not entitled to receive the same, saving always its recourse pany for payagainst such party. 43-44 V., c. 43, s. 9 § 30. ing to any person. &c., purchas 31. If the company have reason to fear any claims, mort- As to incumgages or incumbrances, or if any person to whom the compensa- brances, &c., tion or annual rent, or any part thereof, is payable, refuse to upon lands, execute the proper conveyance and guarantee, or if the party ed or taken. entitled to claim the same cannot be found, or be unknown to the company, or if, for any other reason, the company deem it advisable, the company may pay such compensation into the hands of the prothonotary of the Superior Court for the district in which the lands are situated, with the interest thereon for six months, and may deliver to the prothonotary an authentic copy of the conveyance, or of the award, if there be no conveyance. title. The award shall thereafter be deemed to be the title of the Award to be company to the land therein mentioned; and proceedings shall company's be taken to obtain the confirmation of the company's title, in the same manner as for other confirmations of title, except that, in addition to the usual contents of the notice, the prothonotary shall state that the company's title (that is to say, the conveyance or the award) is under this section, and shall Confirmation call upon all persons entitled to the land, or representing or being the husbands of any persons interested, to file their claims Special to the compensation or to a part thereof, and such claims shall notice. be received and adjudged upon by the court. 43-44 V., c. 43, s. 9 § 31. of title. 32. Such judgment of confirmation shall forever bar all Effect of claims to the land, or any part thereof (including dower not judgment of yet open) as well as any mortgage or incumbrance upon the of title. same. confirmation compensa The court shall make such order for the distribution, pay- Order for disment or investment of the compensation and for the security of tribution of the rights of all persons interested, as to right and justice tion. shall appertain and the provisions of this section and of the charter and of the law require. 43-44 V., c. 43, s. 9 § 32. 33. The costs of the proceedings, or any part thereof, shall be Costs of propaid by the company, or by any other party, as the court may whom paid. ceedings, by order. If judgment of confirmation be obtained in less than six Payment of months from the payment of the compensation to the protho- interest, if judgment notary, the court shall direct a proportionate part of the in- obtained in terest to be returned to the company. six months. If, from any error, fault or neglect of the company, the If, after six judgment be not obtained until after the six months have months. expired, the court shall order the company to pay the prothonotary the interest for such further period as may be right. 43-44 V., c. 43, s. 9 § 33. construction 34. Whenever stone, gravel, earth, sand or water is required Power to take for the construction or maintenance of any railway, or any materials, for part thereof, the company may, in case it cannot agree with the of road. proprietor of the lands on which the same are situated, for the purchase thereof, cause a land surveyor duly commissioned as such, to make a map and description of the property so Provisions such case. required, and it shall serve a copy thereof with its notice of arbitration, as in the case of expropriation for right of way. All the provisions of this section, as to the service of the applicable in said notice of arbitration, compensation, deeds of sale, payment of money into court, the right to sell, and the right to convey, and the persons from whom lands may be taken, or who may sell, shall apply to the subject-matter of this paragraph, and to the obtaining materials as aforesaid. For what purpose. Notice in case of arbitra tion. Power to Such proceedings may be had by the company, either for the right to the fee-simple in the land from which the said materials shall be taken, or for the right to take materials for any time they shall think necessary. The notice of arbitration, in case arbitration is resorted to, shall state the interest and powers required by the company. 43-44 V., c. 43, s. 9 § 34. 35. Whenever any gravel, stone, earth, sand or water is taken make sidings, at a distance from the line of the railway, the company may conduits, &c. lay down the necessary sidings, water-pipes or conduits and tracks over or through any lands intervening between the railway and the lands on which such materials or water is found, whatever the distance may be. Provisions applicable. Right of way. Powers may be exer cised for repairing and maintaining road. Provisions when the whole lot or can be pur chased with advantage. All the provisions of this section, except such as relate to the filing of plans and publication of notices, shall apply and may be used and exercised to obtain the right of way from the line of railway to the land on which such materials are situated. Such right of way may be acquired for a term of years or permanently, as the company may think proper. The powers in this and the next preceding paragraph contained may, at all times, be exercised and used in all respects, after the railway is constructed, for the purpose of repairing and maintaining the railway. 