Railways Act (Ireland) 1864

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RAILWAYS ACT (IRELAND) 1864

CHAPTER LXXI.

An Act for amending and extending the Railways (Ireland) Act, 1851, and the Railways (Ireland) Act, 1860.[¹] [25th July 1864.]

[Preamble recites 14 & 15 Vict. c. 70.; 23 & 24 Vict. c. 97.]

Company, if dissatisfied with award of arbitrator under recited Acts, directing payment of a sum exceeding 500l., may traverse.

Costs of traverse.

1. In all cases where the amount of money which the arbitrator appointed under the provisions of the said Acts or either of them shall have awarded to be paid by the company to any person in respect of any estate or interest in lands shall exceed the sum of five hundred pounds it shall be lawful for the company, if dissatisfied with such award, upon giving to such person within ten days next after the date of such award notice in writing of their intention to appeal therefrom, to have a traverse entered by the company in the Crown book in respect of such award, at the same time and in like manner in all respects as are provided by the aforesaid Acts with respect to traverses taken by persons dissatisfied with any award; and the like proceedings shall be taken with respect to a traverse so taken by the company, and the verdict of the jury upon such traverse shall have the like effect, as in the case of a traverse taken by a person so dissatisfied: Provided always, that in all cases where a traverse shall be so taken by the company, if the verdict of the jury shall be for a sum less than that awarded by the arbitrator, the company shall nevertheless pay to the other party to such traverse such sum not exceeding twenty pounds for the costs of such traverse as the judge before whom the same is tried shall direct; and in case the verdict of the jury shall be for a sum equal to or exceeding the award of the arbitrator, then and in that case the company shall pay to the other party the costs of the traverse, such costs to be taxed and ascertained in the same manner as costs are by law ascertained on the trial of an issue from the Court of Queen’s Bench.

Power to have special jury for trial of traverse.

Power of judge to order trial by special jury.

2. In all cases of traverse taken upon an award of the arbitrator, the company or person appellant shall be entitled to have the same tried by a special jury, upon giving notice in writing to the respondent in such traverse of their or his intention that the same shall be so tried ten days previous to the assizes or term respectively (as the case may be), and the respondent in such traverse shall be so entitled upon giving the like notice six days before the said assizes or term: Provided, that any judge of any of the Superior Courts sitting in chamber or at nisi prius may at any time order that such traverse shall be tried by a special jury upon such terms as he may think fit.

Notice of trial by special jury to be given to the sheriff.

3. Where notice has been given to try by special jury either party may, six days before the first day of the assizes or of the term, as the case may be, give notice to the sheriff that such action is to be tried by a special jury; and in case no such notice has been given, or the notice has not been given in sufficient time, no special jury need be summoned to attend, and such traverse shall be tried before a common jury, unless otherwise ordered by the judge before whom the same shall be tried.

View by jury.

16 & 17 Vict. c. 113.

4. Either party to such traverse shall be entitled to have the premises viewed by the jury; and for that purpose it shall be sufficient to obtain an order of any such judge as aforesaid directing a view to be had; and there upon all such proceedings shall be had as are directed by the Common Law Procedure Amendment Act, Ireland, 1853, section 116, with respect to view juries.[¹]

Either party may appeal from ruling of judge.

5. In case either party shall be dissatisfied at the trial of such traverse with the ruling of the judge upon any matter of law, he shall be entitled to appeal from such ruling in the manner herein contained.

The party objecting shall deliver to the judge a note in writing, stating objection, and grounds thereof.

Case to be prepared and settled.

6. The party so objecting shall deliver to the judge at the time of such trial a note in writing, stating such objection and the grounds thereof, and shall and may prepare a case, stating the facts and matters appearing in evidence so far as may be necessary, and the ruling of the judge, and the objections to such ruling; and such case may be accompanied by an appendix containing copies of the material documents; and all proceedings shall be taken with respect to the settlement of such case, and within the same period, as are taken in Ireland with respect to bills of exceptions to the direction of a judge at nisi prius.

Special case, when settled and signed by the judge, to be filed, and adjudicated on.

7. Such special case and the appendix thereto, when settled and signed by the said judge, shall be filed in such one of the Superior Courts as the said judge shall direct; and such Court shall proceed to adjudicate on the same in like manner as upon a special case stated under the said Common Law Procedure Act, and the adjudication of such Court shall be final.

Court may direct an issue or other inquiry, or amendment of case, &c.

8. It shall be lawful for such Court, upon the hearing of such special case, to direct any issue to be tried, or any valuation or other inquiry to be made, or the said case to be amended in any way, or other act to be done, which such Court may deem proper, in order finally to adjudicate upon and determine the rights of the parties.

Judgment upon special case to be equivalent to judgment in an action.

9. The judgment or order of the said Court upon such special case shall be equivalent to a judgment of the said Court in a personal action between the parties.

Costs of appeal.

10. In all cases where the company shall take any proceedings by way of appeal as aforesaid the costs thereof shall be ordered to be paid by them; but in cases where the company shall be respondent in such appeal the costs of such proceedings shall follow the event, and be included in the ultimate judgment of the Court of Appeal.

Settlement of compensation in respect of lands temporarily occupied.

