction of the said railway subject to the provi- sions 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 he required to be taken and occupied thereby Be it therefore enacted by the Queen's Most Excel- lent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled anc by the authority of the same as follows : 1. It shail be lawful for the said Companies jointly in terms as set out in the First Schedule hereto to make and construct a rail- north side of the Government Road running through portion one hundred and twenty unto and through the lands known as that of J. Notley J. Price Griffith Morgan and Price and the Newcastle Wallsend Coal Company j joining the Sy dney and Waratah Railway Line ahout ninety-two miles from Homebush and to effect if necessary a junction between said line and the Sydney and Waratah Railway in accordance with section ninety-nine of the "Government Railway Act of 1858" such railway to be in the direction described in the Second Schedule hereto but so that the same shall not oceupy at any part thereof (exeept where required for sidings) a greater space in breadth than sixty-six feet. 2. The ground and soil of so much of the site of the railway as passes over the lands of the said owners of lands respectively and over Crown Lands together with such rights of ingress egress and regress upon the adjacent land as may be necessary for the ma king and repair thereof shall be vested by v irtue of this Act and without the necessity of any conveyance in the Companies for the purposes of the railway Provided that no lands vested in the Commissioner for Railways shall by virtue of this Act he vested in the Companies and nothing herein contained shall prevent the said owners 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 the Companies 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 road by cutting embanking sinking wells orotherwise Provided also that ifin the exercise of the powers hereby g 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 impassable for or dangerous or inconvenient to the persons entitled to the use thereof the Companics 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 Companies 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 1886. 50° VIC. 85 West Wallsend and Monk- Wearmouth Railway. them as aforesaid put up fences and gates in like manner in all eases where the same may be neeessary 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 oceupicrs of such roads and lands anc the Companies as to the necessity for such fences and gates then the said Companies shall put up and erect such fences and gates as any two Justices of the Peace shall deem necessary for the purposes aforesaic on application being made to them. 3. The railway shall be open to the public use upon payment Railway oper to the of a toll to the Companies of a sum not exceeding two penee per ton public. per mile in respect of every ton of goods for every transit the party secking transit supplying and loading his own trucks or w AGONS anc the Companies supplying locomotive power and ail trucks when empticc shall be conveyed on their return free of charge Provided always hat it shall not be compulsory on the Companies to supply locomotive power unless the party secking transit guarantee and bring fifty tons at least during the twelve working hours and give notice of the same at least twenty-four hours previously The railway shall at all imes be open to the public upon payment of a toll to the Companies of a sum not exceeding one penny per ton per mile in respect of every ton of goods for every transit if the party secking transit supply the ocomotiy e power as well as the trucks and waggons Provided that so long as the Companies shall be willing to supply locomotive power no other person 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 Companies shall be entitled to compensation for such damage to be recovered either by action in the Supreme Court of New South Wales or if such damage do not exceed: the sum of twenty pounds summarily before two Justices and in estimating such damage the Companies 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. 4. And be it enacted that it shall be lawful for the owners or Branch railways, occupiers of the lands traversed by the said railway to lay down upon their own Iands 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 Companies shall if required at the expense of such owners or oceupiers 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 with- out inconvenience to the traffic thereupon but this enactment shall be subject to the following restrictions and conditions (that is to say)— The Company shall dot be bound to make any such openings in. any place which they shall have sect apart for any specific purpose with which such communication would interfere nor upon any bridge nor in any tunnel. The persons making or using such branch railways shall be subject to all by-laws and regulations of the Companies from time to time made with respect to passing upon or crossing the railway and otnerwise 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-sct plates and switches according to the most approved plan adopted by the Companics under the direction of their engineer. 5. For the purposes and subject to the provisions hereinafter Fower to divert or contained it shall be lawful for the Companies their deputies agents onerous servants and workmen and all other persons by them authorized and empowered Penaity for not sub- stituting a road. Right to carry passengers. Road repairs, 50° VIC. 1886. West Wallsend and Honk- Wearmouth Railay y. 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 conveniently to carry the same over or under or by the side of the railway 6. If the Companies do not cause another sufficient road to be so made before they interfere with any such existing road as aforesaid they shall forfeit twenty pounds for every day during which such substituted road shall not be made after the existing road shall have been inter- rupted and such penalty shall be paid to the trustees commissioncrs surveyor or other persons having the management of such road if a public road and shall be applied for the purposes thereof or in case of a private road the same shall be paid to the owner thereof and every such penalty shall be recoverable with costs by action in any of the Superior Courts. 