The Newcastle Wallsend Coal Company's Railway Act 1859 (1860 No nwr) (NSW)

An Act to enable certain persons carrying on business at Sydney under the name or style of " The Newcastle Wallsend Coal Company" to construct a Railway from land near New­ castle belonging to them to and to connect the same with the Great Northern Kailway. [12th June, I860.]

WH E R E A S cer ta in persons and style of " T h e Newcast le Wal l send Coal C o m p a n y " have	opened coal mines and established collieries on a parcel of land s i tuate
nea r Newcast le in t he county of N o r t h u m b e r l a n d and in order to facilitate communica t ion be tween the said coal mines and collieries and the Grea t N o r t h e r n Ra i lway are desirous of cons t ruc t ing a rai lway from the i r said coal mines to t he said Grea t N o r t h 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 and pass t h r o u g h lands in the said comity believed to be t h e proper ty of Messrs . Cowper and Mil ler as t rus tees for M r s . Brooks J o h n W h i t e h i l l Stevens
Esqu i re t h e Crown and the Aus t ra l i an Agr i cu l tu ra l Company respec­
t ively t h e same cannot be m a d e wi thou t legislative au thor i ty A n d whereas t h e said coal mines and collieries are likely to prove beneficial to t h e Colony and t h e publ ic are concerned in p romot ing such an increase in and facilities for t he supply of coal for local consumpt ion s team navigat ion and expor t as would resu l t from the const ruct ion of t h e said proposed rai lway and t h e traffic on t h e Grea t N o r t h e r n Ra i lway would be increased thereby i t is therefore desirable to au thor ize by legislative enac tment t h e const ruct ion of t h e said ra i lway
subject to t h e provisions hereinafter contained upon p a y m e n t of com­
pensa t ion to t he several par t ies t h r o u g h whose lands t h e same shall pass for such por t ions of the i r respect ive lands as may be requi red to be occupied the reby Be i t therefore enac ted by the Queen ' s Most Exce l len t Majesty by and wi th t he advice of t h e Legislat ive Council a n d Legislat ive Assembly of N e w South Wales in Pa r l i amen t assem­ bled and by t h e au thor i ty of t he same as follows—

t r ad ing in Sydney unde r t he n a m e

1.   It shall be lawful for the promoters to make and construct a

t e rm

ra i lway from the n o r t h e r n boundary of the i r said land u n t o and

t h r o u g h the land k n o w n as t he g r a n t to Messrs . Cowper and Miller as

t rus tees for M r s . Brooks u n t o a n d t h r o u g h land k n o w n as Wel l e r ' s

G r a n t a n d now be longing or supposed to be long to t he said J . W .

Stevens u n t o and t h r o u g h Crown land k n o w n as Commonage Reserve

u n t o and t h r o u g h land k n o w n as P i a t t ' s G r an t now the p roper ty of

t h e Aus t r a l i an Agr i cu l t u r a l Company and t e rmina t ing a t a po in t four miles fifty-three a n d a half chains or thereabouts from Newcas t le a t such t e rmina t ion to effect a j unc t ion between t h e said l ine and the

Great N o r t h e r n Ra i lway in accordance wi th section n ine ty-n ine of t he

Government Rai lways A c t of one thousand e ight h u n d r e d a n d fifty- e ight such rai lway to be in t he l ine described in t he Schedule a n d as shewn on t h e p lan he r eun to annexed b u t so t h a t t he same shall no t

occupy in any pa r t thereof a grea ter space in b read th t h a n n ine ty -n ine

feet except ing a t a creek on the Aus t ra l i an Agr i cu l tu ra l Company ' s p roper ty a t twenty-e ight chains from the junc t ion wi th t h e Great N o r t h e r n Ra i lway where t h e w i d t h will be one hundred and fifty feet

inc lud ing t h e suppor ts a b u t m e n t s and foundations thereof Provided

t h a t t he rai lway shall be cons t ruc ted and brought into use wi th in the

t e r m of five years from t h e pass ing of th i s Ac t and t h a t t he promoters in cons t ruc t ing and connect ing the same wi th t he Great N o r t h e r n Ra i lway shall do so in a proper and workmanl ike m a n n e r and repair all damages caused by so doing.

