Act '78, s. 27. tions, or either of them, shall belong to the person

who

would be entitled thereto in case such road or highway had not become so vested, and the person entitled to any such mine or minerals shall have the same powers of working and of getting the same or other minerals as if the road or highway had not become vested in the urban sanitary authority, but so nevertheless that in such working and getting no damage shall be done to the road or highway.

This section shall extend to the Isle of Wight and to South Wales, as defined by the said Act, 23 & 24 Vict. c. 68, "An Act for the better management and control of the Highways in South Wales" (8).

(r) This section enacts that "all streets being, or which at any
time become, highways repairable by the inhabitants at large
within any urban district
shall vest in and be under the
In Coverdale v. Charlton, 3

control of the urban authority."
Q. B. D. 376, 42 J. P. 517, it was held that under this section
the soil of the highway vests in the urban authority. Conse-
quently, but for special provision to the contrary, the mines and
minerals under highways would also vest in the same authority,
a result which was clearly never intended, and has, therefore,
been rectified.

(s) This is the only portion of Part I. to which the saving in sect. 2 applies.

Weight of locomotives and construction of wheels.

PART II.

Amendment oF LOCOMOTIVE Acts, 1861 AND 1865.

28. Section 3 of the Locomotive Act, 1861, and section 5 of the Locomotive Act, 1865, are hereby repealed, so far as relates to England, and in lieu thereof be it 24 & 25 Vict. enacted that it shall not be lawful to use on any turn28 & 29 Vict. pike road or highway a locomotive constructed other

c. 70.

c. 83.

wise than in accordance with the following provisions; that is to say:

(1.) A locomotive (t) not drawing any carriage, and not exceeding in weight three tons, shall have

the tires of the wheels thereof not less than
three inches in width, with an additional inch
for every ton or fraction of a ton above the
first three tons; and

(2.) A locomotive drawing (u) any waggon or car-
riage shall have the tires of the driving
wheels thereof not less than two inches in
width for every ton in weight of the loco-
motive, unless the diameter of such wheels
shall exceed five feet, when the width of the
tires may be reduced in the same proportion
as the diameter of the wheels is increased,
but in such case the width of such tires shall
not be less than fourteen inches; and
(3.) A locomotive shall not exceed nine feet in
width or fourteen tons in weight, except as
hereinafter provided (v); and

(4.) The driving (w) wheels of a locomotive shall be cylindrical and smooth-soled, or shod with diagonal cross-bars of not less than three inches in width nor more than three-quarters of an inch in thickness, extending the full breadth of the tire, and the space intervening between each such cross-bar shall not exceed three inches. The owner of any locomotive used contrary to the foregoing provisions shall for every such offence be liable to a fine not exceeding £5: Provided that the mayor, aldermen, and commons in the city of London, and the Metropolitan Board of Works in the metropolis, exclusive of the city of London, and the council of any borough which has a separate court of quarter

Act '78, s. 28. sessions, and the county authority of any county, may,

on the application of the owner of any locomotive exceeding nine feet in width or fourteen tons in weight, authorize such locomotive to be used on any turnpike road or highway within the areas (a) respectively above mentioned, or part of any such road or highway, under such conditions (if any) as to them may appear desirable. Provided also, that the owner of a locomotive used contrary to the provisions of sub-section two of this section shall not be deemed guilty of an offence under this section if he proves to the satisfaction of the court having cognizance of the case that such locomotive was constructed before the passing of this Act, and that the tires of the wheels thereof are not less than nine inches in width (y).

(t) By sect. 38 infra, "locomotive " means a locomotive propelled by steam or by other than animal power. This sub-section contains the same provisions as the 1st paragraph of 24 & 25 Vict. c. 70, s. 3, but in simpler language.

(u) The 2nd paragraph of 24 & 25 Vict. c 70, s. 3 provided that every such locomotive should have the tires of the wheels not less than 9 inches in width. This sub-section only applies to the driving wheels, and makes no provision as to the others.

(v) The 3rd paragraph of 24 & 25 Vict. c. 70, s. 3 provided that no locomotive should exceed seven feet in width or twelve tons in weight, except it were authorized by certain authorities similar to those mentioned in the proviso to this section. This was increased by 28 & 29 Vict. c. 83, s. 5 to nine feet and fourteen tons, subject to the same provisions.

