§ On Clause 20, which allowed railway companies to deviate to a certain extent from the specified line,
§ Mr. Darby
said, he entertained great objection to the clause as it now stood. No doubt the same clause had been introduced in all former Bills; but it must be remembered, that the objection to it was considerably decreased when railway projects were few and far between. If the clause were allowed to remain in its present form, a railway company would have power to do what they thought proper with an estate, and deprive the proprietor for an unlimited time of his right of ownership. Still he must admit, if they struck this clause out altogether, and substituted none other for it, great difficulties would arise. They would have one Committee taking one view of the case, and another restoring the clause in its present objectionable form, and thus in many instances the hardship he complained of would be continued. He thought, then, some special clause ought to be introduced; but one more modified than that which the present Bill contained. The next difficulty that had been suggested to him was, that the Bill had been before the public for sometime, and all the Railway Acts had been prepared in accordance with its provisions. If, however, the 370 clause were to be so modified as to meet his views, the promoters of these railway schemes would be put to the expense and trouble of serving an immense number of additional notices. Well, but why could not the engineer state in Committee how much land he would require for the purposes of his line? If he were to do this, the difficulty would be got rid of; and then, with respect to future railways, they might now frame and pass a special clause. He was exceedingly obliged to his noble Friend for the course he had taken, in postponing this clause; and he trusted on a future occasion they would be able, in some way or other, to remedy these evils, which, he must confess, from what he had heard, had not been exaggerated, but on the contrary, he thought the facts had been rather understated.
§ Mr. Henley
conceived that the House should look at this question in this way. There were now two hundred and forty Bills for Railways before it; and would it run the risk of now making a mass of faulty legislation, which might involve very serious questions as regarded property, merely for the sake of passing those two hundred and forty Bills?
§ Colonel Sibthorp
hoped that hon. Members would receive sufficient time for the consideration of this clause before they should be called upon to pass it. For his own part, he would have no hesitation in saying that the clause as it now stood would never give satisfaction to the landowners in this country, for this reason—that it, in fact, meant nothing more nor less than the absolute total annihilation of every estate in the country for the benefit of a few speculators. He should like to know from the noble Lord (Lord G. Somerset) whether he had considered this clause with a view to its further modification.
Mr. Tatton Egerton
The great difficulty experienced by all Committees on Bills of this sort was, that sufficient time had not been afforded for a full consideration of such a clause as that now under discussion. In the present instance, however, that difficulty could be removed, by postponing the clause until after the recess; and that interval could be employed by the engineer in endeavouring to ascertain, as minutely as possible, the quantity of land he would require to take up at either side. Another point to which he wished to call attention was, the absolute 371 necessity there appeared to him for the introduction of some general clause upon this subject, in order to remove the difficulty that Committees had to encounter in a special clause in each separate Bill. The noble Lord (Lord G. Somerset) had certainly devoted much attention to this point, and therefore the House should feel much indebted to him.
§ Sir G. Strickland
hoped that this would form one of the clauses in a Consolidation Bill, instead of being left to Private Bills; for in its present shape it was a source of the greatest alarm to every landowner in the country. Indeed, he had thought of asking what would their ancestors say, if they could but look up from their graves, and behold the manner in which the estates they had left their heirs had been infringed upon and cut up by those railway companies? He had given this clause his closest consideration; but he felt bound to say, that as it now stood he thought it would be by no means satisfactory. The suggestion of the noble Lord opposite, to reduce the power of deviation from 1,000 to 300 yards—[Lord G. Somerset: To 500.] Well, even to 500, was one that would go far to remove causes of complaint; but he thought the House ought to consider what was the smallest possible space to which they should reduce the power of the engineer to deviate, consistent with the facilities necessary for making a railway. For, after all, what was it but a bargain between the engineer and the owner of the land for the purchase and sale of a certain quantity of clay or gravel? Again, he would say, limit the engineer as much as possible, even to one hundred yards.
§ Lord G. Somerset
had no doubt, but that by Tuesday next, or whatever day the Committee should adjourn to, this clause would be framed so as to meet the wishes of all parties.
§ Mr. Hawes
said, that any course which might be taken must be attended with some inconvenience, if there were not such a clause as that which was contained in this Bill. He was sorry, therefore, that the noble Lord and the hon. Gentleman opposite had consented to the postponement of this clause; and he thought they were taking a considerable responsibility respecting it. He had taken the liberty, when last in Committee, of stating his views respecting the difficulty which was likely to arise from the operation of a clause of this 372 kind. He had done this in answer to the objection of the hon. Member for Newcastle (Mr. Hinde), and he apprehended that the difficulty would be greater from not adopting a clause of this character, than if they did adopt it. The power at present possessed was altogether insufficient for the right direction of engineers. Now, he believed, that it was impossible for engineers to ascertain beforehand precisely what they would require, and there ought, therefore, to be some latitude given to them. They could not always ascertain what land they would require—and, indeed, the opportunity of making the requisite observation was sometimes denied to them. The hon. Member for Lincoln had made an observation to the effect, that if he had seen a surveyor setting a flagstaff on his land, to ascertain what land and which land was requited for a railway which would pass through his estate, he would resort to a very unpleasant argument to induce him to desist. [Col. Sibthorp: The argumentum ad baculum.] Precisely; and he thought, that this was a very likely mode of preventing an engineer from obtaining that accurate information which hon. Gentlemen opposite seemed to require. There were other cases to which he need not refer, but they had occurred only last year, and were sufficiently notorious. They should also remember that the Committees were called upon to report specially to the House; that the power delegated would be specially applied to every Private Bill in Committee, in which the main question ought to be what course a railway should take. Now the power given by this clause was a definite power, and he thought it was better to know what powers were given, if they gave any powers at all. There was no question but that Gentlemen who represented the landed interest were anxious to avoid the inconvenience to which they were subjected by making a railway. Members of the landed interest, it was true, were greatly inconvenienced by the making of railways in many cases. Many other classes were put to inconvenience, but it was the landed interest who, in the first instance, felt this inconvenience; and he must say he thought that, as a class, and it was much to their honour, they had readily conceded their property in most cases for the public benefit. They did, it was true, derive advantage from the making of a railway, in common with all 373 the country; but they were the first to suffer the disadvantage of its construction, and the last to enjoy the benefit when it was completed; and he was, therefore, anxious that their interests should be secured as far as it was possible to secure them. If the clause which they were discussing was omitted, the whole power of granting land for deviation would be left to the Committee, and the whole of the power of the House would be delegated to such Committee. Hon. Gentlemen should recollect that the Committee would exercise its functions judicially, and, as that was the case, it was, in his (Mr. Hawes') opinion, better to know what power they were about to give.
Mr. Tatton Egerton
said, that the hon. Member (Mr. Hawes) had professed to be anxious to secure the interests of the landed proprietors; but he (Mr. T. Egerton) conceived that the course the hon. Member wished to be adopted was only likely to affect the interests of the large landed proprietors. Now, they were well able to defend their own rights; but it was the small landed proprietor whose interest ought to be cared for. If a small freeholder were injured, as by such a deviation which was required by this clause he was very likely, nay almost sure to be, he had no power of bearing the expense of bringing his witnesses to London, and proving his injury before the Committee. He, therefore, thought that the latitude given by this clause was excessive, and ought to be abridged. He thought that the engineers were able to ascertain with more precision than they were accustomed to do what land they would require; and not take, as they seemed inclined to take, one, two, or three miles for their spoil earth. One hon. Member said, that it was utterly impossible for an engineer to tell until he arrived at any particular portion of the line where his bricks for tunnels, or stone for his bridges, were to be obtained. There might be something in that, but still he thought that it was no justification for giving such extensive powers, and that when a deviation was permitted, notice ought to be given to the small landed proprietors whose interests would be affected.
§ Mr. R. Palmer
thought that a clause of this nature ought to be inserted; but he did not think that this was sufficiently precise. They could not tell whether it was a thousand yards or only two hundred 374 and fifty yards that would be required, and he thought that the engineer ought to say what extent be would require. In many cases what was called a temporary occupation was in fact, and in reality, converted into a permanent one. That was the case with regard to a cutting two miles in length, which the Great Western Railway Company made through his property near Reading. Availing themselves of this power of temporary occupation, they cut through some very excellent land, and left the earth, which spoiled about thirty-six acres, besides making a miserable eye-sore; and although he took legal advice, and was told that he could bring an action to compel its removal, yet as he believed it would be impossible to remove it, he did not think there would be much use in bringing an action. He stated these facts, to show that a temporary occupation was sometimes equal to a permanent one, and he advised the Committee to be cautious in giving such an extensive power.
§ Clause 20, and the subsequent clauses up to 32, were postponed.
On Clause 32, providing—
That where a railway crossed any turnpike road or public carriage road, then (unless where otherwise provided by the special Act) such road should be carried over the railway, or the railway should be carried over the road by means of a bridge, of the necessary height and width, to be executed at the expense of the company:"—
§ Mr. Aglionby
said, he hoped the noble Lord would consent to insert the word "highways" in this clause, instead of "carriage roads."
§ Mr. Aglionby
expressed his surprise at such opposition on the part of the noble Lord, when a majority of the Committee had the other day decided in favour of a similar proposal. Though the clause was not the same, the principle was; it was that of extending a just protection to the public in the cases to which the clause referred. He knew the noble Lord had said that the effect would be, in all cases, to prevent railway companies from making roads on a level; but that was a mistake; such power was reserved to the Committee sitting on a special Act, to say whether, in particular cases, roads should be made on a level, or whether the public safety 375 could be secured without such a provision. There were many footpaths by which children were accustomed to go to the sea-shore, or other places, for amusement; and where a level road was made for their accommodation; he was told that, in many cases, not even a policeman was placed there to protect the public. He had consulted the agent of one of the largest railways, and also one of the ablest engineers in the country, both of whom told him they had for years felt that the public were not sufficiently protected. He had asked them whether the necessity of having bridges, or conduits, would at all interfere with the progress of the railway business? The reply was, that it would not interfere with it in the least. The public were often driven to use a ladder in ascending and descending when they crossed a railway. He maintained that they ought not to be put to such an inconvenience. If he did not succeed in inserting the word "highways" generally, he should propose to insert in Clause 44, these words:—The company shall make convenient ascents and descents, or bridges over, or culverts under, the railway, where necessary for the convenience of the public.Another clause which had been suggested to him was—And in those cases where bridges, either under or over, can be conveniently made and are reasonably required, the company shall, on the requisition of two Justices of the Peace, construct such bridges in lieu of such ascending and descending approaches.The hon. Member concluded by proposing to substitute "highways" instead of "carriage roads."
§ Mr. R. Palmer
agreed with the hon. Gentleman on this subject. The case of bridle roads was one well deserving consideration. He should suggest a reference to Justices in the case of footways.
§ Mr. Darby
thought that the preservation of the footpaths was of the greatest importance. If there was not something done to compel the companies to make proper ways instead of the paths which they intercepted or destroyed, might they not carry their road across a path, and then make steps in the cuttings on both sides, and leave it to those who used the footpaths to find their way as they could across the rails, even when the train was coming?
§ Mr. Henley
approved of the proposition 376 of the hon. Member for Cockermouth. It would be a most valuable improvement to bring every footway before the Committee, as well as every carriage way; as those who used the footways were least able to take care of themselves.
§ Mr. W. Patten
thought the Amendment would do no good unless the suggestion of his hon. Friend the Member for Berkshire (Mr. R. Palmer) were adopted. It would be best to leave it to persons on the spot to say whether the footways and bridle ways should be crossed or not.
§ Lord G. Somerset
thought that the Amendment would lay down a principle which the Committee would find very difficult to carry out. However, as the sense of hon. Members seemed so strongly in its favour, he would not oppose it. But he would propose, either as a new clause or as an addition to this, a provision such as was suggested by the hon. Member for Berkshire. That clause could not be drawn up in a minute; and he would take time, until the bringing up of the Report, to prepare it. At present, he would not oppose the insertion of the words in the hon. Member's (Mr. Aglionby's) Amendment.
§ Mr. Lawson
wished to express his opinion in favour of the Amendment. Foot passengers had just as much right to protection as any other class of passengers. He had seen, on the London and Birmingham Railway, great inconvenience arise from the want of sufficient accommodation for foot passengers. At Harrow, they had to go down steps on the one side, and ascend on the other; and this he thought was extremely injurious to the public safety. He would refer these matters, in the first instance, to two Justices on the spot, and then let them be referred, as other cases were, to Quarter Sessions. At the same time, he wished to give every facility to railways. He was not one of those who wished to offer any vexatious impediments to those great projects; but still he must say the suggestion of the hon. Member for Cockermouth met with his entire approbation.
§ Clause agreed to.
§ Lord G. Somerset
said, he would consider what alterations would be required, and then frame a special clause to meet them as well as the views of the hon. Member. This special clause he should submit to the Board of Trade, and if it 377 were approved of by that body, he would propose it either in the Committee, or on the bringing up of the Report.
Clause 33, providing—
That wherever a railway crossed any turnpike road or public carriage road on a level, the company should erect sufficient gates across such road on each side of the railway, and should employ proper persons to open and shut such gates, who in cases of neglect should be subject to a penalty of 40s.
§ Colonel Sibthorp
objected to the paragraph in the clause which imposed a penalty of 40s. upon officers who neglected to close those gates which were entrusted to them, because he thought it was not sufficiently heavy. Such a course had been adopted by the House, some few years ago, in the case of what are called "public conveniences," but what he thought were "public nuisances." He meant omnibuses. More impudent fellows than those who drove these vehicles could hardly be met with, and when the penalty imposed upon them was only 40s., the evil was never abated. When, however, imprisonment was substituted for fine, accidents through the negligence of those fellows became less frequent; and he should like to see the same principle applied in the case of railways.
§ Mr. Aglionby
said, another paragraph in this clause went in direct violation of his views. The part to which he alluded made it compulsory for railway companies to build stiles, but said nothing about gates, or men to mind them. Now he wished to establish this principle—that the foot passenger should be protected in the same way as the carriage passenger—namely, by putting up gates; and where it was thought necessary, placing officers to mind them. Were there not hundreds of cases where human life was endangered by the absence of these precautions? Was there to be no gate or other protection at both ends of a footway, which might pass through a populous town, and be crossed by railway? On such footways, men and women, and children were continually passing, and it was no use to say that the publication of the starting and arriving times of the trains was sufficient warning. Therefore, he would say, have a general clause requiring the erection of gates in all cases, and officers where necessary, and then leave to the local justices the detail. He begged to move as in the preceding clause, the insertion 378 of the words "highways" for "carriage ways."
§ Lord G. Somerset
conceived that if the hon. Member's suggestion should be agreed to, it would have the effect of annihilating railways altogether; at least, if a line of any length was to be made, it would be rendered almost useless if it were to be crossed by four or five hundred gates, and men at each, and all to be kept up at the expense of the company. If the hon. Member's Amendment were inserted, it would be found to be so mischievous, that it would be rendered nugatory by the number of exceptions that would be introduced. He conceived that giving the power proposed by the hon. Member to local Justices, more real harm than good would be done the public. On the whole he did hope that the House would not agree to this proposition, and if it should divide upon it he would resist it, for he conceived it would be an ill-advised course to adopt.
§ Mr. Aglionby
thought it would be better for the House to admit that it was ill-advised, than that it had been inconsistent. If stiles were to be made, he would ask why not gates also? And, surely, if local Justices were to be deemed competent to decide as to where bridges were and were not necessary, they were equally competent to form a judgment as to the necessity for a gate? On the whole, he was so strongly impressed with the justice and fairness of his proposition, that he would divide the House upon it, for he conceived he would stultify himself by not doing so.
§ Mr. Cardwell
did not hesitate to say that if the words were inserted which the hon. Member for Cockermouth wanted, they would have the effect of preventing the Committee from making any alteration whatever. The parties who were to be protected were not the railway parties, but the public. It was not reasonable, in securing the interests of the public, that they should require that 300 or 400 gates, and 300 or 400 gatekeepers should be appointed, when, perhaps, their services would not be required oftener than once or twice in the twenty-four hours. Doing so would be highly expensive to the company, while there would be no adequate benefit to the public; and he, therefore, hoped that the House would negative the proposition of the hon. Member for Cockermouth.
§ Mr. Hayter
agreed that if these words were inserted, the Committee would be deprived of the power of making any alteration. He believed that railways were of great advantage to the public; and he should, therefore, protest against the insinuations which had been thrown out against those Members who came down there to render assistance in maturing these projects. Gentlemen connected with the landed interests conceived that all these projects were detrimental to them, and they entertained a jealousy of all those who supported these projects, and thought that their object was some private end, and not the public good. He did not feel that he was actuated by any private end, and he should, therefore, persevere in his course. His object was to do justice, and that should be done to both parties. What was the case? If these gates were erected, two gatekeepers would be required for every single footpath, and thus the company would incur an expense of 100l. a year for every one of them; and if there were 300 or 400, the expense would be enormous. In the case of bridle-paths, he admitted that some regulation was necessary, and a clause might be introduced for erecting a proper tribunal for directing the placing of gates; but in the case of footpaths on level ground, he thought they were unnecessary.
§ Mr. Wodehouse
protested against the supposition that the landed interest entertained any jealousy of those who supported railways, or of railways themselves. He had lived, during the construction of the Norwich and Yarmouth Railway, very near to it, and he had never sustained the slightest inconvenience from it; and such had been the case with a noble Friend in his neighbourhood. In the case of a special train, the adoption of the suggestion of the hon. Member would cause great inconvenience. In one instance, a physician's attendance was required at Yarmouth; a special train was taken, and in consequence of there being no impediment, he performed the distance between Norwich and Yarmouth in a quarter of an hour, which would otherwise have taken him nearly two hours. With respect to the jealousy supposed to be entertained by landowners of railway projects, he would beg to assure the hon. Member for Wells, that he never was more thoroughly mistaken than in that supposition.
Mr. Tatton Egerton
thought, in the cases of public roads and highways, these gates were necessary; but that in the cases of footpaths, it would be a needless expense and trouble to the companies.
§ Mr. Entwisle
said, the hon. Member for Cockermouth would find that the exceptions to the rule which he sought to establish, would be so numerous as to increase the business before Private Committees, rather than decrease it; and he, therefore, conceived that the adoption of the words proposed would be the very means of defeating the hon. Member's own object. If the expense were increased to the companies, the public in the end would have to pay it.
§ Colonel Sibthorp
trusted that the hon. and learned Gentleman would divide the Committee, and he (Colonel Sibthorp) should certainly divide with him. They might talk about expense to the railway companies; but he would wish them to look at the interest of thousands of the public that had been already destroyed. He was exceedingly jealous of the power given to railroads; and he should strongly oppose this clause.
§ Dr. Bowring
was quite sure, that the provisions in the Amendment, if agreed to, would only be rendered necessary in a very few cases. The exceptions would certainly much preponderate; for not in one case out of twenty would it be necessary to erect gates and appoint gatekeepers on crossing a footpath.
§ Mr. Aglionby
said, that there appeared to have been an entire misconception of his arguments and intentions. His hon. and learned Friend the Member for Wells (Mr. Hayter) had led the House to believe that if the Amendment were agreed to, there would be an end to all railways; and that the Committee on each Private Bill would be entirely precluded from entering into the merits of the various Bills—technically it would be so at present; but he (Mr. Aglionby) had intended, if his Amendment had been carried, to have proposed the insertion in the clause of the words, — "except where otherwise provided by the Special Act." That would assimilate this clause with the preceding one, and would leave the subject perfectly open to the Private Committees. If it would give the Committees additional trouble, he would remind hon. Gentlemen that the public safety ought to be their first consideration; expense, at 381 any rate, ought to be only a secondary object.
§ Lord G. Somerset
must still oppose the Amendment. The whole object of the clause under discussion was to secure the safety of the public; and in order to that end by leaving out the words last mentioned by the hon. and learned Gentleman, it was rendered absolutely necessary that there should be no deviation from the principle laid down in the clause. If the Amendment were agreed to, be could not see that the public would have so much protection as they had at present. The clause under discussion related only to public carriage roads, and to turnpike roads; and whenever they were crossed, it was not denied that ample security was afforded to the public. The 44th Clause related to the crossing of footpaths; and he should think that the hon. and learned Gentleman's Amendment would have come in better there than here. Wherever there was a private right of way which was necessary to be protected, the Private Committee might interfere; and he should have no objection to the introduction of such a clause in the Private Bills.
§ Amendment withdrawn.
§ Clause agreed to; as were the clauses to 43 inclusive.
§ House resumed; Committee to sit again.
§ House adjourned to five o'clock, and then resumed.