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Power to dig for road materials and make drains.
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32.—(1) The council charged with the maintenance of any road, and also every contractor for any work to be executed in pursuance of a resolution of such council shall, subject to the provisions of this section, have power and authority—
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(a) to dig for, raise and carry away in or out of any land to which this section applies any gravel, stone, sand, or other material which may be required for the construction or maintenance of such road;
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(b) to dig for, raise and carry away out of any river or brook at a distance of at least a hundred and fifty feet above or below any bridge, dam, or weir, any gravel, stone, sand, or other material which may be required for the construction or maintenance of such road, where the same can be taken away without diverting or interrupting the course of the river or brook, or prejudicing or damaging any building, highway, ford, or spawning bed;
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(c) to make and repair drains in on to or through any land to which this section applies in order to carry off water which might injure such road;
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(d) to use any land to which this section applies for storing, crushing, breaking, screening, mixing, or otherwise preparing materials for the construction or maintenance of such road;
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(e) to enter, subject to the provisions of this section, on any land to which this section applies in order to do anything which they are empowered to do by this sub-section;
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(f) subject to the provisions of this section, and for the purpose of obtaining access to and from any land, river, or brook upon or in which any of the powers conferred on them by this sub-section are to be exercised, to enter on and pass through any land to which this section applies, lying between such land and a public road.
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(2) It shall not be lawful for any such council or contractor to enter on or pass over any land for the purpose of exercising their powers under this section, except with the consent of the occupier thereof or under the authority of an order of a Justice of the District Court, which order any Justice of the District Court is hereby authorised and required to grant on being satisfied that the exercise of the powers proposed is reasonable, having regard to the convenience and cost of any alternative method of obtaining the material, access, or facilities sought or of making or repairing the drain to be made or repaired, the character of the land, and all the circumstances of the case.
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(3) Any powers conferred by this section on the council of a county may be exercised directly by the county surveyor of such county, on behalf of such council.
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(4) The council or contractor by whom or on whose behalf are exercised any powers conferred by this section in respect of any land shall pay to the owner or occupier of such land compensation for the damage done by breaking the surface of or making a passage through or drain on to the land and for the loss of the use of such land during the exercise of such powers, and for the value of any gravel, stone, sand and other material taken under such powers, regard being had in determining such value to the demand for such materials for purposes other than the repair of roads, and due allowance being made for the cost of digging for, quarrying and raising such material and preparing the same for use.
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(5) The amount of the compensation to be paid under the foregoing sub-section shall in default of agreement be determined, on the application of the owner or occupier of the land, by a Justice of the District Court with a right of appeal by either party to the Circuit Court.
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(6) A Justice of the District Court when making any order (including the refusal of an application) under this section may at his discretion order the costs, to an amount not exceeding three guineas, incurred in relation to the proceedings by any party thereto to be paid by any other party thereto.
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(7) This section applies to all land except land bona fide used as a garden, orchard, pleasure or recreation ground, or for the amenity or convenience of a dwelling house.
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