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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clyde v. The Glasgow City and District Railway Co. [1885] ScotLR 22_879 (16 July 1885)
URL: http://www.bailii.org/scot/cases/ScotCS/1885/22SLR0879.html
Cite as: [1885] SLR 22_879, [1885] ScotLR 22_879
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
[Sheriff-Substitute of Lanarkshire.
v.
Facts:
A railway company whose lines were to be carried through a large town were bound by their Act to restore portions of the carriageway of any street to be from time to time closed by them for traffic for the purposes of their works within three months from the day on which they should be so closed, under a penalty of £20 for each day for which such portions remained un restored beyond that period, which penalty should be recoverable in the Sheriff Court on summary application by any proprietor
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or tenant in that portion of the street. In course of construction of a line of railway, the company kept the carriageway of a street closed for traffic beyond three months. Held that the provision for penalty to be recovered by summary application did not exclude a common law action for damage, caused to the business of an occupier of premises in the portion of the street closed, by the closing of the street for more than the period allowed by the statute.
This was an action of damages raised by John Clyde, licensed broker, 39 Nicholas Street, Glasgow, against the Glasgow City and District Railway company. He averred as follows:—For ten years previously he had carried on business in different premises in Nicholas Street. In May 1883 the defenders commenced the construction of a line of railway, for which they had obtained Parliamentary powers, from the Stobcross Branch of the North British Railway to the Glasgow and Coatbridge Branch. On 1st September they closed the carriageway of Nicholas Street and erected barricades across the street beside the pursuer's premises. On 12th October the street was closed for traffic of every kind.
By section 39th of the Act 45 and 46 Vict. cap. ccxvi., being the Act by which the defenders are empowered to make the said railway, it is provided—“In constructing the railways the company shall restore the portions of the carriageway of any street to be from time to time closed by them for traffic for the purposes of the works, within three months from the day upon which such portions shall respectively be so closed, and they shall be liable to a penalty not exceeding £20 for every day after the expiration of the said period during which such portions respectively shall not be restored, and such penalty shall be recoverable with costs in the Court of the Sheriff of the county of Lanark on summary application by all or any of the proprietors or tenants in that part of the street which is opposite the respective portions which shall not be restored.”
“(Cond 5) In violation of said section, and in contravention thereof, and notwithstanding that they were not entitled to occupy and close the traffic of said street for a longer period than three months, the defenders illegally and unwarrantably closed, either wholly or partially, for traffic the said street from the said 1st day of September 1883 till the 17th day of March 1884, during which the said portion of the carriageway was not restored. (Cond. 6; In consequence of the defenders having illegally and unwarrantably closed for traffic the said street, and erected a barricade thereon across said street, and beside the premises occupied by the pursuer, for a much longer period than three months, the pursuer has suffered great loss and damage in his business of a licensed broker, and he is still suffering great loss and damage, and he believes his business has been permanently ruined.”
He estimated his damage at £50.
The defenders admitted the closing of the street, but denied that it had been kept closed onger than their Act permitted. They also denied that they were liable in reparation to the pursuer.
The pursuer pleaded—“The pursuer having sustained loss and damage by and through the illegal and unwarrantable operations and actings of the defenders, or those for whom they are responsible, and the sum of £50 being a fair and reasonable sum in name of compensation and damages, decree should be granted in terms of the petition.”
The defenders stated the following preliminary pleas—“(1) The action is incompetent. (2) As proceedings founded on section 39 of the company's Special Act can only be taken summarily under the provisions of the Summary Jurisdiction (Scotland) Acts 1864 to 1881, the present action is inept and unwarranted, and falls to be dismissed with expenses.”
The Sheriff-Substitute ( Lees) sustained these two pleas for the defenders, and dismissed the action.
“ Note.—If this is an action for statutory penalties, then it must be brought under the Summary Jurisdiction Acts, under which the inquiry is of a summary character without record of evidence, or appeal to Sheriff, Court of Session, or House of Lords, but only to the Court of Justiciary on some point of law.
If, on the other hand, this is an action for damages at common law, I cannot give damages against the defenders for doing what Parliament has allowed them to do. The Legislature has allowed them, in what is supposed to be the public interest, to do what they are doing, but it has said that if they obstruct the streets beyond a certain period, then certain persons (the frontagers) may crave the imposition of a penalty of limited amount. The pursuer asks that I shall extend to him a remedy which Parliament has withheld, and a remedy which, of course, might be, if his plea is sound, of indefinite amount. It is no use to say he is entitled to damages if the defenders do something which their Act does not sanction, for their Act does sanction what they are doing, and if they unduly protract what they are doing the Act has provided what may follow.”
The pursuer appealed to the Sheriff, who adhered.
“ Note.—The penalties can only be sued for by the proprietors or tenants, the very persons who otherwise would claim damages. It seems therefore very difficult to suppose that the Legislature intended that they should recover both under the statute and at common law.”