43-44 V., c. 43, s. 9 § 35. 36. Whenever for the purpose of procuring sufficient lands for stations or gravel-pits, or for constructing, maintaining and parcel of land using the railway, any land may be taken under the compulsory provisions of this article, and by purchasing the whole of any lot or parcel of land over which the railway is to run, or of which any part may be taken under the said provisions, the company can obtain the same at a more reasonable price, or to greater advantage than by purchasing the roadway line alone, or only such part as aforesaid, the company may purchase, hold, use and enjoy the whole of such lot or parcel, and also the right of way thereto, if the same be separated from their line of railway and may sell and convey the same, or any part thereof, from time to time, as it may deem expedient; but the compulsory provisions of this section shall not apply to the taking of any portion of such lot or parcel, not necessary for the purposes aforesaid. 43-44 V., c. 43, s. 9 § 36. ceed by way of arbitra Right of 37. If the company have taken possession of any land, or owner to pro- performed any work thereon, or have removed materials therefrom, without the amount of compensation having been agreed upon or determined by arbitration, the proprietor of the land or his representative may, himself, cause the valuation of the land or of the materials taken to be made, without prejudice to tion. other legal recourse, if possession have been taken without his consent. For such purpose he shall cause to be served, at the office of Notice to that the company or on its president, a notice giving: 1. A description of the land or materials taken; 2. The price asked for such land or materials; 3. The name of a person who shall be appointed his c. 43,s. 9 § 37. 43-44 V., effect, what to contain. 38. Paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, Proceedings. and 27 of this article shall, mutatis mutandis, apply to the proceedings taken by the proprietor in virtue of the preceding paragraph. If the amount adjudged be not less than that demanded, the Costs by costs of arbitration shall be borne by the company; otherwise whom paid; they shall be paid by the proprietor. In either case, the costs shall be taxed by the judge, in the To be taxed, manner indicated in paragraph 20 of this article, if the parties and how. do not agree upon the amount thereof. 43-44 V., c. 43, S. 9 § 38. quired for the 5165. Whenever any railway company requires, at any Proceedings station or place on the line of such railway, more ample space when more for the convenient accommodation of the public and of the space is retraffic on the railway than they then possess or can take accommodawithout the consent of the proprietors thereof, the company traffic at any may cause a plan to be made of the additional ground required station or at such station or place for the purposes aforesaid, not being place. in actual use for similar purposes by any other railway com pany. tion of the For the purpose of making such plan, the company shall Powers have the powers granted to railway companies for making respecting plan. surveys by article 5132, and may transmit such plan to the Transmission Commissioner of Public Works, with an application supported to Comby affidavit, on behalf of the company, referring to such plan missioner, &c. and stating that certain ground shewn thereon is necessary for the purposes aforesaid, and that no other ground, suitable for purpose, can be acquired at such place on reasonable terms and with less injury to private rights, and requesting the Commissioner of Public Works to authorize the taking thereof for Notice to be such purposes under this section, of which application ten days' given. notice shall be given to the owner of such property. The correctness of the plan and the truth of the allegations Certificate in such application shall be certified by the president or one of on plan. the directors of the company, and by its engineer. Such plan and statement shall be made and transmitted to Plan to be the Commissioner of Public Works in duplicate. 43-44 V., c. 43, in duplicate. s. 10; 50 V., c. 7, s. 12. sioner. 5166. The Commissioner shall inquire into the correctness Certificate of of the plan and the truth of the allegations of the application Commis aforesaid, and, being satisfied thereof, shall grant a certificate to that effect, declaring it to be necessary, in the public interest, Certificate to be annexed to plan. Effect of such certificate that the ground shewn on such plan, or any less quantity, should be acquired by the company. Such certificate shall be annexed to one of the duplicates of the said plan and statement, and the other duplicate shall remain in the office of the Commissioner of Public Works. 4344 V., c. 43, s. 11; 50 V., c. 7, s. 12. 