(Ante. vol. xxi. p. 246, 11 R. 375—21st Dec. 1883.)
Subject_Superior and Vassal — Irritancy — Railway — Private Right to Stop Trains.
The proprietor of land through which a railway was formed feued to the railway company at a nominal feu-duty land on which the company undertook to erect and maintain “a station for passengers and goods travelling by the … railway, at which all passenger trains shall regularly stop.” An irritant clause provided that in the event of the company discontinuing the use of the station as a regular goods and passenger station, the grant should be null, and the ground and all buildings thereon should revert to the granter. The company erected the station, which was called C, and for a time all passenger trains stopped at it, but there were established after the date of the contract certain trains subsidised in the public service by the Home Office and Post Office, in which ordinary passengers might travel, and which were regularly advertised as conveying passengers in the company's time tables. These trains were not regularly stopped at C. In an action by the proprietor to have it found that the company were bound to stop at C, to take up and set down passengers, all trains not hired by individuals for their exclusive use, and in particular the trains above described— held ( rev. judgment of Second Division) that these trains came within the obligation, and that the company were bound to stop them.
There were also established certain Saturday excursion trains not stopping at C. The tickets for these trains were all return tickets only available to return the same day. Question, Whether these trains were passenger trains in the sense of the obligation?
This case is reported in the Court of Session, ante, vol. xxi. p. 246, and 11 R. p. 375—21st December 1883.
The pursuer appealed to the House of Lords.
At delivering judgment—
The contract with which we have to deal is in general terms. Two acres of land were feued off at a nominal or almost nominal quit-rent, on the evidence very much less than the value of the land, upon the terms of this contract, and one of those terms was that on that land a station with all proper accommodation for passengers should be erected and maintained, and that (because I do not think that what has been called the parenthetical form in which the words occur makes the slightest difference) all passenger trains of the company should regularly stop there. Obviously it would be convenient and beneficial to the owner of the adjoining property, Sir James Burnett, the lord, the person who granted the feu, that there should be the greatest possible facility of travelling from that station by the company's trains. And if the company entered into this contract, why should a court of law feel any adverse dis position to the landowner stipulating for such a provision, which the company were quite able to accept or to reject, according as they thought it to be for their own interest? Why should that be regarded with more disfavour by a court of law than any other contract between parties quite capable of contracting together, which they make when bargaining for their respective interests? There was no compulsion upon either of them; it was perfectly voluntary; there was good consideration given. And if a court of law is not to regard the contract with disfavour, why should it regard with disfavour the claim of the person with whom the contract has been made to have it fulfilled except so far as he may be disposed voluntarily to dispense on any occasion with its fulfilment? I own I have a difficulty in following some observations in the judgments below which may or may not have influenced the conclusions of the learned Judges, but from which I am bound to express my own individual dissent.
Then, my Lords, the case resolves itself simply and solely into a question of the construction of this contract with reference to a given state of facts. Are or are not these trains, which are called Queen's Messenger and Post Office trains, passenger trains within the reasonable meaning of these words? The contract is universal; it says “ all passenger trains.” If they are passenger trains it is quite clear that the company have engaged to stop them unless the holder of this property, the person entitled to the benefit of the agreement, dispenses with it. Now, it seems to me that these trains have every possible characteristic of passenger trains, and no characteristic of any other sort of trains. They are so advertised in the company's time-tables, and with regard to some of them the form of the advertisement is this—they are not only put down to go at certain times and stop at certain stations (in one instance I observe that this very station is one of them) but the classes of passengers to be carried by them are mentioned, first, second, or third, as the case may be, one or all of them. And in the only case in which there is no entry in the column of the time-table containing a mention of the classes of passengers there is this note, “Stop where required to set down passengers off the south train,” showing plainly that it is a passenger train, and that passengers are invited and expected to come by it, at all events those arriving from the south. And the limited form of expression with regard to “passengers off the south train” is perfectly well explained by the fact that it would start from Aberdeen in the middle of the night.
