Judgement Appeal by special leave from a judgment and decree of the High Court (September 5, 1913) reversing the judgment and decree of Beaman J. (February 17, 1913) at the trial. The respondent company was incorporated by 12 & 13 Viet. c. Ixxxiii., an Imperial Act declared public, and by 6,3 & 64 Viet. c. cxxxviii. (Imperial) all their railways and works were transferred to and vested in the Secretary of State for India in Council. Law. Rep. 43 Ind. App. 310 ( 1915- 1916) Bombay Corporation V. Great Indian Peninsula Railway Company 157 By s. 289 of the City of Bombay Municipal Corporation Act (III. of 1888, Bombay) the streets in that city were vested in the appellant corporation, and by further provisions of that Act were under the control of the second appellant, the Municipal Commissioner. In 1906 the respondents applied to the appellants for permission to construct railway lines on the level across a public street vested in the appellants under the above-mentioned Act. The appellants sought to impose conditions with which the respondents were not willing to comply. Eventually the respondents intimated that they had power to carry out the proposed work under s. 7 of the Indian Railways Act, 1890, as amended by s. 1 of Act IX. of 1896, and they subsequently proceeded to lay the lines across the street. The appellants instituted a suit in the High Court claiming (1.) a declaration that the respondents were not entitled to take possession of the land forming that part of the street upon which they had laid their lines without the permission of the appellants ; (2.) a declaration that unless and until the respondents should obtain such permission, or acquire the land under the Land Acquisition Act, 1894, they were not entitled to retain possession thereof, or to maintain their lines thereon ; (3.) that the lines should be removed and the street made good ; and (4.) damages. The suit was tried by Beaman J., who made a decree granting the relief claimed, including Rs. 500 damages. Upon appeal the decree was reversed and the suit dismissed. The suit was tried by Beaman J., who made a decree granting the relief claimed, including Rs. 500 damages. Upon appeal the decree was reversed and the suit dismissed. The learned judges (Sir Basil Scott C.J. and Batchelor J.) held that the respondents were authorized to lay their lines across the street by the Indian Railways Act, 1890, s. 7, as amended, and that proceedings under the Land Acquisition Act, 1894, were neither necessary nor appropriate. The appeal is reported at I. L. R. 38 Bomb. 565. The present appeal, which was argued in March, 1916, was re-argued by order of the Board. 1916. July 31; Aug. 1. P.O. Lawrence, K.C., and Sheldon, for the appellants. The street was vested in the appellant corporation by s. 289 of their Act; they had at least a statutory freehold in the surface Mayor of Tunbridge Wells v. Baird ([ 1896] A. C. 434.) ; Foleys Trustees v. Dudley Corporation. ([ 1909] 1 K. B. 317, 322.) Having regard to ss. 290 and 296, the fee simple in the soil probably vested in them, but the limited title is sufficient for the present argument. The respondents were trespassers. They Lad no power to lay their lines across the street without the appellants consent. The power given by s. 7 of the Indian Railways Act, 1890, could not be exercised without proceed ings under the Land Acquisition Act, 1894. There was power under that Act to acquire the right to cross the street, since by s. 3 (a) " land " is defined as including benefits to arise out of land. But even if under that Act a mere right to cross the street could not be acquired, the respondents could, and were bound to, acquire that part of the street upon which their lines were laid. It is true that under s. 16 land acquired vests free from incumbrances and that this has been held to terminate any public rights over the land Manmatha Nath Mitter v. Secretary of State for India. (( 1897) L. R. 24 Ind. Ap. 177.) Under ss. 40 and 41, however, terms can be imposed for the preservation of public rights so far as they are consistent with the railway crossing. The powers under ss. 13 and 14 of the Indian Railways Act, 1890, come into operation only after the railway is constructed. (( 1897) L. R. 24 Ind. Ap. 177.) Under ss. 40 and 41, however, terms can be imposed for the preservation of public rights so far as they are consistent with the railway crossing. The powers under ss. 13 and 14 of the Indian Railways Act, 1890, come into operation only after the railway is constructed. In England a railway crosses a highway only under express powers in its special Act; many of the authorities relied on in the judgments upon the appeal are therefore inapplicable. Sir R. Finlay, K.C., and T. T. Paine, for the respondents. The respondents had power to lay their rails across the street under s. 7 of the Indian Railways Act, 1890, as amended in 1896, subject to the payment of compensation under s. 10. The safety and convenience of the public are adequately Law. Rep. 43 Ind. App. 310 ( 1915- 1916) Bombay Corporation V. Great Indian Peninsula Railway Company 158 provided for by the powers given by ss. 13 and 14. The powers conferred upon railways by s. 7 are guarded by being made subject to the control