The Act contains certain provisions for enabling the owner of Branch lines. adjacent lands and others to lay down branch lines for communicating with the railway (sec. 69) (a). These provisions are, however, subject to the restrictions of 5 and 6 Vict. c. 55. MINES LYING UNDER OR NEAR THE RAILWAY. The company are entitled to use the lands acquired by them under their aggressive powers for such purposes only as are required for constructing and working their line. Unless, therefore, they have expressly purchased them, the company are not entitled to mines or minerals contained in the lands so acquired (sec. 70) (V); and the owners are entitled to work them notwithstanding formation of the railway, subject to certain provisions. When the minerals lie right under the railway, or forty yards therefrom, or within such distance as may be prescribed, the owner, before proceeding to work them, must give the company thirty days' written notice. On receiving this notice, they are entitled to inspect the mines proposed to be worked, and may, if they think such working dangerous or inconvenient, give a counter notice that they object to the working, in whole or in part, and are willing to give compensation (sec. 71); but if no notice to this effect is given within the thirty days, the owner may proceed to work as he intended, and he may also do so in respect to such minerals as the notice, if given, does not include. Any breach of the notice, however, on his part will subject him in damages, and will also entitle the company to (a) By an act incorporating a railway company for mineral traffic, power was given to adjoining proprietors to cross the line with railways. Subsequently the company, by an agreement with another company, made it a line for passengers. It was held that a proprietor could cross the line with his railway in such a manner only as was consistent with public safety; that he was not entitled to cross on a level; that his railway must be carried either above or under the line; but that the additional expense caused by this mode of crossing must be borne by the company.-Wishaw Mines (b) See, as to this clause, Fletcher Rights of to mines. Owners as When working of mines is prevented by have such obstruction as he may have created removed at his expense (sec. 72). When the working is prevented by the company, the owner may make such airways, gateways, or water-levels through the strata the company. which he is prevented from working as may be requisite for ventilation, drainage, etc., in conformity with the prescribed measurements, but not so as to injure the line or impede the traffic (sec. 73). The company must pay from time to time all such expenses, losses, or damage as arise from the severance of his minerals from his other lands, or from his being obliged to work them under such restrictions as are imposed in the interest of the railway (secs. 74, 75). Assessment of compensation. Power of company to examine the workings. All compensation connected with these matters is assessed as in other cases of disputed compensation (secs. 71, 74). To enable the company to ascertain whether the minerals are being or have been worked so as to damage the railway, they are empowered, after giving twenty-four hours' written notice, to enter on the lands and inspect the works (sec. 76). Refusal on the part of the owner to permit such inspection subjects him in a penalty of £20 (sec. 77). If it appear that the minerals have been worked contrary to the statutory provisions (a), the company may require the (a) A proprietor sold lands for a railway, reserving the minerals, and liberty to work them. It was held that the conveyance of surface implied right to adequate and adjacent support, and that the owner of the minerals was not entitled to work them to the endangering of the railway. Caled. Ra. v. Sprot, 1856, 19 D. (II. of L.) 3, 2 Macq. 449, 28 Jur. 486, reversing 16 D. 559 and 955; Caled. Ra. Co. v. Belhaven, 1857, 19 D. (H. of L.) 5, 29 Jur. 380, 3 Macq. 56. See, as illustrative of the right to compensation for mines, Fletcher v. Gt. West. Ra. Co., 28 Law Jour. (Ex.) 147, and 29 ibid. 253; Barnsley Canal Co. v. Twibell, 13 Law Jour. (Ch.) 434; Cromford Canal Co. v. Cutts, 5 Ra. Ca. 442. As to future damages to be caused to mines after the lands had been valued and sold, it has been held that where the damage might have been foreseen, and yet no claim was made for compensation at the time of the sale, none could afterwards be claimed. R. v. Leeds and Selby Ra. Co., 3 A. and E. 683; R. v. Aire and Calder Navig., 30 Law Jour. (Q. B.) 337. In these cases, however, the loss for which compensation was claimed arose from the seller pushing his workings to the land on which the railway was made. Hence, where