The Bowenfels Coal Mining and Copper Smelting Company's Railway Act (1873 No bcm) (NSW)

An Act to enable cer ta in persons car ry ing on business at Bowenfels and Sydney u n d e r t he n a m e and style of t he " Bowenfels Coal Min ing and Copper Smel t ing C o m p a n y " to construct a Rai lway or T r a m w a y from land in L i thgow Valley belonging to t h e m to and to connect the same wi th t he Great

W e s t e r n Railway. [2nd April, 1873.]

and pass t h r o u g h lands in t h e said coun ty t h e p roper ty of Andrew Brown of Cooerwull Esqu i re across Farmer ' s Creek and over and along reserved roads over which said lands and road the said ra i lway cannot be m a d e and cont inued wi thou t Legis la t ive au thor i tv A n d whereas t h e said coal mines and smel t ing works of t h e said Company are l ikely to prove beneficial to t h e Colony and t h e publ ic advan tage is a t present especially concerned in p romot ing such a n increase in and facilities for

WH E R E A S Copper Smel t ing Company " have opened coal mines and established

cer ta in persons t r ad ing in Sydney a n d Bowenfels

unde r t he n a m e and style of t h e " Bowenfels Coal M i n i n g and

collieries on a parcel of l and s i tuate a t L i thgow Valley in t h e coun ty

of Cook in t he Colony of N e w Sou th W a l e s and k n o w n as t h e

H e r m i t a g e Colliery and are about to erect bui ld ings a n d works for t he purpose of smel t ing copper ores and in order to facilitate communica­ t ion be tween t h e said coal mines collieries and works and the Great W e s t e r n Ra i lway the said Company a re desirous of cons t ruc t ing a

ra i lway from the i r said coal mines to t h e said Great W e s t e r n Ra i lway

b u t as p a r t of such proposed rai lway is in tended to be m a d e upon

for t h e supply of coal for local consumpt ion and exporta t ion as would resul t from t h e complet ion of t h e said rai lway it is therefore expedient

to au thor ize by Legislat ive enac tmen t such const ruct ions a n d cont inu­

at ions of t h e said rai lway subject to t he provisions hereinafter con­ ta ined upon paymen t of reasonable compensat ion to t he said Andrew Brown t h r o u g h whose lands t h e same shall pass for such por t ion of t he said land as m a y be required to be occupied thereby Be i t therefore

enac ted by the Queen ' s	Mos t Exce l l en t	Majesty by and w i t h t he advice
of t h e Legis la t ive Counci l and Legislat ive Assembly of	N e w	South

W a l e s in	P a r l i a m e n t	assembled	and by the au thor i ty of	t h e	same as
follows :—

1. I t shall be lawful for t he said Company to m a k e and con-

s t ruc t a ra i lway or t r a m w a y or p a r t t r amway or pa r t ra i lway and to

r u n locomotive engines t r u c k s vans and o ther carr iages a t a speed not exceeding t h e ra te of e ight miles per hour from the Great Wes t e rn Railway to a point about one chain n o r t h of t h e south-east corner of t h e one hundred-ac re minera l condit ional purchase selected

by Poole Wool ley and Anderson such rai lway to be in t he line described
in t he Schedule he reun to annexed b u t so t h a t t he same shal l n o t occupy in any pa r t thereof a greater b read th t h a n sixty-six feet inc lud ing

foundat ions abu tmen t s a n d supports .

2. The ground a n d soil of so m u c h of t he site of t h e ra i lway

as passes over t h e lands of the said Andrew Brown and over Crown
l a n d toge ther w i th such r i g h t of ingress egress and regress as m a y be

necessary for t he m a k i n g repair	and work ing thereof shall be vested
by v i r tue of th is A c t and wi thou t	t h e necessi ty of any conveyance in

t h e	said	Company for t he purpose of this ra i lway or t r a m w a y	Provided
t h a t t h e said t r amroad	shall be const ructed	and b rough t	in to use

wi th in one year after t h e pass ing of th is A c t and t h a t i n default thereof or if after its complet ion t he said t r amroad shall cease to be used by t h e said promoters the i r heirs or assigns for one year con­ t inuous ly all t h e said lands and all the i r estate and interes t there in shal l rever t to t h e said A n d r e w Brown his heirs and assigns and t h e Crown respectively and all t h e r igh t s and powers hereby conferred on t he said p romoters shal l cease and de te rmine Provided t h a t if in exercise of t h e powers hereby g ran ted i t be found necessary to cross cu t t h r o u g h raise s ink or use any pa r t of any road the said Company shal l cause a sufficient road to be m a d e instead of any road interfered wi th and shall a t the i r own expense keep t h e same in a proper s tate of repair and the said Company before t h e y r u n any

