Scottish Court of Session Decisions

By the Glasgow Central Railway Act 1888, and other Acts therewith incorporated, the Caledonian Railway Company were authorised to construct and maintain certain railways in Glasgow.

On 24th November 1890 John P. M'Bride, metal and machinery merchant in Glasgow, served the railway company with a notice and claim whereby he gave them notice, in terms of the Lands Clauses Consolidation (Scotland) Act 1845, the Railways Clauses Consolidation (Scotland) Act 1845, the Glasgow Police Act 1866, the Glasgow Central Railway Act 1888, and the Caledonian Railway Act 1890, that he was heritable proprietor of a machinery yard and certain tenements in M'Alpine Street, Glasgow, which he occupied for the purposes of his business; and that his business had been considerably interfered with by the railway company's operations in constructing a large tunnel or sewer in the front of said property, whereby the buildings themselves had been seriously damaged, and the access to his premises completely blocked for several months, with the result that he had suffered damage which he estimated at £5500. Notice was further given that unless the railway company were prepared to pay him that sum, he required them within twenty-one days to present a petition to the Sheriff to summon a jury for settling the foresaid question of disputed compensation under the Acts mentioned.

By notice and tender dated 4th December 1890 the railway company, while protesting against the competency of M'Bride's claim, gave notice that they would under protest petition the Sheriff to summon a special jury for settling the question of disputed compensation, and further stated that they were willing (but always under protest) to pay M'Bride £55 in full of his claim. This offer having not been accepted by M'Bride, the railway company presented a petition to the Sheriff, and on 15th December 1890 the Sheriff-Substitute fixed 30th January as a diet for nominating a special jury, and ordained service to be made on M'Bride, and service was thereafter duly made.

On 25th January 1891 the railway company presented a note of suspension and interdict against M'Bride, craving the Court to suspend the proceedings complained of and interdict the respondent from following out the notice and claim served upon the complainers on 24th November, and from proceeding with the said pretended claim for compensation, and to suspend the deliverance pronounced by the Sheriff-Substitute on 15th December.

The complainers founded on section 41, sub-sec. (L), of the Glasgow Central Railway Act 1888, and on section 328 of the Glasgow Police Act 1866, and averred, inter alia—The respondent's notice and claim for compensation is incompetent, invalid, and not conform to statute. The sewer in question is outside the limits of deviation of the railways and works authorised by the Glasgow Central Railway Act 1888, and was executed by the complainers under the provisions of section 41 sub-sec. (L) of that Act—“No sewer was carried or continued by the complainers into or through any lands or heritages belonging to or occupied by the respondent. The loss and damage to the respondent's business, in respect of which compensation is claimed, was occasioned, as set forth in said notice, by the temporary obstruction of the street, and the claim in respect of such loss and damage is incompetent, and unauthorised by statute, and irrelevant to found any claim against the complainers.”

The respondent did not dispute that the work done by the complainers on the sewer had been done under section 41, sub-section (L), of the Glasgow Central Railway Act 1888, but averred that his property had been injuriously affected in the sense of section 6 of the Railway Clauses Consolidation (Scotland) Act 1845.

The complainers pleaded, inter alia—“(2) The operations complained of having been executed under the authority and subject to the provisions of the Glasgow Police Act 1886, as the said Act is incorporated with the Glasgow Central Railway Act 1888, and the respondent having no right of compensation under said Acts in respect of any of the matters referred to in said notice and claim, the said notice and claim are incompetent, and the complainers are entitled to decree as craved.”

The respondent pleaded, inter alia—“(2)

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The respondent's property having been injuriously affected, within the meaning of the Railway Clauses Consolidation (Scotland) Act 1845, the respondent is entitled to compensation, and to have the same assessed in terms of the Lands Clauses Acts.”

