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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Carmichael and Others v. Caledonian Railway Co. [1867] ScotLR 5_413 (26 March 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0413.html
Cite as: [1867] SLR 5_413, [1867] ScotLR 5_413
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SCOTTISH_SLR_Court_of_Session
Page: 413↓
Court of Session Inner House First Division.
v.
Facts:
A special Railway Act provided that, where the line passed over a quarry, the Company should pay the value of the stone unwrought under the line, the extent and quality to be ascertained as in ordinary cases of disputed compensation, and the value to be payable from time to time as a face of rock of 130 feet was wrought up to the railway boundary. The Act incorporated the Lands Clauses Act. In 1864 a valution-jury returned a verdict that the rock under the line was 260 feet, and the value £5272 as at 31st December 1852. The Company had
Page: 414↓
previously tendered £7005 in full of all claims. In an action by the proprietor for the price, with interest from 31st December 1852, and expenses of the inquiry— Held (1) that the Court had jurisdiction to entertain the action, the sale not being a compulsory sale under the Lands Clauses Act, but a sale by contract embodied in the special Act; (2) that the verdict was truly above the tender; and (3) that the proprietor was entitled to the full costs of the inquiry. Observed, that in ordinary cases of disputed compensation under the Lands Clauses Act, so long as the parties keep within the Act, the Court has no jurisdiction. Question, as to application of the statutory rule as to expenses.
The railway of the defenders passes over part of the quarry-field of Hailes, the property of the pursuer, Sir William Gibson Carmichael of Skirling, Baronet. The company's Act provides that, in addition to the value of the surface land to be taken from the proprietor of Hailes, the company should pay the value of the whole stone under the surface so taken, and the extent and quality of the stone so taken should be ascertained as in ordinary cases of disputed compensation; provided that the value of the said stone should be payable from time to time, as often as a face of rock at least 130 feet in length was worked up to the north or south boundary of the railway, such payment to be only to the extent of the value of the stone opposite to such face. With this special Act were incorporated the Lands Clauses Consolidation (Scotland) Act 1845, and the Railway Clauses Consolidation (Scotland) Act 1845. In 1849 the working of the quarry had almost reached the northern boundary of the railway, and the defenders' agents intimated that the company desired that the workings should not be carried further south than a line 48 feet distant from the railway, and that when a face of rock was worked up thereto to the extent specified in the company's Act, they would be ready to arrange a reference as to the amount of compensation. Various communications then took place between the parties, two submissions being entered into for the purpose of determining the sum payable by the company, both of which fell. In March 1864 the pursuers intimated to the company their desire that the sum should be settled by a jury, in terms of the Lands Clauses Act, unless the company were willing to settle otherwise by payment of the sum claimed. In the following month the company intimated their refusal to pay the sum claimed, and their intention to petition the Sheriff for a jury, giving notice, at the same time, that they were willing to pay to the pursuers the sum of £7005 in full of all claims. This sum being refused by the pursuers, a jury was summoned in July 1864. The jury returned a verdict finding that the rock under the railway was 260 feet long by 90 feet wide, and that the value thereof was £5272 sterling as at 31st December 1852. The Sheriff then pronounced an interlocutor, in which he “approves of the verdict, and finds and declares in terms thereof accordingly; and farther, in respect the verdict has been for a less sum than had been previously offered by the company as the value of the subjects in question, finds the claimants liable in one-half of the expenses incurred by the respondents.” That interlocutor was advocated in the Court of Session, and in 1866 the Lord Ordinary remitted to the Sheriff, with instructions to recall that part of the interlocutor which found the pursuers liable in one half of the expenses incurred by the defenders.
The pursuers, Sir William Gibson Carmichael, and the trustees of his predecessor in the estates, now brought an action against the railway company concluding that the railway company should be ordained to make payment “to the pursuers of the sum of £5272 sterling, with interest thereon, at the rate of £5 per centum per annum from the 31st day of December 1852 years until payment, or such sum as our said Lords shall modify as the interest to which the pursuers are entitled on the said sum of £5272: And further, it ought and should be found and declared, by decree of our said Lords, that the defenders are bound to make payment to the pursuers of all reasonable charges and expenses incurred by the pursuers incident to an inquiry held in virtue of the provisions of an Act of Parliament, entitled, ‘ The Lands Clauses Consolidation (Scotland) Act 1845,’ before the Sheriff of the county of Edinburgh, and a special jury at Edinburgh, on the 18th day of July 1864, and following days, under a petition, dated the 20th day of April 1864, and presented to the said Sheriff by the defenders; and the defenders ought and should be decerned and ordained, by decree aforesaid, to make payment to the pursuers of the sum of £2000, or such other sum as our said Lords shall modify as the amount of such reasonable charges and expenses incurred by the pursuers incident to the inquiry aforesaid, with interest thereon at the rate of £5 per centum per annum until payment.”
