Scottish Court of Session Decisions

The Merchant Shipping Act 1854 provides, sec. 404—“Each of the said general lighthouse authorities (of which the Commissioners of the Northern Lighthouses is one) shall have power within its jurisdiction to execute the following works and do the following things:—(1) To erect new lighthouses with all requisite works, roads, and appurtenances, or alter or remove any existing lighthouses. … (3) To take and purchase any land which may be necessary for the above purposes, or for the maintenance of the works or the residence of the lightkeepers.”

By section 412 The Lands Clauses Consolidation (Scotland) Act 1845 is incorporated in the Act, it being declared that the Act “shall apply to all lighthouses to be constructed, and all land to be purchased, under the powers thereof.”

In 1883 the Commissioners of Northern Lighthouses, incorporated by the Merchant Shipping Act 1854, determined to erect a lighthouse upon the island of Fidra, in the Firth of Forth. In pursuance of that purpose they entered into negotiations with Lady Mary Hamilton, the then heiress of entail in possession of the entailed estate of Dirleton, of which estate Fidra formed part. A minute of agreement was entered into between Lady Hamilton's curator bonis and the Commissioners, which narrated that the Commissioners in exercise of their statutory rights to acquire land for the purposes mentioned in the 404th section of the Merchant Shipping Act 1854, and under the powers and provisions of that Act, and of the Lands Clauses Consolidation (Scotland) Act 1845, and Lands Clauses Consolidation Amendment Act 1860, had resolved to acquire certain portions of Fidra Island in order to erect a lighthouse, lightkeeper's house, &c., the compensation to be paid by them therefor to be fixed by arbitration in terms of the Lands Clauses Consolidation (Scotland) Act 1845. Lady Mary Hamilton (by her curator bonis, Ralph Dundas, C.S.) agreed to convey the said portions of land to the Commissioners on payment of an annual feu-duty, to be fixed by the arbiters to be appointed. Arbiters were appointed, and after their appointment they selected an oversman. On the oversman the submission ultimately was devolved. Lady Mary Hamilton died in the course of the proceedings, and her daughter Miss Mary Nisbet Hamilton, the pursuer, was duly sisted as claimant.

On 28th February 1885 the oversman issued his final sentence and decree-arbitral. He found Miss Hamilton entitled to an annual feu-duty of £48,10s. in respect of the value (£970) of the land taken The nearest point of land taken was 1270 yards from the Marine Cottage of Archerfield, 3020 yards from the mansion-house of Archerfield, and from the nearest point of the other lands of the estate of Dirleton suitable for feuing for building, 1530 yards. He found that no compensation was in point of fact due in respect of injury to the privacy of the Marine Cottage and mansion-house and policies of Archerfield, or for injury to the view therefrom (on which ground a claim had been made), but “(4) That the erection and use of a foghorn signal with the object of producing the greatest possible amount of noise in connection with the lighthouse upon Fidra Island was admitted to be in the powers of the Commissioners, and that although not included in the present plans it is in the circumstances reasonable to anticipate that a foghorn signal will be erected and used by the Commissioners in the exercise of their powers; (5) That the noise produced by such a foghorn signal, although its effect is diminished in proportion to the distance, will in fact, even at the distances above-mentioned, injuriously affect Archerfield House as a residence, and the other land of the estate suitable for feuing, so as to depreciate to some extent their pecuniary value; (6) That the proprietor of Dirleton has not yet brought any part of the land suitable for feuing into the market, and has declined offers for feus, but that it is reasonable to anticipate that part of such land may be feued for building within a period that can be foreseen; ( 7) That compensation is due, if maintainable in law, in respect of the damage to be done to the pecuniary value of Archerfield House as a residence, and of the land suitable for feuing for building on the said estate, by the use of a foghorn signal, due allowance being made for the prospective or postponed character of such damage; (8) That when damage will be in fact caused by the use of works erected, or to be erected upon land taken compulsorily under the Lands Clauses Acts to other lands of the same proprietor not taken, it is not settled, so that it can be assumed by a valuation arbiter that a claim for compensation is or is not in law mainatinable, but that it is expedient to fix the amount of such compensation in the event of its being judicially determined that in the circumstances

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of the present case, as stated in the preceding findings, a claim for compensation is on this ground maintainable in law; (9) That the sum due in the event of its being admitted or judicially determined that in the circumstances of the present case, as stated in the preceding findings, a claim for compensation is upon this ground in law maintainable (due allowance being made for the prospective or postponed character of such damage), is £1000, and that no compensation is upon any other ground in fact due in respect of injury or damage to the lands of the claimant not taken.” This sum of £1000 was in terms of the minute of agreement to be converted (if found capable of being allowed) into an annual feu-duty of £50.