Therefore, in truth, these time-tables are the ordinary notice and invitation to all the world that there are such trains, and that passengers may go by them upon the usual and ordinary terms, for there is not the least qualification of the right of a passenger travelling by any one of these trains to be received and put down on the same terms, and with the same advantages, such as carrying luggage and so on, in all respects as ordinary passengers are entitled to. In point of fact the company do carry passengers in that way, and excepting so far as there is mention of “Queen's Special” at the head of two of these trains in the time-table, there is nothing whatever to inform any single passenger of anything distinguishing these from other trains, and the heading “Queen's Special” informs them of nothing more than that this train which is to take passengers also answers some purpose under some special arrangement in which Her Majesty has an interest. But there is no inconsistency whatever between a special arrangement in which the Queen has an interest, or a special arrangement for carrying the mails for the Post Office, and the fulfilment of that special arrangement by means of ordinary passenger trains unless there were something in the terms of the special arrangement to exclude that mode of fulfilling it. There are no such terms in the arrangements here either as to the Queen's Messengers or as to the Post Office bags, and in point of fact the terms are fulfilled by these trains, which are to all practical intents and purposes whatsoever passenger trains. They are passenger trains entirely under the control of the company. They are passenger trains in which by the existing contracts neither the Post Office nor any other authority can forbid the company from carrying passengers. And, my Lords, to say that that train is not a passenger train, which in all other respects is so, because the company may have been led to agree to do something which it can do and does by means of that train, and may have agreed specially to start that train at particular hours, and to keep time in arrival as well as in departure according to a particular table—to say that that makes it less a passenger train is really extravagant, for in every case, so far as the public are concerned, some time has to be fixed. The company may fix their own time ordinarily, and if they agree for a consideration with anybody else to start a train at a particular hour, and that it shall arrive at certain places at particular hours, yet if they use it as a passenger train it cannot
Now, my Lords, with regard to the excursion trains I am disposed to think that there are some material differences. I shall state the way in which they strike me, but I shall do it with less fulness, because I do not understand any serious controversy to be raised by the learned Solicitor-General as to those excursion trains when they are run under special advertisements, and are not advertised as running regularly in the ordinary time-tables.
My view is that there are reasonable grounds for distinguishing these special excursion trains specially advertised from passenger trains in the common popular sense, and the sense in which I think those words should be understood in this contract. A passenger train prima facie, I think, is a train advertised to take passengers generally, people travelling from place to place, upon the terms and in the manner ordinarily applicable to such passengers. As an illustration I may refer to the subject of luggage. In the Special Act of Parliament of this particular company, as we were informed, there is a provision that a certain quantity of luggage may be carried by every passenger. I may take another illustration from the practice of issuing season tickets (composition tickets as I see they are called on this record) for passengers by passenger trains. Now, it is quite certain that the right to carry luggage applicable to passengers generally would not be applicable to persons who as a special favour were taken in a luggage or goods train; and we find upon the evidence that with regard to these composition tickets they do not give a pass for these special excursion trains, and no luggage is allowed to be taken by them; besides which, people are not carried upon the ordinary terms either as to payment or otherwise, because every man who goes by such an excursion train must take a return ticket to come back to the starting point, so that he is not a traveller in the ordinary sense of the word, and he cannot claim to get out anywhere except at the place to which he has a pass according to that contract. I am far from saying that arguments of some weight might not be used for the purpose of bringing in even such excursionists as passengers; but upon that point I cannot help observing that it is conceded that there may be exceptions to the words “passenger trains” in the case of persons who do pass by and are conveyed on the railway when they have specially hired a train. It was not disputed that if a large number of persons combined together specially to hire a train they would be in the same situation. Now, these excursionists do not exactly do that; but, I think, taking the whole matter into account together, that it is safe to say that the parties to this contract had in view by the term “passenger trains” something different from this class of excursion trains although they carry passengers.
