Scottish Court of Session Decisions

Charles Simpson, the pursuer in this case, was tenant of the farm of Hatton, near Newtyle. Part of the line of the Dundee and Newtyle Railway, now owned by the defenders the Caledonian Railway Company, ran through the pursuer's farm. By Act of Parliament (27 and 28 Vict. cap. 214, the defenders had obtained authority to disuse as a public railway a portion of the line, including the part passing through pursuer's farm. The terms of the 18th section of the Act were as follows:—“On the completion and opening for public traffic of the railway, and of the joint station at Newtyle hereinafter provided for, so mueh of the Dundee and Newtyle Kailway as lies between Pitnappie Junction and the foot of the Hatton incline at Newtyle Station shall be relinquished and disused as a public railway; and the solum thereof, subject to all claims affecting the same at the instance of other parties than the

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Dundee and Newtyle Railway Company, and all works thereon, shall vest in and may be sold and disposed of by the Company.”

During the time that the line was in use, the part of it which ran through the pursuer's farm was kept well enclosed and fenced by the defenders, and the fences were left in good repair when they ceased to use it. After that, however, they had fallen into disrepair, in consequence of which, and also of the overflow of certain water-tanks and the neglected state of a bridge over the line, all due to the fault of the defenders, the pursuer alleged that he had suffered serious damage to his farm and farm stock, for which he sought to make the defenders liable in this action, and the question arose as to whether the defenders were bound to maintain the fences, &c., in good repair, and having failed to do so, were liable for the damage caused to the pursuer.

The Act of Parliament sanctioning the construction of the said line was 7 Geo. IV. c. 101. Section 71 of that Act enacted that the railway company were to put up and maintain at their own cost gates and bridges on the line “for the use of the owners and occupiers of the lands and grounds through which such railway shall be made.” In the event of the railway company not complying with that provision, the owners and occupiers of the contiguous lands were themselves to do what was necessary, with recourse against the company for the cost.

Section 73 provided that the company, after taking land for the use of the railway, should divide and separate it from the lands adjoining “with good and sufficient posts, rails, hedges, &c., or other fences so to be made as aforesaid, in case the owner or owners of such land and grounds … shall at any time desire the same to be fenced off … and the said company shall also make and maintain all necessary gates in all such fences to be made as aforesaid, all such gates being made to open towards such lands and grounds; then, and in every such case, the powers, provisions, directions, and regulations hereinbefore contained with respect to the gates and other works as aforesaid, shall extend and apply and be applicable to the making and maintaining of said fences as fully and effectually to all intents and purposes as if the said powers, provisions, directions, and regulations were now repeated and re-enacted with respect to such fences.”

The defenders founded upon the Act 27 and 28 Vict. cap. 214, which authorised the Scottish Central Railway Company to make a new line to be substituted for the portion of the Dundee and Newtyle Railway which they were to relinquish. The 18th section of that Act provided—“On the completion and opening for public traffic of the railway, and of the joint station at Newtyle hereinafter provided for, so much of the Dundee and Newtyle Railway … shall be relinquished and disused as a public railway, and the solum thereof, subject to all claims affecting the same at the instance of other parties than the Dundee and Newtyle Railway Company, and all works thereon, shall vest in and may be sold and disposed of by the company.” The defenders stated that they were not bound to maintain fencos on the solum on the disused line, nor on adjacent owners' lands. In any event, they pleaded that the pursuer not having availed himself of the remedy provided by sections 71 and 73 of the Act 7 Geo. IV. cap. 101, was barred from pursuing the present action.

After various procedure the Sheriff-Substitute ( Cheyne), on 11th December 1876, issued an interlocutor allowing both parties a proof. He appended the following note:—

“ Note.—While I have thought it better to leave all the defenders' pleas open in the meantime, I may say, with regard to the two points argued before me at the recent debate, that I have formed a pretty clear opinion that the defenders are under a statutory obligation to maintain fences along the disused piece of railway, and also that their plea, founded on sections 71 and 73 of the Act 7 Geo. IV. c. 101, is untenable. With regard to the former point, I am not prepared to rule that the pursuer's claim is not one affecting the solum of the disused piece of line in the sense in which that expression is employed in section 18 of the Act 27 and 28 Vict. c. 214, but at the same time I think that I do not require to decide the point here, and I shall therefore leave it to be determined when, if ever, it arises in a question with a purchaser from the defenders. Dealing with the defenders themselves, it is, in my opinion, sufficient to observe that as lessees of the undertaking of the Dundee and Newtyle Railway Company they took over all the liabilities of that Company, including the obligation constantly to maintain these fences, and that I cannot read the clause of the Act of 1867 upon which they found, as relieving or intended to relieve them of that obligation. Its effect is, I think, simply to give them power to sell the solum of the disused piece of railway.”

