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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Caledonian Railway Co. v. Henderson and Others [1876] ScotLR 14_92 (17 November 1876) URL: http://www.bailii.org/scot/cases/ScotCS/1876/14SLR0092.html Cite as: [1876] SLR 14_92, [1876] ScotLR 14_92 |
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Subsequently to the passing of a private Act (7 and 8 Vict. cap. 87), which contained mineral clauses similar to those of the Railways Clauses Act (to the effect that the company shall not be entitled to the mines or minerals under lands purchased by them unless the same shall have been expressly purchased), a railway company purchased from a proprietor “the perpetual servitude and right to use and occupy so much of the ground above described as is at present used and occupied by the piers or pillars of their viaducts.”— Held, in a question with the railway company, that the proprietor was in the same position with regard to his right to work minerals as if the company had actually purchased the land.
This was an action at the instance of the Caledonian Railway Company, pursuers, against Robert Henderson, heritable proprietor of the lands of Dundyvan, and the Drumpellier Coal Company, and the said Robert Henderson and Richard Dinmack, its individual partners, lessees of the coal and other minerals in the said lands of Dundyvan. The summons concluded for declarator “that by disposition, dated the 7th, and recorded in the New and General Register of Sasines, &c., at Edinburgh, the 8th days of November 1845 years, granted by the late John Wilson, then heritable proprietor of the said lands of Dundyvan,
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to and in favour of the Glasgow, Garnkirk, and Coatbridge Railway Company, the said John Wilson validly imposed upon himself and his successors in the said lands of Dundyvan, and upon the said lands, the perpetual burden and servitude, inter alia of giving support to the viaduct over the river Luggie and ground adjacent thereto, forming part of the pursuers' line of railway, and to the piers or pillars of the said viaduct; and that the defenders, or any of them, are not entitled to work or excavate the minerals or other strata in the said lands of Dundyvan subjacent or adjacent to the said viaduct and piers or pillars thereof in such manner as to withdraw the support necessary for the proper maintenance of the said viaduct and piers or pillars thereof, or in any way to endanger the stability of the same.” By disposition, dated the 7th and recorded the 8th November 1845, the late John Wilson, then of Dundyvan, sold to the Glasgow, Garnkirk, and Coatbridge Railway Company (in right of whom the pursuers now were), to be held or conveyed by them in terms of their Act of Incorporation, 7 & 8 Vict. cap. 87(dated 19th July 1844):—“In the first place, All and whole that strip or piece of ground, being part of the lands after mentioned, extending to one acre two roods and five poles imperial measure, and bounded … on the east by the piece of ground belonging to me, the minerals whereof are in the second place disponed;.… but reserving always to me and my foresaids the whole mines and minerals under the piece of ground in the first place above disponed, with full power and liberty to work, win, and carry away the same subject to the conditions and restrictions contained in the said Railway Company's Act of Incorporation: And, in the second place, I do hereby sell, alienate, and dispone, from me and my foresaids, to and in favour of the said Glasgow, Garnkirk, and Coatbridge Railway Company, and their foresaids, all and whole the ironstone situated under the piece of ground following, viz., All and whole that piece of ground extending to one acre imperial standard measure, and bounded on the north and south by the Dundyvan Ironworks; on the east by the centre of the Luggie burn; and on the west by the piece of ground in the first place above disponed.… And, in the third place, I do hereby give and grant, dispone and convey unto the said Glasgow, Garnkirk, and Coatbridge Railway Company and their foresaids, the perpetual servitude and right to use and occupy so much of the ground in the second place above described as is at present used and occupied by the piers or pillars of their viaduct, and which viaduct is delineated on the foresaid plan, and marked number 2, and the ground whereon the said viaduct rests measures 1 rood 7 poles imperial standard measure, together with free ish and entry to the ground in the second place above described at all times when necessary for inspecting or repairing the said viaduct or works connected therewith, which perpetual right so granted shall be, as it is hereby declared to be and remain in all time coming, a burden and servitude in favour of the said Railway Company and their foresaids affecting the piece of ground in the second place above described, and my remaining lands of Muirend and Dundyvan after described.