The pursuer appealed to the Court of Session, and argued—The obligation of the defenders to restore in three months was absolute— Glasgow City and District Railway Company v. Hutchison's Trustees, March 20, 1884, 21 S. L.R. 527; Idem v. Meldrum's Trustees, July 15, 1884, 21 S.L.R. 778; Idem v. Magistrates of Glasgow, July 18, 1884, 21 S.L.R. 754;—beyond that time they were in unlawful possession of the street, and he was therefore entitled to reparation for the loss caused by an illegal act on their part. The right to sue for damages at common law and for a penalty under the Act were entirely distinct, and the creation of the latter by the Act could not abrogate the former without express words to that effect. None of the cases relied on by the other side decided the point involved here. In all of them the claim was for compensation for lawful obstruction, and none of them (except
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Wilkes v. The Hungerford Market Company, November 19, 1838, 2 Bingham's New Cases, 281, which was in pursuer's favour) were at common law, but under clause 6 of the Railway Clauses Consolidation Act. The defender replied—If none of the authorities directly decided the question here raised, they at least contained distinct expressions of opinion against the pursuer's contention. Where a statute empowered a public company to carry on operations involving the temporary obstruction of a public thoroughfare, and directed a mode of action for damage thereby caused, that necessarily excluded any other form of action. The right to obstruct the thoroughfare was not a common law right, but the creature of the statute, and the remedy which was thereby given for the wrongful use of such a right was equally the creature of the statute, and could only be exercised as therein conferred— Ricketts v. Metropolitan, Railway Company, L. R., 2 Eng. and Ir. App. 175; Caledonian Railway Company v. Walker's Trustees, March 29, 1882, 9 R. (H. L.) 19; Metropolitan Board of Works v. M'Carthy, L.R., 7 Eng. and Ir. App. 243; Scottish Central Railway Company v. Cowan's Hospital, June 12, 1850, 12 D. 999; Caledonian Railway Company v. Ogilvie, March 30, 1856, 2 Macq. 229. The present action was therefore incompetent. The decision in Wilkes was condemned in Ricketts.
At advising—
Now, it follows from this that the time is specific during which that occupation is to be allowed. The provisions of the Act afford no grounds—which there may have been in some of the cases referred to—for saying that the time was indefinite, and that the legal occupation shaded so imperceptibly into the illegal that it was impossible to draw the line sharply between them. Here, on the contrary, the line is quite sharply drawn; they are to be allowed to occupy for three months, and after that a penalty attaches to their act of obstruction, and if a penalty attaches to the act, then the act is illegal. There fore we start with this, that they, the railway company, were not in legal but illegal possession or occupation, and if they were obstructing the highway by an act of illegal occupation, the obstruction was one which the law did not sanction. That being so, what the pursuer says is this— [ reads articles 5 and 6 of condescendence, ut supra].
The pursuer's shop is situated in a part of the street which is obstructed in this way. He says the obstruction operates so that his shop is partially closed to the public, the result being that he has suffered personal loss and damage. He believes that his business has been permanently ruined. In these circumstances the question is, whether he is entitled to bring an action to recover for such damage.
Now, I see no reason why, if the company have done an illegal act, the man who suffers thereby should not be entitled to redress. Nor do I think here, any more than I did in the case of Walker, which has been referred to, that the fact that other persons may also have suffered can make the slightest difference in the claim of the pursuer for the redress which he himself seeks. I think that is no answer to the pursuer's claim, and it would be very strange if it were. There is no doubt that proximity and ease of access, and the like, are elements in all such questions, and although little heed would probably be given to a claim by an ordinary wayfarer because he was obstructed in going by a particular passage, whereas he might have gone another way, yet I think, that those who have business premises in the street the access to which is obstructed stand entirely in a different position. Nor do I say what the result might be if the injury were more remote. All I say is, that the personal injury having been suffered by the pursuer here in consequence of an illegal act on the part of the defenders, I see no reason whatever why that illegal act should not have the ordinary result in liability on the part of the defenders to make good the damage which may be shown to have been suffered.
I do not think it necessary to say any more. The authorities which have been cited to us are not all consistent. On the contrary, one may with accuracy say that they are perplexing. But I have stated the result to which I propose in the circumstances of this case we should come.
