Scottish Court of Session Decisions

The Glasgow Coal Exchange Company were proprietors of a block of property bounded on the north by the centre of West Regent Street, Glasgow. The southern half of West Regent Street thus fell within their titles. West Regent Street is a public street. By sec. 28 of the Glasgow Police Act 1866 (29 and 30 Vict. cap. cclxxiii.) “Every public street, for the objects and purposes thereof and of this Act, and the public sewers for the drainage thereof, shall vest in the [police] board, but it shall be lawful for the proprietors of lands and heritages adjoining any such street to construct cellars or vaults under the foot-pavement opposite to such lands and heritages where by their titles they have a right so to do.” The company had such a right.

The Glasgow City and District Railway Company were incorporated under their private Act (45 and 46 Vict. cap. ccxvi.) in 1882, and had power thereunder to form a railway westward from Queen Street Station passing under West Regent

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Street (referred to in their Act as railway No. 1.)

Section 34 of the statute provides—“Subject to the provisions of this Act the company may, for the purpose of constructing railway No. 1, appropriate and use the subsoil of the streets, roads, roadways, lanes, footpaths, and places shown on the deposited plans, and described in the deposited books of reference, and may break up, remove, alter or interfere with all drains or sewers, and all water, gas, and other pipes therein or thereunder, and the company may during the construction of the railways cross, alter, stop up, or divert the said streets, roads, roadways, lanes, footpaths, and places, or any of them, and use and appropriate any of them so stopped up.” …

Section 55 provides—“With respect to any lands which the company are by this Act authorised to enter upon, take, and use for the purposes of the railways, and which are in or under the roadway or footpath of any street, road, or lane shown on the deposited plans, and described in the deposited books of reference, the company shall not be required wholly to take the lands or any part of the surface thereof, or any cellar, vault, or other construction therein or thereunder held or connected with any house fronting or abutting on any such street, road, or lane, but the company may appropriate and use the subsoil and under-surface of the roadway or footpath of any such street, road, or lane, and if need be they may purchase, take, and use, and the owners of, or other persons interested in such cellar, vault, or other construction shall sell the same for the purposes of the railway, and no such subsoil or under-surface, cellar, vault, or other construction to be appropriated and used or purchased as aforesaid shall be deemed part of a house or other building or manufactory within the meaning of sec. 90 of the Lands Clauses (Scotland) Act 1845.”

Section 56—“Nothing contained in the sections of this Act of which the marginal notes are ‘interference with streets’ … ‘company may acquire easements only under streets or roads, and may purchase cellars, &c.,’ nor any dealing with lands in pursuance of those sections or any of them, shall relieve the company from the liability to compensation under any Act incorporated with this Act, and every case of compensation to be ascertained under this Act shall be ascertained according to the provision contained in the Lands Clauses Consolidation (Scotland) Act 1845.”

This Act incorporated with it the Lands Clauses Consolidation Act 1845, the Lands Clauses Consolidation Amendment Act 1860, and the Railways Clauses Consolidation Act 1845, except where expressly varied by or inconsistent with the private Act. By section 6 of the last mentioned of these Acts it is provided—“That in exercising the powers given to the company by the special Act to construct the railway, and to take the lands for that purpose, the company shall be subject to the provisions and restrictions of this Act, and in the said Lands Clauses Consolidation (Scotland) Act, and the company shall make to owners and occupiers of, and all other parties interested in any lands taken or used for the purposes of the railway, or injuriously affected by the construction thereof, full compensation for the value of the lands so taken or used, and for all damage sustained by such owners, occupiers, and other parties by reason of the exercise, as regards such lands, of the powers by this or the Special Act, or any Act incorporated therewith, vested in the company.”

By the Lands Clauses Consolidation (Scotland) Act 1845, sec. 83, it is provided as follows—“That the promoters of the undertaking shall not, except by consent of the owners and occupants, enter upon any lands which shall be required to be purchased or permanently used for the purposes and under the powers of this or the Special Act, until they shall either have paid to every party having any interest in such lands, or deposited in the bank in the manner herein mentioned, the purchase money or compensation agreed or awarded to be paid to such parties respectively for their respective interests therein; provided always that for the purpose merely of surveying and taking levels of such lands, and of probing or boring to ascertain the nature of the soil, and of setting out the line of the works, it shall be lawful for the promoters of the undertaking, after giving not less than three or more than fourteen days' notice to the owners or occupiers thereof, to enter upon such lands without previous consent, making compensation for any damage thereby occasioned to the owners or occupiers thereof.”