The Lord Ordinary (
“ Edinburgh, 5th March 1867.—The Lord Ordinary having heard counsel, repels the defences, and decerns against the defenders to make payment to the pursuers of the sum of five thousand two hundred and seventy-two pounds sterling, with interest thereon, at the rate of five per centum per annum, from the thirty-first day of December eighteen hundred and fifty-two years, until payment: Further finds, decerns and declares, in terms of the declaratory conclusion of the libel; and appoints the cause to be enrolled for further procedure under the last petitory conclusion of the libel: Finds the defenders liable in the expenses of process to this date: Allows an account,” &c.
The defenders reclaimed.
Young and Johnston for them.
Clark and Rutherfurd for respondents.
At advising—
Lord President—This is a case of considerable delicacy, as is obvious at the first sight of it, because it is an action to enforce payment of a capital sum found by the verdict of a jury summoned by the Sheriff to decide a question of compensation under the Lands Clauses Act. Certainly under ordinary circumstances no action will lie for such a sum in this Court, because the sum in the verdict in such cases is to be immediately decerned for by the Sheriff as a matter of course, and there cannot in the ordinary case be any question to which the judicial mind can be applied, after the verdict has fixed the sum to be paid by the promoters to the landowner. But the summons further concludes for interest, and that also is a startling. proposition, for in the ordinary case of a verdict by a valuation jury, the price or damages awarded are held to include all the interest claimable down to the date of the verdict. But farther, there is a demand to ascertain in some way what is the amount of the expenses of the trial at which the
Page: 415↓
The clauses as to the manner of settling cases of disputed compensation form only a part of that division of the statute which provides for the acquiring of lands otherwise than by voluntary agreement, and they are sometimes resorted to, and sometimes imported into other statutes, and made applicable to particular cases, when the whole machinery for transferring land by compulsory means is not applicable, and the difficulty is to know in this case how much of the machinery is to be held applicable to this particular case. If the whole machinery provided by the statute for the compulsory purchase is applicable, then you begin with the 17th section, and go on with the clauses of that part of the statute down to the fifth clause. You begin by the notice by the promoters to the landowner, stating what part of the land within the limits of deviation they desire to have, and that is under the statute a contract sale of that part. Parties may then come together if they please, as indeed they may do at any stage, as to settlement of the price, and, if they follow the statute, then the next thing is to proceed to settle the price, and there are various modes of procedure. When the compensation claimed is under £50, the Sheriff without a jury settles the amount of the price, and there is an end of the matter. If the landowner chooses, he may refer the compensation to be settled by arbitration, and there is machinery provided for that, and lastly, if he does not demand arbitration, and if the sum is above £50, the course is to petition the Sheriff to summon a jury, and again if that is not proceeded with, the landowner may compel proceedings. That is followed by a jury trial, and a verdict is returned, and the statute works out the execution of the contract of sale in this way. It gives the landowner a decree for the amount due to him, and it empowers the Sheriff to settle the amount of the costs of the inquiry; and as to the way in which they are to fall, it provides that if the tender is above the verdict the promoters are to get one-half of the costs. If the tender is not above the verdict, the company are to bear the whole costs, and the amount having been ascertained, they are made recoverable in this way:—If the promoters are to get one-half, they can deduct the amount from the sum payable to the landowner, or if the sum payable to him is not sufficient for that purpose, they may get from the Sheriff or Sheriff-clerk a warrant of poinding for recovery; and if the landowner is entitled to the costs, he is empowered to take a warrant of poinding to enforce his costs. So that, as regards the amount of compensation, there is machinery which works the whole thing without any judicial intervention at all. No doubt the giving decree for the amount is a judicial act, but it does not require the consideration of any question of law or fact. The way in which the contract of sale is to be carried through, the title which the company may make up by notarial instrument, and the immediate entry into possession, are all matters of express regulation, and this Court cannot interpose on the demand of either party, so long as the parties keep within the Act of Parliament.
The question then comes to be whether this rule is applicable to the present case; for, if so, we have no jurisdiction.
This is a peculiar case. The contract of sale here is not a compulsory sale under the Lands Clauses Act. It is a sale provided for by a clause in a special Act of Parliament, and it seems to me that the whole question turns on the precise meaning and effect of that clause in the special Act. The 24th section of the Act proceeds on the preamble [ reads preamble].