7. It shall be lawful for but not compulsory upon the said Com- panies from time to time and at any and all times to carry passengers and live stock upon the said railways or any part thereof respectively and to make demand take receive and recover such tolls or dues for carrying the same at such rates per mile or other scale of charges as shall be established from time to time hy the Directors of the Companies for or in respect of all such passengers and live stock which shall be conveyed or transported upon such railways or either of them or any part thereof respectively And the Directors arc hereby authorized to make such by-laws and regulations not inconsistent with this Act as may be necessary for the regulation of such traffic and such by-laws or regulations shall be binding upon all persons using or travelling upon the said railways and any persons offending against such by-laws or regulations shall be liable'to a fine not exceeding ten pounds for each offence to be recovered in a summary way before any two Justices Provided always that if the rates tolls or dues that may be established as aforesaid under and by virtue of this Act shall be found excessive it shall and may be lawful for the Executive Council to reduce the said rates tolls or dues and to revise them in such manner as may seem most proper andadvisable And it is hereby provided that nothing in this Act contained shall extend to charge or make liable the said Companies further or in any other case than where according to the laws of this Colony stage-coach proprietors and common carriers would be liable nor shall extend in any degree to deprive the said Companics of any protection or privilege which common carriers or stage-coach proprietors may be entitled to but on the contrary the Companies shall at all times be entitled to the benefit of every such protection and privilege. 8. Ifin the course of making the railway the Companies shall use or interfere with any road they shall from time to time make good all damage done by them to such road and if any question shall arise as to the damage done to any such road by the Companies or as to the repair thereof by them such question shall be referred to the determi- nation of two Justiccs and such Justices may direct such repairs to be made in the state of such road in respect of damage done by the Com- panies and within such period as they may think reasonable and may impose on the Companies for not carrying into effect such repairs any penalty not exceeding ten pounds per day as to such Justices shall seem fit and any such penalty shall be paid to the surveyor or other person having the management of the road interfered with by the Companies if a public road and be applied for the purposes of such road or if a private road the same shall be paid to the owner thereof Pro- vided always the said Justices shall have regard to and shall make full allowance for any tolls that may have been paid to the Companies on such road in the course of the using thereof. 9. 1886. 50° VIC. 87 West Wallsend and Monk-Wearmouth Railway. 9. Until the Companics 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 and 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 re-pass 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 Companies reccived or agreed to receive compensation for or on account of any such communications instead of the same being formed such owner or occupicr or those claiming under him shall not he entitled so to cross the railway. 10. If the railway cross any public highway or parish road on a, Provisions in cases level the Companies shall erect and at all times maintain good and suffi- where ronds pro cient gates across such road on cach side of the railway where the same shall communicate therewith and shall employ proper persons to open and shut such gates and such gates shall be kept constantly closed across such roads on both sides of the railway except during the time when horses cattle carts or carriages passing along the same shall have to cross such railway and such gates shall be of such dimensions and so constructed as when closed to fence in the railway and prevent cattle or horses passing along the road from entering upon the railway and the person entrusted with the care of such gates shall cause the same to be closed as soon as such horses cattle carts or carriages shall have passed through the same under a penalty not exceeding forty shillings for every "Gefault therein Provided always that it shall be lawful for the Seerctary for Public Works in any case in which he shall be satisfied that it will be more conducive to the public safety that the gates or any level crossing over any such road shall be ke Ob closed across the railway to order that such gates shall be kept so closed instead of across the road and in ease such gates shall be kept constantly closed across the railway except when engines or carriages passing along the railway shall have occasion to cross such road in the same manner and under the like penalty as above directed with respect to the gates being kept closed across the road. "L1. Incase of accidents or slips happening or being apprehended Power to enter upon to the euttings embankments or other works of the said railway it shall sepateiacetdonte be lawful for the Co: npanies and their workmen and servants to enter subject to certa'n upon the land adjoining thereto at any time whatsoever for the purpose restrictions, of repairing or preventing such accidents and todo such works as may he necessary for the purpose but in every such ease the Companies shall within forty-cight hours after such entry make a report to the Secretary for Publie Works specifying the nature of such accident or apprehended accident and of the works necessary to be done and such powers shall ecase and determine if the said Secretary shall after considering the said report certify that their exercise is not necessary for the public safety Provided "also that such works shall be as little injurious to the said adjoining lands as the nature of the accident or apprehended accident will admit of and shall be executed with all possible despatch and full compensation shall be made to the owners and oceupiers of such lands for the Joss 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 he settled by arbitrators in the manner hereinafter mentioned And provided also that no land shall be taken permanently for any such works otherwise than is herein provided with respect to the lands originally taken for the purpose of making the said railway, 12. 