2. The g round and soil of so m u c h of t h e site of t h e ra i lway as passes over t he lands of the said owners of l and respectively and over Crown land toge ther wi th such r igh t of ingress egress and regress upon the adjacent land as m a y be necessary for t h e m a k i n g and repair thereof shal l lie vested by v i r tue of this A c t and wi thou t t h e necessity of a n y conveyance in the promoters for t he purposes of t h e rai lway Prov ided t h a t no lands vested in t he Commissioner for Rai lways shall b y v i r tue of th i s Act he vested in the company Provided also t h a t if t he p romoters the i r hei rs and assigns shall cease to use t he said rail­ way for t h e space of one year at any one t ime t h e g round and soil shall rever t to and become revested in t he said owners and no th ing here in contained shall p revent the said owners from car ry ing on any m i n i n g operat ions benea th t he said ra i lway which shall no t interfere wi th t he safety of t he said road and the traffic the reon and t h e pro­ mote r s shall have no fur ther r i gh t to t he soil of t h e said lands benea th t he surface t h a n shall be requisi te for t h e formation and repair of the said road by cu t t i ng embank ing or otherwise Provided also t h a t if in the exercise of t he powers hereby gran ted it be found necessary to cross cut t h r o u g h raise s ink or use any p a r t of any road whe the r earriagc- road or horse-road so as to r ender i t impassable for or dangerous or inconvenient to t he persons ent i t led to t he use thereof t h e p romoters shall before t he commencement of any such operat ions cause a sufficient road to be made ins tead of any road interfered w i t h and shall a t the i r own expense ma in t a in such subst i tu ted road in a s ta te as convenient as t h e road interfered wi th or as near ly as m a y be and t h e promoters before t hey use t h e said land of the said owners of l and respcctively and the said Crown land for any of t he purposes aforesaid shall if requi red so to do separate the same by a sufficient fence from the land adjoining there to wi th such gates as m a y b e requi red for t he convenient occupat ion of such l and and shall also to all p r iva te roads used by t h e m as aforesaid p u t u p fences a n d gates in l ike m a n n e r in all cases where t h e same m a y be necessary to p reven t t he s t raying of ca t t le from or upon t h e lands t raversed by such roads and in case of any difference be tween tfie owners or occupiers of such roads and lands and the p romote r s as to t he necessity for such fences and gates such fences and gates shall be p u t u p by t h e p romote r s as any two Jus t i ces of t he

Peace shall deem necessary for t h e purposes aforesaid on applicat ion
beinu; made to	t h e m .

3 . T h e rai lway and locomotives shall be open to publ ic us

upon p a y m e n t of a toll to t he promoters of three-pence per t o n per

mi le t he pa r ty seeking t rans i t supply ing and loading his own t r u c k s or wagons and all t r ucks w h e n emptied shall be conveyed on the i r

r e t u r n free of cost.

4>. A n d be it enacted t h a t i t shall be lawful for t he owners or occupiers of t h e lands t raversed by t h e said rai lway to lay down upon the i r own lands any collateral b ranches of ra i lway to communica te wi th t he said ra i lway for the purpose of b r ing ing carr iages to or from or upon the said ra i lway and the promoters shall if requi red at t h e expense of such owners or occupiers m a k e openings in t he rails and such addit ional l ines of ra i lway as m a y be necessary for effecting such

communica t ion in places where t he communica t ion can be m a d e wi th

safety to t h e publ ic and wi thout injury to t he said ra i lway a n d wi th­ ou t inconvenience to t h e traffic the reupon and t h e promoters shall no t t a k e any ra te or toll or other moneys for t h e passing of any passengers goods or other th ings a long any b ranch so to be m a d e by any such

4 c owner

owner or occupier or o ther person h u t th i s enac tmen t shall be subject

to t he following res t r ic t ions and condi t ions ( tha t is to s a y ) —

N o such ra i lway shall r u n paral le l to t he said ra i lway t h e

p romote r s shall not be bound to m a k e any such openings

in any place which they shall have set apa r t for any specific purpose wi th which such communica t ion would interfere no r upon any incl ined plane or br idge nor in any tunne l .

The persons m a k i n g or us ing such b ranch ra i lways shall be

subject to all by-laws a n d regula t ions of t h e promoters from t ime to t ime m a d e wi th respect to pass ing upon or crossing the ra i lway and otherwise and the persons m a k i n g or us ing such b ranch rai lways shall be bound to construct and from t ime to t ime as need m a y requ i re to renew t h e off-set pla tes and switches according to the most approved p l an adopted by the p romoters unde r t he direction of the i r engineer .

