Scottish Court of Session Decisions

The previous proceedings in this case are reported of date Dec. 2, 1879, 17 Scot. Law Rep. p. 192.

The Second Division having, as therein stated, reserved the question of the relevancy of the claim for damage to their property made by Walker's trustees, while holding the railway company bound to proceed with the arbitration under the letter of undertaking granted by them, the arbitration was proceeded with. The arbiters having differed in opinion, devolved the arbitration upon the oversman, Mr M'Jannet, writer, Glasgow. After sundry procedure, Mr M'Jannet on 3d June 1880 issued his final decreet-arbitral, from which the facts of the case fully appear. The oversman found “( First) That the claimants’ property consists of a plot of ground extending to 6153 square yards and 8 9th parts of a square yard or thereby (with buildings as after mentioned), part of the lands of Tradeston, situated in the barony of Gorbals and shire of Lanark, bounded by Francis Street, 60 feet wide, on the east, by Canal Street, 60 feet wide, on the north; by Victoria Street, 60 feet wide, on the south; and by an unformed street, intended to be 60 feet wide, on the west. That the said three first-mentioned streets were in the year 1873, and continue to be, public streets, and that before the respondents’ operations began said 6153 square yards and 8 9th parts of a square yard were, as they continue to be, to the extent of 4681 square yards and 5 9 parts of a square yard, covered by a spinning and weaving mill or factory, and to the remaining extent of 1472 square yards and 8 9 th parts of a square yard by dwelling-houses, stables, &c. ( Second) That the rent of the mill portion was £1000 per annum, under a lease which terminated in 1874, but the occupancy has since been continued on tacit relocation at the same rent; and the rent of the remainder is £108, 10s. per annum. ( Third) That the claimants have sustained no loss or damage in respect of diminution or reduction of rents since the time the respondents’ operations began. ( Fourth) That during the respondents’ operations and since their completion the claimants’ property has not by reason of these operations sustained any physical injury in its structure as buildings, or in respect of drainage, light, or air. ( Fifth) That prior to the respondents’ operations the claimants had direct, straight, and practically level access to and from their property from and to Eglinton Street on the east (first) by Canal Street and (second) by Victoria Street, Eglinton Street then forming (as it does still) a leading thoroughfare from the centre of Glasgow to the south. ( Sixth) That since the respondents’ works were executed, and by reason of their execution, the following results have happened:—(first) Canal Street has been shut up as a direct access to Eglinton Street, and in place of that direct access the respondents have formed as a substitute therefor Salkeld Street, a public but a back street of 50 feet wide, running nearly parallel to, and to the west of, Eglinton Street: (second) Salkeld Street is not direct or straight, but slightly curved in its formation, and is steeper in its gradients than Eglinton Street, for the corresponding distance between Canal Street and Cook Street, the steepest gradient being 1 in 34 as compared with Eglinton Street, the steepest gradient in which within the same distance being 1 in 59: (third) for the purpose of traffic carried or going to or from the claimants’ property to Glasgow or the north, the detour carried by this substituted street is immaterial; but taking the west end of Cumberland Street as a common point by Eglinton Street and by Salkeld Street from Canal Street, the detour or extra distance caused by the respondents’ works extends to about 1485 feet, and now applies to all traffic from the claimants’ property carried or going eastward along Cumberland Street: (fourth) that Victoria Street has not been shut up, but has been slightly diverted, with no appreciable detour, as an access to the claimants’ property to or from Eglinton Street and the south, but with a detour or extra distance caused by the respondents’ works of about 265 feet, which now applies to all traffic carried or going by Eglinton Street to the north; and the diversion of Victoria Street, and the building of a bridge over their railway by the respondents, have had the effect of altering the gradient of a street formerly almost level to 1 in 20 for a space of about 116 feet, and 1 in 34.7 for a space of about 197 feet. ( Seventh) That the new substituted access by Salkeld Street forms, in conjunction with Canal Street, Cook Street, and Victoria Street, the principal access to Eglinton Street for the claimants’ property and the other properties situated in the same locality, including the Joint Line Railway Station and the Canal basin. ( Eighth) That in these circumstances, and having regard to the facts and circumstances proved, the claimants’ property is in my opinion injuriously affected by the construction of the respondents’ works; and, on the assumption that the claimants are legally entitled to be compensated by the respondents for the injury so caused, I fix and assess the pecuniary amount of this compensation at the sum of £1500 sterling, whereof I allocate the sum of £1200 as applicable to compensation for damage by detour, and the sum of £300 to compensation for damages by change of gradients: And accordingly, on said assumption, I find the claimants entitled to said sum of £1500 (made up as aforesaid), with interest thereon, at 5 per cent. per annum, from 13th April 1880 till payment.” Walker's trustees then raised the present action, concluding for £1500, being the amount of the damage found by the oversman to have been suffered by them, and for £486, 16s. 11d., being the amount of their expenses in the arbitration.

