Scottish Court of Session Decisions

By the 8th Geo. III. c. 63, passed for making and maintaining a canal between the Forth and Clyde, and a collateral cut from the same to Glasgow, certain persons were appointed (§ 8.) commissioners “for the settling, determining, and adjusting all questions, matters, and differences which shall or may arise between the said company of proprietors, their successors and assigns, or any of them, and the several proprietors of and persons interested in any lands, grounds, tenements, hereditaments or waters, that shall or may be affected or prejudiced by the execution of any of the powers hereby granted.” By section 70 it was provided, “that it shall and may be lawful for the owners of lands through which the said intended cut or canal or collateral cut shall pass, and they are hereby empowered, at their own proper costs and charges, to make a navigable cut through their own lands to communicate with the said intended cut or canal, or collateral cut, and to pass through the towing paths of the same.” It was likewise provided by section 72, “that the said owners of lands through which the main canal or collateral cut shall pass, and who shall have made a navigable cut as aforesaid, shall have power, and they are hereby required to permit other owners, who have lands immediately adjoining to the lands of the said first mentioned owners, through which the said canal or collateral cut shall pass, to continue, at their own costs and charges, the said navigable cut made by such landowners as aforesaid, through their (the said other owners) lands, to be empowered and required to admit every other adjoining landowner to continue through his lands, at his own expense and charges, the said navigable cut made by the landowners as aforesaid; and all the said landowners to have and enjoy the free navigation thereof to and from the said main canal or collateral cut to be made by the proprietors as aforesaid; and in case of any difference or dispute between the said landowners in respect thereof, or of the necessary expenses in preserving, repairing, and cleansing, from time to time, the said navigable cut (so long as the same shall be used respectively), or between the said landowners and company of proprietors, such difference or dispute shall be determined by the said commissioners, or any five or more of them.”

By the 27 Geo. III. c. 55, § 6, on the narrative that inconveniences had arisen from the powers given to the commissioners above-mentioned, “in cases of difference and dispute, to settle the recompense to be made to the several owners of, and persons interested in, any lands, grounds, tenements, hereditaments, or waters, which shall or may be affected or prejudiced by the execution of the powers given by the before recited acts, and in this present act;” it was therefore enacted that their powers should henceforth cease, “and that it shall and may be lawful for the Sheriff-depute or substitute of the counties of Stirling, Lanark, Renfrew, and Dumbarton respectively, and they are hereby respectively authorized and required, to judge of, determine, and settle all matters of difference and dispute which the said commissioners, in the before recited act, might or could have judged of, settled, or determined, which shall arise or happen within their respective shires; and that in case the parties concerned or interested in such dispute or difference, or any or either of them, shall decline to treat or agree with the said company of proprietors, their successors and assigns, or shall refuse to submit to the decisions of the said Sheriff-depute, or substitute, then, and in every such case, the said Sheriff-depute, or substitute, is hereby authorized and required, upon application or request in writing made to him by either party, or their agents, to summon and return a jury, according to the provisions of the before recited act of the eighth year of his present Majesty's reign, the verdict or decision of which jury so returned, shall be final and conclusive as to all matters in dispute referred to their determination.”

The advocators, Tennant and Company, were proprietors of lands in the immediate vicinity of Glasgow, bounded on one side by the collateral or junction canal above mentioned, and on the other by the property of the respondent, Turner. They had availed themselves of the provision in the 70th section of the 8th of George III., and made a navigable cut through their own lands from the canal to a point about 28 yards from Turner's march. Turner, having thereafter become desirous of taking the benefit of the 72d section of the Act, applied to Tennant and Company either themselves to continue the cut to the extremity of their land, or to allow him to do so at his own expense. This application not being complied with, he presented a summary petition against these parties to the Sheriff of Lanarkshire, setting forth the statutory provisions and circumstances above mentioned, and praying to have it found that Tennant and Company having availed themselves of these provisions by making a navigable cut through their own lands communicating with the canal, were bound either to continue this cut to Turner's march, or to admit him, as owner of the adjoining lands, to enter into their lands and to continue the said cut through the same into his own lands, at his own expenses and charges, according to the provisions of the Acts,—and to authorize and empower him to proceed with such operations, and decern accordingly; and in case of Tennant and Company refusing to submit to the Sheriff's decision, then to appoint a jury to be summoned, and to return a verdict as to the matter in dispute.