My Lords, I am not at all disposed to use words in your Lordship's order which would let in unnecessary controversy as to whether or no the general right of the appellant is evaded by the use of the words, when in substance there is no sufficient ground for a distinction or exception. The learned Solicitor-General is not unwilling, as I understand, if your Lordships should think that excursion trains of this kind should be excepted, that they should be excepted by adding these words after the words “exclusive use,” “and except special excursion trains not advertised as running regularly in the ordinary time-tables of the company and I think it much safer to adopt those words than to use the words “special excursion trains” in a more general form, which might let in questions as to what are such trains. I think that when they are not advertised as running regularly in the ordinary time-tables of the company, they are then broadly distinguished from those trains by which the company undertake to carry passengers in the ordinary manner. I cannot help agreeing with what one of your Lordships intimated in the course of the argument, that it is very undesirable to refer in the declarator to particular trains some of which have been and others may be discontinued, or the times of which may be altered, which would make a reference to them useless; and your Lordships' view of the law applicable to the facts having been sufficiently expressed in the opinions which you may deliver, it will be enough to pronounce a declarator in these words—“That the defenders are bound regularly to stop at the station called ‘Crathes’ on the line of railway belonging to the defenders between Aberdeen and Ballater, for the purpose as well of taking up as of setting down passengers, all trains now and hereafter passing through the said station for the conveyance of passengers, except only such trains as may be hired by an individual or individuals for his or their exclusive use, and except special excursion trains not advertised as running regularly in the ordinary time-tables of the company.” I propose therefore to your Lordships to reverse the interlocutor appealed from, and to make that declaration, and with that declaration to remit the case to the Court below. The appellant of course will have the costs of the action and of the appeal.
Then as to the construction of the words of the obligation, I agree with the Lord Chancellor. The Queen's Messenger trains and the Post Office trains, as they have been termed, are simply composite trains, partly for the service of Her Majesty or of the Post Office, and partly for the service of the travelling public; but the fact that they do accommodate the public, carrying them as passengers from station to station, is quite enough to stamp their character as being passenger trains within the meaning of this obligation. And in considering the question of whether they are passenger trains or no, it appears to me to be quite immaterial whether the service of the Post Office was added to a train already running for the accommodation of the public, or carriages for the conveyance of passengers were added to a train started for the purpose of carrying the mails. They are serving the purpose of passenger trains, and so long as they possess that character, although they may have other uses and purposes, and although the motive of starting them may have arisen from some other cause, it appears to me that they are passenger trains within the meaning of the feu-charter.
As to an excursion train as run in the year 1882 and since, I have formed a different opinion. I should not have held the same opinion with reference to that train as it was advertised to the public in October 1882. I am by no means of opinion that every train called an excursion train ceases to be a passenger train within the meaning of this obligation, or every train carrying excursionists; but the circumstances which lead me to think that it is not a passenger train within the meaning of the charter are briefly these. In the first place, there is a special arrangement made with each passenger at Aberdeen, differing in its terms from the ordinary contracts made by the company with the travelling public. And, in the second place, the persons who are admitted to travel in that train are collected at Aberdeen, as I understand the facts of the case, and the accommodation provided is simply sufficient to convey them from that terminus to their several destinations up the Dee and back again on the same day, and is not calculated to afford any accommodation to the travelling public.
I agree, my Lords, in the judgment which has already been proposed by the Lord Chancellor.
Now, my Lords, see what the case is. The pursuer in this case, or his predecessor in title whose rights he has, gave land to this company, one may almost say for nothing (that is to say, upon a nominal rent-charge of, I think, five shillings a year), except the benefit of this obligation which the pursuer is now seeking to enforce. I will not say that the defence is a scandalous one, because I have no doubt it is a bona fide one. [ Lord Fitzgerald—Extravagant.] It is an extravagant one in my opinion I must say. I cannot help thinking that if this question had arisen thirty years ago when the directors who made the bargain with the pursuer's predecessor and the manager then in existence would have had to decide it, it never would have been a question at all. They never would have made such a point as has been made to-day, because I am satisfied in my mind that they must have known that in fairness they ought not to be setting up such a case as the respondents are setting up now. But Mr Moffat, I think, in one of his letters (to do him entire justice) states that he had not seen the feu-charter until after he had made the contention which has resulted in these proceedings taking place, and I daresay that he and his directors have satisfied themselves in some way that it is a defence which they may properly make and a case which they may properly set up.
