Scottish Court of Session Decisions

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Cite as: [1877] SLR 14_388, [1877] ScotLR 14_388

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SCOTTISH_SLR_Court_of_Session

Page: 388↓

Court of Session Inner House First Division.

Saturday, February 24.

[ Lord Adam, Ordinary.

14 SLR 388

Petition—Sir. W. Edmonstone.

Subject_1Improvement of Land Act 1864 (27 and 28 Vict. cap. 114)
Subject_2Entail
Subject_3Minor
Subject_4Railway.
Facts:

In an application to the Court by an heir in possession of an entailed estate, for an order authorising and requiring the Inclosure Commissioners for England and Wales to sanction his charging the estate with a sum of money which he was desirous of subscribing to a proposed railway to pass through the estate, in terms of the Improvement of Land Act 1864— held that it was not necessary to show that without the applicant's subscription the railway would not be made.

Headnote:

This was a petition presented under the Improvement of Land Act (27 and 28 Vict. cap. 114) by Sir William Edmonstone, heir of entail in possession of the estate of Kilsyth, for the purpose of charging the estate with the sum of £5000, which the petitioner was desirous of subscribing for shares of the Kelvin Valley Railway Company and its proposed extension betwixt Kilsyth and Falkirk. The next heir of entail was the petitioner's son, who was a minor, which under the 21st section of the Act rendered it necessary that this application should be made to the Court.

The 78th and 80th sections of the statute, under which this application fell, were as follows—(78) “In case any landowner shall be desirous of subscribing for any shares or stock in the capital, whether original or additional, of
Page: 389↓
a company having power to construct a railway or navigable canal, or any branch or extension railway or navigable canal, or any deviation of a line of railway or a navigable canal already sanctioned, the works for which such subscription is to be made being unfinished, or in any additional capital to be raised for the completion of any such railway, canal, branch, extension, or deviation, the same being upon or near to, and which will improve or benefit, the lands of such landowner, and who shall be desirous that such amount, or any part thereof, may be charged upon the lands so to be improved, it shall be lawful for him to apply to the Commissioners for that purpose within the time limited by the Railway or Canal Companies Act or Acts for the construction of the works in question.” “(80) If the Commissioners shall be satisfied that the railway or canal, when constructed and open for traffic, will effect a permanent increase of the yearly value of the lands exceeding the yearly amount proposed to be charged thereon, they shall execute and deliver to the landowner a provisional order under their seal and the hands of two of them, expressing their sanction of the charge proposed,” in the form therein set forth. The reporter, to whom a remit was made to inquire whether the provisions of the Act had been complied with, reported that he saw no reason to doubt that the lands would be benefited, at least to the extent of the annual charge created.

The Lord Ordinary had some doubt whether the application should be granted, as it appeared that the railway would be constructed and the lands benefited whether the petitioner gave the proposed subscription or not, and reported the matter to the First Division.

At advising—

Judgment:

Lord President—I am quite satisfied that this application should be granted, and an interlocutor pronounced in the terms suggested in the Lord Ordinary's report, “authorising and requiring the Inclosure Commissioners of England and Wales to proceed upon the application to them by the petitioner in virtue of the Improvement of Land Act 1864, and to deal with the same according to the provisions of the foresaid Act, authorising them on that behalf, notwithstanding the circumstances that the petitioner is the father of a person entitled to an estate in the lands to be improved under the foresaid application to them, and that such person is a minor.” There is one difficulty suggested by the Lord Ordinary to which it is necessary to advert, as our attention has been so specially directed to it. His Lordship says—“An agreement has been made by the promoters of the Kelvin Valley Railway with the North British Railway which practically amounts to a guarantee of 5¼ per cent. per annum on the stock of the Kelvin Valley Railway from the time it is opened, with an option to the North British Railway to purchase the stock at a premium of 10 per cent.; and it is the fact that the construction of the Kelvin Valley Railway is not contingent on the proposed subscription of £5000 being made to it by the petitioner. It is apparent, therefore, that the increased value of the lands by the making of the railway does not depend on the application being granted. The lands will be equally increased in value whether the application be granted or refused.” Now, his Lordship does not express an opinion that it is indispensable to the success of the application that the petitioner should show that without his assistance the railway would not be made, but he suggests that that is a possible interpretation of the clause under which the application is made. Now, I do not think that that clause is susceptible of such an interpretation. The party must no doubt be interested in the construction of the railway, and there is no reason to doubt that the petitioner is in that position. This small branch line of two miles in length is of local value, intended to benefit the estates through which it passes, and it was therefore very natural that the Railway Company should try to induce the landowners in the district to interest themselves in the proposed line. If the construction of the Railway must under the Act depend on the petitioner's subscription being made, the case is not in that position at all, for the investment is plainly a very satisfactory one, and therefore there can be no difficulty in getting the money; but I have no idea that it is necessary to prove that the petitioner's subscription is indispensable to the carrying on of the undertaking. In all other respects the petition is satisfactory.

Lords Deas, Mure, and Shand concurred.

The Court pronounced this interlocutor:—

“Authorise and require the Inclosure Commissioners of England and Wales, acting under the Statute 27th and 28th Vict. chap. 114, commonly called the “Improvement of Land Act 1874,” as regards lands in Great Britain, to proceed on the application to them by the petitioner, and to deal with the same according to the provisions of the said Act, authorising them on that behalf, notwithstanding the circumstance that the petitioner is the father of a person entitled to an estate in the lands to be improved under the foresaid application immediately after the petitioner, and that such person is a minor: And direct that the costs of the application to the Court and of the procedure following thereon, as the same shall be taxed by the Auditor of Court, shall be decerned to be part of the expenses of and incidental to the said application to the said Commissioners, and decern; and remit to the Auditor to tax the account of said costs.”

Counsel:

Counsel for Petitioner— Balfour— Murray. Agent— J. Stormonth Darling, W.S.
1877