The Sheriff having ordered answers to be lodged within three days after service of the petition, it was pleaded, in defence, 1st, That the Sheriff had no jurisdiction; and, 2dly, That as Tennant and Company had not carried the cut from the canal entirely through their own lands, Turner had no right to make any claim under the statutes. It was also stated that Tennant and Company had recently feued to a third party a parcel of the ground interjected between them and Turner, who was no longer to be considered as their immediately adjoining proprietor.

The Sheriff repelled the preliminary defence as to his want of jurisdiction; and a record having been closed, he, before answer, allowed Tennant and Company a proof of their allegation that they were not adjoining or conterminous proprietors to Turner, in consequence of having feued a piece of land interjected between them and him.

Thereafter Tennant and Company brought an advocation of this judgment, under the 40th section of 6 Geo. IV. c. 120, in which they pleaded—

1. The Sheriff was not competent to entertain the present action under the Canal Acts; neither was he competent at common law, the question relating to heritable right.

2. The owners of lands through which the canal passed were entitled by the statute to carry a cut from the canal as far into their lands as they thought proper, and there was no condition or implied obligation on them to continue it to the march of their property. This right granted to the owners was highly onerous, and was one of the conditions on which the solum occupied by the canal was taken from them, and the canal itself formed. The right or privilege conferred on the other description of landowners was entirely gratuitous and for the benefit of the canal company, and cannot be interpreted as entitling them to compel the landowners adjoining the canal to prolong the cut to the march of their property. Even although the words of the statute were ambiguous, the presumption of law is strongly against such interpretation, both on account of the gratuitous nature of the privilege, and of its being derogatory to the right of private property. ¹

To this it was answered—

1. By 27 Geo. III. c. 55, § 6, the Sheriff is declared to be competent to entertain and decide all such matters as that involved in the present question, and must be held as having succeeded to the powers of the original commissioners.

2. The permission given by statute to the landowners adjoining the canal to make a navigable cut across the towing-paths and through their own lands, must be held to have been given upon the condition that the owners who avail themselves of such permission shall be bound, in the event of their not carrying the cut to the outer march of their property, to allow the immediate neighbouring proprietors to continue it at their own expense into their lands, so as thereby to enjoy the advantage of direct communication with the canal. Any other interpretation would render the clause in question totally nugatory, and without meaning or application, which is not to be presumed.

The Lord Ordinary advocated the cause, and altered the Sheriff's interlocutors, finding, “Primo, That the said Sheriff had no jurisdiction or power to decide in the action raised by the respondent, which, even if well founded on the merits, could only have been entertained by the Supreme Court, and was incompetently brought before the Judge Ordinary: Secundo and separatim, on the merits, That the statutes referred to by the said respondent do not authorize any adjoining proprietor to enter upon the grounds of a neighbour for the purpose of prolonging or continuing up to the march or boundary of such adjoining proprietor, any navigable cut by which such neighbour may have connected some part of his said grounds with the canal navigation in question, or to compel or require such neighbour himself to prolong or continue such cut through the whole extent of his grounds, and up to the said march or boundary: Tertio, That even if the statutes did confer such a right on an adjoining proprietor, it would be a relevant and sufficient defence against any action brought to enforce it, that, previous to the raising of such action, the ground through which such prolongation was sought to be carried had ceased to belong to the maker or owner of the original cut; and that the pursuer and defender in such action were no longer conterminous proprietors.” His Lordship therefore sustained the defences, and assoilzied the complainers from the whole conclusions of the original action, with expenses, both in this Court and before the Sheriff. His Lordship at the same time added the subjoined note. ^*

_________________ Footnote _________________

¹ Dwarris on Statutes, p. 750.