5. F o r t he purposes and subject to the provisions hereinafter contained i t shall be lawful for t h e promoters the i r deputies agents servants and w o r k m e n a n d all o ther persons by t h e m author ized and empowered to divert or a l ter t he course of any road or way crossing the rai lway or to raise or sink any road or way in order t he more con­ venient ly to car ry t he same over or u n d e r or by t h e side of the rai lway.

6. I f t h e p romote r s do not cause ano ther sufficient road to be

so m a d e before t hey interfere wi th any such exis t ing road as aforesaid they shall forfeit twen ty pounds for every day du r ing which such subs t i tu ted road shall no t be made after t he exis t ing road shall have been in te r rup ted and such pena l ty shall be paid to t h e t rus tees commissioners surveyor or o ther persons hav ing t h e m a n a g e m e n t of such road if a publ ic road a n d shall be applied for t h e purposes thereof or in case of a pr iva te road t h e same shall be paid to t h e owner thereof and every such pena l ty shall be recoverable w i th costs by act ion in any of t he superior Cour ts .

7. I f in t h e course of m a k i n g t h e ra i lway the p romote r s shal l

use or interfere wi th any road they shall from t ime to t ime m a k e good all damage done by t h e m to such road and if any quest ion shall arise as to t h e damage done to any such road by the p romoters or as to t he repa i r thereof by t h e m such quest ion shall be referred to t h e deter­ mina t ion of two Jus t i ces and such Jus t i ces m a y direct such repairs t o be m a d e in t h e s ta te of such road in respect of damage done by pro­ mote r s and wi th in such period as t hey m a y t h i n k reasonable and m a y

impose on t h e p romoters for no t ca r ry ing in to effect such repai rs any

pena l ty no t exceeding t en pounds per day as to such Jus t i ces shall seem fit and any such pena l ty shall be paid to t he surveyor or o ther person hav ing t h e m a n a g e m e n t of t h e road interfered wi th by the p romote r s if a publ ic road and be applied for t h e purposes of such road or if a pr iva te road the same shall be pa id to t h e owner thereof Provided always t h e said Jus t ices shall have regard to and shall m a k e full a l lowance for any tol ls t h a t m a y have been paid by the p romoters on such road in t he course of t he us ing thereof.

8. I f t h e l ine of ra i lway cross any publ ic h ighway or par i sh

road t h e n e i ther such road shall be carried over t he ra i lway or t h e ra i lway shall be carr ied over such road by means of a br idge of t h e he igh t and wid th and wi th t h e ascent or descent by th is A c t in t h a t behalf hereinaf ter provided and such br idge wi th t he immedia te approaches and all o ther necessary works connected t he r ew i th shall be executed by and be a t all t imes thereaf ter ma in ta ined a t t h e expense of t h e p romoters Provided t h a t w i th t he consent of t he

Governor wi th t h e advice of t h e Execu t ive Council i t shall be lawful

for t h e p romoters to car ry t he	rai lway	across any h i g h w a y	on	the
level.	9.

9. U n t i l t he promoters shall have made the br idges or other proper communica t ions which they shall unde r t he provisions here in

conta ined have been required to m a k e be tween lands in tersected by t h e ra i lway and no longer t he owners and occupiers of such lands and any other persons whose r igh t of way shall be affected by the w a n t of such communica t ions and the i r respective servants may at all t imes freely pass and repass wi th carr iages horses and other animals direct ly b u t not otherwise across any p a r t of t he rai lway made in or t h r o u g h the i r respective lands solely for the purpose of occupying t h e same lands or for the exercise of such r igh t of way and so as not to obs t ruc t t he passage along t h e ra i lway or to damage t h e same never­ theless if t h e owner or occupier of any such lands have in his a r range­ m e n t s w i th t he promoters received or agreed to receive compensat ion for or on account of any such communica t ions ins tead of t he same be ing formed such owner or occupier or those c la iming under h im shall no t be ent i t led so to cross t he rai lway.

