Sect. 57.

Arrangements between turnpike road

trustees and promoters.

Reservation of rights of owners, &c. of mines.

For the application to a tramway company of the principle that statutory powers must be used reasonably and ex æquo et bono, and will be construed strictly against the grantee, see Ross (A.-G.) v. Montreal City Passenger Railway Co. (1879), 24 Lower Can. Jur. 60; 2 Legal Notes, 338; 10 Revue Légale, 27. Where a street railway company had agreed by the terms of their franchise to run their cars over the whole of their system all the year round, the Court in Canada refused to decree specific performance on breach of the agreement. (City of Kingston v. Kingston, Portsmouth and Cataraqui Electric Railway Co. (1897), 28 Ont. R. 399.) But quære whether specific performance might not be decreed in England. (Fortescue v. Lostwithiel and Fowey Railway Co., [1894] 3 Ch. 621; 64 L. J. Ch. 37.)

In Glass v. Linton (1882), 5 Coup. Just. Ca. 160, persons in the employ of a tramway company were not heard to plead that they were acting under the company's orders in throwing down sand in a street, and so contravening a municipal by-law. But the facts with regard to their employment were not before the Court, and the question how far the company's statutory powers would protect them was not decided.

(9) The words in italics were repealed by S. L. R. (No. 2) Act, 1893 (56 & 57 Vict. c. 54).

58. The trustees of any turnpike road and the promoters of any tramway proposed to be laid or laid along the same with the approval of the Board of Trade, enter into may, agreements with each other for the payment of a composition to such trustees in respect of the user of such road for such tramway and the conveyance of traffic thereon, and may with the same approval alter such agreements from time to time.

This section was repealed by S. L. R. (No. 2) Act, 1893 (56 & 57 Vict. c. 54).

59. Nothing in this Act shall limit or interfere with the rights of any owner, lessee, or occupier of any mines or minerals lying under or adjacent to any road along or across which any tramway shall be laid to work such mines and minerals, nor shall any such owner, lessee, or occupier be liable to make good or pay compensation for any damage which may be occa

sioned to such tramway by the working in the usual Sect. 59. and ordinary course of their mines or minerals.

The mines beneath a highway belong to the owner of the soil. (Goodtitle d. Chester v. Alker (1757), 1 Burr. 133, 143.) Highway Act, 1835 (5 & 6 Will. 4, c. 50), s. 82, preserves the mines and minerals to the owner of land, which is taken for the purpose of widening a highway. Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vict. c. 77), s. 27, reserves the minerals under a disturnpiked road or highway, which vests in an urban sanitary authority under Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 149, a somewhat unnecessary reservation in view of the present state of the law as to the extent of such vesting. But it is provided that no damage shall be done to the road or highway by the working of such minerals. The road authority can apparently bring an action in respect of such damage as though they were ordinary owners of the surface. (See Attorney-General v. Logan, [1891] 2 Q. B. 100.) AttorneyGeneral v. Conduit Colliery Co., [1895] 1 Q. B. 301; 64 L. J. Q. B. 207, was an action brought at the relation of a road authority against a company, whose mining operations had resulted in a subsidence of a highway and a railway which crossed it on the level, in consequence of which the railway was raised on an embankment and completely obstructed the road. The mining company were held not to be liable for the obstruction. It was suggested, however, that the road authority were entitled to nominal damages for the injury to their proprietary right, even where no actual damage had been caused to their road by a subsidence. What was a slight injury to a road might, however, be a serious injury to a tramway upon it, yet the promoters are precluded from suing in respect of it.

The present section is similar to Electric Lighting Act, 1882 (45 & 46 Vict. c. 56), s. 33, but there is there no saving of liability for damages. It is practically identical with Public Health Acts Amendment Act, 1890 (53 & 54 Vict. c. 59), s. 15 (2). Compare also the reservation of minerals (subject to the right of the promoters to purchase) in Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), ss. 77 to 85, and Waterworks Clauses Act, 1847 (10 & 11 Vict. c. 17), ss. 18 to 27, which are made applicable to the sanitary work of a local authority by Public Health Act, 1875 (Support of Sewers), Amendment Act, 1883 (46 & 47 Vict. c. 37), s. 3.

But for the provision in the present section that the person working the minerals is not liable for any damages caused by such working, it appears that the tramway company would be entitled to support. (Normanton Gas Co. v. Pope (1883), W. N. 108; 52 L. J. Q. B. 629 (C. A.); London and North Western Railway Co. v. Evans, [1893] 1 Ch. 16; 62 L, J. Ch. 1 (C. A.).)

Sect. 60.

Reserving powers of

60. Nothing in this Act shall take away or affect any power which any road authority (r), or the owners, street autho- commissioners, undertakers, or lessees of any railway, tramway, or inland navigation, may have by law to widen, alter, divert, or improve any road, railway, tramway, or inland navigation (s).

rities to

widen, &c. roads.

(r) Defined in sect. 3.

Sects. 26 to 28 give the road authority control over the manner in which the promoters are to execute their works of construction and repair. Sect. 32 preserves the right of road authorities and local authorities, and of other persons therein specified, to break up the road on which the tramway is laid. It provides that the tramway shall only be interfered with under the superintendence of the promoters, and that the additional expenses caused by the existence of the tramway shall be paid by the promoters. The present section is a general saving section, different in its scope to sect. 32, which merely prescribes the conditions under which the powers therein specified are to be exercised, while not affecting the power to exercise them. Sect. 33 provides for the settlement of differences as to matters arising under the preceding sections.