One of the learned Lords of Session has cited the familiar case of, I suppose one may say, Shylock v. Antonio, and intimated that the pursuer here is going for his pound of flesh. Now I am quite certain that I should have decided that case in the way in which fair Portia did, not perhaps entirely upon her reasonings, but upon some of them. The learned Lord of Session says—“The pursuer says it is within the weight of his pound of flesh.” Now, the truth is that Shylock never had a pound of flesh which could be called his; it had never been appropriated to him, and he could only get it by the commission of a considerable crime, no less than that of murder. If indeed the pound of flesh had been appropriated to him and was his, and if Antonio had wished to steal an ounce of it, I should have given the whole pound to Shylock. That is a material distinction, and it is not mentioned here for the purpose of making a laugh or a joke, but it is very seriously mentioned by me for a reason which I need not particularly state now. For the purpose of showing that the supposed case of the pound of flesh has nothing to do with the matter, I should like to ask why the learned Lord of Session himself would give a certain number of ounces to the pursuer—that is to say, he would stop certain of the trains—but as to the pound of flesh not only not an ounce but not a drachm ought to have been given.
Now, my Lords, having made these remarks, I will address myself to the particular question before us, although I protest that I have great difficulty in giving any other judgment than this, that a “passenger train” is a passenger train. The words are not words of art; they want no explanation either by railway people or by experts of any sort or kind. The question is whether these are passenger trains. The answer is they are passenger trains, and to my mind they are passenger trains that carry passengers in the ordinary way upon the ordinary terms, except excursion trains, as to which I will say a word or two presently.
How has the difficulty arisen? It seems to me that it has arisen from a mistake—partly, I must say with great respect, as I think from a prejudice.
Now, one word with respect to excursion trains. One knows perfectly well what is meant in practice by an excursion train. It is a train, I imagine, which goes from one place to another; it may or may not stop and pick up passengers on the road—I believe it commonly picks them up—but it is a train which goes from one place to another, with a view to people getting to that other place on cheap terms, and very frequently, certainly, upon the condition that the railway company are not to be delayed or inconvenienced by people taking luggage with them. But why is that not a “passenger train?” Passengers go by it, and they go by it from one place to the other in order that they may get to the other place. It is not the less a passenger train because they pay a small fare, nor is it the less a passenger train because by agreement with the company they do not carry luggage with them. It seems to me really that the substance of the thing is that, as I said before, “passenger train” is not a term of art—it is a popular expression,—and these, popularly speaking, are passenger trains, and no reason has been given why the words should have any other than the natural meaning given to them.
There was a prior deed of agreement of 1853 made with the pursuer's predecessors which is still in force, and it is observable that the feu-charter of 1863 is made expressly without prejudice to that deed of agreement. By that agreement the company (the defenders) undertake to make certain accommodation works, and, inter alia, by clause 9, “A siding shall be made at the level-crossing marked ‘number 46 A’ on said deposited plans, for the accommodation of the proprietor and tenants of the said estate of Leys, and the said company hereby undertake that any of the passenger trains shall be stopped at said siding, although not appointed by the company's time-bills so to do, on a preconcerted signal, to be arranged by the company with the proprietor of said estate, being shown, so as to take up or set down any passengers proceeding from or to Crathes at said siding.” If it was necessary now to interpret that provision, speaking for myself, I would probably say that it applied to each and every train coming within the ordinary description of a passenger train, and that the obligation on the company was to stop each of such trains at the siding on the preconcerted signal. In other words, the Crathes siding was a signal station at which when there were passengers to take up or set down the company was bound on signal to stop each one of its passenger trains. The position of things was probably found to be inconvenient and not free from dangers, and it became desirable to provide a station with all its conveniences in place of an unprotected siding, and relieve all parties from the cumbrous necessity of signalling.
