Scottish Court of Session Decisions

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Cite as: [1868] ScotLR 6_215_1, [1868] SLR 6_215_1

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Friday, January 8 1868.

6 SLR 215_1

Glover and others

v.

City of Glasgow Union Railway Company.

Subject_1Railway Company—Lands Consolidation (Scotland) Act 1845—Superfluous Lands—Adjudication.
Facts:

Creditors of a Railway Company, before the works were completed, brought an adjudication of certain of their lands as “superfluous.” Held that before completion of the works, and without experience in working the line, it was impossible to say that any land taken by the company for their undertaking was “superfluous.”

Headnote:

This was a process of adjudication instituted by the trustees of the late Mr Glover as creditors of the defenders. The pursuers averred that the lands described in the summons “pertain and belong heritably to the defenders, and are superfluous lands and heritages, not necessary for the construction of their line of railway, or the carrying on of their undertaking. The Union Railway could be constructed and maintained in terms of the defenders'
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Acts of Parliament, and Acts therewith incorporated, irrespective altogether of said lands and heritages. The defenders are in the position of ordinary proprietors of said lands and heritages. No part of the Union Railway has yet been opened for public traffic, and the pursuers obtaining decree in this action will in no respect interfere with the said railway being opened, and thereafter carried on for public traffic.”

The defender pleaded “(3) In respect that the subjects described in the conclusions of the summons are held under a statutory title, and for statutory purposes, from which they cannot be diverted, the pursuers are not entitled to adjudge the same, or to maintain the conclusions of the present action. (4) In respect that the defenders' rights to the subjects in question are not adjudgeable, and that the defenders have no right or interest in the subjects excepting for the purposes of the undertaking, and subject to their Act of Incorporation, the action cannot be maintained. (5) Adjudication not being a competent remedy under the statutes referred to in the submission and decreet-arbitral for the recovery of the debt alleged to be thereby constituted, the defenders ought to be assoilzied.”

The Lord Ordinary (Jerviswoode) sustained the third and fourth pleas for the defenders and dismissed the action, adding this note, “It appears to the Lord Ordinary that this process of adjudication cannot be resorted to by the pursuers consistently with the provisions of the Lands Clauses Act, to which reference is made, so as to operate security and ultimate payment of the debts which are set forth in the conclusions of the summons, and in the 3d head of the revised condescendence on behalf of the pursuers.

“To this conclusion the Lord Ordinary is led by a consideration mainly of the terms of the provisions contained in the 120th section of the Lands Clauses Consolidation (Scotland) Act 1845. The pursuers themselves found their case on the allegation that the lands which they here seek to adjudge, are, in fact, superfluous lands in the sense of that statute.

“But, if this be so, they are and can be such only in respect of, and with relation to, the provisions of the statute by which that peculiar quality may be attached to them.

“It would seem, then, to follow, that if the process of adjudication to which the pursuers have here resorted be inconsistent in its operation and effect with the statutory enactments which ascertain the character of and provide for the manner of dealing with superfluous lands, that the process itself must be inapplicable and incompetent as a mode of attaching these lands for the payment of debts alleged to be due to the party resorting to the diligence.

“Now this matter, as it appears to the Lord Ordinary, must be determined with relation to the provisions of the said 120 section of the foresaid statute, whereby it is provided, that within “the prescribed period, or, if no period, be prescribed, within ten years after the time limited by the special act for the completion of the works, the promoters of the undertaking shall absolutely sell and dispose of all such superfluous lands in such manner as they may deem most advantageous, and apply the purchase money arising from such sales to the purposes of the special act, and in default thereof, all such superfluous lands remaining unsold at the expiration of such period shall thereupon vest in and become the property of the owners of the lands adjoining thereto, in proportion to the extent of their lands respectively adjoining the same.”

“Now, is it compatible with these provisions that the pursuers should now adjudge the lands in question? The Lord Ordinary thinks not; and although the pursuers, apparently impressed with the difficulties attending the proposition for which they contend if carried out in its integrity, suggested that they might be permitted to adjudge, subject to giving effect hereafter to the provisions of the 120th section of the statute, the Lord Ordinary has been unable to see that the pleas of the defenders would thereby be avoided or met.

“The process of adjudication for debt contemplates in its issue, if the debt be not paid, the sale of the subjects affected by it, and therefore, if the pursuers adjudged these lands legally at all, they obtain as a consequence the right of ultimate sale on the failure of payment. To renounce the right to sell because inconsistent with the condition and character of the subjects adjudged, is, as the Lord Ordinary thinks, to confess that the process itself is inept and insufficient as applied to the subjects against which it is directed.

“On the whole, while the question is, so far as the Lord Ordinary is aware, novel, and is unquestionably difficult, he is unable to see grounds on which to sustain this process.”