The Commissioners declined to pay the said annual feu-duty of £50 for damages that might be caused by erection of a foghorn.

Miss Nisbet Hamilton brought this action to have it declared that her claim was maintainable in law “for compensation in respect of the damage to be done to the pecuniary value of Archerfield House as a residence, and of the land suitable for feuing for building on the said estate of Dirleton, by the use of a foghorn signal on Fidra Island, which forms part of the said estate, due allowance being made for the prospective or postponed character of such damage, and that a claim for compensation is in law maintainable when damage will in fact be caused by the use of works erected or to be erected upon land taken compulsorily under the Lands Clauses Acts to other lands of the same proprietor not taken; and that in the circumstances of the present case, as stated in the said findings [of the oversman] the sum due by the defenders to the pursuer for compensation upon the ground foresaid, due allowance being made for the prospective or postponed character of such damage, is in terms of the said decreet-arbitral £1000.”

She stated—“(Cond. 6) The pursuer is advised that compensation is legally exigible by her in respect of the damage to be done to the pecuniary value of Archerfield House as a residence, and of the land suitable for feuing for building on the said estate, by the use of a foghorn signal, but as the defenders have refused to pay any sum in name of such compensation the present action has been rendered necessary.”

She pleaded—“The pursuer being in law entitled to compensation for the damage to be done to the pecuniary value of Archerfield House as a residence, and of the land suitable for feuing for building on the said estate of Dirleton, by the use of a foghorn signal on the island of Fidra, and the amount of such compensation having been assessed by the said oversman at £1000, she is entitled to decree in terms of the conclusions of the summons with expenses.”

The Commissioners maintained that they were not bound to give such compensation. They stated that they had no intention to erect a fog signal on the Island of Fidra.

They pleaded that the pursuer's claim was unfounded in fact and unwarranted in law.

The Lord Ordinary decerned for the £48, 10s. of annual feu-duty which was admittedly payable as the commuted value of the £970 given by the oversman as compensation for land taken; quoad ultra assoilzied the defenders.

“ Opinion.—The pursuer is proprietor of the island of Fidra, in the Firth of Forth, and of the estate of Dirleton on the mainland. The island is distant from Archerfield House 3020 yards, and is distant from the other lands of the estate of Dirleton, belonging to the pursuer, suitable for feuing for building, 1530 yards.

The Commissioners of Northern Lighthouses, the defenders in this action, resolved to carry out a work that had been long needed, by the erection on the island of Fidra of a lighthouse, and for that purpose they required to obtain a portion of the island, which they did, to the extent of 1 acre 1 rood and 34 1 2 poles. They were entitled to demand the cession of this in virtue of statutory authority. The 404th section of the Merchant Shipping Act 1854 authorises them to take lands for their purposes, and the 412th section incorporates the Lands Clauses Consolidation (Scotland) Act 1845 with the Merchant Shipping Act, and declares that the Lands Clauses Act “shall apply to all lighthouses to be constructed, and all land to be purchased under the powers thereof.”

The parties entered into a submission to two arbiters (who ultimately devolved it upon the oversman, Mr Mackay) to ascertain what sum should be payable to the pursuer by the defenders. The oversman found and determined by his decree-arbitral that the sum due for the land actually taken was £970, which by the consent of parties was commuted to an annual payment of £48, 10s., and in regard to this item there is no dispute.

“But besides obtaining the price of the land actually taken the pursuer claimed that compensation should be made ‘in respect of the damage to be done to the pecuniary value of Archerfield House as a residence, and of the land suitable for feuing for building on the said estate of Dirleton by the use of a foghorn signal on Fidra Island which forms part of the said estate, due allowance being made for the prospective or postponed character of such damage.’ The defenders maintained before the oversman that this latter claim was inadmissible. The oversman not having power to decide this question of law, proceeded to ascertain what amount of damage should be allowed on this head in the event of it being admitted or judicially determined that a claim for compensation is on this ground maintainable in law, and the sum he fixed was £1000, which he commuted to an annual payment in perpetuity of £50. The question now to be answered is whether the latter claim is in law maintainable. The Commissioners of Northern Lighthouses have not erected a foghorn signal upon the land which they have taken, and they state upon record that they ‘have no intention to erect a fog signal on the island of Fidra.’ Although they have no present intention to do so, their statement upon record will not prevent them at some future time from coming to a different conclusion, and the decision of the present Commissioners will in no way be binding upon their successors in the absence of any contract between the present Commissioners and the pursuer. The case therefore must be dealt with upon the footing that the Commissioners have power to erect a foghorn signal, and that they may exercise such power at some future time. Hitherto there have been fog signals used by the defenders at only five of their sixty-five lighthouse stations—St Abb's