10. I f t h e ra i lway cross any publ ic h ighway or par ish road on a level t h e p romoters shall erect and at all t imes m a i n t a i n good and sufficient gates across such road on each side of the rai lway where t he same shall communica te the rewi th and shall employ proper persons to open and shut such gates and such gates shall be kep t constant ly closed across such roads on bo th sides of t h e ra i lway except dur ing the t ime when horses catt le car ts or carr iages pass ing a long t h e same shall have to cross such ra i lway and such gates shall be of such dimensions and so const ructed as w h e n closed to fence in t h e rai lway and preven t cat t le or horses passing along the road from enter ing upon the rai lway and the person in t rus ted wi th t he care of such gates shall cause t he same to be closed as soon as such horses cat t le car ts or carr iages shall have passed t h r o u g h the same unde r a pena l ty of

forty shill ings for every default t he re in Provided always t h a t i t shall

be lawful for t h e Secretary for Pub l ic W o r k s in any case in which he shall be satisfied t ha t it will be more conducive to t he publ ic safety t h a t t he gates on any level crossing over any such road shall be kep t closed across the rai lway to order t h a t such gates shall be kep t so closed ins tead of across t h e road a n d in such case such gates shall be kep t constant ly closed across t h e ra i lway except w h e n engines or carr iages pass ing a long the ra i lway shall have occasion to cross such road in t he same m a n n e r and u n d e r t he l ike pena l ty as above directed wi th respect to t h e gates be ing kep t closed across t h e road.

1 1 . I n case of accidents or slips happen ing or be ing appre­

hended to t he cu t t ings e m b a n k m e n t s or other works of t h e said

ra i lway i t shall be lawful for t h e p romoters and the i r w o r k m e n and servants to enter upon t h e l and adjoining there to a t any t i m e whatso­ ever for t h e purpose of repa i r ing or p reven t ing such accidents and to do such works as may be necessary for t he purpose b u t in every such case t he p romoters shall wi th in forty-eight hours after such en t ry m a k e a repor t to t he Secretary for Pub l i c W o r k s specifying the n a t u r e of such accident or apprehended accident and of t he works necessary to be done and such powers shall cease and determine if t h e said Secretary shall after considering the said repor t certify t h a t the i r exercise is no t necessaiy for t he publ ic safety Provided also t ha t such works shall be as l i t t le injurious to the said adjoining lands as t he n a t u r e of t he accident or apprehended accident will admi t of and shall be executed wi th all possible dispatch and full compensat ion shall be made to t he owners and occupiers of such lands for t he loss or in jury or inconvenience susta ined by t h e m respectively by reason of such works t he a m o u n t of which compensat ion in case of any dispute about t h e same shall be set t led by arbi t ra tors in t he m a n n e r hereinafter

men t ioned and provided also t h a t no land shall be t aken pe rmanen t ly

for

for any such works otherwise t h a n is here in provided wi th respect t o t h e lands originally t aken for the purpose of m a k i n g t h e said ra i lway.

12. Eve ry br idge to be erected for t h e purpose of car ry ing t h e

ra i lway over any road shall be bui l t in conformity wi th t h e following

regula t ions ( tha t is to say )—

The width of t he a rch shall be such as to leave t he r eunde r a clear space of not less t h a n t h i r t y feet if t he a rch be over a publ ic h ighway and of t w e n t y feet if over a par i sh road a n d of twelve feet if over a p r iva te road.

The clear he ight of t h e a rch from the surface of t h e road shal l no t be less t h a n sixteen feet for a space of twelve feet if t h e a rch be over a t u r n p i k e road and fifteen feet for a space of t e n feet if over a publ ic carr iage road and in each of such cases t h e clear he ight a t t he spr inging of t he a rch shall not be less t h a n twelve feet t h e clear he ight of t he a rch for a space of n ine feet shall no t be less t h a n fourteen feet over a pr ivate road.

The descent made in t he road in order to car ry t he same unde r t he br idge shal l no t be more t h a n one foot in th i r ty feet if

t h e br idge be over a publ ic h ighway one foot in t w e n t y feet if over a parish road a n d one foot in sixteen if over a pr iva te road not be ing a t r amroad or rai l road or if t he same be a t r amroad or rai l road t h e descent shall not be grea ter

t h a n t h e r u l i n g gradient of such t r amroad or rai lroad.

13 .    Eve ry br idge erected for ca r ry ing any road over t he rai lway

shall be bui l t in conformity wi th the following regulat ions ( tha t is to

say )—

There shall be a good and sufficient fence on each side of t he
br idge of not less he igh t t h a n four feet and on each side

of t h e immedia te approaches of such br idge of not less

t h a n th ree feet.

The road over the br idge shall have a clear space between the fences thereof of thirty-five feet if t he road be a publ ic h ighway and twenty-five feet if a par i sh road and twelve feet if a p r iva te road.