On 3d March 1877 the Sheriff-Substitute pronounced an interlocutor in which he assoilzied the defenders from the first and fourth conclusions of the summons (relating to the tanks and the bridge), in respect the pursuer no longer insisted in them. After stating various findings in fact as above narrated, he wenton to find—“(4) That the parties have agreed that the damage sustained by the pursuer during said period in consequence of the insufficient state of the said fences, shall be held to amount to (£65) sixty-five pounds sterling; and (5) that the undertaking of the Dundee and Newtyle Railway Company is now, and was during the period in question, vested in the defenders; and having regard to the foregoing findings and to the provisions of 7 Geo. IV. c. 101 (being the original Act under which the Dundee and Newtyle Railway was constructed), and under reference also to the accompanying note and to the note appended to the interlocutor of 11th December last, Finds in law that the defenders were bound during the period in question to have kept the disused piece of line separated from the pursuer's farm by a sufficient fence, and that they are liable to make good the damages sustained by the pursuer in consequence of their failure so to do: Therefore decerns against the defenders for payment to the pursuer of the sum of £65 sterling, with interest thereon at the rate of five per centum per annum from the date of citation hereon till paid.” He appended the following note:—

“ Note—Upon the only question now left for my decision, so far at least as the merits of the case are concerned, viz., whether the defenders were bound to maintain a sufficient fence along the disused piece of railway, I have formed a clear and decided opinion in the pursuer's

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favour. At the discussion which preceded the allowance of proof, it was, as I understood, conceded that the defenders were liable, unless sect. 18 of the Act of 1864 relieved them; but at the recent discussion the defenders' counsel, besides relying upon the provision in the Act of 1864 (as to the effect of which I retain the opinion expressed in my previous note, and have nothing to add to what I there said), maintained that there was not enough in the case to warrant the conclusion that any obligation in regard to the particular fences with which we are here dealing ever attached either to the Dundee and Newtyle Railway Company or to the defenders as in their room. With regard, however, to this new contention, I think it sufficient to remark that while it is undoubtedly true that, under sect. 73 of the Special Act under which the railway was made, the obligation on the Company to erect and maintain fences only arises in case the owner or owners of such lands and grounds adjoining to such railway, or any of them respectively, shall at any time desire the same to be fenced off, or in case the said Company of proprietors shall think proper to fence off the same, instead of the gates being erected as aforesaid;' and while it is also true that we have no information (which, considering that it is fifty years since the railway was made, is not to be wondered at) as to how these particular fences came to be put up, still as there is no allegation that they were put up by the owner of the adjoining land under the powers given him in sect. 75 of the statute, and as it is admitted that they were in use to be kept in order by the railway company's servants, it seems to me a fair and reasonable presumption that they were originally erected by the Company either at the desire of the owner of the adjoining land, or voluntarily as a substitute for the gates, which must otherwise have been put across the line in order to fill up the gaps in the fences caused by the formation of the railway, and which it is not alleged ever existed.

From the pursuer's agent making no allusion to sect. 10 of the Regulation of Railways Act 1842 (5 and 6 Vict. c. 55), I presume that he is satisfied, as I own I am, that he cannot avail himself of that provision, but must rest his case entirely upon the Special Act.”

On appeal the Sheriff ( Maitland Heriot) adhered, adding the following note:—

“ Note.—… The question for decision arises whether the Caledonian Railway Company, who now come in place of the Dundee and Newtyle Railway Company, are still bound to keep the disused portion of railway fenced and enclosed as before.

The obligation to do so, as contained in the 73d of the original Act, is very explicit—[ quotes as above narrated].

That being so, the Sheriff fails to discover any clause anywhere that liberates the railway company from that clear and distinct obligation. The company contend that the 18th section of the Act of 1864 does liberate them. After substituting the new for the old line of railway, it provides, ‘and the solum thereof, subject to all claims affecting the same at the instance of other parties than the Dundee and Newtyle Railway Company, and all works thereon, shall vest in and maybe sold by the Company.’ It mayor may not be that the burden of fencing the solum is a ‘claim affecting the same.’ If it be, it is expressly kept up by this clause. If it be not, the clause has no reference to fencing, and that matter is just left as it was previously.

This question arises in an action of damages for injury to the pursuer's stock owing to the want of proper fences for the period from 8th July 1875 to 15th April 1876. The defenders contend that, even assuming they are still bound to fence, the pursuer was not entitled to stand aside and see his stock pass through the fence without doing something to prevent them. It is said that he ought to have adopted one of two courses—first, he ought himself to have repaired the fence temporarily—to have mended up the hole or gap—and then applied to the defenders for the cost of the repairs. Had this been the case of an unexpected gap occurring in an ordinary fence, there might have been much force in the contention. But on looking at the evidence of Alexander Simpson, we find that the whole fence was in bad order. …

It seems therefore to the Sheriff that it was not a fence which the pursuer could have repaired in a temporary way by filling up gaps or holes. The whole fence was bad, and either ‘gone' or ‘rotten.’

Then it is said, second, that the pursuer's statutory remedy was to give the defenders notice under the 71st and 73d sections of the Act, and at the end of thirty days to do the work himself. The pursuer might probably have followed that course had he seen fit to do so. But the Sheriff cannot hold that he was restricted to that remedy. The Company were well aware of the state of these fences. …

The defenders appealed.

Argued for them—The railway company were not bound to maintain in all time coming the fences of disused lines. The obligation to fence was only meant to apply to a time when locomotives were actually passing up and down the line, the fences being meant as a protection against them. The land was taken for the use of the railway; it was no longer used by the railway, for it was abandoned and the lands were to be sold. The only obligation now upon them was the ordinary one under common law to be at half the expense of keeping up the march-fence.

Authorities— Matson v. Baird & Company, November 9, 1877, ante, p. 73; 5 and 6 Vict. cap. 55, sec. 10; 13 and 14 Vict. c. 83, sees. 19 and 21.

At advising—