88 50 VIC. 1886. West Wallsend and Monk-Wearmouth Railway. rides over wads. 12. 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 fect if over a private road. The clear height of the arch from the surface of the road shall not be less than sixteen feet for a space of twelve fect if the arch be over a main road and fifteen feet for a space of ten fect if over a public carriage road and in each of such cases the clear height at the springing of the arch shall not be less than twelve feet the clear height of the arch for a space of nine feet shall not be less than fourteen feet over a private road. The descent made in the road in order to carry the same under the bridge shall not be more than one foot in thirty 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 atramzoad or railroad the descent shall not be greater than the ruling gradient of such tramroad or railroad. Genstruetion of 1°. Every bridge erected for carrying any road over the railway reads, shall be built in conformity with the following' regulations (that is to say)— There shall be a good and sufficient fence on cach side of the bridge of not less height than four fect 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 elear space between the fences thereof of thirty-five fect if the road be a publie high- way and twenty-five fect if a parish road and twelve feet if a private roa'. The ascent shall not be more than one foot in thirty fect if the road be aimain road cne feot In twenty feet if a parish road and one foot in sixteen 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 The width of the * or railroad. ' . bridges noed not cx: 34. Provided always that in all cases where the average avail- eee the midth of able width for the passing of carriages of any existing road within fifty cases. "yards of the points of crossing the same is less than the width herein- before prescribed for bridges over or under the railway the width of such bridges need not be greater than such average available width of such roads but so never theless that such bridges be not of less width in case of a public highway or parish road than twenty fect Provided also that if at any time after the construction of the railw ay the average available width of any such road shall be increased beyond the width of such bridge on either 'side thereof the Companies shall be bound at their own expensc to increase the width of the said bridge to such extent as they may be required by the trustees or surveyors of such road not exceeding the width of such road as so widened or the maximum width _ herein prescribed fora bridge in the like case over or under the railway. Easti0g inclination 15. Provided also that if the mcan inclination of any road diverted necd not be within two hundred and fifty yards of the point of crossing the same or improved. the inclination of such portion of any road as may be required to be altered or for which another road shall be substituted shall he steeper than the inclination hereinbefore required to be preserved by the Companies then the Companies may carry any such road over or under the railway or may construct such altered or substituted road at an inclination 1886. 50° VIC. 89 West Wallsend and Monk- Wearmouth Railway. inclination not steeper than the said mean 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. 16. The Companies shall make and at all times thereafter Works for benefit of maintain the following works for the accommodation of the owners and °"""* occupiers of lands adjoining the railway that is to say— Such and so many convenicnt gates bridges arches culverts and Gates bridges &. passages over under or by the sides of or leading to or from the railway as shall be 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 after the part of the railway passing over such land shall have been laid out or formed or during the formation thereof. 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 thercof from straying thereon by reason of the railway together with all necessary gates made to open towards such adjoining lands and not towards the railway and all necessary stiles and such posts rails and other fences shall be made forthwith after the taking of any such lands if the owners thereof shall so require and the said other works as soon as conveniently may be. Also all necessary arches tunnels culverts drains or other passages Drains. either over or under or by the sides of the railways of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the making of the railway or as nearly so as may be and such works shall be made from time to time as the railway works proceed. Also proper watering places for cattle or compensation in lieu Watering places. thereof where by reason of the railway the cattle of any person occupying any lands lying near thereto shall be deprived of access to their former watering placcs and such watering places shall be so made as to be at all times sufii- cicntly supplicd with water as theretofore And as if the railway had not been made or as nearly so as may be And the said Companies shall make 'all necessary watercourses and drains for the purpose of conveying water to the said watering places. Provided always that the Companies 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 occupicrs of the land shall have agreed to receive and shall have been paid compensation instead of the making them. 17. If any person omit to shut and fasten any gate sect up at Penalty on persons either side of the railway for the accommodation of the owners or omitting to fasten occupicrs 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 excecding ten pounds recoverable in a summary way before any two Justices of the Peace. 