Their action was founded on the terms of the following letter, granted by the railway company while the Act under the authority of which the operations for which compensation was now claimed were made was in dependence in Parliament:—

“ Caledonian Railway (Glasgow Central Station, &c.) Bill.

Gentlemen,—In consideration of your withdrawing all further opposition to this bill, we,

Page: 255↓

the Caledonian Railway Company, do hereby undertake that if and so far as you or any of you are, in the judgment of the arbiters or oversman or jury to be appointed under the Lands Clauses Consolidation (Scotland) Act 1845, as after mentioned, injuriously affected by the construction of any of the works authorized by this bill, your claim for compensation shall not be barred by reason of our not taking any part of your respective lands; and the amount of such compensation, if any, if not agreed upon, shall be determined in the manner provided by the Lands Clauses Consolidation (Scotland) Act 1845, for the determination of cases of disputed compensation, but without prejudice to all claims competent to you or any of you under and by virtue of the said Act and of any other Acts regulating the construction of railways, in all cases where the lands of you or any of you, or any part thereof, may be taken by us for the purposes of this Act.”

On receipt of this letter the pursuers had withdrawn their opposition to the bill.

The pursuer also contended that, without reference to this letter, their property was injuriously affected by the operations of the company in the sense of the Special Act (Gordon Street, Glasgow, Station Act 1873) then obtained, and of the Lands and Railways Clauses Acts of 1845 incorporated with that Special Act by sec. 3 thereof.

They pleaded (1) that in respect of the letter of undertaking and the decree-arbitral following thereon, they were entitled to decree; and “(2) The pursuers' property being injuriously affected in the sense of the statutes by the construction of the defender's works, they are entitled to decree for the compensation assessed by the oversman in the statutory arbitration.”

The railway company disputed liability on the terms of the letter and also on the construction of the Acts. On the latter point they disputed the pursuers' claim on the ground that the pursuers had no exclusive right of property otherwise in the streets parts of which had been taken by them, nor any special or exclusive use and enjoyment of the said streets, the streets being public and the pursuers having no right to use them other than as members of the public. They also held that in the arbitration effect ought to have been given to compensatory elements which, had they been allowed for by the oversman, would have led to his finding that no compensation was due to the pursuers, their property being as valuable after as before the execution of the works. They referred to the eighth proposed finding of the oversman issued several months before the final decreet-arbitral, in which the oversman explained that in fixing the compensation he had not “given effect to any compensatory elements arising from the following two circumstances, which they contended ought to have been allowed for—(1) the respondents taking, and so withdrawing, feuing ground from the market, or (2) the fact of their having placed a passenger station in the immediate neighbourhood.”

They therefore pleaded in defence to the action—“(1) The property of the pursuers not having sustained any permanent or peculiar physical injury, nor been injuriously affected in the sense of the Special Act, or any of the Acts incorporated therewith, by the defenders' operations, the defenders are entitled to absolvitor. (2) The pursuers not being entitled to compensation either in respect of the undertaking of the defenders, or any of the Acts of Parliament before mentioned, the defenders are entitled to absolvitor. (3) In determining the question whether or not the pursuers' property was injuriously affected by the defenders' operations, the oversman ought to have considered the whole effect of these operations, and to have given effect to any compensatory elements arising therefrom benefiting the pursuers' property, as well as those injuriously affecting the same.”

