RAILWAYS CONSTRUCATION AND LAND ACT.

Globe, Volume XXIII, Issue 2344, 7 October 1881, Page 3

RAILWAYS CONSTRUCATION AND LAND ACT.

This is a manure entituled An Act to provide for the Construction of Railways by Joint- Stook Companies, and to authorise Grants of Criwn Land to be made to suoh Companies. The preamble sets forth that whereas it woild oonduoe to the more speedy settlement of the oolony if provisions were made enablirg joint-stook companies to enter into oontraofe for the construction of railways, or for the construction and working thereof, ■porreoeiving aid for all or any suoh purposes by (rants of Crown lands, upon the terms and u the manner provided by this Aot. * '

Part I. deils with the powers of the Governor in Coincil and companies to enter into oontraots. Euoh contraots may be entered into for the construction of a line of railway wholly or partly through Crown lands, — 1. Which is to beoome the property of the com piny, and bo worked or managed by it for a specified term of years or otherwise, 2. Whior. is to become the property of the ooloiy. The oont-aot must provide for the faithful oonstructioi of the line of sound materials acoording ;o the plans and specifications; if eonstructec for the oolony, setting forth the terms upoi whioh it is to be handed over to the Government after construction ; if maintained ani worked by the company, stating the time within whioh it may be purchased bj the Government. The contract must alB» provide what area of Crown land is _ to be set apart on each or either aide of the railway for the use of the company, the mode in, and times at, whioh thi seleotion of suoh land shall take

place " alter the construction of the railway." When thsre is not sufficient land available for the purpises of the oontraot on either side of the line, provision must be made for its seleotion elsevhere. No contract can be entered into for the construction of a line which is not intended to be diieotly oonnected with some other railway ooistrnoted by the Government; and Government railway works begun but not completed may be inoluded in such oontraots. Before a oontraot with a oompany can be entered into the company has to transmit to the Minister of Public Works a plan of the railway, an estimate of the oost of the line and the equipment thereof, and any further information that may be necessary to enable the Minister to judge of the necessity of the proposed work and the ability of the company to carry it out. The Governor may cause the company to give security fo>* the due performance of the work, and the direotors are empowered, with the oonsent of the majority of the shareholders, to give such security. When a contraot has been made its general purport has to be gazetted. No such contract, however, is to take effect

