Scottish Court of Session Decisions

By Act of Parliament in 1870 (33 and 34 Vict. cap. 153) the Newport Railway Company were empowered to make a line of railway for the purpose of forming a junction with the Tay Bridge Railway. The time for completing this railway was extended by a subsequent Act. The Act of 1870 authorised the construction of the line through a field called the Well Park, then belonging to the Rev. Thomas Just. In November 1871, Mr Just feued a portion of the Well Park to a Mr Don. A feuing plan was at that time exhibited to him, which was referred to in the feu-contract which was entered into between him and Mr Just. On that plan a number of roads were shewn as proposed to be made, and among others a road leading down the centre of said park. On 26th July 1872 the railway company served the usual statutory notice on Mr Just that they were to take possession of that portion of the Well Park over which their railway passed, as shown on the Parliamentary plan. In September 1873, a minute of reference was entered into between Mr Just and the railway company, and under that reference the amount of compensation payable by the railway company was fixed. Mr Don did not begin to build on his feu till 1876 and he thereafter brought this action in the Sheriff Court of Fife against the North British Railway Company and Mr Just's trustees, which was afterwards conjoined with a supplementary action against the Newport Railway Company, who were the parties really interested. In the pursuer's feu-contract the piece of ground feued by Mr Just was disponed to the pursuer, with “free ish and entry thereto by the streets laid down on said plan, but in so far only as the same may be opened and not altered in virtue of the reserved power” therein mentioned. That reserved power was thus expressed—“The said Thomas Just and his foresaids shall have full power and liberty to vary or alter the said plan, streets, or roads delineated thereon, in so far as regards the ground not already feued, in such manner as they shall think fit.” The Sheriff was asked to interdict the railway company “from entering upon and building an embankment upon the road or way connecting the turnpike road leading from Newport to Woodhaven with a road known as the Kirk Road, and which road or way is delineated on a feuing plan mentioned in the said condescendence, and leads to, and for part of its extent constitutes the eastern boundary, and forms a portion of the ground or feu belonging to the above-named pursuer, and described in the said condescendence, and from interfering in any manner with the said road or way so as to render the same impassable, or dangerous to passengers or carriages, or so as to prevent the said pursuer, his tenants, or others having their free and unrestricted use of the same; or otherwise, to interdict the defenders from entering upon said road or way and interfering with the same, as aforesaid, aye and until they shall have caused another and sufficient road to be made instead of the said road or way; and to grant interim interdict.”

The pursuer maintained that he had by the terms of his feu a right of access which would be interrupted by the execution of the works of the railway company, and pleaded, inter alia, accordingly:—“(1) The pursuer having the said right of access by the said road or way to the said lot or piece of ground, is entitled to maintain the same. (2) The said right of access having been interfered with or threatened to be interfered with as aforesaid, the pursuer is entitled to interdict as craved.” The defenders pleaded, inter alia—“(3) The defenders being in the course of executing their line of railway and work in terms of their statutory powers, and having acquired the lands in question, as condescended on, and before any streets or roads through the same were opened up or existed, and being besides ready and willing to meet all competent and legal claims or damages or otherwise at the instance of the pursuer, the interim interdict will fall to be recalled, and the petition dismissed with expenses.”

A proof was led before the Sheriff-Substitute ( Bell), from which it appeared that no road was as yet formed through the Well Park, and the Sheriff ( Crichton) on appeal adhered, though on a different ground. The latter added this note to his interlocutor:—

“ Note …. The pursuer contended that under his feu-contract and relative plan he had acquired right to the proposed road shown on the said plan, as running down the

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centre of Well Park. It appears to the Sheriff, however, that as the railway company are forming the embankment complained of under the powers conferred upon them by Act of Parliament, the pursuer has no right to interdict them from proceeding to carry out their statutory powers, or to have the ground in question reserved for the formation of a road.

If a road had been formed and opened up down to the centre of the Well Park previous to the statutory notice given by the railway company that they were to acquire the ground in question, then the pursuer might have been entitled to an interdict against the railway company from proceeding to interfere with the road till a substitute road was provided. It is clear, however, that no road was formed or opened at the date of the said notice.

“It may be that the pursuer has a claim against the railway company in consequence of his feu being injuriously affected by their works; and the railway company admit that if any damage has been done by them they must make compensation.”

The pursuer appealed, and argued that until a notice had been served upon him in terms of the Lands Clauses Act (8 and 9 Vict. cap. 19), sec. 17 which had not been done, the railway company were not entitled to proceed with their works.

At advising—