of the Governor-General. The right to carry the lines over the street was not an acquisition of immovable property within the meaning of s. 7. A consideration of the machinery of the Land Acquisition Act, 1894, shows that it is not applicable to the acquisition of a right to carry a railway across a street. There is no power under that Act to acquire an incorporeal right Shyam Chunder Mardraj v. Secretary of State for India (( 1908) I. L. R. 35 Calc. 525.); Great Western Railway v. Cheltenham Railway. (( 1884) 9 App. Cas. 787.) If the land itself were acquired there would be a cessation of all public rights Taylor v. Collector of Purnea (( 1887) I. L. R. 14 Calc. 423.); but ss. 13 and 14 of the Railway Act show that public rights survive. The appellants had not a title under which they could dispose of the land under the Act Municipal Corporation of Sydney v. Young. ([ 1898] A. C. 457.) There is no reported case in which the Land Acquisition Act has been applied to the acquisition by a railway company of a right to cross a highway. P. O. Lawrence, K.C., replied. Oct. 26. The judgment of their Lordships was delivered by VISCOUNT HALDANE. ([ 1898] A. C. 457.) There is no reported case in which the Land Acquisition Act has been applied to the acquisition by a railway company of a right to cross a highway. P. O. Lawrence, K.C., replied. Oct. 26. The judgment of their Lordships was delivered by VISCOUNT HALDANE. The point to be decided on this appeal is whether the respondents in constructing certain lines of railway on the level across the Sewri-Koliwada Road in Bombay, being a public street there under the control of the Municipal Commissioner for the city, have the right to do so without either obtaining permission from the appellant corporation or acquiring under the Land Acquisition Act, 1894, so much of the street as is occupied by the level crossing. Beaman J., who tried the action in which the question arose, gave judgment for the appellants, and ordered the restoration of the land with damages. The High Court at Bombay reversed this judgment and dismissed the action. The question now to be decided is whether the respondents had the right they claimed by virtue of the Indian Railways Act, 1890, and to answer this question it is necessary to examine the provisions of that Act. The scheme of the Act differs from that of the general railway Acts in this country, the sections of which are made to apply only if they are brought into operation by a special Act authorizing the construction and control of the railway. The Indian Act places the exercise of the powers conferred by it under the control of the Executive in the person of the Governor-General in Council, who thus takes the place of Parliament in this country in authorizing such powers to be exercised. Sect. 7 enacts that subject to the provisions of the Act and, in the case of immovable property not belonging to the railway administration, to the provisions of any enactment for the time being in force for the acquisition of land for public purposes and for companies, and subject also, in the case of a railway company, to the provisions of any contract between the company and the Government, a railway administration may, for the purpose of constructing a railway, or the accommodation or other works connected therewith, among other things, " make or construct in, upon, across, under or over any lands, or any streets, hills, valleys, roads, railways or tramways, .... such .... arches, tunnels, culverts, embankments, aqueducts, bridges, roads, lines of railway," &c. (the words "lines of railway" being added bys. 1 of Act IX. of 1896), as the railway administration thinks proper. The railway administration is, by s. 10, to do as little damage as possible in the exercise of these powers, and compensation is to be paid for any damage caused by the exercise thereof. By s. 11 the railway administration is to make and maintain, for the accommodation of the owners and occupiers of lands adjoining the railway, among other things, convenient crossings and passages over the railway. By s. 13 the Governor-General may require fences to be provided, and also suitable gates, &c., at places where the railway crosses a public road on the level, and may require the railway administration to employ persons to open and shut such gates. By s. 14, where the railway has been made across a public road on the level, the Governor-General may, if it appears to him to be necessary for the public Law. Rep. 43 Ind. App. 310 ( 1915- 1916) Bombay Corporation V. Great Indian Peninsula Railway Company 159 safety, require the construction of a bridge or arch or other works for diminishing danger. By s. 104 railway servants commit a punishable offence if they keep a level crossing closed against the public. The railway, which was duly authorized by the Governor-General, has, as already stated, been made to cross on the level a road in the area of Bombay City. This road is vested in the appellants under the City of Bombay Municipal Act, 1888, and the effect of such vesting is that, like an urban authority under the Public Health Act in this country, they have the surface and a portion of the subsoil vested in them in such a fashion as to enable them to bring an