The next plea which the Sheriffs have sustained is—[ reads]. A claim of damages could not have been brought under the Act, and how is it incompetent either in its own nature or because it should have been brought under the Act I do not understand. But the Sheriff-Substitute says—“I cannot give damages against the defenders for doing what Parliament has allowed them to do. The Legislature has allowed them, in what is supposed to be the public interest, to do what
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Now, does the Act of Parliament sanction that? Not at all. It sanctions it for three months, but beyond that it not only does not sanction it, but prohibits it very emphatically. It says the closure is not to continue more than three months. Beyond that the authority of the statute is withdrawn. But it enjoins something besides; it enjoins restoration within or at the end of the three months. Now, the prohibition was violated, and the injunction to restore was set at naught. Therefore the statute does not sanction what has been done. It is an illegal act which they have done, subjecting the wrongdoer to a penalty. To say that the Act of Parliament sanctions what it prohibits, and subjects to a penalty for the doing of it, is a very strange proposition. The Legislature, I repeat, sanctions the obstruction for three months, and there is no action for that time, but beyond that time the Legislature declared the doing of that thing to be illegal.
The pursuer is a shopkeeper in the immediate vicinity of the obstruction, and he says he has suffered damage by this illegal act. Now, I think it is a general proposition, from which there is no exception, that if a party avers damage resulting to him from the illegal act of another he is entitled to compensation. The damage may be too remote. It is hardly suggested that it is too remote here; it is indeed so close as this, that the damage results to a shopkeeper from preventing his customers having access to his shop. That is not remote or consequential damage in the sense in which that expression is generally used. You illegally stop the access to a man's shop; that is a wrong, and the expected, natural, and immediate consequence is that his business is injured. This pursuer avers that, and offers to prove it. I think that is a perfectly relevant action of damages, and I am of opinion that the pursuer is entitled to prevail at this stage of his case. I do not think that we have much to do with cases about railway compensation, which are somewhat perplexing. I expressed at some length my own view in the case of Walker, which went to the House of Lords. There compensation was allowed to be ascertained in a manner prescribed by statute for the lands being injuriously affected by the operations conducted under the statute. The operations are quite lawful and authorised by the statute, but they are authorised upon the condition that compensation should be paid to those whose lands or properties are injuriously affected thereby. The first occasion of stumbling in dealing with these cases arose from the case of Ogilvy, but, as I endeavoured to point out in the case of Walker, and in the course of the argument to-day, the difficulty which that case presented arose from the House of Lords affirming that Ogilvy's land was not injuriously affected by a railway crossing a public road upon the level in the immediate vicinity of his entrance gate. I should hardly have said that was a legal proposition at all. I should have thought it a question of fact. But if that is a question in law—and the House of Lords found in point of law that the estate was not injuriously affected—then the case of Ogilvy goes no further than that in point of law a man's estate is not injuriously affected by an interruption to his access which diminishes the market value of his property. Beyond that it is no more than this, that the man whose estate is not injuriously affected shall have no claim for damages. But we have really no concern with that class of cases here, and I only notice it because of some obiter dicta suggesting a test—a partial test at the best—in the opinion of Lord Cranworth, of a right of action at common law, if the statute had not authorised the thing occasioning the damage alleged. I do not think that is a useful test at all. I do not see the utility of that test. Lord Cranworth, who had suggested it, plainly thought it a useful one on some views which I have failed to apprehend, but he intimated, on the contrary, a very clear opinion that if a public road or street was illegally obstructed—that is, without the authority of statute—every member of the public who is obstructed in his passage would have an action of damages at common law, and I really cannot for a moment doubt that. To say that a man may be illegally obstructed in his passage along a public road without having any claim for compensation against the obstructor is to my mind extravagant. For instance, a wall may be put across a public road which interrupts a man in a journey, on the completion of which his fortune may largely depend; it may be done on purpose. It is not an assault, but he is obstructed and cannot get on. Now, the man who has done that is surely liable to him in damages. Lord Cranworth has no doubt of it whatever. He says, as often as you have the obstruction, as often will you have the action of damages, and the wrongdoer cannot plead that there were others besides you who suffered. Because he has injured them all it is no answer to say that he is not liable to any one of them. I should have thought it a typical case that a shopkeeper in a street has his business damaged or destroyed by illegal operations in the street which compel him to shut his shop by preventing access to it. It is only a sum of £50 that is asked here, and one would not suppose the amount of business damaged to be very large. But; that is the pursuer's own estimate of it, and people do not generally under-estimate claims of this kind. That, however, is not the point. Upon the principle of the thing, to say that a shopkeeper whose business is destroyed by illegal obstruction on the street has not a claim against the wrongdoer is a proposition which I cannot for a moment entertain.
I am therefore clearly of opinion that these pleas which the Sheriffs have sustained ought to be repelled, and the case remitted to them to proceed as accords of law.
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The Court pronounced this interlocutor:—
“The Court sustained the appeal and recalled the interlocutors of the Sheriffs, repelled the two pleas for the defenders above quoted and remitted to the Sheriff with instructions to proceed as accords.”
Counsel for Pursuer (Appellant)— Rhind— Gunn. Agent— Robert Stewart, S.S.C.
Counsel for Defenders (Respondents)— R. John stone— R. V. Campbell. Agents— Millar, Robson, & Innes, S.S.C.