This is in truth the embodiment in the special Act of an arrangement of a peculiar kind between the parties. The stone which must be left, and which the Railway Company require to be left for sustaining their Railway in passing over the quarry, is to be valued and its extent is to be ascertained, and that is to be ascertained in the same manner as in the ordinary case of disputed compensation, i.e., the parties are authorised by this special Act to avail themselves of that part of the Lands Clauses Act as to compulsory sale which provides for the ascertainment of the price. But that is not the same thing as saying that the case between them shall be dealt with in all ways as if it were a case of compulsory purchase. All that is necessary to carry out the statute is, that the valuation tribunal shall decide on the value of the stone, i.e., either arbiters named under the clause applicable to that case, or the Sheriff and a jury, shall fix the value of that portion of the stone which the Railway Company are to require to be left unwrought. There is another provision in the Statute, that in the ordinary case of a verdict being returned by the valuation of the jury, of the sum payable by the Railway Company to the landowner, judgment shall follow intantly on the verdict, and that decree is instantly enforceable, but it is not so in this case. The contrary is provided by this Act. This valuation, which is to take place in the same way as in ordinary cases, might obviously take place within a few weeks after the Act was passed, but it is provided that the value shall be payable from time to time, when, and so often as a face of rock at least 130 feet in length is worked up to the north or south boundary of the railway, such payment to be only to the extent of the value of the stone opposite to such face. Therefore, it is plain that though the verdict might be returned immediately after the Act, there might not be one shilling then payable. If in the course of some time after the verdict, a face of 130 feet of rock is wrought up, a certain sum would be demandable, but not the whole sum in the verdict, only such portion as represents the value of the stone opposite to such face. Therefore, before payment can be obtained, not only must this fact that such a face is wrought up be ascertained, but that must be agreed on, or proved. Not only so, but the parties must either have agreed on the proportion of value of the stone, or they must have that ascertained. It is obvious, therefore, that the return of the verdict by the jury does not exhaust the questions that may arise on the verdict. Suppose a verdict is returned before any such face is wrought up. and that the owner of the ground alleges that a face of rock is now
Page: 416↓
The parties appear to have dealt with the case on that footing, and on the footing that it was a special case. The railway company in their 11th article say:—“It was of consent of both parties that the jury fixed the value of the stone in question as at 31st December 1852. Neither the pursuer's title to the stone, nor the question whether the pursuers were entitled to interest of the price or value thereof from 31st December 1852, was left to or determined by the jury. The claim of the pursuers, and the tender made by the defenders, included the principal sum or value of the stone only, and were both made, leaving the question of interest open, and the verdict of the jury was returned upon the same footing.” Now, this question is upon that verdict. If the railway company do not accede to the demand of the landowner for payment of this £5272, or for payment of that sum with interest from 31st December 1852, which is what he demands, then how is the proprietor to enforce his contract? For it is a special contract he has to enforce, included in the special Act, but not the less a special contract. His contention is that this sum was payable as at 31st December 1852, and that, therefore, in law it bears interest from that date. There is no machinery in the Lands Clauses Act for deciding that question, and I don't see how it could be determined except in an ordinary Court of law; and therefore I think we have jurisdiction to entertain the action so far as it concludes for payment of the £5272 with interest. Whether we should give judgment for it is another matter, but I have no doubt as to the competency.
As to the merits of the case, there is not much to be said. It is a fair interpretation of the contract that the value of the stone is to be payable with interest from the time that a face of 130 feet long has been wrought up. What is payable then is of course the value of the stone opposite to that face; but there is no difficulty there, for the value of the whole has been already ascertained, and it is admitted that the face of stone in question was wrought up at December 1852, and therefore Sir Thomas Carmichael is entitled to decree for the sum in the verdict, with interest from December 1852.
But then there is another question upon the remaining conclusion of the summons, which is a matter of some difficulty, but it is a difficulty arising from the special nature of this case, and the manner in which the aid of certain clauses of the Lands Clauses Act has been given to the parties. As I said, the whole aid they get by the 24th section from the Lands Clauses Act is the aid of the valuation tribunal to fix the value of the stone which is to be left un-wrought. The expense of that inquiry is the subject we have to deal with under the remaining conclusion of the summons.
The railway company say we must import the Lands Clauses Act; and, the verdict being under their tender, this Court cannot deal with the question of costs, but must leave it to be wrought out under the Lands Clauses Act; and they are entitled to get from the Sheriff a warrant for recovery of one-half of the costs. Now, that necessarily pro-supposes that it is clear and cannot be disputed that the tender is above the verdict. In the ordinary case of disputed compensation there can be no question as to that; for the two things being compared, the result is clear. The tender is one sum, and the verdict is another. But that is not the case here. The question whether these costs are to be paid by the railway company, or, to the extent of the half, by the proprietors, depends on the construction of the demand made by the proprietors on the one hand, and the tender by the company on the other. That is a question of construction, and requires the application of the judicial mind. There are no provisions for that in the Lands Clauses Act, no means for having that done. The Lands Clauses Act supposes that to be free from doubt, and not to require any judicial interference. But here it is necessary to apply the judicial mind to the question whether the verdict is above the tender or not.
Page: 417↓
There may be a little difficulty in carrying out the details ef the case; but if the parties are inclined to be reasonable that difficulty will not be insuperable.
The other Judges concurred.
Solicitors: Agents for Pursuers— Gibson-Craig, Dalziel, and Brodies, W.S.
Agents for Defenders— Hope & Mackay, W.S.