(w) The 4th paragraph of the 24 & 25 Vict. c. 70, s. 3 enacted that "the wheels of every locomotive shall be cylindrical and smooth-soled, or used with shoes or other bearing surface of a width not less than nine inches." This part of the latter section came under discussion in Stringer v. Sykes, 2 Ex. D. 240, and Body v. Jeffery, 3 Ex. D. 95. But as it is now repealed the relevancy of those cases will only apply in case this part of the Act should at any time be allowed to expire. It will be observed that this sub-section only applies to the driving wheels of the locomotive, and that the alternative of not being smooth-soled differs materially from that given by 24 & 25 Vict. c. 70, s. 3.

(x) The areas in question, both in this and in sect. 31 infra, are the city of London, the Metropolis exclusive of the city of

London (but saying nothing about the liberties of the said city), Act '78, s. 28. boroughs with a separate court of quarter sessions, and counties. They are quite distinct from the "highway areas" under sect. 14 ante. It may be observed that so far as the county authority is concerned, the application can only be made at general or quarter sessions.

(y) In accordance with 24 & 25 Vict. c. 70, s. 3. See note (u)

supra.

of 28 & 29

29. The paragraph numbered "secondly" of section 3 Amendment of the Locomotive Act, 1865, is hereby repealed, so far Vict. c. 83, as relates to England, and in lieu thereof the following paragraph is hereby substituted; namely,

Secondly, one of such persons, while the locomo-
tive is in motion, shall precede by at least twenty
yards the locomotive on foot, and shall in case
of need assist horses, and carriages drawn by
horses, passing the same."

s. 3.

motives to be

so as to con

smoke.

30. Section 8 of the Locomotive Act, 1861, is hereby Steam locorepealed, so far as relates to England; and in lieu constructed thereof, be it enacted that every locomotive used on sume their any turnpike road or highway shall be constructed on 2125 Vict. the principle of consuming its own smoke; and any c. 70. person using any locomotive not so constructed, or not consuming, so far as practicable, its own smoke, shall be liable to a fine not exceeding £5 for every (2) day during which such locomotive is used on any such turnpike road or highway.

(2) It would seem from the judgment of Blackburn, J., in Smith v. Stokes, 27 J.P. 535, in the case of a conviction under 5 & 6 Will. 4, c. 50, s. 70, for erecting a steam engine within 25 yards of a highway, that the penalty is incurred although the locomotive is only used during part of the day. In that case his lordship observed, "It is true that the penalty is said by that section to be £5 a day for every day the engine is permitted to remain; but I do not think it is necessary that it should remain there for the whole day in order to incur the penalty."

Act '78, s. 31. 31, Section 8 of the Locomotive Act, 1865, is hereby

Power to

local authorities to

make orders as to hours during which

may pass over roads.

28 & 29 Vict. c. 83.

repealed, so far as relates to England; and in lieu thereof, be it enacted that the mayor, aldermen, and commons in the city of London, and the Metropolitan locomotives Board of Works in the metropolis, exclusive of the city of London, and the council of any borough which has a separate court of quarter sessions, and the county authority of any county, may make bye-laws (a) as to the hours during which locomotives are not (b) to pass over the turnpike roads or highways situate within the areas (c) respectively above mentioned, the hours being in all cases consecutive hours and no more than the eight out of the twenty-four, and for regulating the use of locomotives upon any highway, or preventing such use upon every bridge where such authority is satisfied that such use would be attended with danger to the public; and any person (cc) in charge of a locomotive acting contrary to such bye-laws shall be liable to a fine not exceeding £5.

(a) These bye-laws will not be of any validity until they have been submitted to and confirmed by the Local Government Board under sect. 35. They cannot be confirmed until the expiration of one month after notice of the intention to apply for confirmation has been given in one or more local newspapers circulating in the county or district. (Id.) They can only be made by a county authority at general or quarter sessions.

(b) According to the marginal note, this section gives "power to local authorities to make orders as to hours during which locomotives may pass over roads." This, however, is not borne out by the body of the section which only enables them to "make bye-laws as to the hours during which locomotives are not to pass over turnpike roads or highways," &c. The authorities may prohibit the passing of locomotives during not exceeding eight specified consecutive hours out of the twenty-four; but beyond this they have no power whatever to regulate the hours of passing, but only the mode of user, or the prevention of user upon certain bridges where they are satisfied that it would be attended with danger to the public.

(c) See note (x) ante, p. 202.

(cc) The penalty under the bye-laws will be payable by the person in charge of the locomotive, and not by the owner as in the case of an offence against sect. 28.