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Held that the clause of reference, viz., sect. 33, in the General Tramways Act, 1870, did not exclude the application of a private individual to the Court, craving that the Tramways Company should be ordained to fulfill a statutory obligation.
This was a petition presented by certain omnibus proprictors in Edinburgh, craving the Court to order the respondents, the “Edinburgh Street Tramways Company,” to construct a passing place or places connecting the one line of tramways with the other line of tramways at a certain place in Leith Street, Edinburgh, where there is a less width between the outside of the footpaths on either side of the road and the nearest rail of the tramway than nine feet six inches, so that by means of such passing place or places the traffic shall, when necessary, be diverted from one tramway to the other.
The 9th section of the “Tramways Act, 1870,” which was alleged to have been contravened, was as follows:—“Every tramway in a town, which is
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hereafter authorised by provisional order, shall be constructed and maintained as nearly as may be in the middle of the road, and no tramway shall be authorised by any provisional order to be so laid that for a distance of thirty feet or upwards a less space than nine feet and six inches shall intervene between the outside of the footpath on either side of the road and the nearest rail of the tramway, if one-third of the owners, or one of the occupiers of the houses, shops, or warehouses abutting upon the part of the road where such less space shall intervene, as aforesaid, shall in the prescribed manner, and at the prescribed time, express their dissent from any tramway being so laid.” The respondents pleaded—“(2) All parties interested have not been called. The complainers are not entitled to insist in the present application without making the said local authorities, viz., the Provost, Magistrates, and Town Council of the city, and the City of Edinburgh Road Trustees, parties thereto. (3) The application is excluded by the clause of reference contained in the said statutes and agreements, and above referred to, or one or other of them.”
The reference clauses referred to are contained in section 10 of the special Tramway Act, which is as follows:—“Any difference between the Company and any road authority or surveyor, or other person, with reference to any of the matters foresaid, shall be determined in manner provided by the Tramways Act, 1870, with respect to differences between the promoters and any road authority;” and by section 33 of the said General Tramways Act, 1870, it is provided as follows:—“If any difference arises between the promoters or lessees on the one hand, and any local authority or road authority, or any gas or water company, or any company, body, or person to whom any sewer, drain, tube-wires, or apparatus for telegraphic or other purposes may belong, or any other company, on the other hand, with respect to any interference or control exercised or claimed to be exercised by them or him, or on their or his behalf, or by the promoters or lessees, by virtue of this Act, in relation to any tramway or work, or in relation to any work or proceeding of the local authority, road authority, body, company, or person, or with respect to the propriety of, or the mode of excavation of any work relating to any tramway, or with respect to the amount of any compensation to be made by or to the promoters or lessees, or on the question whether any work is such as ought reasonably to satisfy the local authority, road authority, body, company, or person concerned, or with respect to any other subject or thing regulated by or compromised in this Act, the matter in difference shall (unless otherwise specially provided by this Act) be settled by an engineer, or other fit person, nominated as referee by the Board of Trade on the application of either party, and the expense of the reference shall be borne and paid as the referee directs.”
The Lord Ordinary pronounced this interlocutor and note:—
“ Edinburgh, 16 th February 1872.—The Lord Ordinary having heard counsel for the parties on the respondents' first three pleas in law, and having considered the argument and proceedings, repels said pleas, and, under a reservation in the meantime of all questions of expenses, appoints the case to be called in the motion roll of Tuesday first, the 20th inst., that parties may be heard on the question, Whether, before further procedure, the process ought or ought not to be intimated to the local authority, and the road authority referred to in the Tramway Acts, that they may have an opportunity of compearing for their interest, if so advised.
Note.—Both parties were satisfied that no investigation into facts was necessary previous to or with a view to the disposal of the respondents' pleas, which have now been repelled.