Section 41 of the Glasgow Central Railways Act 1888 provides—“For the further protection of the Lord Provost, Magistrates, and Council of the city of Glasgow as a municipal Corporation, and as trustees or commissioners acting in execution of the several public and local or personal Acts, by which any powers, jurisdiction, or authorities are conferred on them, …. the following provisions shall have effect and be binding on the company (that is to say)—(L) Where any of the works to be done under or by virtue of this Act shall or may pass over, under, or by the side of, or so as to interfere with any sewer, drain, water-course, defence, or work under the jurisdiction or control of the Corporation, or shall or may in any way affect the sewerage or drainage of the district under their control, the company shall make good any damage which may be done by their operations to any of the sewers, and shall clean the same should they get silted up in consequence of any of the operations of the company during or after the construction of the company's works, and shall provide by new, altered, or substituted works, including outfall sewers, in such manner as the Corporation may deem necessary (and for the construction of which they shall be bound to afford all reasonable facilities, and communicate their powers so far as necessary) for the proper protection of, and for preventing injury or impediment to the sewers and works hereinbefore referred to, by or by reason of the said intended works, or any part thereof, and shall save harmless the Corporation against all and every the expense to be occasioned thereby, and all such works may be done by or under the direction, superintendence, and control of the Corporation, and the costs, charges, and expenses in all respects of the company, and all reasonable costs, charges, and expenses thereby occasioned shall be paid by the company on demand, and if any dispute shall arise as to the amount of such costs, charges, and expenses, the same shall be settled as hereinafter provided, and when any new, altered, or substituted works as aforesaid, or any works or defence connected therewith shall be completed by or at the costs, charges, and expenses of the company under the provisions of this Act, the same shall thereafter be as fully and completely under the discretion, jurisdiction, and control of the Corporation as any sewers or works now or hereafter may be, and nothing in this Act shall, except as hereinbefore provided, extend to prejudice, diminish, alter, or take away any of the rights, powers, or authorities vested or to be vested in the Corporation, but all such rights, powers, or authorities shall be as valid and effectual as if this Act had not been passed.” (O) “The special provisions herein contained for the protection of the Corporation and the Glasgow Botanic Institution shall not be deemed to supersede or dispense with the provisions of the Railway Clauses Consolidation (Scotland) Act 1845, but these, except in so far as they may be inconsistent with any of the special provisions herein contained, shall be and remain in full force and effect.”

Section 328 of the Glasgow Police Act 1886 provides—“The Board” (of Police of Glasgow) “shall make provision for draining in a suitable manner the portions of the turnpike roads within the city and the public streets, and may with that object construct or continue in or under any of the said roads or streets one or more ordinary or special public sewers, and may from time to time alter, renew, or add to such sewers as to them shall seem proper, and may carry and continue the said sewers into or through any lands or heritages within the city, and may repair, maintain, and cleanse the said sewers, provided that they shall make reasonable compensation to the proprietors and occupiers of such lands and heritages for any damage which may be done by reason of the exercise of the powers hereby conferred, and such compensation shall, in the option of the Board, be assessed either by the Dean of Guild or in manner provided by the Lands Clauses Consolidation (Scotland) Act 1845, for determining the amount of compensation to be paid for lands taken under the provisions thereof.”

Section 6 of the Railway Clauses Consolidation (Scotland) Act 1845 provides—“In exercising the power given to the company by the special Act to construct the railway and to take the lands for that purpose, the company shall be subject to the provisions and restrictions contained in this Act and in the said Lands Clauses Consolidation (Scotland) Act, and the company shall make to the owners and occupiers, and all other parties interested in any lands taken or used for the purposes of the railway, or injuriously affected by the construction thereof, full compensation for the value of the lands so taken or used, and for all damage sustained by such owners, occupiers, and other parties by reason of the exercise, as regards such lands, of the powers by this or the special Act, or any Act incorporated therewith vested in the company, and except where otherwise provided by this or the special Act the amount of such compensation shall be ascertained and determined in the manner provided by the said Lands Clauses Consolidation Act for determining questions of compensation with regard to lands purchased or taken under the provisions thereof, and all the provisions of the said last mentioned Act shall be applicable to determine the amount of any such compensation, and to enforcing the payment or other satisfaction thereof.”

On 8th July 1891 the Lord Ordinary ( ) pronounced this interlocutor—“Sustains the reasons of suspension; suspends, interdicts, prohibits, and discharges, in terms of the note of suspension and interdict: Declares the interdict formerly granted perpetual, and decerns,” &c.

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“ Opinion.—If this case had to be dealt with as originally presented, I should not have had much difficulty in refusing to interfere with the statutory proceedings, because while there is undoubtedly room for argument on the general question as to the respondent's rights to compensation under the General Railway Acts for the complainers' interference with the public street opposite his property, I do not think it would be possible to decide that question, which is largely a question of degree, and depends on the exact facts, upon the mere terms of the notice and claim or before the facts had been ascertained by the statutory procedure. The Court will not, as I understand the practice, deal with such questions ab ante, or interdict statutory proceedings except on the clearest grounds.

But the complainers have in their amended record raised a totally new question, which admits, I think, of being at once disposed of. They allege, and the fact is not disputed, that the operations in connection with which the pursuer claims compensation are being executed by them in pursuance of their obligations to the Corporation of Glasgow under section 41 of their special Act of 1888, and particularly in pursuance of the obligation contained in sub-section (L) of that section, which subsection is not quoted on record, but is as follows—[ quoted supra].

