CORK MILLING COMPANY RAILWAY ACT, 1935

AN ACT TO AUTHORISE THE CONSTRUCTION BY THE CORK MILLING COMPANY LIMITED OF A RAILWAY CONNECTING THEIR MILL PREMISES AT VICTORIA QUAY, CORK, WITH THE RAILWAYS OF THE GREAT SOUTHERN RAILWAYS COMPANY. [26th July, 1935.]

BE IT THEREFORE -ENACTED BY THE OIREACHTAS OF SAORSTÁT EIREANN AS FOLLOWS:—

1 Short title.

1.—This Act may be cited as the Cork Milling Company Railway Act, 1935.

2 Incorporation of Acts.

2.—The following Acts and parts of Acts (except where expressly varied by or inconsistent with this Act are incorporated with and form part of this Act):—

so much only of the Railway Clauses Consolidation Act, 1845, as relates to the construction and to the transfer, sale or leasing of the railway and the works connected therewith;

Part I (relating to the construction of a railway) of the Railway Clauses Act, 1863.

3 Interpretation.

3.—In this Act unless the subject or context otherwise requires—

the expression “the Company” means the Cork Milling Company Limited;

the expression “the Minister” means the Minister for Industry and Commerce;

the expression “the Borough” means the County Borough of Cork;

the expression “the City Engineer” means the Borough Surveyor for the time being of the Borough;

the expression “the Corporation” means the Lord Mayor, Aldermen and Burgesses of Cork;

the expression “the Railway Company” means the Great Southern Railways Company;

the expression “the railway” means the railway or siding by this Act authorised;

the word “street” means any carriage way being a public highway and any quay; and where the railway crosses any footpath shall include such footpath save where the context otherwise requires;

the expression “mechanical power” means electrical and any other motive power not being animal power.

4 Power to make railway.

4.—Subject to the provisions of this Act the Company may within the Borough, lay down, make and maintain in the lines and according to the levels shown on the deposited Plans and Sections the railway and railway lines hereinafter described with all proper sidings, junctions, rails, plates, works and conveniences connected therewith and may use such of the lands as are delineated on the said Plans and described in the deposited Book of Reference as may be required for those purposes (that is to say)—

A railway, 207 of a mile in length, being a branch railway or siding, commencing at a junction with the existing railway line of the Great Southern Railways Company (hereinafter called “the Railway Company”) on Albert Quay in the City of Cork at a point 108 feet westward of the junction of Victoria Road and Albert Quay and running as a single line in an easterly direction along Albert Quay to Victoria Road and thence in a south-easterly direction along Victoria Road to a point 130 feet from the junction of Victoria Road and Albert Quay aforesaid and there entering the Company's Mill premises in Victoria Road, becoming a double line within the said premises and extending as a double line across Furlong Street into the Company's stores on the east side of Furlong Street and terminating within the said store premises at a point 200 feet east of Furlong Street.

The entire line will be situate within the Parish of St. Nicholas and South Ward in the County of the City of Cork.

5 Power to make railway on level of street.

5.—Notwithstanding anything in the said incorporated Acts contained in reference to the crossing of any street on the level the Company may construct and maintain the railway along, across and on the level of any existing street and may alter the level of any footpath in accordance with the deposited Plans and Sections and the provisions of the said Acts with reference to the crossing of any street or other interference therewith shall not apply to the railway so far as the same may be constructed on the level of or along or across any such street.

6 Railway to be kept on surface of street.

6.—Where the railway is authorised by this Act to be laid along, across or on the level of any street it shall be laid and maintained in such a manner that the uppermost surface of the rails shall be on a level with the surface of the street and the Company shall not in constructing the railway along, across or on the level of any existing street deviate from the levels thereof as shown on the deposited Sections without the consent of the Corporation.

7 Gauge.

7.—The gauge of the railway shall be five feet three inches.

8 Form of rails.

8.—The form of rail to be laid along or across any street shall be approved by the City Engineer and if the Company shall be dissatisfied with his decision they may appeal to the Minister whose decision shall be final.

9 Motive power.

9.—Subject to the provisions of this Act the Company may work the railway by mechanical or animal power.

10 Minister for Industry and Commerce may regulate working of railway on street, etc.

10.—(1) Whore the railway is laid along or across and on the level of any public street the Company or any other company using the railway shall be subject to and shall abide by all such regulations with regard to the working of traffic or to the speed of trains over the railway as may be prescribed by the Minister and the Minister is hereby empowered to prescribe such regulations and for that purpose to make such inquiry as he thinks fit.