18. The Companies shall not be entitled to any mines of coal Minerals rot to pase, iron stone slate or other minerals under any private land whereof the surface is vested in them by virtue of this Act except only such parts thereof as shall be necessary to be dug or carried away in the con- struction of the works hereby authorized And such mines shall not be deemed to vest in the said Companies. m 19. C mpensation clause. Appointment of arbitrators. Vacancy of arbitrator to be supplied. Appointment of umpire. Attorney-General to appoint umpire on neglect. Fn case of death of single arbitrator the matter to begin de novo. 50° VIC. 1886. West Wallsend and Monk-Wearmouth Railway 19. 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 Companies shall not agree as to the amount of compensation to be paid by them for the said lands belonging to the said parties or any of them or for any damage that may be sustained by them or him by reason of the execution of the works or if any other question as to. compensation shall arise under this Act the amount of such compen- sation shail be settled by arbitrators in manner hercinafter mentioned (that is to say) Unless both parties shall concur in the appointment of a single arbitrator each party on the request of the other party shall nominate and appoint an arbitrator to whom such dispute or other matter shall be referred And every appointment of an arbitrator shall be under the hand of such party And such appointment shall he delivered to the arbitrator or arbitrators and shall be deemed a sub- mission 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 arevocation 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 himsclf appointed an arbitrator to appoint such arbitrator to act on behalf of both parties And such arbitrator may procecd 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. 20. 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 tle 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 procced alone And every arbitrator so to be substituted as aforesaid shall have the same powers and authoritics as were vested in the former arbitrator at the time of such his death refusal neglect or disability as aforesaid. 21. Where more than one arbitrator shall have been appointed such arbitrators 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 umpire shall die or refuse or for seven days neglect to act after being called upon to do so by the arbitrators they shall forthwith after such death refusal or neglect appoint another umpire in his place and the decision of every such umpire on the matters so referred to him shall be final. 22. If in cither of the cases aforesaid the arbitrator shall refuse or for seven days after request of cither party to such arbitration 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. 25. Ii when a single arbitrator shall have been appointed such arbitrator shail dic or become incapable or shall refuse or for fourteen days neglect to act before he shall have made his award the matters referred to him shall be determined by arbitration under the provisions of this Act in the same manner as if such arbitrator had not been appointed. 24. 1886. 50° VIC. 91 West Wallsend and Monk-Wearmouth Railway. 24. If where more than one arbitrator shall have been a D) pointed If either arbitrator either of the arbitrators shall refuse or for seven days neglect to act thee to taveed, the other arbitrator may proceed alone and the decision of such other ex parte. arbitrator shall be as efiectual as if he had been the single arbitrator appointed by both parties. 25. If where more than one arbitrator shall have been appointed If arbitrators fail to and where neither of them shall refuse or neglect to act as aforesaid wat tnenteone such arbitrators shall fail to make their award within twenty-one days dags the matter to after the day on which the last of such arbitrators shall have Deen 8° 12 the empire. 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. 26. The said arbitrators or their umpire may call for the pro- Powers of arbitrators duction of any documents in the possession or power of' cither party '° Vt fr books &e- which they or he may think necessary for determining the question in dispute and may examine the parties or their witnesses on oath aud administer the oaths necessary for that purpose: 27. Before any arbitrator or umpire shall enter into the con- Arbitrator or umpire sideration of any matters yeferred to him he shall in the presence of a for faithful discharge 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 dctermine the matters veferred to me under the provisions of the " West Wallsend and Monk-Wearmouth Railway Act" Made and subscribed in the presence of A.B. And such declaration shall be annexed to the award when made and Penalty for miscon- if any arbitrator or umpire having made such declaration shall wilfully ° "ee act congery thereto he shall be guilty of misdemeanour. All the costs of any such arbitration and incident thereto Cost of arbitration to be wcttlod by the arbitrators shall he borne by the Companies unless bY % be bere the arbitrators shall award the same ora less sum than shall have been oftered by the Companies in which case each party shall bear his own costs incident to the arbitration and the costs of the arbitrators shall be borne by the parties in equal proportions unless the amount awarded shall be one-fourth less than the amount in which case the whole costs shall be paid by the claimant. Provided that if either party shall be dissatisfied with the costs allowed by the arbitrators as aforesaid the costs may be taxed by the Prothonotary or other proper officer of the Supreme Court and the amount allowed by such officer shall be the amount of costs to he paid. 29. The arbitrators shall deliver their award in writing to the Award to be Companies who shall retain the same and shall forthwith on demand at Companies the their own expense furnish a copy thereof to the other party and shall at all times on demand produce the said award and allow the same to be inspected or examined by such party or any person appointed by him for that purpose and the amount awarded shall be paid within sixty days after the publication of such award. 30. The submission to any such arbitration may be made a