^* “Upon the matter of jurisdiction, the Lord Ordinary is of opinion that, even looking to the 72d section of the original Act alone, the only questions between conterminous proprietors thereby left to the decision of the Commissioners of Supply, were those relating to the free navigation of the continued cut, and the expenses of maintaining and repairing it after it was made. But what he chiefly goes upon is the 6th section of the subsequent Act of 27th Geo. III. c. 55, by which the jurisdiction formerly vested in the Commissioners was transferred to the Sheriffs. It is there expressly provided, that in every case where the parties do not agree or refuse to submit to the decision of the Sheriff, the matter in dispute shall be sent to a Jury, whose verdict shall be conclusive as to all such matters. Now this is sufficiently intelligible, if the matter so sent to the Sheriffs instead of the Commissioners were confined, in so far as regarded conterminous proprietors, to questions touching the free navigation or the clearing and repairing of the common cut, because all such questions necessarily resolved into issues of fact, well adapted for the decision of a jury, such as, whether the defender had wrongfully impeded the pursuer in his right of common navigation to his loss and injury; or wrongfully refused to contribute for repairs; or was indebted to the pursuer for sums alleged to have been expended by him beyond his just proportion for such purpose, &c. But, if the question so sent to the Sheriffs had been understood to embrace such mere matters of law, or construction, as are now at issue between the present parties, it seems altogether impossible that such a provision should have been made for their ultimate decision. The main, and indeed the only, question between these parties, is as to the proper construction of the 72d section of the original Act, or the existence of a legal right in an adjoining proprietor, either to enter upon his neighbor's grounds to cut a canal through them to his own, or to compel that neighbour himself to make such a cut for his accommodation. It is palpably absurd to suppose that such a question as this should ever be sent for final determination to a jury. But, as it is thought to be quite clear that every one of the questions made competent to the Sheriffs by the Act 27th Geo. III. must go to a jury, if the parties do not agree, or refuse to submit to the Sheriff's decision, it would seem that any ambiguity which might otherwise attach to the concluding words of the 72d section of the first Act is entirely taken away, and the jurisdiction thereby created as between conterminous proprietors confined to questions of fact (or debt or injury) as to the joint use, or the proportional expense of clearing and repairing the common cut after it is made, and does not at all extend to questions of law or construction as to the right of one such proprietor to make, or to compel his neighbour to make, any such cut beyond the limits of his own property. It would have been strange certainly, if such a question, involving the substantive right of property, and therefore peculiar at common law to the Supreme Court, should have been sent in the first instance to such a tribunal as the Commissioners of Supply. But it is a mere absurdity to suppose, that, as a correction of that error, it should have been ultimately left for the determination of a jury.