locomotive over t he said land of t h e said A n d r e w Brown for any of	t h e purposes aforesaid shal l if requi red so to do separate t h e same by
a sufficient fence from t h e lands adjoining there to with such gates
as m a y be requi red for t he occupat ion of such l and A n d shall m a k e
a n d a t all t imes thereafter ma in ta in all such arches drains and other passages over unde r or by t he sides of t h e rai lway as shal l a t all t imes convey t h e wa te r as clearly from the lands ly ing near to or affected by t h e ra i lway as before t h e m a k i n g of t h e same or as near ly so as m a y
be and such works shall be m a d e from t ime to t ime as t h e rai lway works proceed The said rai lway shall a t all t imes when n o t in ac tua l use by t h e Company be open to t he publ ic upon paymen t of three-pence
per t on for every t ransi t t h e persons seeking t r ans i t to supply s team locomotive power t rucks waggons &c. and to load and un load t he same b u t t he empty t rucks to be conveyed on the i r r e t u r n free of cost Provided t h a t if t h e Company shal l employ locomotive engines of the i r own upon t he said ra i lway t h e n in such case t he Company shall supply t h e locomotive power to persons seeking t rans i t and shal l be ent i t led to charge t h e sum of four-pence per ton for every t r ans i t Provided t h a t if t he said rai lroad shall be damaged in any way

by

by part ies us ing t h e same t h e Company shall be ent i t led to compensa­ t ion for such damage to be recovered in t he Supreme or any o the r compe ten t Cour t a n d iu es t imat ing such damage the Company shall be ent i t led not only to compensa t ion for t he cost of repa i r ing and res tor ing such rai lway b u t to t he consequent ia l damage if any

susta ined by reason of t he suspension of t ransi t .

3 . For t h e purposes aforesaid i t shall be lawful for t he said Company the i r servants or w o r k m e n to divert or a l ter t he course of any road or way crossing the ra i lway or to raise or s ink any road or way in order the more convenient ly to carry t he same over or u n d e r or by t h e side of t he ra i lway Provided t h a t if t he said promoters do not cause ano ther sufficient road or way to be m a d e before they interfere w i th any such exis t ing road or way they shall forfeit five pounds for every day du r ing which such subs t i tu ted road shall no t be made after t h e exis t ing road shal l have been in te r rup ted and such pena l ty shal l be pa id to t h e surveyor or o ther person or persons hav ing t h e m a n a g e ­ m e n t of such road and shal l be applied for t he purposes thereof Provided t h a t any gradient on any road so al tered shall no t exceed one in th i r ty Provided also t h a t when the said rai lway or t r a m w a y r u n s across or a long any publ ic road on a level the rewi th t h e rails of such rai lway or t r amw ay shall not be raised m o r e t h a n two inches above t h e level of such publ ic road Provided further t ha t when the same is carr ied over or a long a publ ic road by means of a v iaduct t he re shal l be a clear space of a t least twelve feet in he ight wi th a t least seventy feet of roadway consis t ing of four t en feet two fifteen i'eet openings and t h a t no t any suppor t of t he said ra i lway be placed nearer to t h e said mil l race t h a n four feet A n d provided fur ther t h a t in t h e event of t he said Company s topping u p or doing or suffering any damage to be done or interfer ing in any way wi th t h e mil l race of t h e said Andrew Brown over which the said rai lway passes t h e same shall be immedia te ly repaired and placed in as good condi t ion as it was before t h e said ra i lway was cons t ruc ted as aforesaid.

4. I f any person omit to shu t and fasten any gate set up a t e i ther side or end of the ra i lway or t r a m w a y so soon as he and the car r iage ca t t le or other an imal u n d e r his care have passed t h r o u g h the same he shall forfeit for every such offence any s u m not exceeding two pounds which m a y be recovered in a s u m m a r y way before any

J u s t i c e of t h e Peace .

5. I f wi th in twenty-e ight days after t h e pass ing of th i s A c t the

said Andrew Brown and the Company shall not agree as to t he a m o u n t
of compensat ion to be paid by t h e m for t he said lands be longing to the
said A n d r e w Brown or for any damage t h a t may be sustained by h i m
by reason of t h e execut ion of the works of t h e Company or if any other quest ion of compensa t ion shall arise unde r this A c t t he a m o u n t of such

compensa t ion	shall	be	fixed	by	arbi t ra t ion in	m a n n e r	hereinafter
ment ioned	Tha t	is to say	each	d i spu tan t	shall u n d e r	thei r	h a n d

nomina te and appoint an arbi t ra tor and such arbi t ra tors shal l before proceeding to arbi t ra t ion appoint an u m p i r e to ac t in t h e event of their d isagreement to whom such dispute or m a t t e r shall be referred and the award of such arbi t ra tors to be final and after such appo in tmen t ne i ther pa r ty shall have power to revoke his or the i r appo in tmen t wi thou t the consent of t h e o ther nor shall t h e dea th of e i ther par ty operate as a revocat ion and after a reques t in wr i t ing shall have been served by one pa r ty or the other to appoint an a rb i t ra tor and such last pa r ty hav ing failed for t he space of fourteen days to appoint t h e same i t shall be lawful for t he a rb i t ra tor who has been appointed to act on behalf of bo th par t ies and such arbi t ra tor m a y proceed to hear and de termine

t h e m a t t e r s which shall be in d ispute a n d in such cases the award or

de te rmina t ion	of such arbi t ra tors or single a rb i t ra tor shall be	final	a n d
conclusive.	6.