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Head, Sanda, Pladda, Mull of Kintyre, and Langness. The Commissioners use bells at rock stations far from land, and where there is not space for working fog signals—Skerryvore, Dhuheartach, and the Bell Rock. Whether Fidra which is so near the land would be considered a rock station is considered doubtful; but hitherto, even in regard to the three rock stations named, the only instructions they have issued to their light-keepers is as follows:—‘During foggy or stormy weather the light-keepers must toll the bells where such are provided.’

It is in these circumstances that the pursuer now demands a sum of money to be immediately paid to her, because at some future time the Commissioners may dispense with bells, and instead thereof use fog signals, the ground being that if a fog signal were used upon Fidra land belonging to the pursuer fitted for feuing for building will be rendered less acceptable to the persons looking out for that kind of investment. No feuing has taken place hitherto, and the pursuer does not say that she intends to feu now or at any future time.

“Thus there are two elements of uncertainty in regard to this claim. First, whether or not the Commissioners will ever authorise a fog-signal to be used upon Fidra, and secondly, whether the pursuer will ever consent to feu the ground round Archerfield House. The claim is therefore somewhat novel; and although the decisions have been numerous in reference to demands by persons whose lands have been compulsorily taken, there is no case which comes up to this one. The claim is made under the Lands Clauses Act, which is an Act applicable to all undertakings requiring statutory authority for the compulsory taking of land, and is not confined, as the Railway Clauses Act is, to the case of railways. The clause in the Lands Clauses Act under which this claim can be made—if it can be maintained—is the 61st, which is in the following terms:—‘In estimating the purchase money or compensation to be paid by the promoters of the undertaking in any of the cases aforesaid, regard shall be had not only to the value of the land to be purchased or taken by the promoters of the undertaking, but also to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such lands by the exercise of the powers of this or the special Act, or any other Act incorporated therewith.’ The claim must be under the words ‘injuriously affecting’ the other lands of the proprietor—words which have given rise to more numerous and somewhat irreconcileable decisions than any other words occurring in modern legislation. If the Commissioners of Northern Lighthouses never erect a foghorn signal upon Fidra, they will have done nothing to the disadvantage of the feuing capabilities of the Dirleton estate, and therefore they maintain that in these circumstances there are no grounds for awarding damages in consequence of a thing which may never happen, and which they say has its origin merely in the timorous apprehensions of the pursuer. It is, they maintain, a damage too remote to be capable of estimation. The pursuer refers to the case of Oswald v. The Ayr Harbour Trustees (24th January 1883, 10 R. 472, and [July 23, 1883] 10 R., H. L., 85) to probabilities might be claimed. Harbour Trustees demanded from a proprietor in virtue of their Act a piece of ground belonging to him for the purposes of their undertaking. They had full power to demand the whole property from its owner, but wishing to limit the price they had to pay, they consented not to use the ground in such a way as to debar the owner's access to the harbour. The Harbour Trustees were contented to take less than they had power to take, but the Court determined that they could not renounce the statutory power to take the whole ground in full property, and could not bind their successors not to take it. Compensation was therefore found due for the whole ground which the trustees had statutory power to take.

That case has no application to the present. The defenders have got no statutory powers, and are therefore under no implied obligation to erect a fog signal upon Fidra. If they erect such a signal, they will erect it in virtue of their general powers of management of lighthouses, in the same way as they have put up bells upon lighthouses at rock stations.

No doubt, in the case of the Caledonian Railway Company v. Lockhart (March 23, 1860, 3 Macq. 808) the House of Lords determined that where damages can be reasonably foreseen and estimated, it may be very fit and convenient that the arbiter should ascertain the amount by at once fixing the sum of money to be paid. In that case the prospective damages did not depend upon any uncertain events in the future. They were damages resulting from the construction of the railway, and which any person of skill could immediately estimate. ‘The compensation given,’ said Lord Wensleydale, ‘is for the necessary damages by the construction of the railway, and for the highly probable damages which would be occasioned in the ordinary course of events. It becomes therefore unnecessary to consider what would be the effect of awarding a sum for purely speculative damages not reasonably foreseen.’ The present claim is for speculative damages of the character referred to by Lord Wensleydale.