In the course of forming the railway No. 1, which from the nature of its course required to be nearly all in tunnel, the company opened up part of West Regent Street, including the part of it belonging to the Coal Exchange, and made a considerable excavation therein for the purpose of their works, with the object of driving the tunnel through the subsoil and under-surface of the street. Before doing so the company gave notice to the Corporation of Glasgow, in terms of an obligation imposed on them by the Special Act to give notice at least twenty-one days before commencing any works the execution of which would in any way interfere with or affect any of the roads or streets in the city and royal burgh, or the sewers or drains belonging to the corporation. No notice to treat for the lands upon which operations were thus begun was given to the Coal Exchange Company.

The Coal Exchange Company brought this petition in the Sheriff Court, craving the Court “to interdict the defenders from entering upon the property of the pursuers in West Regent Street of Glasgow, including therein the whole of the southern half of West Regent Street from the middle line thereof southwards between the central line of West Nile Street upon the east, and Renfield Street upon the west, and from digging and making excavations therein, or for removing any part thereof, or from otherwise interfering with the same in any manner of way, and to grant interim interdict, and find the pursuers entitled to expenses in the event of the defenders opposing the prayer of this petition, and decern therefor, reserving to the pursuers their claim for penalties.”

They averred that the company would require in constructing the railway, to acquire from them, and permanently to use, a stratum or portion of their lands, being part of the block of property above mentioned, and that the construction of the works would also, apart from structural damage, injuriously affect the remainder of the property

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by interfering with the streets forming part of it, and that the operations of the company were for forming a tunnel in and under the part of West Regent Street belonging to them.

They reserved all claim for penalties under the Lands Clauses Consolidation Act, and for compensation and damages.

They pleaded—“The defenders having entered upon the property of the pursuers, being lands required to be purchased or permanently used for the purposes of their Special Act, without having paid to the pursuers their interest therein, the pursuers are entitled to interdict, as craved.”

The defenders pleaded, inter alia, that the pursuers' averments were irrelevant and insufficient.

The Sheriff-Substitute ( Erskine Murray) granted interim interdict till further orders of Court.

“ Note.—The pursuers, the Coal Exchange Company, are proprietors of a block of property facing West Regent Street on the north. By their titles they have right to the solum of half that street, their north boundary being the centre of the street. By the Glasgow Police Act of 1866, ‘Every public street, for the objects and purposes thereof and of this Act, and the public sewers for the drainage thereof, shall vest in the board.’ The defenders, the Glasgow City and District Railway Company, by their Act of Parliament, section 34, have power, subject to the provisions of the Act, to appropriate and use the subsoil of the streets, &c. By section 55 (rubric) they ‘may acquire easements only under streets or roads, and may purchase cellars,’ &c., without being bound to take the whole of the lands. This section 55 lays down that the company ‘shall not be required wholly to take those lands, or any part of the surface thereof, or any cellar, vault, or other construction therein or thereunder, held or connected with any house fronting or abutting on any such street, road, or lane, but the company may appropriate and use the subsoil or under-surface of the roadway or footpath of any such street, road, or lane, and if need be they may purchase, take, and use, and the owners of and other persons interested in any such cellar, vault, or other construction shall sell, the same for the purposes of the railways; and no such subsoil, cellar, vault, or other construction to be appropriated and used or purchased as aforesaid shall be deemed part of a house or other building or manufactory within the meaning of section 90 of the Lands Clauses Act.’

Section 56 lays down that nothing contained in the above-quoted sections shall relieve the company from the liability for compensation under any Act incorporated with this Act; the Lands Clauses Acts and Railways Clauses Acts, inter alia, are incorporated with the present Act.

