Scottish Court of Session Decisions

The Edinburgh and Dalkeith Railway Company were incorporated by 7 G. IV. c. 98. The railway passed through the grounds of John Wauchope of Edmonstone, and by § 20, it was provided to him as a compensation for way-leave, that the Company, besides paying the value of the ground occupied by them, and a sum of £670, should also pay “to him and his heirs and successors in the lands of Edmonstone,” so long as the railway was used on said lands, “the sum of one halfpenny per ton upon all goods or articles upon which a tonnage duty is chargeable, or charged in virtue of this act,”—excepting the produce of the lands, or manure, &c. conveyed for behoof of the lands. The amount due for way-leave was to be paid at Martinmas and Whitsunday. By § 85, the Company were authorized to levy certain rates and duties “for the tonnage and conveyance of all minerals, goods, wares, merchandise, and other things,” to be carried along the Railway. In enumerating the things on which the Company were authorized to levy rates, the following clause occurred:—“For every carriage conveying passengers, or goods, or parcels not exceeding five cwt; such sums and sums of money respectively, as the said Company of Proprietors shall, from time to time, direct and appoint to be taken, not exceeding 6d. per ton per mile.” After the Railway was opened, termly settlements, of the amount due for way-leave, were made with John Wauchope or his agent, from Martinmas 1832, to Whitsunday 1834, inclusive. The tonnage was sometimes as high as 32,000 tons. The state was made up by the manager of the Railway, and it did not include the tonnage of any carriages conveying passengers. These had not been regarded as a probable source of revenue when the Railway was formed; but they eventually proved an important branch of the traffic on the Railway. It did not appear that, at any of these settlements, it was known to John Wauchope or his agent that the amount of tonnage given up by the Company was exclusive of all carriages for passengers.

In 1836 Wauchope raised an action against the Railway Company, to have it declared that the Company were bound to pay him “one halfpenny per ton on all carriages conveying passengers which have passed along any part of the Railway situated within his lands since the completion of the Railway:” and either to give an account of the tonnage of all such carriages, prior to Martinmas preceding, or to pay an equivalent.

The defenders pleaded that, under the terms of the act founded on, carriages conveying passengers were not subject to the way-leave tonnage duty; and in particular, that, owing to changes in the mode of levying rates on passengers, which were introduced by two acts obtained by the Railway, subsequent to that libelled on by the pursuer, he was not well founded in his demand. The pursuer objected that these two acts were not only so expressed as not to touch his rights, but had been obtained without such notice being given to him, as was essential if they were to trench on any vested right ¹ of his. And the defenders did not, at the close of the suit, rest their case on any thing but the terms of the first act.

The Lord Ordinary “repelled the defences, and decerned in terms of the two first conclusions of the libel, reserving consideration of the third or alternative conclusion, hoc statu, and until it be seen whether the defenders furnish the account demanded, under the second conclusion; and found the defenders liable in expenses.” ^*

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¹ Donald Nov. 27, 1832 (ante, XI. 119).

^* “ Note.—The Pursuer only gave, or was compelled to give, way-leave to the defenders, in this condition, as anacted in the statute originally establishing the company (7 Geo. IV. Cap. 98, § 20), viz. that he was to receive ‘one half-penny per ton upon all goods and articles upon which a tonnage duty is chargeable, or charged in virtue of this act, which shall pass along any part of the Railway, situated within the lands of the said John Wauchope.’ Now, the 85th section of this statute gives the defender power to charge a tonnage duty on ‘every carriage conveying passengers.’ It does not describe these carriages, by applying to them the precise terms, ‘goods and articles,’ which occur in the 20th section, but uses the words, ‘for the tonnage and conveyance of all minerals, goods, wares, merchandise, and other things, which shall be carried or conveyed upon the said Railway.’ But this (almost imperceptible) difference is immaterial, because, besides using these general words, the 85th section imposes a tonnage duty expressly on carriages carrying passengers; and it does so on the declaration, that such carriages come within the description of goods, wares, merchandise, ‘and other things” conveyed along the Railway. If a carriage carrying passengers be a thing conveyed along the Railway, it is difficult to see how it can be held not to be one of the ‘articles’ upon which a tonnage duty is chargeable, or charged in virtue of this act.

“If, therefore, the matter had stood solely on this first statute, it would be clear that the halfpenny for way-leave was due on this carriage. Nor would the Lord Ordinary consider the past periodical settlements, by which the defenders say that accounts have been adjusted without including this, as any abandonment by the pursuer, or as any evidence that both parties hold it not to be due. The substance of what was done, was merely that the defenders having presented statements to the pursuer of what they thought was due, he, relying on their accuracy, took and gave a discharge for what was offered. These statements never disclose what the tonnage is upon, but merely say that they include the whole tonnage conveyed along the Railway; and the way-leave thus said by the defenders to be due, is discharged. But if their accounts did not contain all that they ought, the defenders cannot take the benefit of their own errors of omission.

“But they say that the last statute, 4th and 5th Will. IV. cap. 71, § 29, repeals the tonnage duties on the carriages, and substitutes direct fares from the passengers; from which it is inferred that the tonnage duty being abolished, the carriages cease to be articles on which, under the first act, the halfpenny for way-leave was due.

“The Lord Ordinary is by no means satisfied, that due parliamentary notice was given to the pursuer previous to the introduction of this last act. Undoubtedly, no notice was given to him personally, nor did the public notices announce any intention to take away his existing rights. If, as the Lord Ordinary is disposed to think, these defects imply a failure to intimate the real design in view, he would be strongly inclined to hold, in conformity with the principles of Donald, 27th November, 1832, that rights previously established by statute, could not be taken away by a private act, of which due notice was not given to the party meant to be injured. But it is not necessary to decide on this ground, because the two statutes are not inconsistent. For, in the first place, the first act lays the halfpenny for way-leave on all goods and articles upon which a tonnage duty is chargeable, ‘ in virtue of this act.’ Carriages for passengers was one of these ; and the pursuer's interest was fixed by reference to the tonnage duties existing at the time he made his bargain. The Company might afterwards get their arrangements with the public changed, as, for example, by giving up the tonnage duty on several articles, or by conveying all goods gratis ; but this did not necessarily impair the rights of the pursuer, who arranged in reference to the duties exigible at the time he dealt. In the second place, his rights cannot be taken away by implication. Now, the last act repeals the rates and duties ‘ granted for, and in respect of carriages conveying passengers,’—that is, the rates exigible by the defenders from the public ; but it does not repeal the way-leave payable by the defenders to the pursuer. These two things are quite different; and the fact that no notice was given of any intention to subvert the arrangement between the Company and the pursuer, implies that no such design existed, and that the only object was to change the arrangement between the Company and the public.

“If the debt be due under the first conclusion, the account called for under the second must plainly be furnished by the defenders. They were only entitled to pass the pursuer's lands, on the condition that they were to pay him a halfpenny a ton for the way-leave. The obligation to pay this implies the obligation to keep an account of the tonnage. It may be difficult or impossible to furnish such an account now, but this cannot affect the declaration of the rule in the first instance, though it may ultimately lead to the necessity of doing something under the third, or alternative conclusion.”

The defenders reclaimed.