Again, in Stone v. Yeovil ( 2 C.P.D. 99, 1876) waterworks trustees were empowered to purchase and divert a stream belonging to a landed proprietor. They gave notice to the latter that they intended to take the whole stream, but found that their necessities did not require more than a part, and they refused to make payment except for the part they actually took; but the Court held, that having power under the statute, and having given notice that they were to take it, they were bound to pay for the whole. The giving notice to take the whole was founded upon very much as the ground of judgment.

None of these three cases governs the present one, which is more of the character of the case referred to by Lord Hatherley ( City of Glasgow Union Railway Company v. Hunter (1870), L.R., 2 Sco. Appeals, 80, when he said ‘anticipated damages for noise of trains and for smoke, which may accrue hereafter, do not appear to be the proper subjects of an estimate for compensation before they happen. They might very well be the proper subjects of an interdict when they were happening, or were expected to happen. But as they are matters which may or may not be continued for a longer or a shorter time, one does

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not see how it can be right and proper that this compensation should be given for those anticipated evils, the character of which cannot be fully or fairly ascertained beforehand.’ This remark has special application to a case like the present, where the anticipated damage does not arise from the anticipated exercise of statutory powers, or which might be the natural consequence of an Act intended to be carried out, but, on the contrary, is expected to flow from an act which may be done by the Commissioners, but which may never be done. The difference between this case and that of Ayr Harbour Trustees and Stone v. Yeovil is simply this, that the persons who took the land from the owner there had statutory authority to do so, while the defenders have none. They are entitled, no doubt, to use all the means known to science, for making mariners aware of impending danger, but there is no certainty that they will ever use a fog signal, and if damages are to be allowed for the use of a fog signal, why not for a bell? The one is weird and lugubrious no doubt, but the other is frequently very irritating.

Then comes the important question, whether the complaint of the pursuer can be entertained at all, on the ground that it injuriously affects her property,—for that is the sole ground for which compensation can be given. Personal suffering from discordant noises, or smoke nuisance, and the like, are disregarded. The oversman seems to have been of opinion that there was substance and reality in the claim, for he has awarded to the pursuer £1000. But is this consistent with authoritative decisions such as Hammersmith, &c., Railway Company v. Brand (L.R., 4 E. and I. App. 171, 1868–9), by which it was determined that one cannot recover statutory compensation from the railway company in respect of damage or annoyance arising from vibration occasioned, without negligence, by the passing of trains after the railway is brought into use, even though the value of the property had been actually depreciated thereby. This case was afterwards followed by the decision of the House of Lords ( City of Glasgow Union Railway Company v. Hunter) [above cited in which it was ‘held that statutory compensation cannot be claimed by reason of the noise or smoke of trains, whether part of the claimant's lands be taken or not.’

In the subsequent case of the Caledonian Railway Company v. Walker's Trustees [March 29, 1882], (L.R., 7 App. Cas. 259), the case of the Hammermith Railway Company was approved of, and in the course of his judgment in that case Lord Blackburn said—‘It must also be now considered as settled that the construction of those statutes is confined to giving compensation for an injury to land or an interest in land—that it is not enough to show that an action would have lain for what was done if unauthorised, but it must also be shown that it would have lain in respect of an injury to the land or an interest in the land.’

In the case of Hammersmith the railway company had not taken any of the land which belonged to the complaining proprietor (while in the case of Hunter they did), and it is said that this constitutes a difference between it and the present case. Reliance is placed upon the opinion expressed by Lord Chelmsford in the Duke of Buccleuch v. Metropolitan Board of Works (L. R., 5 E. &I. App. 458, 1872), to the following effect—‘In neither of these cases’ ( Hammersmith and Hunter) ‘was any land taken by the railway company connected with the lands which were alleged to have been so injured, and the claim for compensation was for damage caused by the use and not by the construction of the railway. But if in each of the cases lands of the parties had been taken for the railway, I do not see why a claim for compensation in respect of injury to adjoining premises might not have been successfully made on account of their probable depreciation by reason of vibration or smoke or noise occasioned by passing trains.’ This is scarcely correct, for in Hunter's case land had been taken from the claimant. The opinion of the learned Lord was obiter, but, notwithstanding, it must carry all the respect due to Lord Chelmsford's position and learning. But is it sound? ‘It does seem strange,’ said Baron Bramwell, ‘that the taking of a piece of a man's land, or even the blocking of one of his lights, should let him in to prove all sorts of damage for which he could not otherwise recover. I should pause before I assented to such a proposition’ ( Duke of Buccleuch v. Metropolitan Board of Works, L.R., 3 Exch. 328). In the case ( Hammersmith) where it was determined that a proprietor whose property was made less valuable by reason of vibration caused by the railway traffic had no claim, the grounds of judgment proceeded in no way upon the fact that no portion of his land had been taken by the railway.