“Upon the merits, the Lord Ordinary has proceeded on the plain principle, that, though it would require the most clear and express words to warrant so extraordinary an invasion of the rights of private property as is here contended for, there is not a syllable in the statute which directly confers any such power, and the claim to it is vested upon mere inference and construction, of the most loose and extravagant description. The only thing the proprietors immediately on the line of the canal are required to permit the next adjoining proprietor to do, is to make a cut through their own lands, and, when that may connect with a previous cut through the interposed lands, to use that previous cut as a means of communication with the canal. It is said, indeed, that the authority of the legislature was not required for the first of these things, and this is perfectly true. The only substantial right given by the statute, and for which a statute was necessary, was the right to use the original cut through the first proprietor's grounds as an access to the canal; and it is only as connected with that right, that the additional cut through the second proprietor's own grounds is incidentally mentioned, and somewhat inaccurately perhaps, and at all events unnecessarily included in the statutory authority. But all difficulty as to the true import of this part of the 72d clause is removed, by looking back to the earlier, or 70th section, by which the power to connect themselves with the canal is given to the first set of proprietors, or those through whose lauds it actually passes. The phraseology of this leading part of the enactment is at all points identical with that now referred to, and demonstrates, therefore, in what sense it should, in both cases, be understood. Now, that 70th section gives power and authority to the immediate proprietors, ‘at their own proper costs and charges, to make a cut through their own lands,’ exactly as the 72d section does as to the next adjoining proprietors, and in all respects as unnecessarily. But, then, this 70th section proceeds in direct terms, not only to empower the immediate proprietors to join their cut with the canal (which must always be close upon them), but, for this purpose, ‘ to pass through the towing-paths (or banks) of the same.’ It is this alone which required legislative authority, though the form of such authority is most needlessly given for that also which was clearly competent without it; and the difference between the two sections is no less than this, that, whereas the first gives express power to the contiguous proprietors to break through the narrow boundary by which the water of the canal is divided from their land, the 72d section contains no words whatever to justify the respondent's assumption of the far more formidable power of cutting, or causing to be cut, a new trench through their neighbours’ lands, it may be, of miles in length, and passing through gardens, buildings, or manufactories. Most unquestionably, there is no express power given to such adjoining proprietor, either to make or to prolong a cut through his neighbor's grounds, or to compel his neighbour to make it for him. The only power to cut (however unnecessary) is to cut through his own grounds; and the only right given over the adjoining proprietor is to pass through the original cut in it to the canal, wherever he can find a way legally, to connect the cut in his own grounds with that originally and spontaneously made by his neighbours. It is, however, merely because such a power is given to use a common cut after it is made that the respondent says it must be inferred that there is also a power to make it (or to compel its being made) against the will of the owner through whose grounds it passes; and it is upon nothing better than this assumption or implication that the judgment of the Sheriff proceeds.

“The Lord Ordinary has already said that so extraordinary a power can never be given by implication or presumption, however strong, of actual intention, or indeed without the most express and direct words. But that it never could have been intended to give such a power in the present case, seems clear from the entire want of any of those provisions for the indemnity of the unwilling owner, without which, it is well known, that no such power is ever given by the Legislature. When the Canal Company, for example, is expressly empowered to take or to enter on lands for the use of the navigation, the most detailed and anxious provision is made for the indemnification of the owners; and mansion-houses, gardens, lawns, and plantations, are absolutely protected from their operations. When the first adjoining proprietors again are expressly empowered to cut through the banks and towing-paths, they are strictly required to make and maintain sufficient bridges and floodgates, so as to exclude all possibility of damage. And power is reserved to the Canal Company to stop or drain up the collateral cut at the expense of the proprietor whenever any such damage is apprehended. But though the respondent maintains that be is empowered to take and cut through miles, it may be, of his neighbor's property, upon the mere implication of the words that have been referred to, he cannot but admit that these words are accompanied by no provisions whatever for that neighbour's indemnification; no protection for houses, gardens, or plantations; no reserved claim for damages or for the price of the ground taken for the cut; and of course no machinery for rendering such claim effectual.

