include turnouts and side-tracks.2 But this might not exclude branch lines extending any considerable distance from the main. track.

3. But, in general, the English courts have chosen to adhere to the rule laid down by Parke, J., in Leigh v. Hind, that distance is to be measured in a direct line, through a horizontal plane. Thus, in settlement cases, where the pauper laws provide that no person shall retain a settlement gained by possessing an estate or interest in a parish for a longer time than he shall inhabit" within ten miles thereof," it was held, that the distance was to be measured in a direct line from the residence to the nearest point of the parish.3 And the twenty miles within which the parties are required to reside, in certain cases affecting the jurisdiction of the county courts, by the recent statute, 9 & 10 Vict. c. 95, § 128, is to be computed in a direct line, without reference to the course of travel.4

4. And where a turnpike act provided, that no toll-gate should be erected nor any toll taken, within three miles of B., and the road did not extend to B., but connected with another turnpike which did, and also a public road, made since the act was passed, it was held, that the three miles should be measured "in a straight line on a horizontal plane, and not along any of the roads." "25

5. And where the rate of fare is fixed by the mile, and no provision made for fractions of a mile, the company can only

3

2 Barker v. Troy & Rutland Railw., 27 Vt. R. 766.

Regina v. Saffron-Walden Railw., 9 Q. B. 76.

4 Stokes v. Grissell, 25 Eng. L. & Eq. 336; Lake v. Butler, 30 Eng. L. & Eq. 264.

5 Jewell v. Stead, 36 Eng. L. &. Eq. 114. Lord Campbell, Ch. J., said: "I am of opinion that the distance is to be measured by a straight line upon a horizontal plane." Lake v. Butler, supra, lays this down as a general rule. Lord Campbell, Ch. J.: “I think we ought to adopt that mode which is most convenient and most certain. If the distance is to be measured by the nearest mode of communication, uncertainty will be introduced, whether it may be by foot way, or bridle way, or carriage way; and in some cases the distance must be travelled by all the three modes; and in others by a tidal river, in which case the distance would vary, at different times of the day; also the distance by carriage road might be shortened, or lengthened, by a new road being made. But if the other mode of calculation is adopted, no uncertainty will arise.”

charge the prescribed tariff for the full mile traversed. But the English statute provides specially for fractions of a mile.

*SECTION III.

Mode of Construction, to be done with least Damage.

1. Does not extend to form of the road, but | 3. Works interfered with, to be restored, for the mode of construction. all uses.

2. Special provisions of act not controlled by

this general one.

§ 107. 1. It has been held, that the general provisions of the Railways Clauses Consolidation Act, that in the exercise of their powers, the company shall do as little damage as possible, and shall make satisfaction, to all parties interested, for all damages sustained by them, does not extend to the form of constructing the railway. It does not apply to what is done, but to the manner of doing.

2. Hence, if by other sections of the statute or special act the company are required to build bridges in a particular form, they may still do so, notwithstanding it may cause more damage to the owners of land than to build them in some other form.1

3. And where, in a parliamentary contract between the promoters of a railway and the proprietors of a ropery, it was stipulated that the railway should be so constructed, that when finished the level of the ropery should not be altered, nor the surface of the ropery in the least diminished, it was held the company were bound to restore the surface, so as to be available for all purposes to which it might have been applied before the construction of the railway, and not for the purposes of the ropery only.2

• Rice v. Dublin & Wicklow Railw., 8 Ir. Com. Law, 160.

1

7 21 & 22 Vic. C. 75 S. 1.

Regina v. The East & W. I. Docks and B. J. R., 22 Eng. L. & Eq. 113.

2 Harby v. The East & W. I. Docks and B. J. R., 1 De G. M. & G. 290.

* 195

*SECTION IV.

Mode of crossing Highways.

1. English statutes require it should not be at | 10. Grant to build railways across main line grade.

implies right to use them as common carriers.

Railway responsible for injury by falling into culvert when covered by snow.

12. The right to lay line across railway carries right to lay as many tracks as are convenient for the business.

13. Damages for laying highway across railway.

14. Laying highway across railway at grade. Company not estopped by contract with former owner of land.

§ 108. 1. By the general English statutes upon the subject of railways, it is provided, "that if the line of the railway pass any turnpike-road, or public highway, then, (except when otherwise provided by the special act,) either such road shall be carried over the railway, or the railway shall be carried over such road, by means of a bridge.'

