Scottish Court of Session Decisions

Opinions by Lord Chancellor and Lord Chelmsford that, as the jury had evidently gone wrong in allowing 10 per cent, on a feu-duty which did not belong to the respondent, their verdict on this point should be set aside.

Opinions by Lords Westbury and Colonsay that it must be allowed to stand.

The respondent was owner of a property in Glasgow, part of which fronted Eglinton Street. Part of his property to the back was taken by the appellants under statutory powers. The question of compensation was sent to a jury, in terms of the “Lands Clauses Consolidation (Scotland) Act 1846.” The respondent claimed compensation (1) for the value of the property to the back, taken by the appellants; and (2) for the damage done to his remaining property through the construction of a bridge spanning Eglinton Street and adjoining his property fronting that street.

The jury returned this verdict—

“The jury unanimously find the pursuer (respondent) entitled to the following sums, viz.:—

For the property to be taken,	£1205	4	0
For old materials thereon,	65	0	0
	£1270	4	0
For the compulsory purchase thereof at 10 per cent.,	127	0	0
Less value of the feu-duty at 20 years' purchase,	639	0	0
For damage to the pursuer's (respondent's) remaining property caused by noise of trains, railway bridge across the street, smoke, and general nuisance, and deterioration of the tenement next the railway	392	0	0
£1150	4	0

In all, One thousand one hundred and fifty pounds four shillings sterling; but the jury find no damage done to the pursuer's (respondent's) gable next the railway.”

The appellants sought in this action to reduce the verdict, alleging “The said verdict was ultra vires of the jury, inept, and null, in so far as (1) the jury awarded to the respondent, in addition to the price of the subjects taken as for the compulsory purchase thereof, a sum of 10 per cent, upon the value of the feu-duty with which the subjects were burdened. The value of said property was £639. This feu-duty did not belong to the respondent, but to the superior of the said property, and was a burden upon the respondent's interest therein. The said verdict was further ultra vires of the jury, in so far as (2) the jury awarded to the respondent compensation in name of damage to the respondent's remaining property caused by noise of trains, railway bridge across the street, smoke, and general nuisance, and deterioration of the tenement next the railway. The jury had no power under the Act of Parliament under which the inquiry took place to give damages on any such ground.”

The Lord Ordinary ( Mure) held that the jury were wrong in giving 10 per cent, upon the value of the feu-duty with which the subjects were burdened, as it did not belong to the respondent, but that the other items were right. The First Division recalled the Lord Ordinary's interlocutor, and held that the verdict of the jury was right in all the items. The Company then appealed to the House of Lords.

Sir R. Palmer, Q.C., and Lloyd, Q.C., for them, argued—A whatever may have been thought to be the law at the time of these judgments in the Court of Session, it has been subsequently settled

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by the House of Lords, in the case of Brand v. The Hammersmith Railway Company, that the owner of houses cannot recover any compensation from a railway company on the ground of vibration, smoke, and noise; because these are the inevitable consequences of a railway being made, and so must be put up with by all landowners.

Lord Advocate, Mellish, Q.C., and Macdonald replied—It is true the House of Lords has now decided that noise and vibration are no ground for compensation to any owner, no part of whose lands has been taken from him, still it has not been decided that, if part of his land has been taken, he has not a right to recover compensation for damage on that ground to the rest of his property. This makes the difference between the present case and the case of Brand v. The Hammersmith Company. This is an important case, and it would be contrary to justice that the owner of houses which have been damaged in market value by a railway made so close to the houses as to render them uninhabitable, should have no right to be compensated for his loss. This item of damage has been allowed over and over again in Scotland, and the competency of the claim has never before been disputed, especially where, as in this case, part of the claimant's lands has been taken, and the rest of the property damaged by the existence of the railway.

At advising—