Scottish Court of Session Decisions

The Callander and Oban Railway Company having taken a portion of the entailed estate of Drummond and others in the county of Perth, belonging to the Baroness Willoughby de Eresby, and held by her under a deed of entail dated and recorded in November 1874 for the purposes of their undertaking, the purchase money therefor was fixed by arbitration, under the provisions of the Lands Clauses Consolidation (Scotland) Act 1845, on 14th November 1883, at the sum of £77, 6s. 7d., which sum was consigned in bank in terms of that Act.

Subsequently the railway company took another portion of the estate for the same purposes, and the purchase money therefor was in like manner fixed by arbitration at £207, and that sum was also consigned in bank.

On 28th March 1876 Lady Willoughby de Eresby presented a petition to the Court for authority to uplift a sum amounting to £2182, 19s. 7d. which had been consigned by the Callander and Oban Railway Company, and on 14th July 1876 the Junior Lord Ordinary found that the petitioner had expended the sum of £2835, 13s. 11d. on permanent improvements on the entailed estates, and granted warrant to the petitioner to uplift the said sum of £2182, 19s. 7d. in repayment pro tanto of the improvement expenditure, leaving a balance expended on improvements of £652, 14s. 4d.

On 19th March 1879 Lady Willoughby de Eresby presented another application to uplift a sum of £406, 7s. 7d. consigned by the City of Glasgow Water Commissioners, and on 19th July 1879 the Junior Lord Ordinary granted warrant to uplift the said sum and apply it in repayment pro tanto of the said balance of £652, 14s. 4d., leaving a balance expended on improvements on the estates of £246, 6s. 9d.

On 27th February 1885 Lady Willoughby de Eresby presented this petition to the Court setting forth the above facts.

The petition further stated that in these circumstances she was desirous of obtaining the authority of the Court to uplift and apply the foresaid consigned sums of £77, 6s. 7d. and £207 in repayment of the balance of £246, 6s. 9d., that she was also desirous of uplifting the balance of the consigned sums, amounting to £37, 19s. 10d., which remained after repayment of the sum so found to have been expended, such balance being less than £200, and of acquiring the same for her own use and behoof; and that the petition was presented in terms of the Lands Clauses Consolidation (Scotland) Act 1845, and the Statutes 11 and 12 Vict. cap. 36, 16 and 17 Vict. cap. 94, 31 and 32 Vict. cap. 84, 38 and 39 Vict. cap. 61, and 45 and 46 Vict. cap. 53, and relative Acts of Sederunt. The names and designations of the three next heirs entitled to succeed after her to the estates were set forth in the petition. The petition set forth sec. 26 of the Entail Amendment Act 1848, and sec. 79 of the Lands Clauses Consolidation (Scotland) Act 1845.

Page: 49↓

The prayer of the petition asked for an order for intimation, advertisement, and service on the three next heirs, for the appointment of a curator ad litem to the second and third heirs, who were in minority, and further prayed the Court “to approve of and authorise the proposed application of the foresaid consigned sums of £77, 6s. 7d. and £207 in repayment of the said sum of £246, 6s. 9d., being the balance of the sum found to have been expended on permanent improvement on said entailed lands and estate as aforesaid, and to issue a decree to that effect, and to grant warrant to the petitioner to uplift the said consigned sums and to apply the same in repayment of the foresaid sum of £246, 6s. 9d. expended as aforesaid, and to grant warrant to and authorise the petitioner to uplift the balance of the consigned sum, amounting to £37, 19s. 10d., together with the interest accrued upon the said sums of £77, 6s. 7d. and £207, for her own use and behoof, and further to find the Callander and Oban Railway Company liable to the petitioner in payment of the expenses to be incurred under this application.”

The Lord Ordinary ( Trayner) having ordered intimation, advertisement, and service, appointed a curator ad litem in terms of the prayer, and subsequently on 30th May 1885 pronounced an interlocutor approving the discharge and acknowledgment by the petitioner for expenditure in the improvements on the entailed estates, interponed authority thereto, and decerned, and found the Callander and Oban Railway Company liable to the petitioner in the expenses of the petition and procedure thereon.

When the Auditor's report came before the Lord Ordinary, the railway company objected thereto (1) In respect the Auditor had sustained charges incident to the advertisement of the petition, to the service thereof on the three next heirs, and to the appointment of a curator ad litem to the second and third heirs; (2) in respect he had sustained against them the whole instead of one-half of the charges incident to the drawing of the petition, and carrying it through the Court, including fees to a reporter appointed by the Lord Ordinary to inquire into the matters set forth in the petition.

On 18th July 1885, the Lord Ordinary having heard counsel, repelled the objections, approved of the Auditor's report, and decerned for the amount thereof against the railway company.

The railway company reclaimed, and argued—(1) Under the Lands Clauses Act no advertisement of the petition was required, neither was it necessary to call the three next heirs. The charges incident to these proceedings ought therefore to have been disallowed. (2) Though the railway company were probably not bound to pay any of the expenses in connection with the petition, they were willing, as matter of concession, to pay one-half, in terms of the decision in Drummond Hay, Nov. 12, 1873, 1 R. 180, and Countess of Stair, May 20, 1882, 19 S.L.R. 618. The purpose to which the money was to be applied after it was uplifted was not one of the purposes authorised by the Lands Clauses Act, and it was only under that Act that power was given to the Court to find the promoters liable in such expenses as those here sought to be recovered.

Argued for the petitioner—(1) The expenses of advertisement, &c., were all incurred by order of the Court. The Lord Ordinary in ordering advertisement and service followed the invariable practice in such petitions, and further, these very charges (including the appointment of a curator ad litem) had been held to be good charges against the promoters in the case of the Countess of Stair, supra cit. Though the statute did not order intimation and service in such a petition as the present, it was in the discretion of the Court to make such order in precisely the same way as in petitions to disentail, &c., where no consents were required— Davys, October 29, 1870, 9 Macph. 44. (2) This objection would have been good if the improvements had been constituted in the present petition, but they had been constituted in earlier proceedings. The question was decided by a train of decisions. In the case of Grant, May 29, 1851, 13 D. 1015, it was expressly decided that such an application as the present was within the spirit of the Lands Clauses Act, and that the expenses fell to be borne by the promoters. In the cases of Lord Torphichen, July 19, 1851, 13 D. 1400; Erskine, Nov. 29, 1851, 14 D. 119; Drummond Hay, and Countess of Stair, supra cit., the constitution of the improvement debt and the prayer to uplift and apply were united in the same petition, and there it was held that as the petitioner would necessarily have incurred the expense of coming to the Court for the constitution of the debt, he was liable in one-half the expenses of the application; but in all those cases it was recognised that the promoters were liable in the other half, i.e., the expenses which were necessarily incurred in uplifting and applying the money.