RAILWAYS AND CANAL BRIDGES.
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Their Maintenance and Strengthening in Relation to Public Traffic.
By Granville F. Bilbrough.
OUR ISSUE of 26th July contained particulars of the steps recently taken in this respect by the Herts County. Council. It will be recalled that the Highways Committee had been in negotiation with the Great Eastern Railway in respect of a bridge at Braughing, and the Grand Sanction Canal in respect of a structure at Triug. . In each case it was recommended that a substantial payment should be made to the statutory undertakers towards the reconstruction of these bridges to bring them up to the standard of modern requirements and traffic. This action we rightly commended as progressive in that it is the only immediate way out of the existing impasse, but it only serves to 'emphasize hoar far the position has worsened for the public. • • So recently as 1909 the Herts County Couricilsobtained judgment against the , Great 'Eastern. (1909; 2 KB. 403) in respect of the maintenance of a "level crossing." In that case it was 'ruled that where railway or canal companies in the prosecution of their tridertakings cut through highways for their own purposes, a, prima-facie obligation was imposed upon them to maintain a means of passage as convenient to the users of the highway as obtained before the road was cut through. In fact, one of the judges expressed himself in significant ternis. "In order to rebut the presumption that such an obligation is imposed on them, such persons must show that the Statute, uncles the authority of which they were acting, contains some provision amounting to an exemption from such an obligation. It is not enough, in my opinisin, that the Statute is silent on the point."
Common Law Obligation.
This position was expressly adopted by the Court. And this sane attitude was adopted by the Court of Appeal in the matter of Attorney-General (on the relation of the Mayor, etc., of -Worcester) v. Sharpness New Docks and the Gloucester and Birmingham Navigation Co. (1914), when the principle was extended to cover the question of maintenance and strengthening of bridges in accordance with modern standards, and the Common Law. obligation of the' Highways Authority to keep the road in a reasonably efficient state for accommodating the traffic it might reasonably be expected to bear was specifically referred to and applied. That is,briefly, that the efficiency of the road for the purposes of traffic should be equal to the measure of the public rights in the highway had the statutory undertakers not cut through it in the prosecution of their works. At the best, the Court argued, bridges are only imperfect substitutes for the solid road cut through and broken up by the undertakers and obviously subject to the same incidence for maintenance, for it was not conceivable that a local Act was intended to operate to the permanent detriment of the' general public. Accordingly, whilst the Court made no standard at which a particular bridge should be maintained to be up to modern requirements, it granted a 'declaration at the statutory undertaker was bound to support, maintain and keep in repair each of tHe bridges adequate to bear the ordinary traffic of the district, which might reasonably be expected to pass alone he road. Had this decision been maintained, the whole question of the maintenance of bridges would have rested upon an equitable basis and afforded the users of our roads, for heavy traffic, some prospect of relief. Unfortunately, however, an appeal to the House of Lords succeeded in reversing the decision. This judgment, recently confirmed in tffe action the Attorney-General (çn the relation of Pickfords, Ltd.) v. the Great orthern Railway, 16th June, /915, has apparently established the preposterous position that the public by conferring the privilege upon statutory undertakers of interfering with a public thoroughfare have ipso facto deprived themselves of those reasonable facilities which the CommonLaw afforded them, a. proposition which has only to be baldly state I to be Aismissed as absurd. Such, however, is the case, and it would be well to survey: the ground in the light of these judgments with a view to obtaining a possible measure of relief.
Public Must Not Be a Loser.
In the first place it-must be stated that the public never intended to be the losers when conferring upon railways and canals the privilege of interfering with the public roads. Generally, stipulations were inserted into the special Acts authorizing the construction, to safeguard the general interest. In respect of the Sharpness case, to which allusion has alaeacly been made, it was provided (Sec. 61, 31, Geo. III c. LIX) that the company "shall not make the said canal or any trench in or across any common highway . . . 'until they shall at their own proper charges have made and perfected such bridges, passages or arches across such highway . . . and of such dimensions and in such manner as the Commissioners shall adjudge proper, and all such bridges, etc., across such highways to be made shall from time to time be supported, maintained, and kept in sufficient repair by the said company."
Where there is no reference to the matter in the special Act, the public were held to be safeguarded under Section 46 of the Railway Clauses Consolidation Act of 1845, which enacted " If the line of the", railway cross any turnpike road or public highway, then (except where otherwise provided by the special Act) either such road shall be carried over the railway, or the railway shall be carried oiler such road by means of a bridge . . and such bridge, with the immediate approaches and all other necessary works connected therewith, shall be executed and at all times thereafter maintained_ at the expense of the company."