• (2) The Company or any other company using the railway contrary to the provisions of the said regulations shall be guilty of an offence and upon conviction shall be liable to a penalty not exceeding ten pounds for each such offence.

11 Repair to streets whereon railway is laid.

11.—The Company shall at their own expense at all times under the superintendence and to the reasonable satisfaction of the City Engineer pave with wood blocks, stone setts, concrete, asphalt, or any other material approved by the City Engineer, cleanse, water, maintain and keep in good condition and repair so much of any street whereon the railway is laid as lies between the rails of the railway and in case of double lines the portion also of the street between the two lines of rails and in either case so much of the street as extends two feet beyond the rails of and on each side of the railway.

12 Agreements with the Corporation.

12.—The Corporation on the one hand and the Company on the other hand, may from time to time enter into and carry into effect, and from time to time alter, renew or vary contracts, agreements, or arrangements with respect to laying down, making, paving, metalling or keeping in repair any street and the railway thereon, or in respect of altering the levels of the whole or any portion of any street on which the Company are authorised to lay down the railway and the proportion to be paid by them or either of them of the expense of laying down, making, paving, metalling, keeping in repair or altering such railway, or street, or the levels thereof.

13 Agreements with the Railway Company.

13.—The Company may from time to time enter into contracts agreements or arrangements with any company for the working, use, and maintenance of the railway and works or any part or parts thereof or for the supply of rolling stock, necessary machinery and apparatus for the working and use of the same upon such terms as may from time to time be agreed upon.

14 Period for completion of railway.

14.—The Company shall complete and finish, ready for use, the railway, and the proper equipment for working the same within five years from the date of the passing of this Act and on the expiration of the said period of five years the powers by this Act granted to the Company for executing the same or otherwise in relation thereto shall cease except as to so much thereof as shall then be completed.

15 Power to break up streets, etc.

15.—The Company for the purpose of laying down, making, maintaining and renewing the railway authorized by this Act or any part or parts thereof respectively may from time to time open and break up, and as authorized by this Act alter the level of any street, subject to the following regulations:—

• (1) The Company shall give to the City Engineer notice of their intention, specifying the time at which they will begin to do so, and the portion of the street proposed to be opened or broken up, such notice to be given seven days at least before the commencement of the work.

• (2) The Company shall not open, or break up, or alter the level of any street, except under the superintendence and to the reasonable satisfaction of the City Engineer, unless the City Engineer refuses or neglects to give such superintendence at the time specified in the Company's notice or discontinues to give such superintendence at any time during the progress of the work. It shall not be lawful for the Company to sink or raise any street without bringing the whole surface to the same level unless the City Engineer shall otherwise direct.

• (3) The Company shall pay all reasonable expenses to which the Corporation is put on account of such superintendence.

• (4) The Company shall not, without the consent of the said City Engineer open or break-up at any one time a greater continuous length than two hundred yards of any street.

16 Restoring street.

16.—When the Company have opened or broken up a street or any part thereof the Company shall be under the following obligations, namely:—

• (1) The Company shall with all convenient speed and within eight weeks at the most (unless the Corporation otherwise consents in writing) complete the work on account of which they opened or broke up the street and (subject to the laying down, making, maintenance or renewal of the railway) fill in the ground level, and make good the surface, and to the satisfaction of the City Engineer restore the portion of the street to as good a condition as that in which it was before it was opened or broken up, and clear away all surplus paving or metalling material or rubbish occasioned thereby, and in the case of any crossing broken up by the Company, the Company shall pave such crossing to the extent of the entire breadth of the street across which such crossing extends.

• (2) The Company shall in the meantime cause the place where the street is opened or broken up, to be fenced and watched, and to be properly lighted at night, and provide and maintain sufficient and proper means of passage and repassage for all passengers, vehicular, animal and public traffic along such street to the satisfaction of the City Engineer.

• (3) The Company shall bear all reasonable expenses of the repair of those portions of such street so opened or broken up for six calendar months after the same is restored, such expenses to be certified by the City Engineer whose certificate shall be conclusive.

• (4) If the Company fail to comply in any respect with the provisions of this section, the Company shall be guilty of an offence and upon conviction shall for every such offence (without prejudice to any other remedy against them) be liable to a penalty not exceeding ten pounds and to a further penalty not exceeding five pounds for each day on which any such failure continues after the first day on which the penalty is incurred, and any such penalty shall go and belong to the Corporation, and shall form part of the funds applicable to the maintenance of the streets.