The ascent shall no t be more t h a n one foot in t h i r t y feet if the

road be a t u r n p i k e road one foot in t w e n t y feet if a par ish road and one foot in s ixteen feet if a pr iva te road not being a t r amroad or rai l road or if t he same be a t r amroad or rail­ road the ascent shall not be greater t h a n the ru l ing gradient

of such t r a m r o a d or rai lroad.

1 1 . Provided always tha t in all cases where t he average; avail­

able wid th for t he passing of carr iages of any exis t ing road wi th in fifty yards of t he points of crossing the same is less t h a n the width herein­ before prescribed for br idges over or u n d e r t he rai lway the wid th of such bridges need not be grea ter t h a n such average available; width of such roads but so never theless t ha t such bridges be not of less width in case of a public h ighway or par ish road t h a n twen ty feet Provided also t h a t if a t any t ime after the cons t ruc t ion of t he ra i lway t h e average available wid th of anv such road shall be increased beyond t h e w id th of such br idge on e i ther side thereof t h e promoters shall be b o u n d a t the i r own expense to increase t he wid th of t he said br idge to such ex ten t as they may be requi red by the t rus tees or surveyors of such road not exceeding the width of such road as so widened or t he m a x i m u m wid th here in prescribed for a br idge in the l ike case over or

unde r t h e rai lway.

15. Provided also t h a t if the mesne inclination of any road
, w i th in two h u n d r e d and fifty yards of t he point of crossing the same;

or the incl inat ion of such por t ion of any road as may be requi red to

be

be al tered or for which another road shall be subs t i tu ted shall be steeper t h a n t h e incl inat ion hereinbefore requ i red to be preserved by the pro­ mote r s t h e n t h e p romoters m a y car ry any such road over or unde r t he ra i lway or may cons t ruc t such al tered or subst i tu ted road at an inclina­ t ion no t steeper t h a n the said mesne incl inat ion of t he road so to be crossed or of t he road so requ i r ing to be altered or for which ano ther

road shall be subst i tu ted .

16. The promoters shall m a k e and at all t imes thereafter main­ t a in t h e following works for t h e accommodat ion of t h e owners a n d

occupiers of lands adjoining the ra i lway ( that is to say)—

Such and so m a n y convenient gates bridges arches culver ts and passages over unde r or by t he sides of or leading to or from t h e ra i lway as shall be necessary for t h e purpose of m a k i n g good any in te r rup t ions caused by t h e ra i lway to t he use of t he lands t h r o u g h which t h e ra i lway shall be made and such works shall be m a d e for thwith after t h e p a r t of the ra i lway passing over such lands shall have been laid out or formed or du r ing t h e formation thereof.

Al l sufficient posts rai ls hedges di tches m o u n d s or o ther fences

for separa t ing t h e land t aken for t h e use of t h e rai lway from the adjoining lands no t t aken and pro tec t ing such lands from trespass or t he cat t le of t he owners or occupiers thereof from s t ray ing thereon by reason of t h e rai lway toge ther with all necessary gates m a d e to open towards such adjoining lands and not towards t h e rai lway and all necessary stiles and such posts rails a n d o ther fences shall be made for thwith after t h e t ak ing of any such lands if t he owners thereof shall so r equ i re and the said other works as soon as convenient ly m a y be.

Also all necessary arches tunne l s culver ts drains or o t h e r ]

passages e i ther over or unde r or by t he sides of t he rail­ way of such dimensions as will be sufficient at all t imes to convey t h e water as clearly from the lands ly ing nea r or affected by the ra i lway as before t h e m a k i n g of t he ra i lway 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 he ra i lway works proceed.

Also proper water ing-places for ca t t le or compensat ion in l ieu

thereof where by reason of t h e ra i lway t h e cat t le of any person occupying any lands ly ing near there to shall be deprived of access to the i r former water ing-places and such

water ing-places shall be so made as to be a t all t imes	sufficiently supplied wi th water as theretofore and as if
t h e rai lway had not been made or as near ly so as m a y be and the said promoters shal l m a k e all necessary water­ courses and drains for t he purpose of conveying water to
t h e said water ing-places .

Provided always t h a t t h e p romoters shall no t be requi red to m a k e such accommodat ion works in such a m a n n e r as would preven t or obst ruct t he work ing or us ing of t h e ra i lway nor to m a k e any accom­ modat ion works wi th respect to which t h e owners and occupiers of t he lands shall have agreed to receive and shall have been paid compensa­ t ion instead of t he mak ing them.

