Scottish Court of Session Decisions

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Cite as: [1870] SLR 7_666, [1870] ScotLR 7_666

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SCOTTISH_SLR_Court_of_Session

Page: 666↓

Court of Session Inner House First Division.

Tuesday, June 28 1870.

7 SLR 666

Caledonian Railway Co.

v.

Carmichael and Others.

Subject_1Jurisdiction — Lands Clauses Act — Interest — Expenses — Special Act — Agreement — Verdict — Tender.
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 valuation-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 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 (diss. Lord Colonsay. and reversing decision of First Division)—(1) that the Court of Session had no jurisdiction to entertain the action, the sale being a compulsory one under the Lands Clauses Act, with additional machinery introduced by a special Act; (2) that no interest was due on the sum fixed by the jury, and that it would have been incompetent for them to have given it; and (3) that the costs had been rightly apportioned by the Sheriff.

Headnote:

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 Companys' 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 Companys' 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
Page: 667↓
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, then 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 ( Barcaple) gave effect to the contention of the pursuers, and decerned for £5272, with interest from 31st December 1852, and gave expenses. The defenders reclaimed to the First Division, but the Court unanimously adhered.

The defenders appealed.

Lord Advocate, and Cotton, Q.C., for them

Mellish, Q.C., and Pearson, Q.C., in answer.

At advising—

Judgment:

Lord Chancellor stated the facts as follows:— The interlocutors appealed against were pronounced in an action before the Court of Session in regard to compensation for Sir W. Carmichael's land, which was taken by the Caledonian Railway Company for making its line, and also for a stone quarry under the land so taken. By the Companys' special Act, it was enacted (section 24) “that beyond and in addition to the value of the surface land to be taken under the Act from the said Sir W. Carmichael, there shall be paid by the said Company the value of the whole stone situate under the surface of the land so to be taken, which the Railway Company shall decline to allow Sir W. Carmichael to work by the removal of the surface therefrom, and the extent and quality of the stone so to be purchased by the Company shall be ascertained in the same manner as in ordinary cases of disputed compensation,” said value to be payable from time to time as often as a face of rock at least 130 feet long is worked up to the north or south boundary of the railway. With this Act the Lands Clauses and Railway Consolidation Acts were incorporated. By December 31 1852 a face of stone 260 feet long had been worked up to the north boundary of the railway, and the working of the quarry was stopped. In the spring of 1864 the matter went before a jury in terms of the Lands Clauses Act 1845, the Company having previously tendered £7005, which was rejected. The result was a verdict for “£5272 as at 31st December 1852.” Upon this verdict the Sheriff pronounced judgment; and, inasmuch as the verdict was for a sum below that tendered, he found Sir W. Carmichael liable in half the costs. Thereupon Sir W. Carmichael advocated the cause to the Court of Session, and claimed £5272, with interest from 31st December 1852; and further pleaded, that, as this sum, with interest, was larger than the £7005 tendered, he should not be liable in half the costs. On the other hand, the railway pleaded that, under the Lands Clauses Act the Court of Session had no jurisdiction, and that on the merits they were not liable to pay interest, and that the Sheriff was right as to the costs. The Court of Session repelled these defences, and the Company has appealed. The question turned (said the Lord Chancellor) on section 26 of the railways' special Act, and on the peculiarity ot the special verdict found by the jury that £5272 was due as at 31st December 1852. The words of this 24th section, and the fact that the Lands Clauses Act was incorporated with the special Act of the Company, showed that the question of compensation was to be decided in the ordinary way, and that there was therefore no jurisdiction in the Court of Session to revise the proceedings of the jury and the Sheriff otherwise than by reduction. That being so, the verdict of the jury stood, and that verdict contained and could not competently contain anything about interest. Therefore the sum given by the jury being below the tender, the Sheriff did right in dividing the costs between the parties. He therefore advised the House to reverse the interlocutors complained against, find that the Court of Session had no jurisdiction, that no interest was due on the £5272, and that the costs were rightly apportioned.

Lord Chelmsford Concurred.

Lord WestburyWestbury also concurred. He said that the Company's special Act did not provide a particular mode of valuation, it merely contained an addition to the machinery of the general statutes to suit the specialities of the case. There was no special and distinct power given by it, but it was part of the general machinery for working out an object common to all the Acts. It was evident from the proceedings that the parties themselves had thought so to; and on the whole case he could see no room for the interference of the Court of Session, or for adding to the terms of the jury's verdict.

Lord Colonsaydissented. He could not see how the Court of Session had not jurisdiction. If the sum given was a debt due at the 31st December 1852, then, according to the ordinary rules, interest would follow. But neither the Sheriff nor the jury had power to give interest. If this was so, who has? Surely the supreme courts of the country have a right to step in and settle the question, which otherwise would be left unsettled. He also thought the interest was due in virtue of a contract by sale where possession was obtained, and that was just the case here. He therefore thought the judgment of the Court of Session was right.

Interlocutors reversed, except in so far as they find the £5272 due by the Company, and with costs.

Counsel:

Agents for Appellants— Hope & Maekay, W.S.

Agents for Respondent— Gibson-Craig, Dalziel & Brodies, W.S.
1870