the future injury for which compensation was claimed arose from the direct act of the company, mandamus was issued to compel assessment of compensation. -R. v. North Midland Ra. Co., 2 Ra. Ca. 1. See Lister v. Lobley, 7 A. and E. 124, Hodges 233. Where a company are by their act entitled to acquire coal mines, and in that case to forbid their being wrought, it seems that if they owner to adopt such measures as may be necessary for the safety of the railway, and on his failure they may construct the necessary works at his expense (sec. 78). do not exercise their right, they cannot claim compensation for injury caused to their undertaking by the coal owner working his mines in the usual way. See Dudley Canal Co. v. Grazebrook, 1 B. and Ad. 59; and Stourbridge Canal Co. v. Dudley, 30 Law Jour. (Q. B.) 108. In what cases compensation CHAPTER XIV. IN WHAT CASES COMPENSATION MAY BE CLAIMED. HAVING now examined the provisions of the Consolidation Acts in relation to aggressive powers, and the statutory machinery for obtaining compensation for the consequences of their exercise, it is proposed in the present chapter to point out the legal principles, in conformity with which the right to obtain compensation under these statutes has been interpreted and defined, and to give some illustrations of the kind of damage or injury for which compensation may be claimed. From the language of the Consolidation Acts, it is clear that contemplated. compensation is always due where lands, or any interests therein, are taken or used by the company for the purposes of their undertaking, as defined by their special act. No difficulty, therefore, presents itself, in so far as this is concerned. But as provision is also made for compensation where lands or their accessories, not taken or used, are injuriously affected, questions have arisen as to the kind of injuries which in such circumstances entitle to compensation; and even when compensation is plainly due, it has often been made a question whether it was to be ascertained and recovered under the statutory provisions, or by ordinary action. General principles and rules. In dealing with such questions, the following principles have received effect. A company may cause injury not only by doing that which it is lawful for them to do by reason of their aggres sive powers, and which but for these powers would be unlawful, but by doing something which, being in excess of their aggressive powers, or not being done in conformity therewith, is unlawful, notwithstanding their being vested with such powers. Now it is held, that in the former case only is the injured party entitled to have compensation assessed under the statutory provisions; and that in the latter his remedy is at common law, by interdict, action of damages, or otherwise, as the circumstances of the case may require (a). Even where the injury arises from what the company are lawfully entitled to do, it does not necessarily follow that they are liable in compensation under the statutes, for the act causing the injury complained of may be one which they would be entitled to do altogether irrespective of their statutory powers; and the injury may be of such a nature, that it is equally shared by the complainer and every other member of the community. In such cases, it is held that if, irrespective of the statute, the act complained of would not have grounded action at common law, the statute does not entitle to compensation unless where it contains a special provision to that effect (b). Where, however, the injury is such that the complainer suffers private and particular damage beyond the rest of the Queen's subjects, he will be entitled to compensation (c). Having thus indicated the principles which will be applied in Examples of cases of compensation under the statutes, we shall now give lists compensation. of the more important cases, arranging them under appropriate headings. Compensation for injury to access to property by changing level of public road :-Moore v. Great South. and West. Ra. Co., 10 Irish C. L. Re. 46; R. v. East. Count. Ra. Co., 2 Ra. Ca. 736 ; Tushey v. Great South. and West. Ra. Co., 10 Irish C. L. Re. 98; Hunter v. North British Ra. Co., 1849, 12 D. 37; Caled. Ra. Co. v. Ogilvie, 1853, 15 D. 410; 1855, 18 D. (H. L.) 28, 2 Macq. 299. (a) Caledonian Ra. Co. v. Colt, 1860, 3 Macq. 833, reversing 21 D. 1108; Broadbent v. Imperial Gas Co., 7 H. of L. Ca. 600. See also per Lord Denman in R. v. Eastern Counties Ra. Co., 2 Q. B. 347; Chamberlain v. WestEnd and Crystal Palace Ra. Co., 32 Law Jour. (Q. B.) 173. (b) Caled. Ra. Co. v. Ogilvy, 1855, 2 Macq. 229, reversing 15 D. 410; New River Co. v. Johnson, 29 Law J. (M. C.) 93; Acton v. Blundell, 12 M. (c) Chamberlain v. West-End and |