(except for linei named below) till approved by the General Assembly. If neither House passes a resolution disapproving thereof the contract becomes binding. If Parliament is in session at the time a contract is entered into, and if the contraot lies on the table for fourteen days without such a resolution being passed, it becomes binding; but the document must be on the table for at least fourteen days before the end of the session. But before the oontraot is thus ratified or rejected, the Government may allow the company to make surveys on publio and private lands, and take oil other necessary preliminary steps for the construction of the railway. An exception to the above condition is mado with referenoe to the Waikato-Thameg Bailway to Rotorua; Wellington to Manawatu; Belgrove to Nelson Greek; East and West Coast, Middle Island, by Waiau and Beefton; Otago Central. At any time before the first day of the next session of the General Assembly the Governor in Council may contract, under the provisions of the Act, with companies formed for the construction of the above lines, and a contract made for the construction of any of the above lines is not to be avoidable by any resolution of the Assembly, and the company contracted with is entitled to proceed immediately with the construction of the line, unless the contract is repugnant to any other provision of the Act; but " provided also that the allocation of the land to be granted to suoh company shall be subject to the approval of th~General Assembly in the manner prescribed by seotions thirteen and fourteen of the Act." That is to say, no land can be alienated till the proposed cession has been laid on the table of tbe Assembly for the requisite tine, and neither House has passed a resolution disapproving thereof. Part 11. deals with the construction of railways by companies. Glauses 17 to 22 give directions as to the preparing of plans. These have to be deposited in some publio pluce in eaoh borough in the district, and at such other public places as the Governor may direct, and are to be open to publio inspection. Suoh deposit has to be gazetted, and notice sent to each owner or oocupier of land required to be taken for the railway. Clauses 23 to 25 empower surveyors and assistants, before or after the deposit of plan and book of reference, to enter upon any land for the purposes of survey, upon notice being given to the owner or oocupior. Tbe damage caused is to be made good by tbe company. Glauses 26 to 28 deal with the powers of the company to enter upon and take land. The company is authorised to exeroise all or any of the powers conferred by the Aot for the construction of the railway, may enter upon all lands they are authorised to use for the purpose of making necessary surveys, may take all suoh lands as the company shall have permission to use, may take and hold the lands specified in the plan and book of reference required for the railway along the line set forth and within the limits of duration, and may temporarily occupy and use such lands as may be necessary on either side of the line during the construction thereof. Glauses 29 to 33 provide for the payment of compensation for land taken or affected, and set forth the manner in which that compensation is to be arrived at. Clause 34 gives the oompany the necessary powers for making the railway. The gauge must be 3ft 6in. Where it is found necessary for the construction of the railway to alter any road, tramway, sewer, drain, or other publio work, the alterations are to be made so as to interfere as little as possible with the work so altered, the usefulness of which must not be interfered with. Plans of such alterations have to be submitted to the bodies or persons interested, and if no agreement can be arrived at the matter has to be referred to two Justices of the Peace, who are to make such order as they think fit. When the company propose to occupy and use temporarily land for constructing and repairing a railway they have to give notice to the owner or occupier, who, on giving notice, may apply to two Justices of the Peace to settle if such occupation is necessary, and to decide the conditions. Within the period limited in the contract the Governor is to deliver to the oompany, the contractor or his servants, all the Grown lands the use of which has been agreed to be given for the construction of the permanent way, workshops, stations, &o. The Governor is also authorised to Grown grant all Crown lands as may in his opinion be necessary for the construction thereon of the railway and all buildings to be used thereon, subject to suoh reasonable restrictions as he may think fit. The company has then forthwith to proceed with the construction of the works, and prosecute them to completion without delay, unless prevented by an unforeseen cause. Part 111. deals with the power of the oompany to borrow money. The company may, in the manner prescribed by its articles of association, borrow and take up at interest such sum or sums of money as may thereby or in any other manner be lawfully authorised; and for the purpose of securing repayment thereof, with interest in the meantime, may convey, assign, or otherwise charge the railway, and the whole or any portion of the lands granted or to be granted to it under Part V. of the Act, or such part thereof as may be agreed upon, by way of mortgage, with all usual and necessary powers and remedies to the mortgagee, including a power of sale in case of default in payment of such principal or interest, or any part thereof. Every mortgage made or issued under the authority of the Aot shall be subject to the | power of purchase reserved to the Governor. " Mortgage " includes mortgage debentures and coupons, and any deed by which the railway is charged as Beourity for repayment of principal and interest. " Mortgagee" includes the creditor in any mortgage or other deed, and the holder of any mortgage, debenture or coupon. Every debenture is to be repayable, principal and interest, at a place within or without the colony named in the debenture, and at a time named therein not exceeding twenty-five years from date of issue. Tbe interest payable is not to exceed six per | cent, and no debenture is to be sold at a price ; which will produce to the purchaser move than six per oent. on the prioe paid. The

I mortgage debentures and coupons are to be transferable on delivery. The oompany is empowered to appoint loan agents for the raising and managing of any loan authorised by the Act. The principal and interest secured by a mortgage orer a railway shall be a first oharge not only on the railway but oTer everything pertaining thereto, or upon suoh part or parts expressed in the mortgage. A certificate under the common seal of the company, signed by two direotors, stating what the amount of the debt of the oompany is, is to be conclusive evidence in any osurt of judicature as against the oompany, and similarly a certificate so signed as to the amount authorised to be borrowed shall also be conclusive evidence; and anyone fraudulently or falsely oausing the seal to be placed on such certificate or fraudulently or falsely giving such a certificate, is punishable by imprionment with or without hard labor for not exceeding three years. The creditors of the oompany are to have no claim upon the oolonial revenue. Before borrowing the directors may make provision for repayment by making, with or without a sinking fund, the whole loan repayable at a stated period, or any parta thereof at stated periods; and may provide funds for a sinking fund by permanently appropriating a portion of the net profits. When the principal falls due the oompany may reborrow. If the money seoured on mortgage is not paid when due, the mortgagee may apply to a Judge of the Supreme Court, in a summary way, for relief, who if satisfied may order the property to be sold, and may appoint a Reoeiver, in whom the company's interests will vest, as well as their powers for the reoovery of rates, tolls, &c. The money so received is to be applied, under the order of a Judge of the Supremo Court as follows : —l. In the payment of the expenses of the application and order, and of the expenses of any sale authorised as aforesaid ; 2. In the payment of such remuneration to the Receiver, and in such expenses of his office, as the Judge directs ; 3. In the payment of the prinoipal moneys so secured, and interest thereon ; 4. The residue shall be paid to the oompany ; and the Reoeiver shall aooount for all suoh moneys in suoh manner as the Judge directs; provided that no preference be given to one debenture holder over another, all having to rank alike. If the Government purohase a railway, the holder of a mortgage is not to be compelled to receive his money till the date it is due. The mortgagee is not to sell, or to apply for an order to sell, until notice has ; been given in writing to the Governor, and unless within three months after its receipt the Governor fail to give suoh mortgagee ' notice of his intention to purohase, or of his ' intention not to purohase. In oase of pur- ' chase by the Governor, the money to be paid shall be the differenoe between the price ' fixed by arbitration and the oharges upon the 1 property. If the oharges are greater than the ' price, the oompany has to pay the Governor ! the differenoe.