17. I f any person omit to shu t and fasten any gate set u p at e i ther side of t he rai lway for t he accommodat ion of the owners or occupiers of t h e adjoining lands so soon as he and t h e carr iage cat t le or other an imals unde 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 no t exceeding ten pounds .

18. The p romote r s shall no t be ent i t led to any mines oi

coal i ronstone slate or other minera ls under any l and whereof the

surface

surface is vested in t h e m by vi r tue of th i s Ac t except only such p a r t s thereof as shall he necessary to he dug or carr ied away in t he const ruct ion of t he works hereby author ized and such mines shall no t be deemed to vest in t he said promoters .

19. I f wi th in twenty-eight days after t he passing of th i s A c t

t h e said persons t h r o u g h whose lands t h e rai lway shall pass or any of

t h e m and t h e p romoters shall not agree as to t h e amoun t of compen­ sation to be paid by t h e m for t he said lands be longing to t he said par t ies or any of t h e m or for any damage t h a t m a y be sustained by t h e m or h i m by reason of t he execut ion of t h e works or if any o the r quest ion as to compensat ion shall arise unde r th i s A c t t he a m o u n t of such compensat ion shall be set t led by a rb i t ra tors in m a n n e r here in­ after ment ioned ( tha t is to say)—Unless both par t ies shall concur in t h e appo in tmen t of a single a rb i t ra tor each p a r t y on t h e reques t of

t h e o ther p a r t y shall nomina te a n d appoin t a n a rb i t ra to r to w h o m such

dispute or o ther m a t t e r shall be referred and every appo in tmen t of a n

a rb i t ra to r shall be unde r t h e h a n d of such p a r t y a n d such appoin t ­

m e n t shall be delivered to t h e a rb i t ra tor or a rb i t ra tors and shall be

deemed a submission to a rb i t ra t ion on the pa r t of the pa r ty by w h o m t h e same shall be made and after any such appo in tment shall have been m a d e ne i ther pa r ty shall have power to revoke t h e same wi thou t t h e consent of t h e other nor shall t he dea th of e i ther pa r ty operate as a revocat ion and if for t he space of fourteen days after any such dispute or other m a t t e r shall have arisen and after a reques t in wr i t i ng shall have been served by t h e one pa r ty on the other pa r ty to appoin t a n a rb i t ra tor such las t -ment ioned pa r ty fail to appoint such a rb i t r a to r t h e n upon such failure it shall be lawful for the A t to rney Genera l for t h e t i m e being of t h e said Colony on t h e appl icat ion of the pa r ty who has himself appointed an a rb i t ra tor to appoint such a rb i t ra to r to act on behalf of bo th par t ies and such a rb i t ra tor m a y proceed to hear and de te rmine t he ma t t e r s which shall be in dispute and in such case t h e

award or de te rmina t ion	of such single a rb i t ra to r	shall be final a n d
conclusive.

20. I f before t he m a t t e r so referred shall be de te rmined any

a rb i t ra to r appointed by e i ther pa r ty shall die or become incapable or

refuse or for fourteen days neglect to act as a rb i t r a to r t h e pa r ty by

w h o m such a rb i t ra to r was appointed m a y nomina t e and appoint in wr i t ing some other person to act in his place and if for t h e space of seven days after not ice in wr i t ing from the o ther pa r ty for t h a t pu r ­

pose he fail to do so t he r ema in ing or other a rb i t ra tors m a y proceed

alone and every a rb i t ra to r so to be subst i tu ted as aforesaid shall have t h e same powers and author i t ies as were vested in t h e former a rb i t ra to r at t h e t ime of such his dea th refusal neglect or disability as aforesaid.

2 1 . W h e r e more t h a n one a rb i t ra tor shall have been appointed

such a rb i t ra to rs shall before they enter upon t h e ma t t e r s referred to

t h e m nomina te and appoint by wr i t i ng u n d e r the i r hands an u m p i r e to decide any m a t t e r s on which t hey shal l differ or which shall be referred to t h e m under t h e provisions of th is A c t and if such u m p i r e shall die or refuse or for seven days neglect to act after be ing called upon to do so by the a rb i t ra to rs they shall for thwi th after such dea th refusal or neglect appoin t another u m p i r e in his place and the decision of every such u m p i r e on t h e m a t t e r s so referred to h i m shall be final.