… Which several subjects and perpetual right aforesaid I do hereby bind and oblige me and my heirs, executors, and successors to warrant to the said company and their foresaids from all feu duty or other burden whatsoever, at all hands and against all mortals; to hold the premises to the said Glasgow, Garnkirk, and Coatbridge Railway Company, their successors and assignees for ever, according to the true intent and meaning of their said Act of Incorporation.” The consideration for the conveyance was certain sums of money awarded by arbiters in terms of a deed of submission between the parties.
The viaduct and its piers and pillars as mentioned in the disposition were those standing at the date of the action. Before the deed was granted a great portion of the coal near the viaduct had been excavated, and the wastes left with stoops supporting the roof. The pursuers averred that the proprietor did not intend to work any more of the coal; that he only intended to work the ironstone, which the Railway Company had accordingly agreed to purchase; and that no more minerals of any kind were in respect of that understanding worked until the Drumpellier Coal Company became lessees of “the seams of coal, ironstone, shale, and fireclay” in the property of Dundyvan. That took place under a lease from Mr Wilson's trustees, dated 2d and 27th December 1873. The lease was for nineteen years, and there were excepted “such portions of said minerals as have been purchased and paid for by the Caledonian Railway Company.” In 1874 Dundyvan was sold by Mr Wilson's trustees to the defender Robert Henderson.
In August or September 1875 the defenders the Drumpellier Coal Company began to sink pits within 30 yards of the viaduct, and they afterwards asserted a right to excavate all the remaining coal in the lands of Dundyvan under and adjacent to the viaduct, and so to deprive it of its support. This was notwithstanding the perpetual right and servitude of support which the pursuers maintained they possessed. They raised this action to have their right declared, and the Railway Company prevented from interfering with it.
The defenders maintained their right to work these minerals, including the coal, subject to the provisions in the above-mentioned Act of Parliament of the Glasgow, Garnkirk, and Coatbridge Railway, sec. 56 of which provided, “and with respect to any mines of coal, ironstone, lime, slate, or other minerals under any land purchased by the Company, be it enacted that the Company shall not be entitled to any such mines or minerals, except only such parts thereof as shall be necessary to be dug or carried away, or used in the construction of the railway and works by this Act authorised, unless the same shall have been expressly purchased; and all such mines, excepting as aforesaid, shall be deemed to be excepted out of the conveyance of such lands, unless they shall have been expressly thereby conveyed, but providing that the owners thereof shall not have power to make openings in the surface of the lands so to be acquired by the company.” Secs. 84 and 85 further provided that in the event of a party in right of minerals lying under a railway or its works, or within forty yards of them, being desirous of working the minerals, he should give the railway company notice, and the company might make him compensation, or, in the event of their not agreeing to do so within a stated time, that he should be at liberty to work
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the minerals, being at the same time liable for damage caused to the railway company by improper working. The defenders averred that the disposition by Wilson was granted, and the railway and viaduct were formed, subject to the provisions of the Act of Parliament, and in particular subject to those above narrated. They further stated that they had acted upon that footing, and had sent the pursuers notice when their workings were about to approach within the statutory distance of the railway.
The pursuers pleaded—“ (1) Under and in virtue of the disposition libelled, the pursuers are entitled to decree of declarator against the defenders in terms of the conclusions of the summons. (2) The workings so far as they have already gone, and the further threatened workings of the said defenders under and adjacent to the said viaduct, being such as will seriously endanger the stability and safety of the said viaduct and the piers and pillars thereof, the pursuers, as now in right of the perpetual burden and servitude foresaid, are entitled to decree in terms of the conclusions of the summons, with expenses.”