17 Provision as to sewers and drains.

17.—(1) For the purpose of laying down, making, maintaining, repairing or renewing the railway or other works or conveniences or any part thereof, the Company may from time to time where and so far as it is necessary or may appear expedient either for the purpose of preventing frequent interruption of traffic by repairs or works in connection with the railway or otherwise alter the position of any sewers or drains, mains or pipes for the supply of water, oil, petrol or gas, or any tubes, wires or apparatus for any purpose (other than telegraphic purposes), subject to the provisions of this Act and the restrictions hereinafter provided.

• (2) Before laying down the railway in any street in which any sewers, drains, mains, pipes, valves, syphons, plugs, tubes, wires or apparatus may be laid, the Company shall, whether they contemplate altering the position of such sewers, drains, mains, pipes, valves, syphons, plugs, tubes, wires or apparatus or not, give seven days' notice to the Corporation or person to whom such sewers, drains, mains, pipes, valves, syphons, plugs, tubes, wires or apparatus belong or by whom they are controlled, that the construction of the railway as proposed might endanger any such sewers, drains, mains, pipes, valves, syphons, plugs, tubes, wires or apparatus or interfere with or impede drainage or the supply of gas, water or electricity or interfere with or obstruct the access to, and the repair or maintenance of such drains, mains, pipes, valves, syphons, plugs, tubes, wires or apparatus as aforesaid. The Corporation or such person (as the case may be) may give notice to the Company to lower or otherwise alter the position of or protect the said sewers, drains, mains, pipes, valves, syphons, plugs, tubes, wires or apparatus in such manner as may be considered necessary and any difference as to the necessity of such lowering, altering or protecting shall be settled in the manner provided in this Act for the settlement of differences between the Company and any such person and all works or alterations made under this section shall be made with as little detriment and inconvenience to the Corporation or such person to whom such sewers, drains, mains, pipes, valves, syphons, plugs, tubes, wires or apparatus may belong, or by whom the same are controlled, or to the inhabitants of the district as the circumstances will admit, and under the superintendence of the City Engineer or the engineer of any such person, if he shall think fit to attend after receiving not less than forty-eight hours' notice for that purpose, which notices the Company are hereby required to give.

• (3) The Company shall not remove or displace any of the sewers, drains, mains, pipes, valves, syphons, plugs, tubes, wires or apparatus, or any other works belonging to or controlled by the Corporation or any person or do anything to impede the passage of sewage, drainage, gas, water, oil, petrol or electricity, into or through such sewers, drains, mains, pipes, valves, syphons, plugs, tubes, wires or apparatus, without the consent of the Corporation, or such person, or in any other manner than the Corporation, or such person shall approve, until such good and sufficient sewers, drains, mains, pipes, valves, syphons, plugs, tubes, wires or apparatus and other works necessary or proper for continuing the drainage system or the supply of gas or water as efficiently as same was dealt with or supplied by the sewers, drains, mains, pipes, valves, syphons, plugs, tubes, wires, or apparatus proposed to be displaced or removed, shall, at the expense of the Company, have been first made and laid down in lieu thereof ready for use and to the reasonable satisfaction of the City Engineer or the engineer of such person as the case may be or in the case of disagreement between the City Engineer or the engineer of such person and the Company as an engineer appointed by the Minister shall direct.

• (4) The Company shall not lay down any such sewers, drains, mains, pipes, valves, syphons, plugs, tubes, wires, or apparatus contrary to the provisions of any Act relating thereto.

• (5) The Company shall make good all damage done by them in constructing the railway to all streets, sewers, drains, mains, pipes, valves, syphons, plugs, tubes, wires, apparatus, works, and property belonging to or controlled by the Corporation, or any person, and shall make full compensation to all parties for any loss or damage which may be sustained by reason of any interference with such property, or with the private service pipes or wires of any person supplied with gas, water or electricity.

18 Right of Corporation to open streets.

18.—Nothing in this Act shall take away or abridge any power to open or break up any street along or across which the railway is laid, or any other power vested in the Corporation or in any person for the purpose of laying down, repairing, altering or removing any sewers, drains, mains or pipes for the supply of water, oil, petrol or gas, or any tubes, wires or apparatus for telegraphic, electrical or other purposes; but in the exercise of such power the Corporation and every such person save the Minister for Posts and Telegraphs shall be subject to the following restrictions:

• (1) They shall cause as little detriment or inconvenience to the Company as circumstances will admit.