The complainers contend that in these circumstances, and in virtue of the provisions of this section, they are vested with all the powers, and by consequence all the immunities of the Corporation, and that the result of that is to bring them within the provisions of the 328th section of the Glasgow Police Act of 1866, which is quoted in article 6 of the complainers' statement, and provides in effect for the construction, renewal, or repair of sewers in or through any lands or heritages within the city on payment of compensation ‘to the proprietors and occupiers of such lands and heritages for any damage which may be done by reason of the execution of the powers hereby conferred.’ The respondent being merely a frontager to the street in which the complainers' operations are being conducted, and not being an owner or occupier of any land or heritage occupied by those operations, it is contended that his claim for compensation is expressly excluded.

The respondent's answer is, that although the complainers were vested with the powers of the Corporation, they are not vested with its immunities, and they appeal to sub-section (O) of the same 41st section of the special Act, which provides as follows—[ quoted supra].

I have not been able to read the last sub-section as enlarging the claims for compensation competent to individuals in the position of the respondent. The whole section is declared to have for its purposes merely the protection of the Corporation and certain other specified public bodies, and the sub-section I have just read cannot, I think, be construed without reference to the limitation, and with respect to the argument that a transfer of powers does not necessarily imply a transfer of immunities. I am afraid it is rather against that argument that under the provisions of sub-section (L) the works in question might have been executed by the Corporation themselves at the expense of the railway company, in which case it is difficult to see how the respondent could have made good any claim for compensation except under the limitation expressed in the 328th section of the Glasgow Police Act above referred to.

On the whole, therefore, I think that the matter is sufficiently clear on record and on the statutes to make it vain to proceed with the proposed jury trial, and I shall therefore grant interdict against so proceeding, with expenses to the complainers since the date of the second closing of the record.”

The respondent reclaimed, and argued—Statutes conferring powers for the benefit of private persons or bodies were to be construed very strictly in regard to the privileges conferred, and favourably as regards the public, and the right of neighbouring proprietors and occupiers to claim compensation for damage done by operations under such Acts would not be held to have been taken away unless there was a clear provision to that effect—Maxwell on Statutes, 363; Clyde v. Glasgow City and District Railway Company, July 16, 1885, 12 R. 1315; Scales v. Pickering, 1828, 4 Bingham's Rep. 448; Kingston-upon-Hull Dock Company v. La Marche, 1828, 8 B. & C. 42; Stockton Railway Company v. Barrett, 1844, 11 Cl. & F. 590. The complainers had power to enter on the street in question under sub-section (L) of section 41 of their Act, and the parenthetical clause was not required to enable them to do so. If in the course of the operations authorised by that sub-section they did damage to neighbouring proprietors, they were liable in damages or to pay compensation under the Railway Clauses Act, the application of which was expressly saved by sub-sec. (O). The immunities conferred on the Corporation by the Police Act were not transferred to the complainers. Assuming, however, that section 328 of the Police Act was applicable to the operations of the complainers, it was not to be construed so as to exclude a claim for compensation by the proprietor of houses in a street on account of damage sustained by reason of operations in the street.

Argued for the complainers—The question was not whether the respondent had a good claim of damages, but whether he had a right to have his claim of compensation assessed under the statutes. Admitting that a proprietor had a claim for damage to his buildings caused by operations carried on by a neighbour on his own ground, that did not affect the question at issue. The complainers had carried on the works complained of in virtue of powers transferred to them in terms of sub-sec. (L) of section 41 of their Act. The object of that

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section was to protect the Corporation of Glasgow, and sub-section (L) had nothing to do with the undertaking of the complainers. It was not an authorising section at all, but merely provided parenthetically for the transfer of powers necessary to enable the complainers to repair any damage the construction of their railway might do to the Corporation sewers. The power to execute the works in question were derived from section 328 of the Glasgow Police Act, which provided only for payment of compensation to the owners and occupiers of lands and heritages through which sewers were carried. The respondent had accordingly no claim to compensation under that Act, for the work complained of was carried on in the street, and by section 289 all the streets in the city were vested in the Board of Police, nor had the respondent any claim under the 6th section of the Railway Clauses Act, for that provided for compensation only where the injury had been done in the exercise of the power conferred on the railway company to construct their railway— Hammersmith v. Bran, L.R., 4 Eng. & Irish App. 171, per Lord Colonsay. If the operation of that Act were excluded, then sub-section (O) could have no bearing on the question. If the respondent had no right to a statutory arbitration, the case was at an end, but it might further be argued that he had no claim against the complainers at all. The right of action might be taken away by statute, and no corresponding right to compensation given—Deas on Railways, 271–281. Where powers were conferred by statute, members of the public had no right to compensation for injuries sustained owing to the exercise of those powers except as allowed by the Acts themselves— Hammersmith case, supra; Vaughan v. Taff Vale Railway Company, 1860, 5 H. & N. 679; Rex v. Pease, 4 B. & A. 30. To these cases the following case formed instructive contrast— Jones v. Festiniog Railway Company, L.R., 3 Q.B.D. 733.

At advising—