Internal Board of Trade Memorandum
From: Solicitors Department
To: Railway Department
July 5th 1877
Radstock Level Crossing
I think Colonel Yolland somewhat misapprehended
my object in writing to him on the 27th Ulto. I had not the least desire
to put forward on the part of the Board of Trade a matured scheme for
overcoming the physical difficulties which admittedly beset this matter,
but in as much as we are about to apply for a Writ of Mandamus, which
it rests in the discretion of the court to grant, or to refuse, I wished
to be able if necessary to convince the court through Counsel that,
the Orders of the Board of Trade were neither impracticable nor unreasonable,
and that, accordingly, the case is a proper one in which to grant a
Mandamus – We may expect that our opponents will raise this issue,
and the information I sought was merely for the purpose of the argument,
and was by no means to be used as binding the Board of Trade to any
particular scheme for executing the works . I take this opportunity
of stating, that the point is one which really presses upon me –
A Court of Law will not enforce an order unless it be specifically definite
and specific in its terms, - in the very section from which we drive
our power, the Board of Trade is expressly required in the case of works,
other than a bridge, not only to form its “opinion of the works
best adopted under the circumstances to remove the danger” arising
from the level crossing, but the Order of the Board of Trade itself
is required to specify these works . I therefore drew Colonel Yolland’s
attention when I originally wrote upon the case in August 1875, to the
necessity of conveying a sufficiently definitive command to the Companies.
Upon this suggestion, Colonel Yolland advised that it would be sufficient
that the orders should direct each Company to build a bridge, and further
to construct it “in conformity with the regulations, and subject
to the provisions contained in Sections 50, 51, 52 & 53 of the Railway
Clauses Consolidation Act of 1845”.
In order to meet the engineering difficulties,
which the Companies would feel separately obeying the literal terms of
the two orders, a special letter was addressed to them, when the orders
were served, suggesting that, the two Companies should jointly erect an
overbridge, or viaduct in place of the two separate bridges, which alone
the Board of Trade had the power to order to be constructed. Having regard
to the terms of the two orders, the point which has pressed upon me from
the outset, and with greater force since my visit to the spot, Is this:
- It is provided by one of the regulations in Sec 50 of the Railway Clauses
Consolidation Act 1845 in conformity with which the Companies were severally
ordered to build these bridges that “the ascent to an overbridge
shall not be more than 1 foot in 30 ft”. Now the distance between
the two Railways is only 114 feet and under this short length of Road
a stream passes by a Bridge – My fear is that in strict literal compliance
with the Orders the bridge over the Somerset and Dorset line must within
the space of 114 feet descend to the level of the road, which descent
is an ‘ascent’ from the opposite side and the bridge separately
ordered to be built by the Bristol and North Somerset over the line must
ascend in a similar way. The problem is, how is it physically possible
for the Companies to comply with our Orders and make the ‘ascents’
not more than 1 in 30 feet – regarding the Orders as one must necessarily
do, as order separately made, each of which is to be enforced, or must
be capable of being enforced, independently of the other, I have failed
to see how the requirement that “the ascent shall not be more than
1 in 30 feet” can possibly be observed.
The mode in which Colonel Yolland meets this
difficulty I understand to be this – he assumes that the Somerset
and Dorset Company, for instance, will build their bridges with the proper
ascent on one side, and will carry it to a spot midway between their line
and that of the North Somerset on a continuous level and there abruptly
stop without any descent, and that on the other hand the North Somerset
Company will construct a similar work on the other side which will meet
the opposite work midway on the same level. No doubt this will be the
best conceivable way to overcome the whole difficulty, but the question
from my point of view is whether the Court of Queen’s Bench will
not consider the works above described to be rather sections or parts
of an overbridge, than a literal compliance with the Orders of the Board
of Trade directing that each Company shall build a complete bridge with
an ascent of not more than 1 foot in 30. The Court may be more inclined
to this view because it appears to involve something outside of the Orders.
Viz a prearrangement between the Companies and a mutual consent on their
part to substitute the joint for the separate works – I do not say
that the Court will certainly take this view of the case, but it is clearly
to my mind a danger against which I ought to be able to fortify Counsel
to the best of my power.
Colonel Yolland has been kind enough to
see me at my request, I understand his views and I do not know how he
can further assist me in removing the danger above mentioned –
Of however on further consideration of the matter he can do so, I shall
be much obliged to him.
The real fact is that, the device of making
these orders and the accompanying suggestion of a joint overbridge in
lieu of them was the only means by which the Board of Trade could attempt
to remedy the serious evils of these level crossings – It was hoped
that under this pressure the Companies would combine to remove the dangers
of the crossings. They have however opposed a passive resistance to
the orders and if we fail to enforce them by the Mandamus to be applied
for, our want of success will be due not to any mistake or by misapprehension
on the exercise of our powers, but because those powers are inadequate
to deal with a case like the one now before us.
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