22.    I f in e i ther of t he cases aforesaid t he a rb i t ra tor shall refuse

or for seven days after reques t of e i ther pa r ty to such	a rb i t r a t ion
neglect to appoint air u m p i r e i t shall be lawful for t he	A t to rney
Genera l for the t ime being on the appl icat ion of e i ther pa r ty	to such
arb i t ra t ion to appoin t an ump i r e a n d the decision	of such u m p i r e on
the ma t t e r s on which the arb i t ra tors shall differ	or which shal l be
referred to h i m u n d e r th i s Ac t shall be	final.

23. If w h e n a single a rb i t ra tor shall have been appointed such

a rb i t ra to r shall die or become incapable or shall refuse or for fourteen days neglect to act before he shall have m a d e his award t h e ma t t e r s

referred to h im shall be de termined by arb i t ra t ion unde r the provi­

sions of th is A c t in t he same m a n n e r	as if such arb i t ra tor	had	not
been appointed.

24.    I f where more t h a n one a rb i t ra tor shall have been appointed

e i ther of the arb i t ra tors shall refuse or for seven days neglect to act t h e o ther a rb i t ra tor may proceed alone and the decision of such o ther a rb i t r a to r shall be as effectual as if he had been the single a rb i t ra tor

appoin ted by both par t ies .

25.    I f where more t h a n one a rb i t ra tor shall have been appointed

a n d where ne i ther of t hem shall refuse or neglect to act as aforesaid such arb i t ra tors shall fail to make the i r award wi th in twenty-one days after t h e day on which the last of such a rb i t ra tors shall have been appointed or wi th in such extended t ime (if any) as shall have been appointed for t h a t purpose by both of such arb i t ra tors u n d e r

the i r hands the ma t t e r s referred to t h e m shall be de termined by the

u m p i r e to be appoin ted as aforesaid.

20. The said a rb i t ra tors or the i r u m p i r e may call for t he

p roduc t ion of any documents in t h e possession or power of e i ther p a r t y which they or he may t h i n k necessary for de te rmin ing the

ques t ion in dispute and m a y examine the par t ies or the i r	witnesses
on oath a n d adminis te r t h e oaths necessary for t h a t purpose.

27. Before any arb i t ra tor or umpi re shall en ter in to t he con­ siderat ion of any ma t t e r s referred to h i m he shall in the 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 ( tha t is to say) —

" I A. B . do solemnly and sincerely declare t h a t I will faith-
" fully and honest ly and to t h e best of m y skill and abili ty

" hear and de te rmine t he ma t t e r s referred to me unde r the

" provisions of t he Newcast le Wal l send Coal	Company ' s
" Rai lway Ac t

A. B .

" Made and subscribed in t he presence of ."

A n d such declarat ion shall be annexed to t he award w h e n m a d e and if a n y a rb i t ra to r or ump i r e hav ing made such declarat ion shall wilfully

ac t con t ra ry the re to lie shal l be gui l ty of a misdemeanor .

28. Al l the costs of any such a rb i t ra t ion and incident the re to

to be sett led by the a rb i t ra tors shall be borne by the promoters unless

t h e a rb i t ra tors shall award t h e same or a less sum t h a n shall have been offered by t h e promoters in which case each pa r ty shall bear his own costs incident to t h e arb i t ra t ion and t h e costs of t he a rb i t ra tors shall be

borne by the par t ies in equal propor t ions unless t he amoun t awarded shall be one-fourth less t h a n the amoun t in which case t he whole costs shall be paid by the c la imant Provided t h a t if ei ther pa r ty shall be dissatisfied wi th the costs allowed by the a rb i t ra tors as aforesaid the costs may be taxed by the P ro thono ta ry or o ther proper officer of t he Supreme Cour t and the amoun t allowed by such officer shall be the a m o u n t of costs to be paid.

29. The arbi t ra tors shall deliver the i r award in wr i t ing to t h e promoters who shall re ta in t he same and shall for thwi th on demand at the i r own expense furnish a copy thereof to t h e o ther pa r ty and shall at all t imes on demand produce t he said award and allow the same to be inspected or examined by such pa r ty or any person appointed by h i m for t h a t purpose and t h e amoun t awarded shall be paid wi th in s ixty days after t he publ icat ion of such award.