• (2) Before they commence any such work whereby the traffic on the railway will be interrupted they shall (except in case of urgency, in which case no notice shall be necessary) give to the Company notice of their intention to commence such work, specifying the time at which they will commence such work, such notice to be given forty-eight hours at least before the commencement of the work.

• (3) They shall not be liable to pay to the Company any compensation for unavoidable injury done to the railway or for loss of traffic occasioned by the execution of such work, or for the reasonable exercise of the power vested in them as aforesaid.

• (4) Wherever for the purpose of enabling them to execute such work the Corporation or any such person shall so require the Company shall either stop the traffic on the railway, where it would otherwise interfere with such work, or shore up and secure the railway at their own expense during the execution of the work: Provided that such work shall always be completed by the Corporation or such person with all reasonable expedition.

• (5) The Corporation or any such person shall not execute such work so far as it immediately affects the railway except under the superintendence of the Company's engineer unless the Company refuse or neglect to give such superintendence at the time specified in the notice for the commencement of the work, and the Corporation and every such person shall execute such work at their own expense and to the reasonable satisfaction of the Company's engineer.

19 Cost of works.

19.—Save where apportionable under the provisions hereinbefore contained the entire costs and expenses of and incidental to the construction of the railway, and the execution of the works hereby authorised, and of the care, maintenance, repair and upkeep thereof in manner aforesaid, shall be borne and paid by the Company out of its own moneys.

20 Traffic not to be impeded.

20.—During the construction of any works authorised by this Act the Company shall make such arrangements in relation to the execution of such works as may in the opinion of the Corporation be proper to prevent the traffic along the street from being unnecessarily interfered with.

21 The Company to be responsible for damages.

21.—The Company shall be answerable for all accidents, damages or injuries happening through their wrongful acts or defaults or through the wrongful acts or defaults of any person having a contract with them or a sub-contract with their contractor or of any person employed by them for or in the execution of the works authorised by this Act; and the Company shall at all times save harmless and keep indemnified the Corporation, their officers and servants of and from all losses, damages and costs incurred as aforesaid which the Corporation may incur or be liable for, or in respect of such damage, or injuries or claims in respect thereof.

22 Right as to street.

22.—Notwithstanding anything in this Act contained the Company shall not acquire or be deemed to acquire any right other than that of user by the engines, motors, rolling stock, horses and servants of the Company or of any other company or person working the railway on behalf of the Company of any street along or across which they may lay the railway and save by the payment of expenses and execution of works as hereinbefore provided the Company shall not be bound or liable to compensate the Corporation, or any person in respect of the acquisition of such right of user.

23 Saving rights of the Minister for Posts and Telegraphs.

23.—Nothing in this Act contained shall authorise any interference with any telegraphic line of the Minister for Posts and Telegraphs as defined by the Telegraph Acts, 1863 to 1928, or other property of the Minister for Posts and Telegraphs or any of the rights of the Minister for Posts and Telegraphs under the said Acts.

24 For protection of the Railway Company.

24.—Unless otherwise agreed upon between the Company and the Railway Company the junction of the railway with the Railway Company's railways shall be constructed by the Railway Company at the expense of the Company in such manner in all respects as shall be shown on plans and described in specifications to be previously submitted to and approved of in writing by the chief engineer to the Railway Company or in the event of his failure within two months after the delivery of the said plans and specifications to approve of the same according to plans and specifications to be settled by arbitration as hereinafter provided.

25 For protection of Cork Harbour Commissioners.

25.—The Company or any other company or person shall in the working and use of the railway conform to such reasonable regulations as may be made by the Cork Harbour Commissioners for preventing as far as may be obstruction to the traffic using the quays under their control or to the loading or unloading of vessels resorting to the said quays.

26 For protection of Electricity Supply Board.

26.—Nothing in this Act contained shall authorise the Company to interfere with any of the electric wires or works of the Electricity Supply Board, except with the consent of the Minister and subject to such terms and conditions as the Minister after consultation with the said Board thinks proper.

27 Recovery of penalties.

27.—All the penalties under this Act may be recovered and enforced in manner directed by the Summary Jurisdiction Acts before a Court of Summary Jurisdiction.

28 Authentication of orders and regulations.

28.—All orders and regulations made by the Minister under this Act shall be sealed with the Seal of the Minister for Industry and Commerce.

29 Provision for securing maintenance of the railway.

29.—The Company shall at all times maintain and keep in good condition and repair and so as not to be a danger or annoyance to the ordinary traffic the rails of which the railway for the time being consists and the substructure upon which the same rests.