“It is said, indeed, that because it is declared that any cut which he may make (the only one expressly authorized being one through his own grounds) is to be made ‘at his own costs and charges,’ this is sufficient to subject him in all damages occasioned by any cut which he may make or cause to be made on his neighbor's. But this is plainly to defend one extravagant implication by another still more extravagant. It is undeniable that neither in Parliamentary nor in common language is such an expression ever used to denote a liability for damages, and the whole tenor of this act shows that no such use of it was then contemplated. The Canal Company were bound, of course, to make their canal ‘at their own proper costs and charges.’ But was it held that this was sufficient to secure the indemnity of those whose lands might be taken or injured by their operations? On the contrary, there is not only the most express declaration that they should be fully compensated, but an elaborate machinery is provided for ascertaining the amount, and insuring the payment of their indemnification, and anxious stipulations are added, requiring the Company to erect and maintain new fences on the lands laid open, and to provide sufficient bridges to connect such parts as might be conveniently divided by their operations. Now, according to the construction of the respondent, any adjoining proprietor has really a power at his own pleasure of making (or causing to be made) a navigable cut or branch canal through any neighbour's property into which the shortest cut may have been previously made from the canal, and that for the full breadth of such interponed property, and it may be to a greater extent than the principal canal itself intersects any single property in the whole line of its course, and yet, confessedly, this extraordinary power is not qualified in the act by a single direct provision for indemnifying the interposed owner for the enormous injuries he may consequently suffer, but all is left upon the mere implication of the provision as to costs and charges, which have no such meaning naturally, and which also occur in other places of this act, in situations where this meaning is necessarily excluded. This is remarkably the case in the 70th section, already referred to, allowing the proprietors immediately on the canal to connect themselves with its waters, and for this purpose, ‘ at their own proper costs and charges,’ to make a navigable ‘cut through their own lands,’ being indeed the only lands through which the canal could be reached, except where the towing-path or actual banks were to be traversed, and for passing through which it has been seen there is a separate express authority, qualified by an anxious relative obligation to connect the divided towing-paths by sufficient bridges, and to guard against all risk of damage by flood-gates at the junction. Now, as no man can incur any liability for damages to himself, and as the cut to be made on the owner's ‘proper costs and charges,’ is in this case expressly declared to be one through his own lands only, and could indeed be through no other, it is manifest that, in the language of this statute, a provision that a cut is to be made at the maker's proper costs and charges, however unnecessary it may be, is not equivalent to a provision that he shall pay all damages which it may occasion to others, more especially as, even in this case, the slight damage which could result to the only other party concerned, viz., the Canal Company, is not left to the implication of this declaration, but expressly and separately provided for by an obligation to make sufficient bridges, and to keep flood-gates always in readiness to prevent the least apprehended injury. It may be said, no doubt, that it is inconceivable that the Legislature should solemnly enact, that a man who makes a canal in his own grounds for his own convenience, must also make it at his own expense, and that the provision must therefore have some other meaning. It is a sufficient answer, perhaps, that this is its only natural meaning, and that it can have no other in the 70th section. But the Lord Ordinary thinks he sees how it may have originated. The multiplication of these lateral cuts or branch canals was evidently as much for the benefit of the Canal Company as for the adjoining proprietors, since every such cut must have brought additional traffic and profit to the general navigation. Nothing could pass by such a cut, which did not also pass by the principal canal, and therefore it might have occurred, that if the landowners gave the necessary ground, the expense of forming and maintaining such cuts, might have been reasonably laid, in part at least, on that great body which was to share so largely in the advantages; and the Lord Ordinary is convinced, that it was mainly to protect the Canal Company against any claim of this sort, that the provision that the cuts should be made at the sole expense of the landowners was introduced. This very consideration, however, brings out very strongly the signal hardship and injustice of the construction which has been sanctioned by the interlocutor complained of, since the question here is not with the Canal Company, or a party necessarily benefiting by the cut proposed, but with an adjoining proprietor to whom it can produce nothing but injury; first, by traversing his lands against his will, and secondly, by bringing (probably) into ruinous competition with his own, a rival colliery or other manufactory, which it was his natural privilege to exclude to some extent from the market. For this last and greatest injury, the respondent does not even pretend that any compensation is provided, and the Lord Ordinary shall only say, that it would be an unprecedented thing to strain words, or rather to supply words which have no actual existence, in order to establish a construction which would lead to such a result.