5167. Upon the granting of such certificate as aforesaid by and applicathe said Commissioner of Public Works, and by virtue thereof, tion of certain the company shall have power to take the ground shown on provisions of the said plan as required for the purposes aforesaid, without the consent of the proprietors. this section to the land certified as necessary. Provisions applicable. Sale of land afterwards The company and all corporations or persons who could not otherwise convey the same to the company shall have, with respect to any such ground, all the powers granted by subsection thirteenth of this section, respecting lands and their valuation, to railway companies, corporations, and parties who could not otherwise convey the same, with respect to lands which may be taken without the consent of the proprietors thereof. The enactments and provisions of the said subsection thirteenth, except such as refer to the map or plan and book of reference therein mentioned, or as limit the extent of land to be taken, shall apply and are hereby extended to the ground mentioned in the said certificate of the Commissioner and to all the proceedings connected with or consequent upon the acquiring or taking of such ground, or any part thereof, with or without the consent of the proprietor. If, at any time thereafter, the company shall not require the taken and not whole or any portion of the land so acquired for railway purposes, then such land, as is not so required, shall be sold by public auction after thirty days' notice thereof in any newspaper. 43-44 V., c. 43, s. 12; 50 V., c. 7, s. 12. required. Proof of certificate. Application of four preceding articles. 5168. Any such certificate, as aforesaid, signed by the Commissioner of Public Works, shall be received as authentic in all courts in the Province, without proof of such signature or other evidence, unless its authenticity be called in question. 43-44 V., c. 43, s. 13; 50 V., c. 7, s. 12. 5169. The provisions of the four next preceding articles shall apply to every incorporated railway company, and to every railway now built, or in course of construction or which may hereafter be built, as well as to those railways and railway companies to which this section is, by its provisions, declared to be generally applicable. 43-44 V., c. 43, s. 14. § 14.-Highways, Bridges and Fences. 1. HIGHWAYS AND BRIDGES. Railway not to be carried 5170. The railway shall not be carried along an existing highway, but merely cross the same in the line of the railway, along any unless leave has been obtained from the proper municipal or highway, local authority therefor. without leave from munici ties. No obstruction of such highway with the works shall be pal authorimade without turning the highway, so as to leave an open and Not to obgood passage for carriages, and, on completion of the works, struct highreplacing the highway, under a penalty of not less then forty ways. dollars for any contravention, but, in no case, shall the rail itself, provided it does not rise above or sink below the sur- Proviso. face of the road more than one inch, be deemed an obstruction. 43-44 V., c. 43, s. 15 § 1. than one inch 2. No part of the railway which crosses any highway without Railway not being carried over by a bridge, or under by a tunnel, shall to rise more rise above or sink below the level of the highway more than above level of one inch. any highway, when cross The railway may be carried across or above any highway, ing the same. within the limits aforesaid. 43-44 V., c. 43, s. 15 § 2. 3. The span of the arch of any bridge erected for carrying Height and the railway over or across any highway shall, at all times, be span of bridge over highand be continued of the open and clear breadth and space, ways. under arch, of not less than twenty feet, and of a height from the surface of such highway to the centre of such arch of not less than twelve feet. The descent under any such bridge shall not exceed one foot Descent in twenty feet. 43-44 V., c. 43, s. 15 § 3. under 4. The ascent of all bridges, erected to carry any highway Ascent of over any railway, shall not be more than one foot in twenty bridges. feet increase over the natural ascent of the highway; and a good and sufficient fence shall be built on each side of the bridge which shall not be less than four feet above the surface of the bridge. 43-44 V., c. 43, s. 15 §4. constructed over rail 5. Whenever an overhead bridge or any other erection or Highwaystructure shall be constructed for the passage of a highway bridges. &c., over a railway, or, whenever it shall become necessary to reconstruct any highway-bridge, or other erection or structure ways, to be already built over a railway, or to make large repairs to the made of a certain height same, the lower beams or members of the superstructure of any above the top such bridge, or of any other structure and the approaches of the highest freight cars, thereto, shall be constructed or reconstructed at the cost of the and at whose railway company or of the municipality or other owner of the expense. bridge, erection or structure, as the case may be, and shall, at at all times, be maintained at a sufficient height, from the surface of the rails of the railway, to admit of an open and clear headway of not less than seven feet between the top of the highest freight cars, then running on the railway, and the lower beams or members of such bridge or other erection. Any railway company, before using higher freight cars Provisions in than those running on their railway at the time of the case of higher cars being construction or reconstruction of, or large repair to such bridge used thereor other erection or structure, shall, after having first obtained after. the consent of the municipality or of the owners of such highway-bridge or other erection or structure, raise the said bridge, or other erection or structure, and the approaches |