The defenders pleaded, inter alia—“(2) The said railway and viaduct having been constructed under the Acts quoted, the rights of the defenders in regard to the minerals under and adjacent to the viaduct fall to be regulated by the said Act. (3) The defenders not being bound to leave support for the said viaduct, except under the conditions and as provided for in the said Act, they are entitled to be assoilzied from the conclusions of the summons.”
Two other actions between the same parties were conjoined with this one. The first was a suspension and interdict against the working of the minerals, and the second was an action at the instance of Henderson & Dimmack for payment of £733, 19s. 9d., the sum fixed by verdict of a jury prior to the raising of these actions as the value of the coal in question.
The Lord Ordinary pronounced the following interlocutor:—
“14 th June 1876.—The Lord Ordinary conjoins with this action (1) suspension and interdict at the instance of the Caledonian Railway Company against Henderson and the Drumpellier Coal Company, and (2) the action at the instance of Henderson & Dimmack against the Railway Company, and having heard counsel for the parties in the conjoined actions, and considered the records and productions in the declarator, assoilzies the defenders from the conclusions of the summons, and decerns: Finds the pursuers liable in expenses: In the suspension and interdict repels the reasons of suspension, refuses the interdict, recals the interdict formerly granted, and decerns: Finds the complainers liable in expenses; and in the ordinary action at the instance of Henderson & Dimmack against the Caledonian Railway Company decerns against the defenders in terms of the conclusions of the summons: Finds the defenders, the Railway Company, liable in expenses, and remits the several accounts of expenses when lodged to the Auditor to tax and report.
“ Opinion.—The respondents are the lessees and occupiers, and one of them is the owner, of the minerals in question—that is not disputed. Had the Railway Company purchased the land under which they lie, it is, I think, clear that the Company must have paid for these minerals which they desired the owner (I confine myself to one title for convenience) not to work. The complainers dispute this, on the authority of the case of Sprott v. Caledonian Railway Company, 2 Macq. 449. But this case is in my opinion inapplicable as an authority. The question here turns on the applicability and construction (if applicable) of the statute referred to in the defenders' statement. In Sprott's case the rights of the proprietor and of the Railway Company were governed by a conveyance before the Act, and it was held by the House of Lords that if the Act applied at all (which was not decided) it was applicable only with reference to the rights of parties as standing on the prior title by which, although the Company did not choose to exercise their option of prohibition with compensation, the proprietor was still restrained from any working whereby the necessary support of the surface, whether vertical or lateral, would be withdrawn. There is here no case of prior title, and I cannot countenance the notion that the Company, giving notice to the mineral owner under their Act, may resist payment of the compensation awarded in pursuance of the Act, and substitute an interdict for the protection of their works which the statute gives, subject to the obligation of paying that compensation. I must therefore hold that had the Company purchased the land they must have paid the compensation awarded to the mineral owner for the minerals which they required him to leave unworked.
“But as the Company did not purchase the land, but ‘the perpetual servitude and right to use and occupy so much of the ground specified as is at present occupied by the piers and pillars of their viaduct,’ the conclusion regarding what would have been their obligation had they purchased the land itself is not conclusive, but available only as an argument. On the one hand, the Company say—here is a servitude of support for the viaduct, which necessarily restrains the proprietor of the servient tenement from doing anything inconsistent with it. On the other hand, the defenders contend that there is no servitude of support, but only such a right to use and occupy the ground as would have been implied and included in a right of property in the ground by purchase, and that to exempt the Company from paying compensation for the minerals which they required to be left unworked would involve the absurdity of construing the lesser right as really greater and more valuable than the larger, which would have implied and included it. Both parties refer to the sale of the ironstone, and each maintains that it supports his view. My opinion is with the defenders. I think the Company have no better or secured right to use and occupy the ground with their viaduct than they would have had as purchasers of the ground, and that having required the mineral owners to leave the minerals unworked they must pay the compensation that has been awarded under the statutory proceedings. As regards their purchase of the ironstone, I think the effect of that is only that with respect to it they are themselves the mineral owners, and so under no necessity to give notice or make compensation.”