It is expressly admitted ( vide article 6 of the petitioner's statement, with the answer thereto for the respondents) that there is for a short distance at the place in question less width between the outside of the footpath and the nearest rail of the tramway than 9 feet 6 inches, and it was also expressly admitted at the discussion before the Lord Ordinary that there was no passing place such as is required by section 8 of the Edinburgh Tramways Act at the place referred to, although it is by the Act, in very distinct and unambiguous terms, enacted that in such a case ‘the Company shall, and they are hereby required, to construct a passing place or places connecting the one tramway with the other, and by means of such passing place or places the traffic shall, when necessary, be diverted from the one tramway to the other.”
“It is in this state of the matter that the present petition has been presented to the Court for an order on the respondents to construct a passing place or places in terms of section 8 of their Act. But the respondents have stated and maintained, as preliminary pleas or bars to further procedure,—1st, That the petitioners have no title to sue; 2d, that all parties interested have not been called; and 3d, that the application is excluded by the clauses of reference in the Tramway Acts and relative agreements. The Lord Ordinary being of opinion that these pleas are ill founded, has repelled them.
1st, In regard to the respondents' first plea, it cannot be doubted that, as citizens of Edinburgh, and as proprietors of omnibuses and cabs having occasion daily to pass along the street at the place in question, the petitioners have a material interest to see that it has not been rendered unsafe, in consequence of the refusal or neglect of the respondents to comply with the statutory obligation incumbent on them in regard to passing places. And if so, it seems to follow that the petitioners must be held to be also in titulo to enforce that statutory obligation incumbent on the respondents in regard to passing places, unless it can be shewn that the right and title of doing so have been exclusively vested in some other party. But the Lord Ordinary has been unable to find, in the statutes or elsewhere, any authority for holding that such is the case. There is certainly nothing to that effect in section 91 of the Court of Session Act, 1868, in virtue of which the present application has been made. According to that statutory provision, power is simply conferred on this Court ‘upon application by summary petition, to order the specific performance of any statutory duty,’ without any mention of the party or parties by whom such application requires to be made; that matter being apparently left to be governed by the general law and practice as previously established. This being so, and as there is nothing to the contrary in the Tramway Acts, the Lord Ordinary thinks there is ample authority to be found, in varying circumstances, in the cases of Guild and Others v. Scott & Ross, December 21, 1809, F.C.; Tait v. The Earl of Lauderdale, February 10, 1827, 5 Sh. 330; Martain v. Easton and Others, June 18,
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1830, 8 Sh. 952; Christie and his Trustee v. The Caledonian Railway Company, December 18, 1847, 10 D. 312; and Stewart and Others v. The Greenock Harbour Trustees, June 8, 1864, 2 Macph. p. 1155, for sustaining the title of the petitioners in the present application. It may be that the Corporation of Edinburgh and others might also have been entitled to complain, but the Lord Ordinary was referred to no authority, statutory or otherwise, for holding that they alone had the right and title to do so, and that the petitioners had no such right and title. 2d, As it appears to the Lord Ordinary that the only parties whom it was necessary or essential to call as respondents to the application, viz., the Tramway Company, have been called, he has repelled the second plea in law for the respondents, to the effect that all parties interested have not been called. At the same time, it rather appears to the Lord Ordinary that, before further procedure, it would be well to have the process intimated to the Corporation of Edinburgh and the Road Trust, who are referred to in the Tramway Acts as the local and road authorities, in order that they may compear for any interest they may think they have, if so advised. But as nothing was said as to this at the last debate, the Lord Ordinary has thought it right to give the parties an opportunity of speaking to the point, before deciding whether such intimation ought or not to be made. He does not anticipate that the petitioners can have any objection to the intimation referred to being made.
3d, As the Lord Ordinary can find nothing in the Tramway Acts sufficient to exclude the present application, in respect of the reference clauses on which the pursuers' third plea is founded, he has repelled that plea. It appears to him that the clauses referred to are applicable to other and different matters from that now in question.”
The Tramways Company reclaimed.
The Solicitor-General, Shand, and Mansfield for them.
Scott and Robertson in answer.
The Court unanimously adhered.
Solicitors: Agent for Pursuers— D. F. Bridgeford, S.S.C.
Agents for Defenders— Lindsay, Paterson, & Hall, W.S.