Scottish Court of Session Decisions

Young and Burnet for advocators.

Gifford and Macdonald, for respondents, objected to the interdict being recalled absolutely, but were willing that it should be recalled to the effect of entitling the Company to make a new application for possession to the Sheriff under section 89 of the Lands Clauses Act.

Lord President—When this case was last before us we pronounced an interlocutor repelling all the pleas of the advocators, except the second plea stated by them in the inferior court, and continued the cause in order that parties might state how the disputed matters of fact, on which that plea depended, were to be cleared up. That second plea, which was founded on an allegation that the respondent had consented to the advocators entering upon the works, is now abandoned, and will fall to be repelled. The natural result of this would have been to grant the prayer of the petition for interdict; but new matter is introduced by this minute, which represents the position of this Company to have been materially altered, and we are now to consider the effect of that on the question whether this interdict, granted ad interim, should be continued, or made perpetual, or recalled. It appears to me that we must consider whether, under the state of circumstances as they are now presented to us, this interdict ought to be granted, because, if in the present condition of matters the interdict ought not to be granted, it follows that it ought not to stand. What is the position of the Company? Under the 28th section of the special Act, the property of the respondent's works is transferred, as on a contract of sale, to the Company, and the 29th section, along with the 28th, provides for the manner in which the price of these subjects shall be ascertained and paid, and a conveyance granted. The Lands Clauses Act being incorporated with the Special Act, the proceedings taken by the Company are entirely under the Lands Clauses Act, and the parties entered into an arbitration for ascertaining the amount of the price to be paid. The arbiter issued an award, and the Company demanded a conveyance. Sir James Alexander refused to convey the land, and his reason for that was that he was not satisfied with the award, and he intimated his intention of challenging it in an action of reduction, which has now been instituted. The Company consigned the price, under the 76th section of the Lands Clauses Act, and having consigned the price, they have also, in terms of that section, expede a notarial instrument for the purpose of transferring the property of the works from Sir James Alexander to themselves. It is important to observe what, under the statute, is the effect of that instrument. It is stated in these words, “and thereupon all the estate and interest in such lands of the parties for whose use and in respect whereof such purchase money or compensation shall have been deposited, shall vest absolutely in the promoters of the undertaking, and as against such parties they shall be entitled to immediate possession of such lands.” The statute goes on to say that “such instrument, being registered in the register of sasines in manner hereinafter directed, in regard to conveyances of lands, shall have the same effect as a conveyance so registered.” Now that conveyance has not yet been registered, so it has not that effect; but it has this effect, that it vests this estate in the Company, and entitles them, as in a question with Sir James Alexander, to immediate possession of the subjects. Now, when this interdict was granted, the Company had no such title. They had no title at all. They had deposited the price, but they had no title of any kind, nothing which had the effect, like this, of vesting the subjects in them, and entitling them to immediate possession. It is said that the advocators ought not to have this interdict recalled, because it is not intended to maintain it to the effect of preventing them from going to the Sheriff under the 89th section, and asking for possession in the altered circumstances of the case, and the respondent offers his consent to qualify the interdict so as to enable them to go to the Sheriff. But, in my opinion, there should be no qualification in the recal of this interdict. The promoters are now in a position in which the statute declares that they shall be entitled to immediate possession, and I do not think any Court is entitled to interfere between a party in that position and the subjects of which he claims possession, by an interdict. I give no opinion as to the proper step for the Company to take to obtain possession. We are not here to consider whether they must go to the Sheriff under section 89, or proceed via facti, or by any other judicial warrant; but I am sure of this, that no Court is entitled to interpose the obstacle of an interdict between such parties and the subjects of which they claim possession. I am therefore for recalling the interdict. The form will be to repell the second plea stated by the advocators, to recall the interdict in consequence of this minute, and to dismiss the petition.

Lord Curriehill—I concur in the opinion which your Lordship has delivered, and in the grounds of that opinion. I shall only say, that there is another element in the case which influences me in forming my opinion, and that is, that the interdict was an interim interdict. It was first granted on 17th August. The case was again before the Sheriff on 27th August, when the Sheriff-substitute ordered parties to give in condescendence and answers in terms of the Act, and meantime continued the interim interdict, in hoc statu. In that state of matters the process has been advocated, and when the case is before us matters are brought into that state in which the statute declares that the Company is entitled to be put into possession, for they are to be put into possession on such an instrument as this, though to a complete right registration is necessary. Parties now being in that position, what we have to do is to remove the obstacle by recalling the interim interdict.

Lord Deas—If I rightly understand the effect of the interlocutor to be pronounced, it is simply to remove the interim interdict so far as it might be an obstacle to this Company following out what may be their legal rights, but not to determine what these rights are. We are not to determine that here, without any record, but it is plain that we must put an end to this case in some way, and to do that must recall the interdict or declare it perpetual. We are not in a position to do the latter, for there is a change of circumstances, upon which the party making the change is entitled to found. I think there is a great deal in what Lord Curriehill says, that this is a mere interim interdict that cannot stand, for the effect might be that, supposing

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