Scottish Court of Session Decisions

The City of Glasgow Union Railway Act, under which the complainers' company is incorporated, embodies the Lands Clauses Consolidation Act 1845; and in compliance with its provisions, the complainers served a notice upon the proprietors of certain subjects on 22d October 1868, that the premises would be required for the purposes of the railway. The respondents are tenants under these proprietors; and on 29th January 1869, they were duly warned to remove at Whitsunday following. Shortly before Whitsunday the respondents intimated to the complainers that they were lessees of the subjects for a longer period than a year, and made a claim for compensation. The complainers refused to grant this compensation, alleging that when the respondents received notice of removal they were only tenants by the year under a verbal lease. The respondents replied that though their lease was only dated 4th February 1869, it was in implement of a prior promise to grant a three years' lease from Whitsunday 1868. A note of suspension and interdict was thereon presented by the Railway Company to have the respondents interdicted from proceeding with the claim.

The Lord Ordinary ( Neaves) pronounced the following interlocutor:—

“Edinburgh, 22 th January 1870.— The Lord Ordinary having heard counsel for the parties, and considered the closed record and proof, sustains the reasons of suspension, suspends the proceedings complained of, declares the interdict formerly granted perpetual, and interdicts, prohibits, and discharges, in terms of the prayer of the note of suspension and interdict, and decerns: Finds the respondents liable in expenses; allows an account thereof to be given in, and, when lodged, remits to the Auditor to tax and report.

“ Note.— The suspenders' company was established by their Act of 1864, and in 1867 their time for taking lands was prolonged till the 29th July 1869. On 22d October 1868 the suspenders gave notice to Stewart & Co. that they were to take for their railway the property belonging to them, of part of which the respondents allege themselves to be lessees under a three years' lease from Whitsunday 1868.

“In October 1868, when the suspenders gave their notice, no written lease was in existence. The respondents had been tenants of the premises under a lease for three years from Whitsunday 1865, but no second lease had been made out, and after Whitsunday 1868 the respondents were possessing without a written lease. It appears that, in the end of 1867 and beginning of 1868, communings took place between the respondents and Stewart & Co. with a view to a new lease for another three years. But, even if there had been a definite verbal agreement, it seems to be clear that, in that state of matters, neither party was bound for more than a year; and thus, that the respondents began to possess at Whitsunday 1868,

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and continued to possess in October 1868 merely upon a lease for a single year. The very contemplation of having a written lease ultimately made out is unfavourable to the view that anything was irrevocably fixed.

“On 29th January the respondents were warned, by the usual burgh ceremony of chalking of doors, to remove at the ensuing term from the property occupied by them, and at this date still the respondents had no written lease.

“On the 4th of February thereafter the lease now founded upon was executed by Stewart & Co.; and the question thus arises, Whether the respondents are to be dealt with as validly vested with a tenancy for three years, or whether the suspenders have not acquired the subjects by their statutory notice, free from any lease extending beyond the then current year ending at Whitsunday 1869?

“The questions that have here arisen are partly questions of fact and partly questions of law. The respondents say that, in point of fact, they knew nothing of the railway company's rights until after they had obtained the lease in February 1869; and they argue that at that time Stewart & Co. were still the undivested proprietors of the subjects, and thus entitled to grant them such a lease.

“They further argue, in point of law, that even if they had known of the railway company's proceedings, they were not bound to regard them, in consequence of what had previously passed in their verbal communications with Stewart& Co.

“The Lord Ordinary thinks that the questions of fact and law are a good deal mixed up together.

“The giving of notice to take lands by a railway company has been assimilated to a concluded contract of sale. But the Lord Ordinary thinks that it is something more than a mere private contract would be. The passing of the Act establishing the railway, the scheduling of the properties intended to be taken, and the notoriety generally attending the company's proceedings, give a publicity to this matter which would not attach to the execution of private missives of sale. Further, when the notice given by the railway had been followed, as here, by a formal warning to remove, it is impossible to conceive that after that the respondents were in ignorance of what was going on. The Lord Ordinary is willing to take as favourable a view of the evidence as possible for the respondents, and to hold that, in the multiplicity of proceedings that took place at that time, the officials examined for the suspenders may have been forgetting or confounding some things that took place. But it is certain that a warning to remove was given, and that the respondent M'Ewen, if not then present, heard of it next day from his shopman. He cannot be allowed, it is thought, to plead ignorance of its meaning, or of its connection with the railway company's proceedings, which, as they involved the removing of many other parties, must have excited a considerable sensation in the neighbourhood. It cannot be overlooked that the respondent immediately afterwards hurried on the preparation of the lease, and it is remarkable that, though in communication with his own agent, lie did not tell him of the warning to remove until after the lease was obtained. He says also that he never spoke on the subject to the landlord, from whose actings, in some way or other, the warning must have proceeded. Any ignorance existing in such a state of things is very like knowledge.

“In these circumstances, the Lord Ordinary cannot but hold that when the respondents obtained the only lease they have, they did so with such knowledge of what was going on as to preclude them from altering 1he state of matters, to the prejudice of the suspenders. Stewart & Company could not lawfully do so, and the respondents should not have been parties to the attempt.

“If the lease thus obtained is taken out of the way, it seems quite clear that the respondents have no case. A verbal agreement of lease for more than one year is not binding upon either party, except for that year. It is clearly not valid against a singular successor. The railway company are not bound to implement such an agreement, or to compensate the respondents for its being disregarded.”

The respondents reclaimed.

Moncrieff and Balfour for them.

Solicitor-General and Watson in answer.

At advising—