11. The amount of the purchase money or other compensation payable by the company in respect of lands temporarily occupied by them during the construction of the works, in case the parties shall differ about the same, shall be determined in manner following: The person claiming such purchase money or compensation shall deliver to the arbitrator a short statement in writing, setting forth the nature and amount of such claim, and shall also and at the same time deliver to the company a copy of the same; and the like proceedings in all respects shall be had with respect to such claim as are by the aforesaid Acts or by this Act directed to be taken with respect to a claim for compensation for lands taken or injuriously affected by the execution of the works; and the arbitrator shall have full jurisdiction to entertain such claim, and determine the amount payable in respect thereof, although the lands so temporarily occupied may not be contained in the maps and plans deposited with him; and the said arbitrator may include the amount so ascertained by him as last aforesaid in his general award, or may make a special award in relation to the same in case it shall be necessary or convenient so to do, such special award to be made in the like manner, and to be subject to the like provisions in all respects, as such general award; and all the enactments expressly or by reference or incorporation contained in the said Acts or in this Act with respect to purchase money or compensation ascertained by the award of the arbitrator in respect of lands permanently taken by the company shall be applicable to the purchase money or compensation ascertained as aforesaid by the arbitrator in respect of lands so temporarily occupied as aforesaid.

Taxation of costs of conveyances, when payable by company.

12. In all cases where costs of conveyances shall be payable by the company such costs shall be taxed by one of the taxing masters of the Court of Chancery in Ireland upon the requisisition of such company; and all the provisions of any Act of Parliament, and all rules and regulations of the courts of law and equity in Ireland, relating to the taxation of costs, shall be deemed applicable to such costs so payable by the company, in like manner in all respects as if the said company were directly chargeable therewith.

Construction of term “company.”

14 & 15 Vict. c. 70.

23 & 24 Vict. c. 97.

13. In the construction of the Railways Act (Ireland) 1851, and the Railways Act (Ireland) 1860, and of this Act, the expression “company” shall include any parties, whether company, undertakers, commissioners, drainage board, corporation, or private persons, empowered to execute any work or undertaking, and to take or use any lands, mills, or other hereditaments compulsorily, under the provisions of any general or special Act of Parliament already or hereafter incorporating the said recited Acts and this Act, or any of such Acts.

Company not taking possession of or paying for land within a fortnight after award is lodged shall on taking possession pay the value of any crops not included in award.

14. When any railway company shall not take possession of or pay for any land within one fortnight from the lodgement of the final award of the arbitrator with the clerk of the peace, the said company shall, before taking possession of the same, in addition to the sum awarded by the arbitrator, pay to the occupant of any land to be taken the value of any crop existing upon or in the land at the time of taking possession of same, and which has not been included in said award; such value to be determined by any three justices of the petty sessions district in which such lands may be situated, one to be named by the railway company, one by the occupant of such land, and the third by the two justices so named.

Maintenance by railway companies of fences and drains for accommodation of adjoining lands.

15. Every railway company in Ireland shall cause proper fences to be made and maintained for separating the land taken for the use of the railway from the adjoining lands not taken, and shall also provide and maintain proper drains or other passages, either over or under or by the sides of the railway, to convey water from or to the lands lying near or affected by the railway, in the same manner and to the same extent as it was conveyed from or to the said lands before the making of the railway, or as near thereto as the case may be; and in case any owner or occupier of such land shall complain of the want of or insufficiency of any such fences, drains, or passages, it shall be lawful for such owner or occupier, within five years after the completion of the works of any railway and the opening of the railway for public use, to present a memorial to the Commissioners of Public Works in Ireland, stating the ground of his complaint; and thereupon the Commissioners shall inquire into the matter of such complaint, and, if they shall so think fit, the said Commissioners shall appoint an arbitrator to hear and determine the matter of the said complaint.

Powers of arbitrator. 14 & 15 Vict. c. 70. 23 & 24 Vict. c. 97.

16. The arbitrator so appointed shall have and exercise all the powers vested in any arbitrator appointed under the Railways (Ireland) Acts, 1851 and 1860, and shall proceed to investigate the said complaint at some convenient place to be named by the said Commissioners of Public Works, after giving ten days notice of the time and place of meeting to the memorialists and to the railway company; and his award may be traversed in the same manner as any award made by an arbitrator appointed under the Railways (Ireland) Acts, 1851 and 1860, and if not traversed shall be final; and the costs of the said arbitration and of the said arbitrator shall be paid in the same manner as the costs of an arbitration or arbitrator under the Railways (Ireland) Acts, 1851 and 1860.

The company shall make fences, &c. as directed by award; but not so as to prevent use of railway, nor where compensation has been paid in lieu of works.

17. The company shall make all such fences, drains, and passages as by the award of the said arbitrator they shall be directed to make; but no company shall be required to make the same in such a manner as will prevent or obstruct the working or using of the railway, nor shall they be required to make any fence, drain, or passage in respect of which the owner and occupier, or any former owner and occupier, shall have agreed to receive and shall have been paid compensation in lieu of the making of the works themselves.

Acts to be read together, and this Act incorporated where recited Acts are.

18. The Railways Act (Ireland), 1851, and the Railways Act (Ireland), 1860, and this Act, shall be construed together as one Act; and this Act, together with the said Acts, shall be held to be incorporated with those Acts in any Act already or hereafter incorporating those Acts or any of them.

Short title.

19. This Act may be cited as “The Railways Act (Ireland), 1864.”

[¹ Short title, “The Railways Act (Ireland), 1864.” See s. 19.]

[¹ S. 116 of the Act 16 & 17 Vict. c. 113. is rep. 34 & 35 Vict. c. 65. s. 4; see s. 38 of that Act.]