“At the same time, he does not wish to dissemble, or shut his eyes to the fact, that, if that construction be rejected, the whole 72d clause, requiring the proprietors close on the canal to permit those immediately behind them to connect themselves with any cuts made through the grounds of the first, will become, in a great measure, nugatory; and that very few cases can be expected to occur in which the second line of proprietors will reap any benefit from its provisions. Hardly any man can be so circumstanced as to be under the necessity of carrying a cut, for his own convenience, quite up to the verge of his neighbour's property; and, whenever it is an object to that neighbour to obtain access to the canal, very few will be disposed to afford it voluntarily, or without requiring such a price or consideration as his neighbour's necessities, or his own rival interest, may suggest; and this price will practically include, not only full compensation for all damage done by cutting through the ground, but also as large a bonus for leave to use the general cut as would have been exacted if there had been no statute on the subject. The Lord Ordinary sees all this as clearly as the Sheriff or the respondent can do. But he is not at all moved, on this account, to hesitate as to the judgment he has given. The clause, he thinks, is an ill-considered clause in itself, and so imperfectly expressed as to show, that those by whom it was suggested were afraid of defining too precisely the extent of its operation. That it originated with the Canal Company, the Lord Ordinary has no doubt. For the proprietors, whom it professes to favour, could have had no voice in the matter, and had evidently no equitable claim whatever to the privileges which are there given them. Those whose lands were not touched by the canal could not possibly be injured, however much they may have been benefited by its approach to them. They had no right, therefore, to any thing in the shape of compensation, or to any use of, or advantage from, the navigation, except what they might purchase or acquire, after it was completed, for a fair consideration. When they, therefore, insist on so extraordinary a power as is here in question, as a jus quœsitum tertio, without any pretence of equivalent or onerosity on their side, it does not seem too much to say, that the grounds on which such a claim is asserted should receive the narrowest and most rigorous construction. The Canal Company, however, who had necessarily a complex bargain to make with the immediate proprietors, had a plain interest to facilitate, as much as possible, the resort of their navigation, and may be presumed willing enough to have the lateral cuts, which were not to be made at their expense, extended as far as possible; and therefore stipulated, in this way, for a vague and general permission to the more remote owners to carry on, through their own lands (for such are the express words of the grant) any cut which those in the immediate vicinity might have made through theirs, and to have a common care of such original cut, down to the canal. It was evidently the last right which was mainly in view, and where there were termini habiles for the exercise of it; it was evidently one of great value and importance, and though the cases in which it would be possible to exercise it might be few, they were still of so probable occurrence as to make it worth while to introduce the stipulation. The limits of the first property might be so narrow, that the proprietor could not have a serviceable cut for his own use, without going quite to his march. It might be carried there undoubtedly, and where there was no apprehension of his neighbour even having any inducement to prolong it, or he might have temporary motives for wishing to have access to his neighbor's grounds, out of which, under this clause, a perpetual connexion with the canal might be secured. In all these cases, and in others which might be suggested, a great benefit was obtained for the Canal Company, and the chance of such cases occurring seems sufficiently to account for the provisions in question, while the want of any direct power to cut through a neighbor's ground without his consent, the absence of all provisions for his indemnification in such event, and the flagrant injustice and hardship of granting such a power (with or without such provisions) to parties who had given nothing in return, seem to demonstrate that no other cases were in contemplation.

“The third finding in the interlocutor was probably unnecessary, and scarcely requires explanation. It was intended merely to negative one proposition maintained by the respondent, too extravagant perhaps to deserve any separate notice. This was, that any proprietor on the canal who might take advantage of the 70th section of the act, by making a cut of ten yards into his grounds, did thereby not only become bound either himself to continue it to the opposite extremity, though at the distance of ten miles, or to allow to the conterminous proprietor so to continue it, but that the whole of the interposed land either became ipso facto inalienable, or could only be alienated under the burden of a real servitude to this effect, in the hands of all the future purchasers among whom it might be divided. The Lord Ordinary gives no judgment as to the disputed fact, whether the interposed ground was alienated in this case before the action was raised, though the titles produced seem to show that it was. But to exhaust the law of the case, he thought it right to dispose of the question of relevancy.”

Turner reclaimed.