The pursuers reclaimed.

Gifford and Shand for reclaimers.

Clark and Lee for respondents.

At advising—

Judgment:

Lord President—I am of opinion that this action must be dismissed, although I do not proceed exactly on the same grounds as the Lord Ordinary has done.

The summons is based on two separate grounds. The first is, that the defender's heritable estate of every description, without any distinction as to its nature, is subject to adjudication for debt. Now, that ground of action has been abandoned in the discussion, and therefore it is not necessary to give any opinion on it. But still it is right to say that the pursuers, in abandoning that ground, are acting in conformity with the well-matured and universal opinion of lawyers on the subject. The railway and works of the company for their statutory purposes, are not liable to be adjudged.

But it is contended, separately, that the lands described in the summons being superfluous lands, not necessary for the undertaking, are adjudgeable; and that is an argument of considerable importance. It is a question which may be attended with very considerable difficulty in certain circumstances. Supposing it to be admitted by the Railway Company that the lands are superfluous, then the question would not be without difficulty, and it would arise purely. But it is not necessary to give any opinion on that, for not only does it not arise here, but it is not likely to arise in any case. It is not admitted that the lands are superfluous; that is disputed; and the question is whether the pursuers have relevantly averred that these are superfluous lands within the meaning of the “Lands Clauses Act?”

In judging of the relevancy of averments in a question of this kind it is indispensable to keep in view the point of time at which the adjudication is led. The Railway belonging to the defender is in the course of construction, and I think we may gather from the averments of the pursuers, although they are not so precise as they ought to have been, that the work of the railway is not very far

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advanced, because we see that even the renewed period of the compulsory taking of land has not expired. It may, therefore, fairly be taken to be the fact that the railway and works are not yet even approaching completion. In such circumstances it is very difficult for any one to determine—it would be difficult even for Directors of the Railway to determine—that any land taken by them is properly superfluous. For it is not enough to make land superfluous according to the fair construction of the Lands Clauses Act that possibly or probably in the end it may not be required for the purposes of the undertaking. So long as there is a probability or possibility of it being required for any of the statutory purposes, it cannot be dealt with as superfluous. I will even go further, and say that the Directors of such a Company Would be acting in violation of their duty in treating that land as superfluous which may yet be useful for the undertaking. Now, it is said that this land is not necessary for the construction of the line, or for carrying out the undertaking. That is a very bold averment. It is an averment of a prophetic kind, which, I think, the Directors are not justified in making, and, therefore, how the pursuers are in a position to say that it will in the end be found out to be superfluous I cannot tell. There is the same difficulty in all their averments. In the fifth article of their condescendence they say that one part of the lands stands separated from the other parts by properties which the Company have no longer any power to take by compulsory sale. They have lost their opportunity by allowing the time for giving the necessary notices to expire on 1st February 1868. If that were so, then I must hold that, for the purposes of such an undertaking as that of the defenders, no piece of land whatever, either in town or country, not lying contiguous to other lands, can ever be anything but superfluous land. That is out of the question. There are many purposes for which detached portions of land may be very valuable to the promoters. Farther, they say that other portions of lands described in the 7th, 8th, and 9th heads of the summons are superfluous, for this reason, that at that part of the line of railway where they are situated the permanent way is finished, and does not cover more than a small part of these subjects. By the permanent way I take them to mean the two sets of rails, up and down. But every one knows that until the railway is completed no one can foresee what ground may be required for sidings, or at what points they may have to be formed. Here again, nothing but a spirit of prophecy would enable any one to say whether any portion of land was superfluous or not.

It must be borne in mind, too, that land cannot be acquired by the promoters beyond the limits of deviation; and it is presumable that all the land within the limit of deviation is useful for the purposes of the undertaking. Power to take it would not be granted unless it was prima facie useful. Therefore that which converts such land into superfluous land must be nothing more or less than the experience of the railway company themselves, and they cannot come to a satisfactory conclusion on that matter until their works are completed. Now here the works are not completed. When they are so then it will be seen what land becomes superfluous, for I think no land can be superfluous at the commencement of the undertaking. After the works are completed, the Statute contemplates that they may see about selling off what they do not require. They have ten years to do that, exercising their discretion as to what is to be sold off, and it is only after the expiry of the ten years that the land, if not then sold, vests in the owners of the adjacent properties. It is hopeless to maintain that at this stage any one can say with an approach to accuracy that any part of the land will turn out to be superfluous land; and therefore I am of opinion that this adjudication must be dismissed.

The other Judges concurred.

Counsel:

Agents for Pursuers— J. & R. D. Ross, W.S.

Agents for Defenders— Murray, Beith. & Murray, W.S.
1868