That being the state of things, we have now to look to the feu-charter of 1863, the expressed main object of which, as well as its consideration, was the obligation on the company “to erect and build upon the ground hereby disponed a station of the said railway for passengers and goods, containing the accommodation after mentioned (which station will be of advantage to me and my tenants in the estates of Leys, Crathes, and others, as well as to the public at large).” And the stipulated obligation was that “The said railway company shall be bound, within twelve months from the date of these presents, to erect, at their own expense, on the said piece of ground first above-mentioned, a station for passengers and goods travelling by the said Deeside Railway, at which all passenger trains shall regularly stop, to be called the ‘Crathes’ station, containing a suitable waiting-room, covered passenger shed, platform, and all proper accommodation for first-class and other passengers, and to maintain such station in all time coming; it being hereby provided and declared that the said railway company shall be bound to have a signal-post erected at the said station, on which a signal visible from Crathes Castle shall be displayed whenever any passenger or parcel for Crathes shall arrive at the station.” There are other accommodation provisions, but they are all confined to the requirements of the station.
Then comes the irritancy clause for forfeiture of the right for breach of the feudal contract, but it is unnecessary to advert to it, as it has been disposed of in the course of the argument.
The pursuer contended below, as he has insisted here, that by the stipulation “at which all passenger trains shall regularly stop,” there is created an absolute obligation on the company to stop at the Crathes Station each and every of all the passenger trains that pass along the line. The defenders, on the other hand, have always admitted
I have been at some loss to understand the meaning or extent of this admission on the part of the defenders, and rather turn back on the real question, What is a passenger train? It would seem to me that every train of the company over which the company retains its general control and dominion, and by which the company professes or offers to carry for hire such travellers as may take advantage of it on payment of their fares, is in ordinary parlance and within the meaning of the stipulation in controversy a passenger train. It may be a special or it may be an express train; it may carry the mail or a Queen's Messenger, or even excursionists, but it does not follow that it is not also a passenger train.
I am, my Lords, of opinion that in the construction of the obligation in question “all passenger trains” is to be interpreted as meaning “each and every passenger train,” and as embracing the trains in controversy, save the special excursion trains which are run subject to special and peculiar conditions, and are not intended for ordinary travellers. It may be that the obligation assumed by the company was not wise or prudent on their part, but that is not for our consideration. It was not illegal or unreasonable on the part of the pursuer to insist on the stipulation for the benefit of himself and his tenants. We have but to interpret and give effect to the plain meaning of the language used. If inconvenience or injury may arise to the company from the enforcement of their contract, they have ample means within their reach to protect themselves.
The House ordered and adjudged that the interlocutor complained of in the said appeal be reversed; and “declared that the defenders (respondents) are bound regularly to stop at the station called ‘Crathes’ on the line of railway belonging to the defenders (respondents) between Aberdeen and Ballater, for the purpose as well of taking up as of setting down passengers, all trains now and hereafter passing through the said station for the conveyance of passengers, except only such trains as may be hired by an individual or individuals for his or their exclusive use, and except special excursion trains not advertised as running regularly in the ordinary time-tables of the company; and with this declaration it is ordered that the said cause be and the same is hereby remitted to the Court of Session in Scotland to do therein as shall be just and consistent with this judgment; and it is further ordered that the respondents do pay or cause to be paid to the appellant the costs of the action in the Court of Session; and it is further ordered that the respondents do repay to the appellant the sum of £187, 16s. 4d. paid by him to them on 4th April 1882 in name of costs, and £1, 2s. 4d. paid by him to them on 9th April 1884 in name of dues of extract of the action in the Court of Session; and it is further ordered that the respondents do pay or cause to be paid to the appellant the costs incurred in respect of the said appeal to this House,” &c.
Counsel for Pursuer—(Appellant)—Sol.-Gen. Herschell, Q.C.—Sol.-Gen. Asher, Q.C.— R. B. Haldane. Agents— Martin & Leslie—Baxter & Burnett, W.S.
Counsel for Defenders (Respondents)—Lord Advocate Balfour, Q. C.— J. P. B. Robertson. Agents— Dyson &, Co.—Gordon, Pringle, Dallas, & Co., W.S.