The defenders are in course of making excavations in the causeway of West Regent Street, in the portion falling within pursuers' titles, for the purposes of their railway, which is intended to run in a tunnel carried westward below the causeway of West Regent Street. The pursuers have brought the present petition to have them interdicted from doing so. It seems that by the Lands Clauses Act, section 83, the promotors of an undertaking shall not, except by consent of the owners and occupiers, enter upon any lands which shall require to be purchased or permanently used for the purposes of the Act, until they shall have paid or deposited in bank the purchase-money or compensation in respect thereof. This they have not done in the present case, and hence the petition.

The defenders contend, in the first place, that the pursuers have no title, the Police Board being vested in the street; and (2) that even if this is not correct, the case is one not of a company entering upon lands, but only of a claim for compensation in respect of damage, and that therefore interdict is not the proper remedy, but that the pursuers should simply state and carry out their claim for compensation in the usual way.

As regards the first question raised by the defenders, it is clear, and is indeed practically admitted, that the Police Act only vests in the board the street in so far as required for the purposes of the Police Act. Otherwise the property of the street remains as it is. The pursuers therefore are clearly still proprietors of the solum of their half of West Regent Street, and all that is below it, including the site of the proposed tunnel. The objection of want of title is thus a mistake.

But is the formation of the tunnel an entering on lands necessitating payment on deposit under section 83 of the Lands Clauses Act, or is it simply damage giving rise to a claim for compensation? This is a more difficult question. The Lands Clauses Act apparently had only two things clearly in view, the actual taking of lands, or damage done to lands or properties. The idea of an ‘easement’ under a street or road—in other words, the right of making a tunnel without taking the surface—was a later idea still; it seems in principle to fall under the former rather than the latter alternative. For it is not damage done to a parties’ property, but the actual taking possession of it to a certain extent. Some of the land is taken, though not the surface of it. The definition of ‘lands’ in the Lands Clauses Act includes ‘houses, lands, tenements, and heritages of any description or tenure.’ The earth below the surface is certainly part of a heritage. And this view has been already adopted by the English Courts in the case of Hill v. The Midland Railway Company, L.R., 21 Chancery, 143 (1882), where it was held that an easement of the kind in question was in the English phrase a hereditament, and the railway company were entitled to enter upon the space to be occupied by their tunnel on depositing the assessed value of the easement. This is directly in point. As the railway company in the present case have made no such deposit, the pursuers are entitled to their interdict.”

The defenders appealed to the Sheriff ( Clark), who pronounced this interlocutor:—“For the reasons assigned in the subjoined note, Finds that the petitioners have failed to set forth a case sufficient to warrant the Court to interfere by way of interdict; therefore recals the interlocutor appealed against, and dismisses the petition: Finds the petitioners liable in expenses; allows an account, &c.

“ Note.—After a careful and repeated consideration of the authorities, both English and Scotch, cited at the debate, I have, contrary to the opinion I at first entertained, arrived at the conclusion expressed in the above interlocutor—

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that the case as stated by the petitioners contains no sufficient grounds to warrant the Court in interfering by way of interdict to prevent the respondents from carrying out the operations contemplated by their Special Act. If the petitioners can ultimately establish that they have suffered injury from the operations of the respondents, they will not be without the appropriate remedy. But at present what the Court has to deal with is—not whether the petitioners may ultimately be found entitled to compensation, but whether at present a case has been made out for interference by interdict.