30. The submission to any such arb i t ra t ion m a y be made a ru le

of t h e Sup reme Cour t on t he appl icat ion of ci ther of t he par t ies .

3 1 . N o award made wi th respect to any ques t ion referred to

arb i t ra t ion u n d e r t h e provisions of th i s A c t shal l be set aside for

i r regular i ty or error in m a t t e r of form.

32. The promoters shall m a k e compensat ion and satisfaction to t h e said owners and occupiers t h e a m o u n t of such compensat ion and satisfaction to be ascertained and recovered in case of difference in t he m a n n e r hereby provided for t empora ry p e r m a n e n t or r ecu r r ing in jury and all o ther damage loss costs charges and inconvenience which m a y in anywise be occasioned to t h e said owners or occupiers by t h e non­ performance by the said promoters of any of t h e m a t t e r s and th ings hereby requi red to be performed by t h e m or otherwise.

33 . I n every case where t he promoters shall t ake t empora ry possession of lands by v i r tue of t h e powers hereby gran ted it shall be i n c u m b e n t on t h e m wi th in one m o n t h after t he i r en t ry upon such lands upon being requ i red so to do to pay to t he occupier of the said lands t h e value of any crop or dressing t h a t may be the reon as well as full compensat ion for any o ther damage of a t empora ry na tu r e which

h e m a y susta in by reason of the i r so t ak ing possession of the i r l ands

and t hey shall also from t ime to t ime dur ing the i r occupat ion of t h e said lands pay half-yearly to such occupier or to t h e owner of t h e lands as t he case m a y requ i re a ren t to be fixed by two Jus t ices in case t h e par t ies differ a n d shall also wi th in six mon ths after t h e complet ion of t he rai lway pay to such owner and occupier or deposit in t h e b a n k for t h e benefit of all par t ies in teres ted as the case m a y requi re compensat ion for all p e r m a n e n t or o ther loss damage or in jury t h a t may have been sustained by t h e m by reason of t he exercise as regards t he said lands of t h e powers hereby g ran ted inc lud ing t h e full va lue of all clay stone gravel sand and other th ings t aken from

such lands .

3 1 . 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 unless the re be someth ing e i ther in t he subject or context r e p u g n a n t to such const ruct ion The word

" promoters " shall m e a n the said Newcast le Wal l send Coal Company

t h e word " ra i lway " shall m e a n the ra i lway hereby author ized to be cons t ruc ted and in ci t ing th is Ac t i t shall be sufficient to use t he expression " The Newcast le Wal l send Coal Company ' s Ra i lway A c t

1859 " t he word " Jus t i ce " shall m e a n J u s t i c e of the Peace in a n d

for t he Terr i tory of N e w South Wales and where any m a t t e r shall	be
author ized or requi red to be done by two Jus t ices the expression	" t w o

Jus t i ces " shall mean two Jus t i ces assembled and ac t ing toge the r in

P e t t y Sessions and where u n d e r the provisions of th i s Ac t any	not ice
act shal l be author ized or requi red to be done wi th t h e consent of any	shall be requi red to be given to t h e owner of any l and or where any
such owner t h e word " owner " shall be unders tood to m e a n any per­ son or corporat ion who unde r t he provisions of th i s A c t Avould be able to sell l and to t h e promoters .

35 . This A c t shall be deemed and t aken to be a publ ic Act and

shal l be judic ia l ly t a k e n not ice of as such by the J u d g e s of t h e Supreme Cour t of N e w South W a l e s and by all o ther J u d g e s Jus t i ces and. o thers wi th in the Colony of N e w South Wales and i ts dependencies wi thou t be ing specially pleaded and t h e same whenever cited shall be sufficiently described as " The Newcast le Wal l send Coal Company ' s

Ra i lway A c t 1859 . "

T H E

T H E S C H E D U L E H E R E I N B E F O R E R E F E R R E D TO.

COMMENCING at a point on the northern boundary of the land of the promoters and

going in a north-easterly direction through land believed to be the property of Messrs. Cowper and Miller as Trustees for Mrs. Brooks until it meets the land late " Weller's " and now belonging or supposed to belong to John Whitehill Stevens Esq. through which it passes in a similar direction to the boundary of land the property of the Crown known as Commonage lleserve through which it also passes in a similar direction to and through the land of the Australian Agricultural Company and in the same direction to the Great Northern Raihvay at a point seven chains short of the 4 | mile post.