2. And by § 47 it is provided, that whenever the railway does pass any such road, upon a level, the company shall maintain gates, at every such crossing, either across the highway, or the railway, in the discretion of the railway commissioners, and employ suitable persons to tend the same, who are required to keep them constanty shut, except when some one is actually passing the highway, or railway, as the case may be.2

3. And where a railway passes a highway near a station, on

1 Railway Clauses Consolidation Act, § 46. Mandamus requiring the company to carry their road over a highway, by means of a bridge, when that was the only mode in which it could be done, according to the level of the line of the railway at the time, was held bad. Southeastern Railw. v. The Queen, 20 L. J. 428.

2 A road on which toll-gates are erected and tolls taken is a turnpike road. The Northam, B. & Roads Co. v. London & Southampton Railw., 6 M. & W. 428; 1 Railw. C. 653; Regina v. E. & W. I. Docks Railw. Co., 22 Eng. L. & Eq. 113.

a level, the trains are required to slacken their speed, so as not to pass the same at any greater speed than four miles an hour.3

4. The right to raise or lower highways, in the construction of a railway, does not authorize the company to change the course of the highway, even with the consent of the town council, and for * so doing the company were held liable to persons who had sustained special damage thereby.4

5. The right to use "highways" in the construction of plank roads, contained in a general law, does not extend to military roads constructed by the United States, while the state was a territory, but the legislature may grant such right, by the charter of the company.

5

6. And where a mandamus 6 recited that the railway, which defendants were empowered to make, crossed a certain public highway, not on a level, by means of a trench, twenty feet deep, and sixty-five feet wide, through and along which the railway had been carried, and the highway thereby cut through and rendered wholly impassable for passengers and carriages; and that a reasonable time had elapsed for defendants to cause the highway to be carried over the railway, by means of a bridge, in the manner pointed out in the statute, and commanded defendants to carry the highway over the railway, by means of a bridge, in conformity with the statute, particularly specifying the mode, it was held, that it not being otherwise specially provided in the company's charter, they had, by the general act, an option to carry the highway over the railway, or the railway over the highway, by a bridge; and that the option was not determined by the facts alleged in the writ, and the judgment of the Ex

3

7

§ 48. Some similar provisions, in regard to the construction of railways in this country, seem almost indispensable to the public security. But the rage for cheap railways is so great, that nothing of the kind could be effected, we fear, at present.

4

Hughes v. Providence & Wor. Railw., 2 R. I. R. 493. It is the duty of a railway company not to obstruct public roads, where they intersect the railwaytrack, either by stopping a train or otherwise; and the company must take the consequences of all such obstructions. Murray v. Railw. Company, 10 Rich. (S. C.) 227.

• Attorney-General v. Detroit & Erie Plank-Road Co., 2 Mich. R. 138. Regina v. The Southeastern Railw., 6 Eng. L. & Eq. 214.

8 and 9 Vict. c. 20.

chequer, awarding the writ, was accordingly reversed in the Queen's Bench.

7. Where the charter of a railway authorized them, by consent of the commissioners, to alter a highway whenever it became necessary in order to build the railway in the best place, and required the company to maintain all bridges made necessary to carry the highway over the railway: It was held that the company had no power to alter the course of the highway in order to avoid the expense of building a bridge; and that the old highway was still subsisting, notwithstanding the attempt thus to lay out a substitute.8

8. And where a railway company, under their statutory powers, in England, carry a highway over their road by means of a bridge, the company is bound to keep both the bridge and the road and all the approaches thereto in repair, and such repair includes not only the structure of the bridge, but the superstructure, and everything requisite to put the highway in fit condition for safe use.9

9. Where the proprietors of land, through which a railway company were empowered to take the right of way, had the right to lay branch railways upon the lands adjoining, and to connect them at proper points with the main line, so as not to endanger the safety of persons travelling as passengers upon the railway, and in case of difference in regard to any of these points, the same to be determined by two justices of the peace; but the company were not required to admit any such branch to connect with their line, at any place where they should have erected any station or other building; it was held that the consent of the company to unite with the line at a station was not in the nature of a license and could not be revoked.10

10. And where the owners or occupiers of adjoining land had the right to build railways, and to cross the line of the principal railway, without being liable to toll or tonnage, it was held the

• Norwich & Worcester Railw. v. Killingly, 25 Conn. R. 402. Nor have the company any right under such a power to materially and essentially change the route of a highway, that being a power resting solely in the discretion of the municipal authorities. Warren Railw. Co. v. State, 5 Dutcher, 393. See also Veasie v. Penobscot Railw. Co., 49 Me. R. 119.

• North Staffordshire Railw. Co. v. Dale, 8 Ellis & Bl. 835. 10 Bell v. Midland Railw. Co., 3 De G. & Jones, 673.