6. Before any a rb i t r a to r or u m p i r e shall en te r in to t he con­

sideration of any m a t t e r s referred to h im h e shall in t he presence of a J u s t i c e of t h e Peace m a k e and subscribe t he following declarat ion t ha t is to say :—

I A . B . do solemnly and sincerely declare t h a t I a m no t

in teres ted in t he ma t t e r s referred to m e under t he provi­ sions of t h e " Bowenfels Coal Min ing and Copper Smel t ing Company ' s Ra i lway A c t " and t h a t I wil l faithfully and

honest ly and to t h e best of m y skill a n d abi l i ty hear a n d

de termine t h e said mat te r s .

(Signed) A . B .

M a d e and subscribed in t he presence of

7. A n d such declarat ion shall be annexed to the award when
m a d e and if any a rb i t ra tor or ump i r e hav ing m a d e such declarat ion
shall wilfully ac t cont rary the re to he shall be gui l ty of a misdemeanor .

8. Al l t he costs of any such arbi t ra t ion and incident thereto

t h e a m o u n t whereof shall be set t led by the a rb i t ra tors shal l be borne

by the Company unless t he arb i t ra tors shall award the same a m o u n t

or less t h a n t h e a m o u n t offered by t h e Company as compensat ion in

which case t he whole costs shall be paid by the c la imant .

9. The a rb i t ra tors shall deliver the i r award in wr i t ing to t he

Company who shal l re ta in t h e same and furnish a copy on demand to t he c la imant and the a m o u n t awarded shall be paid wi th in sixty days after publ icat ion of such award.

10.    The submission to any such a rb i t ra t ion m a y be m a d e a rule

of t h e Supreme Cour t on t he appl icat ion of e i ther of t h e par t ies .

1 1 . N o award made wi th respect to any question referred to

a rb i t ra t ion unde r t h e provisions	of th i s	A c t shall be set aside for
i r regular i ty or error in m a t t e r of	form.

12. The said Company shall no t be ent i t led to any mines of coal iron stone slate or other minera ls unde r a n y l a n d whereof t he surface is vested in t h e m by this A c t except only such par t s thereof as shall be necessary to be dug or carr ied away in t he const ruct ion of the works hereby author ized and such mines shall no t be deemed to vest in t he said Company b u t not any of t he l and so t a k e n shall be used for the purpose of erection the reon of any bui ld ing or for smel t ing or o ther manufac tu r ing purposes and i t shall be lawful for t he said A n d r e w Brown his heirs and assigns from t ime to t i m e and a t all t imes hereafter wi th servants and w o r k m e n to enter upon the land so to be vested in t h e said Company for t he purpose of view­

ing and examin ing t h e s ta te a n d condit ion of t he said mil l race and

to do all necessary acts for t h e purpose of cleansing repa i r ing and en larg ing t h e same a t his and their p leasure b u t so t h a t no t any such acts shall injure t h e said rai lway or t he works of t h e same.

13. The following words and expressions in th i s A c t shall have t h e mean ing hereby assigned to t h e m The word " C o m p a n y " shal l m e a n the said "Bowenfe ls Coal Min ing and Copper Smel t ing Company " The words " r a i l w a y " or " t r a m w a y " shall m e a n t h e rai lway or t r a m w a y hereby authorized to be constructed a n d in c i t ing th is Act- i t shall be sufficient to use t h e expression " The Bowenfels Coal Min ing and Copper Smel t ing Company ' s Ra i lway A c t " The word

" J u s t i c e " shall m e a n Jus t i ce of t h e Peace in	a n d	for	t he	Colony of
N e w South Wales .

14. This A c t shal l be deemed and t aken to be a Pub l ic Act and

shall be judicial ly t aken not ice of as such by all J u d g e s	Jus t i ces	a n d
others wi thou t being specially pleaded.

SCHEDULE.

SCHEDULE.

A piece or parcel of land Commencing at a point on the Great Western Railway about eighty-three miles eleven chains from the Parramatta Junction curving from the main line in a north-westerly direction with a curve eight chains radius to the railway fence and hence through the land of Andrew Brown Esquire one chain in width with same curve to a distance of eight chains forty-three links and thence by a straight line bearing north twenty-nine degrees forty minutes west to Farmer's Creek being a further distance of five chains one link and thence across Farmer's Creek on to the Company's land across a reserved road and again across the Company's land to a reserved road one chain wide and along the said road terminating at a point one chain north of the south-eastern corner of Poole Woolley and Anderson's mineral con­ ditional purchase.