It is important to notice what forms the prayer of the petition. It craves interdict against the respondents entering on, digging, excavating, or removing any part of, or interfering in any way with, what is alleged to be the property of the petitioners. Now, this alleged property forms, in point of fact, part of streets within the city of Glasgow. But by the Police Act of 1866, section 289, these streets are vested in the Police Board in so far as required for the purposes of traffic, drainage, and the requirements of the public generally, the only rights remaining in the adjacent proprietors being that of constructing cellars or vaults under the foot-pavement, and the ownership of the minerals or strata lying underneath the subsoil required for the purposes of the Police Board. If this view be correct, then the respondents, in carrying out the provisions of their Special Act, are answerable only at the suit of the Police Board, except as regards cellars or vaults, and any interference with the subsoil at a greater depth than that required for police purposes. These considerations must be kept in view in order to arrive at a reasonable interpretation of section 55 of the respondents' Special Act. By that section, as well as others, a plain distinction is drawn between what the respondents may appropriate and use without purchase, and what they can only take and use on condition of purchase. As regards the former, they may appropriate and use, for the purposes of their undertaking, the surface and under-surface of the street without any purchase or leave from the adjacent proprietors, because it is already dedicated to the public service as being vested in the Police Board. As regards the latter, the respondents can only take and use, for the purposes of their undertaking, vaults, cellars, &c., not held by the Police Board, but by the adjacent proprietors, on obtaining right to do so by purchase or otherwise from the said proprietors. That appears to me to be the proper meaning of section 55, as read with the previous section 34, and to be based upon the distinction between ground already appropriated to the public service and ground still remaining under the plenum dominium of private persons. Now, as regards the subjects in relation to which the present interdict is asked, it seems to me that the petitioners have stated no case to obtain interdict, either as regards the surface of the streets, the subsoil immediately thereunder, or the ground at a still greater depth. If the operations complained of affect the surface of the streets or the subsoil thereunder, these are matters for which the respondents are answerable not to the petitioners, but to the Board of Police, who are not moving in the matter. If, again, the said operations are sought to be interdicted in respect of any injury to the vaults or cellars which would thereby accrue, no relevant allegations are made to that effect. Lastly, if the interdict is sought on the ground that the respondents' operations will cause loss and damage to the petitioners from injurious interference with materials or minerals at a greater depth than that to which the rights of the Police Board extend, then in this case also no allegations sufficiently relevant for this purpose have been made. Upon the whole, therefore, I am of opinion, that whatever remedy may be competent to the petitioners in the event of injury or damage arising to them by reason of the defenders' operations, they have stated no sufficient case to justify the serious intervention of interdict. The allegations of the petitioners, while disclosing no proper title, are at best mere suggestions of contingencies which may never arise, and which, if they do, can always be compensated by damages as they accrue. To stop an important and useful public undertaking sanctioned by the Legislature, on mere suggestions of this kind, seems to me a course which the Court would not be warranted in taking.

It will be observed that I have not only recalled the interim interdict, but dismissed the petition. I have done this because in dealing with the case I have assumed the accuracy of the petitioners' averments as regards matters of fact, and have deemed it necessary to consider only their relevancy. That being so, to make up a record could serve no purpose but to create additional expense; for unless the petition were so amended as virtually to introduce new grounds of action, I could not—in view of the reasons above stated—come to any other conclusion than that embodied in the interlocutor.”

The pursuers appealed to the Court of Session, and argued—That the real question between the parties was whether or not the pursuers were to receive any compensation for the damage the defenders were doing to their lands. The law as to that was illustrated in Coverdale v. Chalton, L.R., 4 Q. B. Div. 104. The company might be entitled to take the subsoil under roads and street, but they could only do so under the provisions of their Acts, and the sections of the Lands Clauses Act (which was incorporated with their private Act) giving this power were the 17th, 83d, and 84th — Ramsden v. Manchester Railway Company, 1 Well., Hud. & Gordon, Ex. 723; and Hill v. Midland Railway Company, May 4, 1882, L.R., 21 Ch. Div. 143. The action of the railway company was illegal, as no notice such as was required by section 17 of the Lands Clauses Act had in the present case been served upon the pursuers, who craved interdict until the company consigned or found caution for damage done. The words made use of in the different sections of the Act were of importance. In section 34 the word was “appropriate,” whereas in section 55 it is “enter upon, take, and use,” and elsewhere “purchase.”

Argued for the respondent—The statutory formalities had been complied with, as the notice was served upon the corporation in whom was vested the solum of the street for public purposes. In any event, the railway company was not bound to “purchase” the subsoil. Under the Lands Clauses Acts there were two kinds of claims—one for payment before entry on the

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lands, and another for compensation for damage done. The present question turned upon the construction of sections 34 and 55 of the Company's Special Act, for by the provisions of sections 36 and 37, which did not apply to this case, the company could appropriate and use the subsoil of the street by giving notice to the magistrates. The works could not competently be stopped by interdict.— South v. E. L. Railway Company, April 26, 1873, L.R., 16 Eq. 108; Magistrates of Leith, 15th November 1878, 6 R. 185.

At advising—