action for trespass. The real point that arises is whether, under the words quoted from s. 7 of the Indian Railways Act, which make the powers conferred by that section subject to any enactment in force for the acquisition of land for public purposes and for companies, it was necessary for the respondents before making the crossing to comply with the provisions of the Act which was then in force, the Land Acquisition Act, 1894, passed four years after the Indian Railways Act. The Land Acquisition Act by s. 3 defines land as including benefits to arise out of land, and a person interested as including a person interested in an easement affecting the land. The early parts of the Act (Parts II. to VI. inclusive) enable the local Government to acquire land compulsorily for public purposes. When the collector, who is the official designated to do so, has ascertained the compensation to be allowed and the proper apportionment among the persons interested, he may take possession, and then, under s. 16, the land is to vest absolutely in the Government free from all incumbrances. It is conceded that " incumbrance " includes a right of passage. The taking possession by the collector would therefore, if the Act applies to the present case, extinguish the rights of the public to cross the railway by the road in controversy. Moreover, none of the provisions relating to com pensation cover the case of members of the public, who naturally do not come within the provision for compensation contained in s. 11. Part VII. of the Act enables the local Government to authorize companies generally to acquire land for useful public purposes by availing themselves of the provisions in the earlier parts, but s. 39 provides that this power shall not be put in force unless the previous assent of the local Government has been obtained, and unless an agreement has been entered into by the company with the Secretary of State for India. It appears to their Lordships that the provisions of this Act are not so expressed as to cut down the power conferred by s. 7 of the Indian Railways Act on a railway company in India to carry a line of railway across a street, subject to the control of their powers by the Governor-General. The latter Act in such a case contemplates the right of the public being kept alive. Sect. 13 enables the Governor-General to direct the provision by the railway administration of suitable gates, bars, &c, where the railway crosses a public road on the level. Sect. 14 gives him power to require the provision of bridges or arches where he deems it necessary, or such other works as will remove or diminish the danger arising from the level crossing. Sect. 14 gives him power to require the provision of bridges or arches where he deems it necessary, or such other works as will remove or diminish the danger arising from the level crossing. These sections show that the right of the public to cross the railway so laid on the level is contemplated as continuing. Sect. 104 makes it a criminal offence to keep the level crossing closed against the public, and raises the same inference. The Acquisition of Land Act does not repeal these sections, and it appears to their Lordships that the taking of the railway on the level across a public highway is accordingly not an acquisition of immovable property within the meaning of this Act. To hold otherwise would be to hold that the right of the public to cross was extinguished under s. 16, or, again, that when one railway crossed another—a possibility expressly contemplated by s. 7 of the Indian Railways Act—the second was bound to purchase part of the permanent way of the first, conclusions which their Lordships regard as inadmissible. It may well be that when a railway company takes land for a station or for a tunnel or a cutting the provisions of the Act apply, on the ground that this is an acquisition of land. But the sections in the Indian Railways Act to which they have referred in their opinion show that what has been done Law. Rep. 43 Ind. App. 310 ( 1915- 1916) Bombay Corporation V. Great Indian Peninsula Railway Company 160 in this case is excluded by that Act from possessing this character, notwithstanding that theoretically a benefit arising out of land, within the words of s. 3 of the other Act, might in a different context be held to have been acquired. This has probably been done because the interference with the surface is small and the public advantage is great. They think that it was intended by the Indian Railways Act to give the Governor-General power to authorize the crossing in place of leaving the conferring of such a power to a special statute, as would be the case in England, where the general Lands and Railways Clauses Acts do not authorize the compulsory taking of mere easements. The Governor-General has, under s. 10 and other sections, ample power to impose conditions for compensation and for the protection of the public. The Governor-General has, under s. 10 and other sections, ample power to impose conditions for compensation and for the protection of the public. For these reasons their Lordships will humbly advise His Majesty that the judgment of the High Court at Bombay was right, and that this appeal should be dismissed with costs.