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The pursuers reclaimed.
They at first contended (in respect of the proceedings that had previously taken place under a submission and arbitration upon which the deed of conveyance was executed) that the land in question was acquired by them previously to 1844, and could not be affected by the Act of that year—but that argument was afterwards departed from. They further argued—The disposition by Mr Wilson was extra-statutory. What was conveyed was the area securing support to the line, and a right of servitude extending over the lands outside the area. The transaction was one not contemplated by the statute. Otherwise there was no need to reserve the minerals. In Ackroyd's case there was no express reservation of minerals, and no burdening of the circumjacent soil.
Argued for the defenders—The provisions of the statute with regard to minerals applied, except (1) to obligations undertaken prior to its date, and (2) to cases where parties had contracted themselves out of them. There was nothing in the terms of the disposition to take it out of the Act of 1844, whose provisions were similar to those of the General Act of 1845. The right of servitude was only a right to occupy the surface, and did not imply an obligation of support. The case of Ackroyd v. The L. and N.-W. Railway Company was in point.
Authorities quoted— Caledonian Railway Company v. Sprott, June 16, 1856, 19 D. (H. of L.) 3, 2 Macq. 449; Caledonian Railway Company v. Belhaven, June 5, 1857, 19 D. (H. of L.) 5, 3 Macq. 56; London and North-Western Railway Company v. Ackroyd, Feb. 26, 1862, 31 L.J., Chanc. 588.
At advising—
Now, keeping in view that this is the object of the clauses of the statute with which we are dealing, let us see what it is that the parties have done in this transaction for the purchase of the land by the Railway Company from Mr Wilson. Mr Wilson, in consideration of the various sums of compensation which have been awarded to him by arbiters chosen between the parties, conveys, in the first place, but under the reservation after mentioned, to and in favour of the said Glasgow, Garnkirk, & Coatbridge Railway Company, to be held or conveyed both in terms of their Act of Incorporation—“All and whole that strip or piece of ground being part of the lands aftermentioned, extending to 1 acre 2 roods and 5 poles imperial standard measure, and bounded,” &c. The boundaries are unimportant, except in so far as to show that this piece of ground is bounded on the east by another piece of ground afterwards conveyed, so that the two pieces of ground are adjacent to one another. Then there follows this reservation—“But reserving always to me and my foresaids the whole mines and minerals under the piece of ground in the first place above disponed, with full power and liberty to work, win, and carry away the same subject to the conditions and restrictions contained in the said Railway Company's Act of Incorporation.” Now, it is needless to say that this reservation was an unnecessary reservation, because the statute had already made that reservation for the disponer. At the same time it did no harm; it was merely repeating and referring to the Act of Parliament itself. Then he proceeds, in the second place, to
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Now, it is maintained that the effect of this in law is to take the case out of the operation of the mineral clauses of the Act of 1844 altogether, because it is said the 56th section applies only to mines under land purchased by the Company, and so in like manner the other clauses are constructed with reference to the 56th, regulating the working of mines under the land which has been acquired by the Railway Company for the purposes of their works. But here the Company contend, the land over which this viaduct extends has never been purchased—but only a servitude, and that servitude is a servitude of support, and the ground being granted expressly for the purposes of a servitude of support, and not being a statutory conveyance at all, the servitude of support necessarily requires that the mineral under the thing to be supported shall not be wrought; and therefore they say, at common law—for this is a common law transaction, and not a statutory conveyance—you, who have given me this servitude of support, cannot derogate from your own grant and insist upon working out the mines below, so as to destroy the support altogether. That is a very ingenious argument, but I confess it has not made very much impression upon my mind.