The Lord Ordinary on 10th November 1880 repelled the defenders' third plea-in-law, and decerned against them in terms of the conclusions of the summons, adding this note—“The defenders object to the oversman's award on the ground that he does not give any effect to compensatory claims arising ( first) from the defenders withdrawing feuing-ground from public competition, and so rendering the complainers’ ground more valuable for that purpose; ( second) from the establishment of a passenger station in the neighbourhood. I am of opinion that the oversman would have erred had he taken these elements into consideration. The pursuers have suffered direct injury by the access to their property being rendered more steep and circuitous than before, and by the consequent increased cost of cartage, tear and wear of horses, &c. They were content with their property as it stood before the railway company interfered with it; they did not desire to feu their ground; and they had no wish to have a passenger station forced upon them. All these things I think must be assumed in their favour. The question, and the sole question for the oversman, was the amount of damage to the pursuers' accesses actually caused by the company's works, and it is not relevant in such an inquiry to discuss whether in other respects unconnected with access these works may be expected to benefit the pursuer. The case of Senior v. The Metropolitan Railway Company, 12 L.J. Exch. 225, and Eagle v. The Charing Cross Railway Company, L.J. 2 C.P. 638, seem to be authorities very much in point. I have therefore sustained the oversman's award, and decerned for the amount thereof with expenses.”

The defenders reclaimed, and argued—The letter of undertaking was not a guarantee that in consideration of withdrawal of opposition to their bill the defenders would pay compensation to which the pursuers were not by law entitled. In order to their success on the terms of the letter the pursuers must show that they would have a good ground of claim if any of their land had been taken. But here they were not in that position. Their claim was not one that would arise if some of their land had been taken. On the general law, apart from the letter,—It was once a moot point whether there could be any good claim if none of the claimant's property had been taken by the operations of the company entitled to make the operations. But it had been decided that certain claims would be held to lie in such a case— Chamberlain v. West End of London and Crystal Palace Railway Company, 2d Feb. 1862, 2 Best and Smith, 617. There were, however, two classes of cases where the

Page: 256↓

claimant might have suffered damage—(1) Those in which the access injured was as adverso of the property; (2) that in which the public street, some distance away from the claimant's property, was injured. The present case was of the second class, and in that class, inasmuch as the injury was only that the proprietor claiming compensation suffered oftener than others the same damage as the general public suffered, no compensation was given— Caledonian Railway Co. v. Ogilvy, 30th March 1856, 2 Macq. 229; Ricket v. Metropolitan Railway Company, 2 L.R. H. of L. 175; Queen v. Metropolitan Board of Works, 4 L.R. Q.B. 358. Such cases were distinguished from those like Chamberlain, supra, where there was special damage by reason of direct interference with the street immediately as adverso of the claimant's property. The same was to be said of Beckett v. Midland Railway Company, 3 L.R. C.P. 88. Even the case of Metropolitan Board of Works v. M'Casky, L.R., 7 E. and I. App. 243, founded on on the other side, bore out the doctrine that damage done to the public highway away from the immediate proximity of the property is not special damage, but damage suffered by the proprietor more often than the rest of the public, but ejusdem generis with theirs.

The pursuers answered—The letter of undertaking is conclusive against the defenders. It was given to purchase freedom from opposition founded on grounds the very same as were stated to form a claim in the arbitration. It must be read in the light of the circumstances in which it was given. As to the general question, the case of Ogilvy did not bear out the construction put on it by the other side, since it has been often said in the subsequent cases that it was decided on the ground that personal inconvenience or annoyance is not a ground for special damage—Erle, C.-J., in Chamberlain's case, supra. The nature of the injury is special damage, resulting from the cutting off of a convenient access and the substituting of inconvenient gradients. If a property, as distinguished from the personal inconvenience of the owner, is in fact damaged by works done to a public street, the proprietor is entitled to compensation notwithstanding that the operations also injure the public— Duke of Buccleuch v. Metropolitan Board of Works, 5 L.R. Ex. 221. and 5 L.R. H. of L. 418; M'Casky's case, supra, opinion of Lord Penzance; Hammersmith Railway Company v. Brand, 4 L.R. E. and I. App. 211; Queen v. Eastern Counties Railway, 2 L.R. Q.B. 347.