Part IT. deals with the rating powers of the proposed companies. A oompany proposing to take rating powers mutt notify in the newspapers of the district their intention; state the area it is proposed to constitute a railway district, which shall not extend for more than fifteen miles on each side of the proposed railway; set forth generally the particulars of the 80th section, quoted below ; and the manner of the proposed classification of the lands. The classification must be in one or more of the following classes : —l. Lands receiving or supposed to reoeive immediate and direot benefit from the construction of the railway ; 2. Lands receiving or supposed to receive less direct benefit; 3. Lands receiving only the benefit incidental to or derived generally from the construction of ■uch railway; 4. All other lands (if any) affected. Lands granted to oompanies under the provisions of Part V. have also to be classified and rated. Clause 80 is as follows— Within thirty days after such notice the oompany shall transmit to the Council of eaoh borough and county, wholly or partly comprised in the proposed district, the following documents and particulars :—l. A plan and book of reference and an estimate of tbe cost of the proposed railway and of the equipment thereof; 2. A statement of the maximum rate of tolls and charges for the carriage of animals, goods, merchandise, and passengers, proposed to be oharged on suoh railway; 3. A statement of the maximum rent or charge to be made for tbe storage of goods, produce, or merchandise ; 4. A statement of the minimum number of trains to be run daily ; 5. A specification of the rale it is proposed to levy in respect of the various classes of land hereinbefore mentioned under the powers hereinafter contained, and the amount of the rate in the pound sterling on the rateable value of the land. The Councils have then to serve notice on all the persons classified, giving particulars of what is proposed to be done. Within sixty days after the transmission of the plans, ke., the ratepayers and owners of property within the railway district vote on the question of the adoption of the rating power. If a majority of the whole body of ratepayers, representing at least two-thirds in number and value, oonsent to the adoption of this part of the Act, the company is empowered to go on, but if not, no further proceedings can be taken. Clauses 86 and 87 lay down the method of taking the vote. If the oompany is entitled to adopt this part of the Aot it shall be guaranteed the whole, or (as the case may require) any deficiency of interest on the cost of the railway at a rate not exceeding 5 per oent., and suoh interest is to be raised by means of a rate. The interest to be payable on the whole oost of the railway from the date on whioh the whole line is open for traffic; on the oost of any completed part or section open for traffic; and no guarantee is to exceed the interest on any expenditure on construction exoeeding £SOOO per mile. The guarantee is to attach only when the line is open for traffic, and to subsist only for a period of fifteen >eam. The rate is to be levied by the company, and provision is made in the Act for that purpott.