The meaning of such provisions is obvious to the lay mind, and their only object can be that of protecting the interests of the public. Yet in law the position apparently holds good that ttiese very provisions, designed to secure justice for the users of the mid, operate in a reverse sense and deprive them of that measure of maintenance and strength of structure which would have been afforded them had the situation merely been covered by the Common Law obligations. It was .urged an behalf ofthe railways tI. at the above provision does not specifically mention the possibility of strengthening, and such a consideration was not in the minds of the legislators. That may be quite true, but then it is not to be expected that legislators were endowed with a prophetic vision in 1845 any more than they are to-day, and the greet
possibilities of road transport as we see them were non-lexistent. In fact the common opinion in those days rather regarded the whole of the future as being in the hands of the railways, so great had been the recent diversion of traffic to the metals. None the less the spirit of the provision is clear, although this opinion did not apparently commend itself to the House of Lords. Speaking on this very point in the Sharpness case, Lord Parker is reported to have said:
"The respondents contend that the company's obligations to maintain and support the bridges and keep them in sufficient repair involves an obligation to strengthen them as occasion may require, so that they will at all times be adequate to the ordinary traffic which may reasonably be expected to pass along the highway however such traffic may increase in weight and even though this obligation may involve the pulling down and rebuilding of the fabric itself. . .There is, I think, no principle of construction by which an obligation to maintain, support and repair a particular fabric can be enlarged into an obligation • to reconstruct or rebuild a fabric in such a way that it is materially different in strength, size, or otherwise from the particular fabric the subject of the obligation."
This dictum is directly controvertible inasmuch as the highways authorities are continually under the obligation to reconstruct their roads to meet the increasing demands of traffic and, in equity, the same obligation falls on any statutory undertaker who for purposes of his own has taken a. portion of the road on charge to facilitate maturing of private enterprises.
Unsatisfactory Position.
The position is particularly unsatisfactory in those instances (and they are numerous) where bridges have been built; with steep inclines, in places where level crossings would have met the necessities of the district. There can be no doubt that the difficulty has been unduly aggravated by the penchant for bridgebuilding in preference to the level crossing, a predilection doubtless attributable to the fact that the obligation of "employing proper persons to open and shut such gates" imposed on the railways under See. 47 of the Act of 1845 mentioned would cost more, when capitalized, than the primary expense of erecting a more or less flimsy bridge. The opposition of railway companies to the strengthening of bridges is quite understandable, for they see in the motor traffic which is rapidly developing a. first-class rival, and they are distinctly averse to doing anything which would assist the development of the new competition to which they are likely to be subjected. They have expended a vast capital on the purchase of a permanent way, and have also large liabilities for its maintenance, whilst, they urge, the road competition has its permanent way found for it, and to which they also contribute in the general taxation like other citizens. They are, however, on a ground of equity when they point out that at the time they assumed their liabilities for the maintenance of the bridges they had powers for charging tolls much in excess of those operating at the present time. In the Rites Revisions (Maximum Powers), 1891 and 1892, there was a considerable reduction made in their powers to charge, and they claim it is not a fair proposition to decrease their income on the one hand and yet hold them to increasing liabilities on the other, and on the strength of the Acts which governed them when their tolls were much higher.
The whole position,-however, is so unsatisfactory to the heavy road transport—and the prospects even Worse—that some amelioration is urgently required, but it is difficult to fix on the likeliest body for carrying through a reform. Under the judgments mentioned, the railways and canals hold a power which enables them to ride over the complaints and dis
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abilities of the public with quiet ease, whilst the protection afforded them under Section 6 of the Locomotives Act, 1861, that of refusing consent to the use of their bridges by road lodornotives, gives them an offensive weapon of the first calibre. How this is exercised we gather from the report in. connection
with the Herts County Council:— '
"If the County Council were not willing to assist financially in modernizing the bridge, the company would reconstruct it on the old basis and have an inspector stationed on it to stop all traffic.) having a greater axle weight than two tons passing across it."
However, in the growing approximation of the railways with the State, there should be opportunities for raising the question in a more precise form.
Urgency for Legislation.
In Germany they appear to have avoided the inpasse into into which we -have fallen, and the method they have of adiusting the liability for the construction or strengthening a, bridge might well be copied by us in any re-arrangements which may requite to be made in the future.
"There are a large number of level crossings throughout the country and but few under or over bridges. No regulations define exactly the requirements in this respect, and their non-existence fairly represents a reduction in the capital expenditure. On main lines it is true the crossings must be watched, but on local lines no expense at all on this account is necessary. "The procedure, relating to crossings in the i
construction of main lines n country districts is to compare the capitalized cost of watching with the cost of a bridge and to take the cheaper. Where considerable traffic exists (and this is closely watched loy the police authorities) if a bridge be required the local authorities are asked to join in the cost and if the method of division be not amicably agreed upon, the question is re-
' ferred for arbitration to the Minister of Public Works, and his decision and apportionment is . final. (C. 4677, p. 92 . . . . )" Legislation is speedily required to remove an anomalous position, and this was recognized by the House of Lords when they felt called upon to deprive the pablic of their undoubted rights in their interpretation of the Acts governing the matter. Lord Justice Phillimore said :
"I think that the House of Lords, certainly some members of it, accepted or assumed the proposition that with regard to highways in general it may be the duty of the highway authority to bring the road up to a higher standard to keep it reasonably fit to bear the ordinary traffic of the district . . (The "may be" used by the noble lord is an indication of the remoteness of the legal profession from the problems of the case and their failure to appreciate what was involved in their decision). He continued: "It is an anomalous and unfortunate state of things, but it was frankly faced by the House of • Lords in the'Sharpness case, one noble lord pointing to the desirability of some legislation on the ' subject. I think we must frankly face it in this case and leave legislature to provide the remedy.' With this we agree, but cannot too insistently point out that, had they not disturbed the decision of the Court of Appeal, any further legislation would have been unnecessary.Tags