Scottish Court of Session Decisions

The Caledonian and the Glasgow and South-Western Railway Companies brought this note of suspension and interdict against William Dixon (Limited), and the managing director and secretary of that company, for the purpose of preventing them working out the minerals under a certain portion of the Beith Branch Railway, of which the complainers were proprietors. That railway passed through the estate of Caldwell, belonging to Colonel Mure. The railway companies had purchased from him the land occupied by the railway so far as passing through that estate, their term of entry being 12th October 1866. The mines and minerals under the land were not expressly purchased along with it, and therefore under the Acts of Parliament they fell to be excepted out of the conveyance.

The respondents were lessees of the minerals,

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consisting of limestone rock lying under the railway, conform to lease by Colonel Mure in favour of their authors, dated 1st and 12th November 1870. On 8th July 1878, in terms of the 70th and eight subsequent sections of the Railway Clauses Consolidation (Scotland) Act 1845, they had given notice to the complainers that they were desirous of working, and intended to work, the mines and minerals, including limestone, lying under the railway. The complainers did not before the expiration of thirty days from the date of that notice intimate to the respondents their desire to have the mines and minerals left unworked, and their willingness to make compensation; but they subsequently did so by a notice dated 20th February 1879.

By the 70th section of the Railway Clauses Act it was provided that the minerals under a railway remained the property of the owner of the land unless they are expressly purchased by the company.

The 71st section provided that if the owner or lessee of minerals not purchased by the company was desirous of working them, he should give to the company notice in writing of his intention to do so thirty days before the commencement of working. Power was also given to the company “upon receipt of such notice” to inspect the mines. If it should appear to the company that the working of the mines was likely to damage the works of the railway, and if they were desirous that such mines or parts thereof should be left unworked, and they were willing to make compensation therefor, they were further empowered to give notice to that effect. If such notice was given, then it was declared that the owner or lessee should not work the mines or minerals comprised in such notice, and that the company should make compensation for all loss and damage caused by the non-working.

The 72d section provided that if before the expiration of such thirty days the railway company did not give notice of their desire to have such mines left unworked, it should be lawful for the owner or lessee to work the said mines, in such manner as such owner or lessee should think fit, for the purpose of getting the minerals contained therein.

The complainers further objected to the notice of 8th July that it was given when the rights of the parties in regard to the minerals were sub judice, under a note of suspension and interdict in the Court of Session in which the railway company sought to have William Dixon (Limited) interdicted from quarrying or working the limestone lying under the railway, by open cast workings or otherwise, so as to destroy the surface of the railway. In that case the interdict had eventually been refused.

The complainers pleaded, inter alia—“(1) Upon a sound construction of the statutes the complainers are entitled at any time to stop the working of the minerals under and adjacent to their railway upon undertaking to pay compensation therefor to the parties in right of the said minerals. (2) In any view, the respondents' notice of 8th July having been given while the legal rights of parties in the said minerals were sub judice, the effect of the said notice was superseded during the dependence of the said process.”

The respondents pleaded, inter alia—“(1) The complainers' notice of 20th February 1879 is not a valid statutory notice in terms of the 71st and 72d sections of the Railways Clauses Consolidation (Scotland) Act 1845, and the respondents are not bound to recognise it as such. (2) The respondents are entitled to work and remove the whole minerals referred to in their notice of 8th July 1878, and interdict against them doing so ought to be refused, in respect that the said minerals were not expressly purchased by the complainers along with the lands, and that the complainers have failed to adopt the only other statutory procedure which entitles them to have the said minerals left unworked.”

The Lord Ordinary ( Adam) on 18th June 1879 repelled the pleas-in-law for the complainers and refused the note of suspension and interdict. His Lordship added the following note:—

“ Note.—[ After stating the facts]—In the opinion of the Lord Ordinary it was the intention of the Legislature that a railway company should have thirty days and no more within which to determine whether or not to purchase the minerals. He does not think that the effect of the notice given by the owner or lessee was to confer on the company a power of purchasing the minerals compulsorily, which they might exercise at any time hereafter—which is the complainers' contention. The company is to give notice to the owner or lessee of those minerals which they desired to have ‘left unworked.’ If no such notice is given, the owner or lessee is entitled to conclude that the company do not desire to take the minerals, and to make his arrangements for working them accordingly. He is to be entitled to work the minerals for which the company shall not have agreed to pay compensation—that is, as the Lord Ordinary reads the clause, shall not have agreed to pay compensation before the expiration of the thirty days.

The Lord Ordinary is therefore of opinion that the complainers' plea that they are entitled at any time to stop the working of the minerals under and adjacent to their railway upon undertaking to pay compensation therefor is not well founded.

But it is further maintained by the complainers that the respondents' notice of 8th July having been given while the legal rights of parties in the minerals were sub judice, the effect of such notice was superseded or suspended during the dependence of the process.

The facts upon which this plea is founded are, that in the month of March 1877 the respondents' workings had reached to within about 40 yards of the complainers' railway. Thereupon a correspondence took place between the parties, which resulted in an arrangement being come to that the respondents should be allowed to work the limestone up to within 10 feet of the centre of the existing line of rails, and that when the workings reached that point both parties should decide as to future operations.

In the month of June 1878 the respondents' workings had been carried up to within 10 feet of the centre of the railway. Thereupon the complainers on the 21st June 1878 presented a note of suspension and interdict, in which they sought to have the respondents interdicted from quarrying or working the limestone lying under the railway by means of open cast workings or otherwise, so as to destroy the surface of the railway. They did not dispute the respondents

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right to work otherwise than by open cast workings.

On the 16th July 1878 the Lord Ordinary on the Billspassed the note and interdicted the respondents from quarrying or working the limestone by means of open cast workings. This interlocutor was adhered to by the Second Division of the Court on 26th October 1878. The case came thereafter to depend in the Court of Session, and was finally disposed of by an interlocutor of the Lord Ordinary, of date 11th February 1879, deciding the case against the complainers and refusing the interdict.

It was during the dependence of these proceedings that the notice of the 8th July 1878 was given by the respondents.

It does not appear to the Lord Ordinary that these proceedings had the effect of suspending the statutory effect of the notice given by the respondents. It is said by the complainers that they could not have given a notice of their desire to purchase the minerals within thirty days of the respondents' notice without abandoning the pleas which they were maintaining in the suspension. That may be so, but it has been finally determined that the pleas which the complainers were maintaining were bad. If the complainers preferred trusting to ill-founded pleas to giving the statutory notice of their intention to take the minerals, they must suffer the consequences. The respondents' statutory rights are not to be prejudiced on that account. Laing v. Caledonian Railway Company, Jan. 19, 1850, 12 D. 481.

If the Lord Ordinary's opinion is right, the complainers no doubt are left in a very unenviable position as regards these minerals, but he does not think they are entitled to much sympathy. It appears to him that the object of the complainers throughout the proceedings has been to deprive the respondents of the minerals in question, for their own benefit, and without paying for them.”

The complainers reclaimed.