Scottish Court of Session Decisions

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Cite as: [1867] SLR 4_13, [1867] ScotLR 4_13

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SCOTTISH_SLR_Court_of_Session

Page: 13↓

Court of Session Inner House First Division.

Wednesday, May 15 1867.

Lord Curriehill Lord Ardmillan Lord President

4 SLR 13

Bell's Trustees

v.

Edinburgh and Glasgow Railway Company

Subject_1Railway
Subject_2Siding
Subject_3Level Crossing
Subject_4Agreement.
Facts:

Circumstances in which held that a Company having, by agreement, given a level crossing, along with a sum of money, to a proprietor whose lands were intersected by a branch line, were entitled make a siding near the level crossing, it being held proved, on the evidence, and after a remit to a man of skill, that the siding did not render the level crossing either unsafe or materially inconvenient.

Headnote:

This was an action of declarator, interdict, and damages at the instance of the trustees of the late Alexander Bell, of North Newton, against the Edinburgh and Glasgow Railway Company, the main conclusion being that the defenders had no right to make a siding on that portion of the Stirling-shire Midland Junction Railway where it passes through the pursuers' lands of Bellmount, lying within, or in the immediate neighbourhood of, the town of Falkirk, so as to obstruct, interrupt, or impair the rights and privileges connected with the crossing possessed by the pursuers and their tenants over the railway, in terms of a minute of agreement dated 16th September and 8th October 1851.

A variety of questions had been raised relating to claims on the part of the pursuers for accommodation works; but the most of these had been settled by the said agreement, whereby the pursuers discharged these claims, and the railway company agreed to pay a certain sum in lieu of building a bridge required by the pursuers. By the said agreement the railway company also undertook to allow the pursuers two foot crossings over the surface of the railway at certain points in the pursuers' lands. These crossings were made at parts where the line ran through a cutting, and the pursuers at each crossing placed, on each side of the cutting, wooden stairs leading down to and up from the line. Thereafter the railway company laid down a siding at these crossings in such a way as, according to the pursuers, to interfere with their right of crossing. The railway company removed the wooden steps and substituted therefor stone steps at a considerable distance further back. The pursuers alleged that this siding increased the danger involved in the crossing, and violated the agreement come to between the parties; and the question now in dispute was, whether this was the fact. After various steps of procedure in the case, some of the conclusions of this action being departed from, and judgment being given for the defenders to a partial extent, a remit was made to Mr Wylie, C.E., to examine and report whether the crossing had been rendered unsafe or materially inconvenient. Mr Wylie reported that the crossing had not been rendered unsafe or materially inconvenient by the formation of the siding, or by the manner in which it was used by the defenders. The pursuers objected to this report on the ground—(1) that the danger caused by the siding was considerable; (2) that the reporter was bound to suggest remedies therefor.

Gloag ( A. Moncrieff with him) supported the objections.

Young and Blackburn, for the defenders, were not called on.

The Court unanimously ( Lord Deas declining) repelled the objections, and dismissed the action.

Judgment:

Lord Curriehill said—that the case had undergone a full discussion formerly, and that then the Court had had no doubt that the pursuers' case had not been made out. He was not in the least shaken in his opinion by the present minute repetition of the argument. When the pursuers' land was taken for the purposes of the railway, he received ample compensation. The Sheriff, in conformity with the Act of Parliament, provided the proper accommodation for the severance of the pursuers' property, and that was a bridge. The pursuer, by contract, dispensed with that bridge, on getting a sum of money and a level crossing. The right to that level crossing remained intact. The railway company, on ground of their own, found it advisable to make a siding. They were legally entitled to make a siding. There was no agreement by convention to prevent that, and indeed the argument was not put chat length. But it was said that they must make their siding so as not to interfere with the level crossing. He did not think it did interfere. Both the proof and the remit showed that. All level crossings were to some extent dangerous and the person who used them look the right with the accompanying risks. It was established that if the ordinary care incumbent on persons to whom level crossings belonged were exercised, there was no injury to the right. What the pursuers wanted was immunity from practising that ordinary care. The objection ought therefore to be repelled, and the action dismissed.

Lord Ardmillan concurred.

The Lord President remarked that there was no foundation in Mr Wylie's report for the contention that any danger had been produced by the siding

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with which a party having a level crossing must not lay his account. It would be inexpedient to take any other view. To hold that the granting of a level crossing was to tie up the hands of the railway company, so as to prevent them from using their own ground most advantageously, would lead to serious consequences. The granting of such a privilege most not prevent a railway company from increasing their traffic though that might have a direct bearing on the party in right of a level crossing. On the other hand a railway company, having given such a level crossing, could not be allowed capriciously to do things not necessary for their own advantage, to the injury of the proprietor. In the present case, looking to the situation of this siding, a few hundred feet from all important station, there was no wonder that this locality had been chosen. Plainly this was just where a siding was most required. Ample siding accommodation was of very great importance for public safety at railway stations.

Counsel:

Agent for Pursuers— Wilson, Burn, & Gloag, W. S.

Agents for Defenders— Hill, Reid, & Drummond, W. S.
1867