Part Y. has reference to the grants of Crown lands to companies. When a oompany is formed the Governor in Oounoil may, on their application, cause a sufficient area of Crown land, for a distance not exceeding fifteen miles on each side of the line, to be reserved from sale. This has to be done by an Order in Oounoil, whioh has to be gazetted. When a contraot has beoome capable of taking effect, the Governor must cause such lands to be surveyed into suoh convenient blocks as may be specified in the contraot, one-half the cost of survey to be borne by the oompany. Except where it is desirable to secure natural boundaries, the blooks are to be rectangular, and are not to have a greater frontage to the railway than one mile. The company is to be entitled to an alternate choice of blocks, but in no oase are they to have more than one-half the frontage on the line. If the Minister is satisfied that the whole line, or any section which can be usefully worked for public traffic has been properly constructed aooording to oontraot, and is fit for traffio, the Governor may allow the oompany to select an acreage from the blooks that will be proportionate to tbe total percentage of land to be granted for the entire line, and the Grown will have a right to seleot an equal area. If there is not sufficient Grown land adjoining the line of railway then land in the neighbourhood likely to be benefited is to be set aside, and tbe provisions already named are to apply, except that it will not be necessary to survey the land into blocks, and the company will be entitled to the whole, provided it does not exceed the agreed quantity. The value of the land to be granted is to be calculated upon the market value thereof prior to the making of the contract, and is to be ascertained by the Surveyor-General and some parson appointed by the company. The company will have to pay the value of improvements to persons holding the land as tenants or licensees of the Grown. If any of the blocks granted to the company oontain coal, the company has to pay a royalty not exceeding a maximum sum to bp specified in the grant; and if any of the Wonka are found to contain gold or silver the land je to be subject to the provisions of the Resumption of Land for Mining Purposes Act, 1873.

The value of the Grown lands granted to any company is not to exceed 30 per cent, of the coat of such line of railway, and the estimated cost of construction of such line for the purposes of this Act is not to exceed £6OOO a mile. This value is not to include the value of any land granted gratuitously for the construction of the permanent way or as sites for railway stations, &o. Part VI. deals with the management of the railways by the companies. They are to have power to regulate the traffic, both for passengers and goods. If it be made to appear to the Governor that the railway is earning a clear profit exoeeding 7 per cent., he may, by warrant gazetted, reduce the maximum of the tolls, rates, fares, &c, fixed by the company for the carriage of passengers, goods, produce &c, &c.| in such a manner and to suoh an

> extent as stall provide that the said clear i profit shall not be less than £7 per cent., and i the company must alter these by-laws accordingly. In Part TIL there are a number of general , provisions; clauses 112 and 113 enable the Governor to make agreements with the companies for running powers over the lines, and to mske payment under such agreement. Clauses 114 to 120 lay down the conditions under which the Governor may purchase the lines. At any time after ten years from the I date of the opening of an entire line for traffic, I acd upon giving twelve months' notice, the Governor is entitled to purchase the line at a I price to be determined by arbitration. Three I arbitrators are to make the award, one chosen I by the Governor, one by the company, and j one by the two arbitrators, and the method of arriving at the value is indicated. No compensation is to be awarded for land gratuitously given by the Government, but the oompanj is to be entitled to fair value for improvements. No compensation is to be paid for the good. will of a railway, but the arbitrators are to take as a basis the value of other similar works, plant, &,; , and are to take into consideration depreciation, &3. If the power of taking a railway is to be exercised between seven and fourteen years 5 per cent, is to be added to the compensation, and between fourteen and twenty-one, ten per oent. Before such agreement can be binding on the oolony the General Assembly must have appropriated the money for the purchase. In the event of unreasonable or unexousable delay by the company in the prosecution of the works, or in the event of the oomp3ny, after the completion of the works in whole or in part, so that the whole or any oomplete part may be used for traffic, failing for twenty-one clear days, without reasonable excuse, to run trains fixed and determined on by or in any regulation by the Governor, or if the company shall, in the opinion of the Governor, commit or suffer a wilful breaoh of contract, the Governor may take possession and assume the management of such railway, and if he think fit oomplete the same and conduct the truffle thereon, charging the company with the outlay and expenditure and crediting it with the earnings and receipts ; the balance due to or by the company after making up the accounts regularly to be paid. The Governor may also restore possession to the oompany, and may if he think fit waive any breach of contract. If the above powers are exercised the company affected may apply to the Supreme Court. The judge shall determine whether the powers of the Governor have been rightly exercised, and his order shall be final on the Governor and the company. If for one year a oompany fail to repay the sums which have been expended by the Governor, he may give three months' notice that if the money is not paid the railway will be retained as Government property, and on the publication of an Order in Council, the line is vested in Her Majesty. The other clauses are unimportant.