Scottish Court of Session Decisions

The pursuers and defenders were joint owners of the line of railway known as the Glasgow and Paisley Joint Line, which has its northern terminus at Bridge Street Station, Glasgow. By The Caledonian Railway, Gordon Street Station, Act 1873, the defenders obtained power to construct a passenger station adjacent to Gordon Street, Glasgow, and certain lines of railway (including a bridge across the Clyde) in connection therewith. By The Caledonian Railway, Gordon Street Station Connecting Lines, Act 1875, the lines of railway authorised by the first-mentioned Act were more or less deviated and altered, and, inter alia, power was conferred on the defenders to take and occupy for the purposes of one of their lines (line No. 1) the eastern portion of Bridge Street Station belonging jointly to the two companies. By section 4 of the said Act of 1875 the defenders took power to construct, inter alia … 3. A railway (in this Act called ‘line No. 3’) one furlong four chains and eight yards or thereabouts in length, with sidings, platforms, and other works, in substitution for these portions of the said Bridge Street Station, and of the joint line in and near that station, belonging to the two companies, which will be taken, removed, or otherwise interfered with for the purposes of this Act, the termini of this line being fixed by the Act.” By section 26 of the same Act the Caledonian Company were to remove Pridge Street

Station at their own expense, on a plan to be agreed on by their respective engineers, or failing agreement by an engineer to be appointed by the Board of Trade on the applications of either company. This section then proceeds—“And such engineer shall have power to order the company to execute such extension of the said station to the westward under the powers of this Act as he may consider necessary for efficiently and conveniently accommodating the passenger traffic requiring to use that station, having regard not only to the present but to the future exigencies of such traffic: Provided always that in so far as such remodelling, improvement, and extension are made on the lands of the two companies, such lands shall be given for that purpose free of cost to the company, and that in fixing the amount of compensation to be paid by the company to the two companies for any injury occasioned to the said Bridge Street Station by the exercise of the powers of this Act as respects line No. 1, the arbiter, arbiters, oversman, or jury shall take into consideration the station accommodation to be provided by the company for the two companies under the provisions of this Act: Provided also that such remodelling and improvement shall be proceeded with simultaneously with the construction of line No. 1, and that line No. 1 shall not be opened throughout for traffic until such remodelling and improvement is completed.” Section 37 provided as follows:—“Those portions of the Bridge Street Station at Glasgow, and of the joint line in and near that station, lying between Wallace Street and the north end of the said station, which under the provisions of this Act are taken, removed, or otherwise interfered with for the purposes of line No. 1, line No. 2, and line No. 3, and the works connected therewith respectively, shall, from and after the time when the same are so taken, removed, or interfered with, be abandoned; and in lieu thereof line 3 and the works connected therewith shall, as respects tolls, rates, and charges, and in all other respects, form part of the joint line, and be vested in the two companies jointly, and be managed by the joint committee of directors of those companies known as the Glasgow and Paisley Joint Line Committee, as part of the joint line.”

In pursuance of these enactments plans were, with the assistance of an engineer appointed by the Board of Trade, ultimately adjusted between the engineers of the two companies, and in great measure carried out. The larger part of the ground required was given free by the two companies, and the rest purchased by the Caledonian Company from third parties. The station was a high-level one supported on arches. The pursuers asserted that it had been agreed between the companies that shops should be formed in the hollows of the arches which supported the station, and let to produce rent for the profit of the joint line.

The defenders, while admitting this to be the case with the shops formed on the ground given by the two companies and executed at joint expense, denied that it was so with the shops on that part of the ground which had been acquired by them from third parties, which shops had been executed solely at their (the defenders’) own expense. The defenders contended that their obligation to provide a remodelled, improved, and extended station was satisfied upon completing

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and handing over to the joint line a station on the level of the line of railway with the arches and shops, so far as constructed on the land which formerly belonged to the two companies jointly, and that the arches and shops under the station which had been formed on the land purchased from third parties belonged to the defenders, and did not vest in the two companies jointly under the 37th section of the Act of 1875. The pursuers, on the other hand, contended that the powers of the Caledonian Company to acquire the land in question were only given for the purposes of the line No. 3, and for the construction of works thereon in connection with that railway, and that the solum of the archways, and also the solum upon which the piers had been built, vested in the two companies jointly, in terms of the 37th section, as a part of line No. 3 and the works connected therewith. The defenders impugned the accuracy of certain plans on which the pursuers founded. Proof was allowed, and the only witnesses examined were the engineers of the two companies.

The pursuers pleaded that the arches and shops in question formed part of the joint line station, and were vested in both parties jointly as joint owners of the station and joint line. The defenders pleaded that the arches and shops, along with the ground on which they were built, belonged exclusively to them, and inasmuch as they were no part of the works of the railway, that the only joint right of the two companies in the ground was one of servitude of maintaining and using the line constructed above them.

The Lord Ordinary found that “the ground acquired by the defenders for the construction of line No. 3, and the arches and shops constructed or to be constructed thereon, do not belong in property to the pursuers and defenders, and that the pursuers are not entitled to participate in the rents and profits derived or to be derived from the said shops;” and to this extent assoilzied the defenders, “but reserving to the pursuers all claims which may be competent to them in the event of said ground or arches being used or required for railway purposes.”

The pursuers reclaimed, and argued—The land under or above a line of railway is as much part of it as the part on which the rails are laid. The ground in question here is not “superfluous land,” which might be sold. “Superfluous land” must be separable from that which is not superfluous by a vertical not a horizontal line, for railway land belongs to a railway company, as to any other proprietor, a cœlo ad centrum. This case differs from that of merely acquiring a servitude, as is frequently done for a tunnel or viaduct, for here the solum of the ground has been acquired. It is clear from section 37 of the Act that a full right of property in line No 3 was intended to vest in the joint line.

The defenders argued—The pursuers' case turns on section 37, which must be read so as to give only a right of servitude to the joint line, and not to vest in them a right of property in the ground. All the defenders are bound to give in satisfaction of their statutory duty is surface use.

Authorities— Mulliner v. The Midland Railway Co., 11 Chan. Div. 611; Metropolitan District Railway Co. v. Cosh, 13 Chan. Div. 607.