30 Disposal of railway.

30.—The Company may, subject to the approval of the Minister from time to time enter into contracts, agreements or arrangements with the Railway Company for the transfer, sale, leasing or other disposal of the railway or any part or parts thereof.

31 Regulations for use of electrical power.

31.—(1) The exercise of the powers conferred by this Act with respect to the use of electrical power shall be in accordance with regulations made by the Minister under this Act.

• (2) The Minister may by order after consultation with the Electricity Supply Board make regulations and may from time to time after like consultation rescind, modify or add to such regulations, for the purpose of securing that electrical power shall be used, under the powers conferred by this Act, with all reasonable and proper precautions against danger to the public or damage to the property of any company, body or person.

• (3) The Minister shall in making such regulations and in rescinding, altering or adding to same, have regard to the expense occasioned thereby to the Company and to the effect thereof on the financial prospects of the railway.

• (4) The Company or any other company, body or person using electrical power contrary to the provisions of this Act or any regulations made thereunder shall for every such offence be liable to a penalty not exceeding ten pounds, and also in the case of a continuing offence to a further penalty not exceeding five pounds for every day during which such offence continues after conviction thereof; provided always that whether such penalty has been recovered or not the Minister may, in case in his opinion the Company or any company, body or person using electrical power have or has made default in complying with the provisions of this Act or any regulations made thereunder or in case he is satisfied that the use of such power is a danger to the public, by order direct the Company or such company, body or person to cease to exercise the powers conferred by this Act with respect to the use of electrical power and thereupon the Company or such company, body or person shall cease to exercise the same or any of the same unless with the consent of the Minister which he is hereby authorised to give by order and subject to such terms and conditions as he may think fit.

32 Reservation of right of public to use streets.

32.—Nothing in this Act shall take away or abridge the right of the public to pass along or across every or any part of any street along which the railway is laid whether on or off the railway line with vehicles not having wheels suitable only to run on the rail of the railway.

33 Arbitration.

33.—In case any dispute or difference shall arise between the Corporation or the City Engineer or any person or the engineer of any person and the Company as to the construction, working or maintenance of the railway or any part thereof or the works connected with or incident thereto or as to the execution of any works by the Corporation or any person which shall affect or interfere with the railway or any part thereof or necessitate the stoppage of the traffic on the railway or any part thereof or as to the state of repair of the railway or any part thereof or as to any other matter or thing in relation to the construction and maintenance or working of the railway or any part thereof or the exercise of the powers conferred on the Company or the Corporation or any person or with respect to any other subject or thing regulated by or comprised in this Act the same shall be referred to and settled and determined by an arbitrator to be appointed by the Minister upon the application of the Corporation or the Company or any such person as aforesaid and such arbitration shall be in accordance with the provisions of the Common Law Procedure Amendment Act (Ireland), 1856, and the arbitrator shall have authority to determine by whom the costs of such reference shall be paid.

34 Use of railway.

34.—(1) The railway shall be used for merchandise traffic only.

• (2) Not more than ten trains per day shall be run over the railway.

35 Opening of railway.

35.—No part of the railway shall be opened for traffic, until the same has been inspected and certified to be fit for traffic by an engineer to be appointed for such purpose by the Minister.

Subject to the provisions of this Act the provisions of the Regulation of Railway Acts, 1840-1889, in regard to accidents and such of the other provisions thereof as the Minister may from time to time by order direct to be applicable to the railway shall apply to the railway and in the construction of the said Acts for the purposes of this Act the expression “the Company” in the said Act shall include the Company as defined in section 3 of this Act.

36 Expenses of Minister.

36.—Any expenses incurred by the Minister in the exercise of his powers and functions under this Act shall, to such extent as may be determined by the Minister for Finance, be paid by the Company.

37 Saving rights of the State.

37.—Nothing in this Act contained shall affect any property, real or personal, vested in Saorstát Eireann or in any Minister thereof, or in any board or body exercising any functions of government or public administration or be construed to restrict or prejudice the rights of Saorstát Eireann or any right, power, privilege, or duty vested by law in any Minister or any officer of Saorstát Eireann and in particular any powers of erecting, constructing, altering or extending any works on any such property as aforesaid shall not be construed to confer on the Company any rights of entry into or any estate or interest in any such property but this section shall not operate to prevent the exercise in accordance with this Act by the Company of such powers if and when such right of entry as aforesaid has been duly obtained according to law by the Company.

38 Costs of Act.

38.—The costs and expenses of and incidental to the preparation of, application for, and passing of this Act, or otherwise in relation thereto, shall, notwithstanding any existing provision, be borne and paid by the Company out of its own moneys.