It must always be kept in mind in reference to this matter that a person is not entitled to demand compensation under the Lands Clauses Act for anything for which he could not demand interdict or damages at common law. This must be taken now as settled. Lord Campbell in the case of Penny v. South-Eastern Railway Company ( 7 E. and B. 660) laid down this doctrine in the following terms:—‘Unless the particular injury would have been actionable before the company had acquired their statutory powers, it is not an injury for which compensation can be claimed.’ Lord Chelmsford in the case of Ricket v. The Metropolitan Railway Company (L.R., 2 H. of L. 187, 1867) adopted this as good law; and in the case of the Hammersmith Railway Company v. Brand again insisted upon it. In like manner, Lord Blackburn in the case of the Caledonian Railway Company v. Walker's Trustees [March 29, 1882] L.R., 7 App. Cas. 293, 1882) expressed himself as follows:—‘It must now be considered settled, that on the construction of these Acts compensation is confined to damage arising from that which would, if done without authority from the Legislature, have given rise to a cause of action.’ There are many authorities to the same effect which are collected in a note to Deas’ Treatise on the Laws of Railways, 271.

Now, if such be the law, can it be contended that an action will lie against parties who use foghorns around our foggy coast. Every night during the winter and spring months the foghorn is heard in the Firth of Forth and all along our coasts; and the Merchant Shipping Act contains a series of regulations as to when it should be used, and imposes penalties for the neglect of using it (Merchant Shipping Act, secs. 295, 298, and 299). It is out of the question to maintain that a foghorn signal is a thing which injuriously

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affects property. Its sound is—as already said—weird, and may agitate sensitive organisations in an unpleasant way; but that is not an injury to property, and therefore not a subject for compensation under the Lands Clauses Act. It may be a personal grievance, but nothing more. There-fore the result at which the Lord Ordinary arrives is this, that the whole of this claim for £1000, or £50 per annum, must be disallowed.”

The pursuers reclaimed, and argued—In this case the oversman had found that the erection of a foghorn signal was within the rights of the defenders, and might reasonably be anticipated. Miss Nisbet's land might also be feued. He had therefore found that £1000 was the proper sum to be awarded as compensation to Miss Nisbet Hamilton for the damage done to her land, and the Court could not go behind the oversman's award— Oswald v. The Ayr Harbour Trustees, January 24, 1883, 10 R. 472, and 10 R. (H. of L.) 85. A claim for compensation must embrace all damages, either existing or which can be reasonably foreseen— Caledonian Railway Company v. Lockhart, March 23, 1860, 3 Macq. 808; Croft v. London and North-Western Railway Company, January 27, 1863, 3 Best & Smith, 436. (2) This was a claim maintainable in law. The defenders' power to take the necessary land was given by the Merchant Shipping Act 1854, and was absolute. The Lands Clauses Act was used merely to get the machinery for working the Act. The pursuer was in a different position from a person whose land was taken compulsorily by a railway company. The distinction between damages arising from construction of works as opposed to their use was based purely on the terms of the Railways Clauses Act, and not on the Lands Clauses Act— Hammersmith Railway Company v. Brand, July 6, 1869, L.R., 4 Eng. & Ir. App. 171. Where injury arises as here from damage done to the part of a proprietor's lands, which is not taken, from a legalised nuisance on the part of his land which is taken, he is entitled to compensation— Stockport Railway Company, May 9, 1864, 33 L.J., Q.B. 251. The damage here was not personal, but really pertained to the land.

Argued for the defender—The defenders had no intention of erecting a foghorn signal on Fidra, and more was not alleged than that they had power to do so. Therefore the prospective damage was too remote to be taken into account. The case of Hunter referred to the powers of construction and not to the use that might be made afterwards of the thing constructed— City of Glasgow Union Railway Company v. Hunter, June 30, 1870, L.R., 2 Scot. App. 78. The damage that the oversman had found compensation ought to be given for was for a personal injury, and therefore the allowance of that sum could not be supported in law.