Reference may be made to the above-mentioned sections and to the notes thereto, especially note (e) to sect. 28 and note (r) to sect. 29. Bristol Trams and Carriage Co., Ltd. v. Bristol Corporation (1890), 25 Q. B. D. 427; 59 L. J. Q. B. 441 (C. A.), affords an instance of the exercise by a road authority of their general power to alter a road on which a tramway was laid, by replacing the existing granite setts by a wood pavement. It was held that, the power being general and not exercised by virtue of this Act, the promoters were not entitled to a reference under sect. 33. Lord Esher, M. R., pointed out that, if they were entitled to such a reference, it would most seriously affect the right preserved to the road authority by the present section, and Lindley, L. J., said: "No doubt the powers of the defendants (the road authority) must be more or less affected by the existence of the tramway, and to some extent, therefore, the expressions used in sect. 60 must be controlled by the other provisions of the Act; but I do not think that the powers reserved by that section are controlled as the plaintiffs contend. That section appears to me to preserve the power of the road authority to alter the road as they think right in the interests of the public." Lopes, L. J., adds: "Sections 32 and 60 of the Tramways Act in most clear and unmistakable terms shew that the Legislature intended that the road authority should continue to possess all the powers which they possessed before 1870, subject only to the restrictions contained in sect. 32."

(s) As to the power of the persons herein named to protect their Sect. 60. rights by opposition in Parliament, see the discussion of their locus standi, ante, pp. 31 (road authorities), 13 (railways), 39 (tramways).

local or

rities to regu

61. Nothing in this Act shall limit the powers of the Power for local authority (t) or police in any district to regulate police authothe passage of any traffic along or across any road late traffic in along or across which any tramways are laid down, roads. and such authority or police may exercise their authority as well on as off the tramway, and with respect as well to the traffic of the promoters (u) or of lessees (x) as to the traffic of other persons (y).

(t) Defined in sect. 3.
(u) See sects. 4 and 24.

(x) Defined in sect. 19.

(y) For the regulation of traffic in urban districts in England, see Town Police Clauses Act, 1847 (10 & 11 Vict. c. 89), ss. 21 to 23, applied to urban districts by Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 171.

In the Metropolitan Police District traffic is regulated by the Commissioner of Police of the Metropolis (appointed by virtue of Metropolitan Police Act, 1856 (19 & 20 Vict. c. 2), s. 1) under Metropolitan Police Act, 1839 (2 & 3 Vict. c. 47), ss. 51 to 54, and Metropolitan Streets Act, 1867 (30 & 31 Vict. c. 134), ss. 11 to 16. In the City of London and its liberties, similar powers are vested in the City Commissioner of Police by sect. 24 of the last-mentioned Act.

Sect. 46 of this Act confers on the local authority power to make regulations as to tramway traffic and other traffic in connection therewith; and sect. 48 gives the local or other proper authority power to regulate tramways as hackney carriages. See those sections and the notes thereto.

In Scots burghs, in addition to sects. 46 and 48 of this Act, Burgh Police (Scotland) Act, 1892 (55 & 56 Vict. c. 55), ss. 380 (in which "carriage" includes tramway car by sect. 4) and 385 govern the matter.

Besides the above general enactments, any local Acts which there be which deal with the matter must be considered.

may

In Ramsay v. Thomson (1881), 9 R. 140; and Jardine v. Stonefield Laundry Co. (1887), 14 R. 839, which were both cases in which a passenger, alighting from a tramear and making for the left-hand pavement, was injured by a vehicle travelling in the same direction as the car, it was held that the rule of the road, that

vehicles should pass other vehicles travelling in the same direction on their right-hand side, was quite different where a tramcar was concerned, and that the drivers in question behaved quite properly in passing the tramcars on the left-hand side instead of the right. It was also held that passengers leaving a tramcar are as much bound to provide for their own safety as they would be if they were crossing from one side of the street to the other.

Compare Wayde (Wayte) v. Carr (1823), 2 D. & R. 255; 1 L. J. (O. S.) K. B. 63.

62. Nothing in this Act (2) or in any byelaw made under this Act (a) shall take away or abridge the right of the public to pass along or across every or any part of any road along or across which any tramway is laid, whether on or off the tramway, with carriages not having flange wheels or wheels suitable only to run on the rail of the tramway (b).

(*) See especially sects. 34 and 54, which define the extent of the exclusive user conferred on promoters.

(a) As, for instance, a by-law against obstruction of a tramway purporting to be made under sect. 50. (See that section and note (k) thereon.)

(b) These words are discussed, and the authorities upon them set out, in note (k) to sect. 34. The protection afforded by this section is strictly limited by these words. It affords no defence to proceedings taken in a proper case under sect. 54. (Cottam v. Guest (1880), 6 Q. B. D. 70; 50 L. J. M. C. 174.) But, on the other hand, it justifies any user of the tramway by the public which does not fall within the prohibition of sect. 54, or the promoters' rights of user as defined by sect. 34. (Manchester Corporation and Manchester Carriage and Tramway Co. v. Andrews (1889), 5 T. L. R. 470.) Add also, as to the rights of the public as against the rights of the promoters, the remarks of Lord Young in Hall v. Linton (1879), 7 R. (J. C.) 2; 4 Coup. Just. Ca. 282.

63. Every inquiry (c) which by this Act the Board of Trade are empowered to make or direct (d) shall be made in accordance with the following provisions: 1. The inquiry shall be held in public before an

officer to be appointed in that behalf by the Board, hereinafter called the referee, and whose appointment shall be by writing, which shall specify all the matters referred to him: