REM ARKS 
 
 GENERAL RAILWAY ACTS, 
 
 PRINTED' AND TO BE PROPOSED 
 
 IN THE APPROACHING SESSION, 
 
 WITH SUGGESTIONS FOR 
 
 MORE EFFICIENT RESTRAINT 
 
 ARBITRARY POWERS 
 
 RAILWAY COMPANIES. 
 
 SMALL LANDOWNER. 
 
 LONDON: 
 
 HUGH CUNNINGHAM, 193, STRAND. 
 
 MDCCCXLV. 
 
“ Qua data porta ruunt.” 
 
 The superintendence of the Board of Trade is justly regarded 
 as a very useful security against many evils which might be 
 anticipated from improvident or unprincipled railway specu¬ 
 lations. It was requisite both for the puipose of relieving the 
 Legislature from some part of the burden which threatened to 
 engross its whole time, and for that of reducing the enormous 
 expenses of contests, in which it was too probable that the 
 greatest weight of parliamentary influence or pecuniary means 
 would prevail, whatever might be the merits of the particular 
 
 It is even more necessary that means should be devised for 
 saving the time of Parliament and the expenses cf parliamentary 
 contests, in the still greater multiplicity of questions between 
 the various railway companies and the owner, cf land or other- 
 property through which the lines are intended to pass. And as 
 it was impossible that the Board, already oppressed with the 
 burden of examining and reporting upon the number of projects 
 to be brought forward in the approaching session, should take 
 upon itself this further charge, three general or special bills are 
 proposed to be enacted, with the view of sparing or saving the 
 repetition in each special act <f the regulations proper to 
 be established in the generality of cases v both for empower¬ 
 ing the companies to take the lands required by them, and 
 for laying down reservations and declaring conditions and 
 restrictions for protection of the landowner from excesses 
 and abuses in the employment of those powers. They have 
 rendered these bills accessible to the public by causing them to 
 to be printed, with the intention, no doubt, of eliciting, or at 
 least of attending to, any reasonable suggestions virich may be 
 offered them upon the subject. And for such suggestions there 
 would have been little room, if their own great and acknowledged 
 abilities could have been employed upon the details and structure 
 
of the bills, and they had not been unavoidably left to some 
 technical draftsman whose execution of the task the Board have 
 not hitherto had, and may probably, (from the pressure of so 
 many railway claims on their attention), not have time to ex¬ 
 amine sufficiently, before the session commences. 
 
 Reading them as small shareholders might be supposed to read 
 them, or persons who wish to invest moderate means in honest and 
 bona fide undertakings, without aspiring to any directorial or offi¬ 
 cial patronage and emoluments—they appear to be satisfactory 
 upon the whole; except, perhaps, that it might be well to insert a 
 clause in the Companies' Clauses Consolidation Act, interdicting the 
 payment or allowance of salaries to any other director or directors 
 than a chairman or president, till the shareholders shall have 
 received some dividend, not out of the subscribed capital, but 
 out of actual profits, after deduction of working and other expen¬ 
 ses, and then only to an amount, and in a gradation to be 
 measured by, and proportioned to the amount of such dividend; 
 so that the interest of the director should never be paramount 
 to his interest ns a shareholder, but always go hand in hand 
 with his duty, and' form a stimulus to his exertions. 
 
 Reading them as small landowners may be supposed to read; 
 they appear to be constructed upon the principle, that the once 
 sacred rights of individuals and safeguards of property should 
 be galloped over at railway speed in legislating for railways; 
 tailing it for granted that the main object of all such enterprises 
 and speculations is the benefit of the public, and that 
 the execution of them is so important as to brook no 
 obstacle or delay. But this is the notion of eager speculators, 
 and not of a wise and provident statesman, or an honest and 
 unprejudiced man. Not to mention the numerous schemes got' 
 up by men who trade in directorships, or by brokers, surveyors, 
 or lawyers seeking their own exclusive benefit; the principal 
 object of all shareholders is to obtain good returns for their 
 money. Nor do we blame them on this account, but it can give 
 them no title to preference on the score of merit or patriotism; 
 their own interest is their first object; and whatever, may be the 
 good to arise incidentally out of any particular scheme or number 
 of schemes, the greatest good to the public is the security and 
 protection of private property, which ought never to be invaded 
 without the clearest and strongest evidence of the necessity of 
 the case, or without ample and liberal compensation to the owner 
 for every advantage extorted from him. 
 
• The reasons which existed against delay, in passing the earlier 
 railway hills, have ceased to apply with the same strength, or to 
 call for the same haste in authorizing and encouraging so many 
 projects as are to he brought forward in the approaching session 
 of Parliament. For in spite of any prejudices which may have 
 been opposed to the first introduction of the railway system, 
 it is now firmly established, and the tide of popularity is running 
 so strongly in its favor as to require breakwaters and mounds 
 against the inundation with which it threatens us, rather than 
 violence or injustice to speed it on its course. The great arteries 
 of communication throughout the kingdom have been so far execu¬ 
 ted that their early completion is a matter of certainty; and in the 
 mean time the most remote places are enjoying a considerable 
 part of the benefit to be eventually obtained. Cornwall is reap¬ 
 ing the advantages of a railway from the Metropolis as far us 
 
 In the same manner do other places, lying out of the direct 
 course, derive from the main lines in their vicinity, benefits 
 which so inflame their impatience for intersecting veins and 
 competing lines, that they are ready to catch at the first oiler 
 without caution or deliberation; and would sacrifice, not only 
 tire rights of landowners, but their own real advantages, for the 
 visionary benefits held out to them by interested or ill-judging 
 speculators. Such are the improvements taking place and pro¬ 
 gressing in the scientific principles upon which the hues 
 themselves, the loco-motive engines, and the modes of using 
 them, are constructed, and adapted to practice; that this alone 
 amounts to a strong general argument in favor of caution and 
 deliberation in all. cases where communications by main lines 
 have been already opened to a considerable extent, and merely 
 the abridgment of a few miles in distance, or the remedy of 
 some temporary inconvenience, or the reduction of fares by a 
 competing line or lines, is the object desired. The atmospheric 
 principle may, hereafter, bring with it ample compensation for 
 delay in such cases, by a much greater abridgment of distance, 
 and facility of communication, than is attainable with the means 
 at present in use; and may induce some of us to regret that the 
 projects we are now ardently promoting, should, by their imme¬ 
 diate success, have anticipated and prevented its employment in 
 the towns and districts which we inhabit. It may be hoped 
 that the Board of Trade, and even that Parliament itself, not¬ 
 withstanding the pressure from without, will be influenced by 
 these considerations. 
 
fi 
 
 The obligation upon the railway companies to deposit their 
 plans and surveys in due time and convenient places for inspec¬ 
 tion, prior to the meeting of Parliament, is a proper preliminary 
 to the protection of the landowner. And the Railway Clauses 
 Consolulatioti Bill, sec. 14, p. 7, prescribing that the breadth of 
 the land to be taken for the line, shall not exceed 22 yards, 
 where no greater breadth shall have been given by the special 
 act, would seem to be the first step in such protection: but it is 
 a mere semblance of protection; its efficiency is impaired, not 
 only by the exception as to lands at or near the termination of 
 the railway—lands required for malting embankments and 
 viaducts—and a number of other exceptions, still more loose 
 and vague, in which the company are empowered, at their own 
 discretion, to take 100 yards in breadth; but by a further excep¬ 
 tion, cumulative upon all those other exceptions, which 
 renders the protection altogether nugatory; that is to sav ,—But 
 in no case shall the breadth of the land so taken exceed 100 yards, 
 except for cuttings or embankments, or for any depot or station con¬ 
 nected with the railway." 
 
 Thus is the power of the company rendered altogether arbi¬ 
 trary, not by any direct or express enactment, but, as it were 
 tacitly, by excepting them, in certain cases, from the restriction 
 to a hundred yards, and taking care to omit any words of 
 restriction or limitation whatever in the cases so excepted. 
 And as they are under no obligation to fix by the deposited 
 plans, or at all to indicate the places in which they mean to 
 cany on their cuttings or embankments, or to construct their 
 viaducts or other works, or to erect their stations or depots 
 and warehouses; the landowner who anticipates nothing more 
 than the abstraction of a slip of land 22 yards wide, may after¬ 
 wards discover that they chuse to take the breadth of 100 yards, - 
 or a still greater breadth or quantity; and put up huge piles of 
 masonry or brickwork in the very front, perhaps of his house, 
 and close to the windows from which he had, hitherto, breathed 
 the air, and enjot-ed the open and unobstructed view over woods 
 or fields. The omission in the deposited plans is very imper¬ 
 fectly supplied by the notices to the landowner a month after¬ 
 wards. The writer has one before him, which has just arrived 1 
 demanding his assent or dissent; and from which he learns 
 that they intend to carry an embankment and arching 26 fees 
 high,across the green brow of the hill, in front of his house; 
 and if he had not happened to know from other sources, that it 
 is to be close to and in front of the house and all its windows. 
 
7 
 
 " there is nothing in the notice from which he would have been 
 able to collect this information. Nor has he now any means of 
 ascertaining whether they require the breadth of 50 or 500 yards, 
 or any other given breadth. 
 
 It is true, that the Lands Clauses Consolidation Bill has a 
 clause in sec. 31, for restraining railway companies from, here¬ 
 after, taking any house or building, or any ground inclosed or set 
 apart and used as a garden, orchard, nursery ground, yard, pad¬ 
 dock. plantation, planted italic or avenue to a house, without the 
 consent of the owner, unless it shall have been specified in the sche¬ 
 dule I to the special act. This is also an illusory protection; 
 because if the house or paddock, or other property, should be 
 mentioned in the special act, the owner, in ninety-nine cases 
 out of a hundred, will either not dare to enter into, or not he 
 able to prosecute effectually, the contest with a powerful and 
 opulent railway company. Besides this, it would be easy to state 
 many casus of great hardship, which do not fall within the 
 clause. 
 
 The same spirit of injustice to the landowner betrays itself 
 through every one of those half measures of imperfect protection 
 to him, which could not with decency have been entirely omitted. 
 Thus, in sec. 59„ p. 20, relative to intersected lands, it is pro¬ 
 vided, that the landowner may compel the company to purchase 
 any fragment or section of less than half an acre, which they 
 may have cut off and separated from the rest of the land, unless 
 he has other adjoining land into which the same can be thrown, 
 And, on the other hand, by the next section, (60) if there shall 
 be any such segment of less than half an acre, or any piece of 
 land of less value than the expense of making a bridge or cul¬ 
 vert, or such other communication between the land so divided, 
 as the company are, by the special act, compellable to make; 
 and if the owner have not any adjoining land into which it can 
 be thrown,' and shall call upon the company to make such com¬ 
 munication, they may compel him to sell them the piece of land. 
 
 It is most extraordinary that this proposed bill should itself 
 contain no provision or shadow of a provision for the making of 
 any bridge or communication between the intersected^lands; it 
 merely refers to some sort of communication -which the company 
 may possibly, by the special act, be compellable to make. Sarely 
 if a genera 1 , or model act is required to be made for any purpose, 
 
8 
 
 it ought not to omit the compulsory provisions to which it par¬ 
 ticularly refers, and to leave them to be made in a hundred 
 different ways, by as many different special acts, or, perhaps 
 not to be made at all. For non constat that the special act 
 should contain any compulsory clause whatever upon the subject. 
 The company will not volunteer it in every or in any particular in¬ 
 stance, if the landowner should not appear before the committee 
 to demand .it,—as indeed a very small proportion of the land- 
 owners are likely to do. Or if the committee should of its 
 own motion, and unasked and unprompted, insert any such 
 compulsory provisions—the effect of this clause is to elude and 
 so far nullify them, as to give the railway company their three¬ 
 fold option—either of making the prescribed communication, 
 throwing the separated half acre into any adjoining land of the 
 owner, or taking it from him at their pleasure, and whether it 
 pleases him or not. 
 
 But observe the previous clause, (59). Under the semblance 
 of protection to the landowner by enabling him to compel the 
 company to buy any separated fragment or section of half an 
 acre, it effectually protects them from the obligation to purchase 
 any larger quantity. They may take any part of his land at 
 their own discretion or caprice, leaving him detached spots 
 scarcely exceeding half an acre, here and there, and rendered 
 utterly worthless by their buildings interspersed; for there is 
 not even the affectation of compelling them to purchase any 
 fragment or section exceeding half an acre, or to make any 
 communication between it and the rest of the land to which it 
 had formerly belonged; so that in the middle of a property 
 of 10 acres they may take six, and leave two acres on each side, 
 without any communication or passage from the one to the 
 other side over the intervening space which they have made 
 their own, and covered with their works or their warehouses. 
 No company or class of persons ought to have the power of 
 cutting and carving a man’s property in this way. 
 
 If enough has been here shown to engage the attention of 
 members of the Legislature and men of business to the necessity 
 of watching and correcting these bills, the object of the writer 
 is already gained as effectually, and perhaps more so, than it 
 would be by going into them more minutely and at greater 
 length. He has no wish to point out instances of mere oversight, 
 such as that sect. 106, p. 35 of the Lands Clauses Consolidation 
 
9 
 
 Bill, while it provides for the satisfaction of the fair proportion 
 of land tax and poor rate on the lands taken by railway compa¬ 
 nies, entirely omits tythe rent charge, which should naturally 
 have been mentioned in the same clause, or, at least in some 
 part of the bill. It would be desirable either to consolidate the 
 Railway Clauses Bill and the Lands Clauses Bill into one act, or 
 to make a different distribution of matters and provisions which 
 are now dissevered, and thrown as it were at random into 
 the different bills. His object is to examine them no further 
 than as they appear to exhibit the spirit of injustice or indiffer¬ 
 ence to the landowner, and even in that regard to coniine 
 himself for the sake of brevity, to the points on which he has 
 already touched. 
 
 It may here perhaps be objected, that railway companies 
 have, in some instances, paid exorbitantly for the lands they 
 required; and that the foundation of any just complaint on the 
 part of the landowner is removed by the fact, that he is always 
 secure of such compensation as a jury may think he is entitled 
 to receive. But though the verdict of a jury, and more especially 
 under the direction of a high judicial authority to overawe anil 
 counteract its occasional prejudices or caprices, and subject to 
 an appeal to the court above, is in ordinary cases as good a 
 security for justice as can be devised—it can not, as between a 
 railway company and a landowner, in the present state of 
 the public mind, be regarded as a fair or impartial measure 
 of value. The most skilful and powerful advocates will be 
 brought down from Loudon, and will insist (whether justly or 
 not, with full effect) that the jury have nothing to do with any 
 compulsion exercised upon the landowner—it was for the 
 Legislature to settle that point; and that they have just as 
 little to do with any alledged injury to the property left, or any 
 prospective and consequently uncertain advantages of which he 
 may fancy ,lie is deprived—the dry question for them is, as to 
 the value of the precise quantity of land to be taken by the 
 company. Then an array of surveyors and valuers will be 
 brought forward to run it down. And from the extensive 
 connexions of railway companies, and the magnitude of their 
 undertakings, it can rarely happen that the majority of the 
 jury should not be in some way or other under their influence, 
 more espcially in large towns with no railway very near to 
 them. And to co-operate with this influence, the mass of 
 inhabitants are always so eager for it, and many of them 
 are so much interested in it. from their natural relationships 
 
10 
 
 or from their dealings in business with some of the numerous 
 shareholders, or their numerous agents, officers, servants, 
 or labourers, that they would regard it as a public benefit, 
 to which every individual should be sacrificed; and not merely 
 find ready excuses to their own consciences and pretexts for 
 sacrificing him, but actually regard it as a matter of conscience 
 to do so. Railways have not hitherto been found to afford any pre¬ 
 vention or alleviation of suffering from depression of agriculture, 
 stagnation of trade, low wages, or want of employment; but 
 every town or district not yet accessible by a railway, looks 
 forward to its access as a panacea for all evils. 
 
 Neither is the province of the jury in determining questions 
 between parties under the existing law to be confounded with 
 that of the Legislature, in abrogating the law itself. For we 
 must take care that the looseness of our own language, in 
 speaking of protection to the landowner by either the general or 
 any special railway act, does not betray us into what would be 
 a material error. The compulsory clauses take away that 
 protection which the landowner enjoys in common with 
 every Englihman by the law of the land; and what we 
 call protecting clauses afford him no new or increased protec¬ 
 tion; they only preserve to him some degree or portion of 
 that protection which the compulsory clauses abrogate; and 
 leave him, as far as their operation goes, in the same state 
 that he was before. 
 
 AVith the legislature this power of repeapng the law, either 
 entirely or partially, must remain—it never can be delegated to 
 juries. And if it be true that railway companies have in any 
 cases paid exorbitantly for the land they required, it has not 
 been under any parliamentary award or judgment, but because 
 they have chosen to do so rather than engage in a parliamentary 
 contest. The fault, too, in most of these cases has been with 
 themselves, for attempting to force their lines through property, 
 and to interfere with rights or comforts which are not to be 
 measured by money, nor estimated by any but those who possess 
 them; and to whom their enjoyment or privation may constitute 
 life or death, their happiness or their m; isery. If it ever could 
 be proper that such sacrifices should be exacted—or necessary 
 on the other hand, that exorbitant demands, by landowners, 
 should be submitted to, it can no longer be so in the pre¬ 
 sent improved state of railway construction and engineering. 
 The means of making a diversion in any intended line, are so 
 
11 
 
 much facilitated, and are so likely to become still greater than 
 they are, that the company may either employ them at once, or 
 will not have long to wait. But the proportion of these cases is so 
 small as to amount to nothing in comparison with the hardships 
 upon the small proprietors and landowners, who may be counted 
 by thousands for every single one that has funds adequate to 
 the exigency of a parliamentary contest with a railway company, 
 or can spare them for such a purpose. 
 
 The question then is, whether any more efficient means than 
 the pretended reservations in the proposed general acts can be 
 devised, to limit or diminish the injuries inflicted on the smaller 
 landowners. For when a railway act is once passed, and the 
 company have obtained their arbitrary powers, there is no 
 reciprocity of election or choice left between them and the 
 landowner; they may purchase or not at their own option, but 
 he has no option either of compelling them to purchase or 
 refusing to sell if they demand it. 
 
 In the first place the reason for depositing the plans and 
 surveys, holds equally good for obliging the railway com¬ 
 pany to state the utmost breadth they desire to take; and for 
 holding them bound by that statement. It is at least as neces¬ 
 sary that thg landowner should be made acquainted with the 
 magnitude of the injury to be inflicted upon him, as that the 
 company who are about to inflict it should come before Parlia¬ 
 ment with every other advantage, in addition to that stock 
 purse which is of all advantages the greatest. In the absence 
 of that information which such statements, on the face of the 
 deposited plans would convey, and of such further notices 
 to the landowner as would bring him forward to call the 
 attention of Parliament to it, they are really proceeding in the dark; 
 and whilst they intend making a law to operate only upon 
 a slip of land diJ yards wide, are in fact depriving the owner of 
 his protection to the breadth of 100 yards, or even to the whole 
 of his property. 
 
 Secondly,—To the lands of property enumerated in the Lands 
 Clauses Bill, section 31, should be added, any land within 300 
 yards of a dwelling house belonging to the owner of such lands, 
 and within view of the windows. To this it is hardly to be sup¬ 
 posed that any objection will be made; since it is obvious that a 
 viaduct or an embankment, a depot, a warehouse, or a station, 
 close to and in front of the windows, would destroy the comfort 
 
 
12 
 
 anil impair the value of the house; anil might in many cases 
 render it entirely worthless to the owner. 
 
 Thirdly,—As to intersected lands, instead of the compulsion 
 of the company to purchase being limited to half an acre in all 
 cases, it ought to be extended to the whole of the remaining 
 land, where they take the largest part, and to the laud on both 
 sides where they separate the one part from the other and make 
 no communication between them. If it should happen that the 
 company can make no use of them for the purpose of their rail¬ 
 way, they may sell them and take the chance of indemnifying 
 themselves by the sale; it is much more tit, if any loss should 
 ensue, that it should fall upon them than upon the landowner, 
 as it has arisen out of their own exercise of their power’s. 
 
 Fourthly,—It should also appear upon the face of the deposited 
 plan, whether the property marked out for the line falls within 
 either and which of these descriptions. If the company or their 
 surveyor be allowed to describe with impunity, a paddock merely 
 as pasture or grass, or to suppress 'or disguise the fact that the 
 laud is within the forbidden distance of the owner’s house, and 
 visible from his windows, the Legislature will not be furnished 
 with the information they ought to have; and the consequent 
 injustice will be of much the same nature, as when the power 
 given to the company of taking the ordinary breadth of 22 yards 
 involves and carries with it the power of taking ](10 yards or 
 1000, which, perhaps, the owner would have opposed before the 
 bill passed, and the Legislature have declined passing it.=:= 
 
 Fifthly,—If the various particulars required to lie stated on 
 the face of the plans shall be either omitted or unfaithfully repre¬ 
 sented. the bill should not pass, hut stand over for another year, 
 till the plans should have been deposited anew and formed with 
 greater accuracy and fidelity. And when it is sought to obtain 
 by tile special act a power over any of those kinds of property 
 enumerated in section 31; or to carry a viaduct or embankment 
 through them, or to erect works or stations upon them—it should 
 lie upon the company to show to Parliament the necessity for 
 the infringement. The haste and precipitancy with which many 
 of the 240 plans and surveys now deposited, have been got up, 
 to save their distance and be in time for the approaching session, 
 
 * The hill before mentioned is a paddock or park, and in the notice just 
 received, it is described merely as grass. 
 
13 
 
 is of itself a sufficient reason tvhy their distance should not. he 
 saved. 
 
 Sixthly,—Although these statements on the face of the 
 plans and notices to the landowners in the several cases above 
 mentioned are essentially necessary, they are not in themselves 
 sufficient, nor all that ought to be required. The security 
 afforded by them is little more than that landowners shall know 
 in proper time what is the nature and extent of the demand to 
 he made upon them, and that the Legislature shall be furnished 
 with the same information as to the facts upon which they are 
 called to legislate, and the extent of the powers they are about 
 to grant. This is a security which, undoubtedly, the great land- 
 owners ought to have; but it is a security only to those who can 
 bear the expense of a parliamentary contest, and not to the 
 small proprietors, who have the strongest claim to protection 
 from wrong, because they are the least able to protect themselves. 
 The least that can -be done is that the dissenting landowner 
 without presenting any petition, should have notice given him 
 of a time when he shall be heard, by himself or any person he 
 may appoint, to state his case before the committee; and in 
 doing so, he should be exempt from payment of parliamentary 
 lees, and other expenses.—Or if parliamentary fees and expenses 
 can not be dispensed with, they should not fall on hint, but on 
 the promoters of the railway bill. 
 
 Here, however, the reflection intrudes itself, that as the questions 
 between the railway companies and the landowners are too nu¬ 
 merous for the Hoard of Trade to enter into the consideration of 
 them—so will it he quite impossible for Parliament to entertain 
 them, if the means of bringing the hundredth or thousandth 
 part of them before it should be afforded. But the conse¬ 
 quence to which this reflection leads us, is not that the small 
 proprietor, when he is divested of the ordinary protection of the 
 law, must without any substitute for it, he left at the mercy of 
 railway companies and their surveyors and officers; hut that the 
 reservation in the general act should he absolute and indefea¬ 
 sible by any special act; leaving the landowner as much at 
 liberty to deoliue parting with his property as the company are 
 to decline taking it. Future companies will then he less dis¬ 
 posed to trace their lines with the same hastiness and reckless¬ 
 ness of the injury they may do to the landowner, and will either 
 secure his consent in good time, or look to the means, which 
 they can rarely fail to find, of varying either their line or the 
 
14 
 
 places of their viaducts and other works, without much additioii 
 to the amount of the expense. This may, perhaps, in some in¬ 
 stances be the means of throwing a railway bill over to a year 
 or two later than may suit the impatience of the shareholders 
 and parties interested; but in most of those instances, it will be 
 with benefit rather than injury to the public, and there will, 
 probably, in the end be not one railway the less.