I am humbly of opinion that what has been done here is really, and in all practical effect, a taking of land under the statute for the purposes of the railway and its works, and indeed it differs very little, if at all, from the effect of taking land in the ordinary form. What is it that a company does under the 17th section of the statute when it serves a notice upon a landowner? It gives him notice that a certain piece of land is required for the purposes of the railway, and will be taken and used. That is the general style of the notice; and it is quite in conformity with the 17th section of the statute. The form of a conveyance no doubt is an ordinary disposition of the piece of land, but that is a statutory conveyance, and we must consider what is the effect of the conveyance and not look at the mere words of it. The effect of the conveyance is to enable the Railway Company to use the land for the purpose of constructing their railway or works thereon, and for no other purposes whatsoever. The Railway Company having acquired the land, cannot use it for any purpose except that, and if they do not require it for that purpose they are bound to sell it back to the owner. So that the land is acquired in the ordinary case for a limited use only, and if it be land acquired for the purpose of being occupied by a portion of the line of railway, but not for any special purposes of station-room or the like, but merely for the purpose of sustaining the rails in one part of the line, then all that the Company do acquire in practical effect is the right to lay down and maintain their rails upon the surface of that ground, or to make a cutting through the ground for the purpose of laying down their rails and maintaining them there, or to lay down an embankment upon the ground for the purpose of sustaining their rails, or to build a viaduct for that purpose. That is the only right the Company ever can acquire under their statutory powers of taking land, whether they get it by voluntary agreement or by the exercise of compulsory powers. Now, what have they got here under the conveyance of a perpetual servitude and right to use the land? They have got the exclusive possession of the particular pieces of ground occupied by the piers, just as exclusive possession as they would have got under a conveyance in the ordinary form, because these piers standing upon the ground, the ground can never be occupied for any other purpose. But, on the other hand, they have got it for the one special and limited purpose of their railway, or that portion of it which consists of the piers of the viaduct standing upon and being supported by this ground. So that really the right which they obtain under this part of the conveyance is in all practical effect exactly the same right which they get under the other portion of the conveyance, which conveys to them in appearance and formally and technically the property of the land itself.
Now, I think it would be a most unreasonable construction of such an Act of Parliament as this to say, that because the conveyancer chooses to put the thing in this particular shape in making out his conveyance of the subject, therefore this shall not be taken to be a purchase of land within the meaning of the 56th and other clauses of the statute. I think it is a purchase of land just as much as the purchase of the other piece of land. It is a purchase of land for a special and limited purpose. So is the other. And the special and limited purpose in the one case is just as special and limited as it is in the other—neither more nor less. It is for the same purpose in both.
I am therefore of opinion that the mineral clauses, as they may be called, of this statute, 7 and 8 Vict. chap. 87, are clearly applicable to this part of the conveyance as well as the other, and therefore I am for adhering to the Lord Ordinary's interlocutor.
The Caledonian Railway Company say that this is not a purchase of land in the sense of the statute, because (and this is the main ground) this was not a sort of deed or conveyance which the Railway Company could have compelled the granters to make. They say it was a mere voluntary transaction, to which the statute has no application.
I am of opinion that that contention is not well founded, and I rest my opinion upon this simple ground. The reason why a conveyance of land is subject to those clauses in the statute is simply this—that the conveyance of the land implies the constitution of the servitude of support. That is the sole ground of it. Now, we have here this servitude of support constituted, not by implication, but by an express deed. My humble opinion, however, is that that makes no difference. As I have said, the servitude of support implied in the disposition of the above brings in these clauses; and when we have that servitude of support expressly given in place of by implication, I think it makes no difference on the result.
On these grounds I have come to the same conclusion.
The Court adhered, with additional expenses.
Counsel for Pursuers (Reclaimers)— Lord Advocate (Watson)—Johnstone. Agents— Hope, Mackay, & Mann, W.S.
Counsel for Defenders— Balfour—Mackintosh. Agent— T. J. Gordon, W.S.
