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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Muir v. Caledonian Railway Co. [1890] ScotLR 27_806 (21 June 1890)
URL: http://www.bailii.org/scot/cases/ScotCS/1890/27SLR0806.html
Cite as: [1890] ScotLR 27_806, [1890] SLR 27_806
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SCOTTISH_SLR_Court_of_Session
Page: 806↓
Court of Session Inner House First Division.
[
v.
Facts:
A railway company were required by their Act to submit for the approval of the police board of a burgh plans for work affecting the streets, and they were bound to restore any street interfered with to its original level. It was further provided that any difference between the railway company and the police board as to any such matter should be referred to arbitration. A difference between the parties regarding a certain street was referred to an arbiter, who first ordered certain works to be done, and finally found that these had been properly carried out, and the street restored to its original level.
An individual proprietor in this street, on the ground of injury to her property, brought an action against the railway company and the police board to have it found that the street had been wrongfully altered, and to have it restored, or for damages. Held that she had no title to sue for setting aside the statutory arrangement between the parties, and that no damages were due at common law as neither a wrong nor a breach of contract was alleged, although if injury had been done the railway company would be liable in compensation under the Railways Clauses Act.
In June 1889 Mrs Catherine Muir, as owner of certain tenements in Inverkip Street, Greenock, sued the Caledonian Railway Company (1) for declarator that the defenders had wrongfully altered and raised the level of the street; (2) for decree ordaining the defenders to restore the street to its original level; and (3) alternatively for damages.
In 1884 the Caledonian Railway were authorised by Act of Parliament to construct a railway known as the Greenock Railway.
Section 22 of the Act provided—“The company may, in the construction of railway No. 1, and of the quay or pier, by this Act authorised, deviate from the levels thereof, as shown on the deposited sections, to any extent not exceeding 5 feet, and may, in the construction of railway No. 1, deviate from such levels and from the gradients of the said railway, as shown on the said sections, to such further extent as may be found necessary or convenient for avoiding, accommodating, preserving, or improving the drainage or sewers or other works in or under the streets, roads, lanes, footpaths, and places through which the said railway will be made, anything in the Railways Clauses Consolidation (Scotland) Act 1845 to the contrary not with standing: Provided
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always that no such vertical deviation exceeding 5 feet shall be made without the consent of the Board of Trade: Provided also that nothing in this section contained shall authorise the company to alter the level of any such street, road, lane, or footpath within the burgh of Greenock without the consent of the Board of Police of Greenock.” The 29th section, for the protection of the Provost, Magistrates, and Town Council of the burgh, provided—“At least twenty-one days before the company commence any works, the execution of which would in any way interfere with or affect any of the public roads or streets in the burgh of Greenock, or which would interfere with or affect the culverts, sewers, and drains belonging to the Police Board, the company shall give to the Police Board notice thereof in writing, accompanied by plans, sections, working drawings, and specifications showing the manner in which such works are to be executed, and also the means to be employed for protecting the roads, streets, culverts, sewers, and drains, during the operations of the company, and for making good any injury or damage to or interference with the said roads, streets, culverts, sewers, and drains, and also the means of providing for the temporary accommodation of the traffic and of the public during the operations of the company, which plans, sections, working drawings, and specifications shall be submitted to the Police Board for their approval previously to the work of the company affecting the said roads, streets, culverts, sewers, or drains being commenced; and such works shall, subject to the provision hereinafter contained, with respect to the settlement of differences by arbitration, be executed only in accordance with plans, sections, workings, drawings, and specifications approved by the Police Board.” It is further provided by said sub-section that, “In every case in which the company interfere with the said roads, streets, culverts, sewers, or drains, the Company shall, at their own expense, and to the satisfaction of the Police Board, observe the following conditions, viz., … . (c) Restore any road or street so interfered with to its original level.” By sub-section K of said section 29 of said Act, it is further enacted as follows—“If the Police Board and the company shall differ upon or with reference to any plans, sections, elevations, working drawings, specifications, or other particulars which, under the provisions hereinbefore contained, are to be delivered by the company to the Police Board, or by the Police Board to the company, or as to the mode of carrying out the same, or as to any other matter or thing arising under any of the provisions of this section (except so far as otherwise specially provided in this section), every such difference shall, on the application of the company or of the Police Board, be referred to the determination of an arbitrator to be named by the Sheriff of Renfrew and Bute, and such arbitrator shall have power to determine the matter in difference, and by whom and in what manner the costs of and incident to the reference shall be paid.”
The company gave notice to the Police Board, and lodged plans and specifications of a proposed bridge to carry Inverkip Street over the railway.
A difference arose between the Board and the Railway Company as to the manner in which the work was to be carried out, and an arbiter was appointed.
The arbiter issued two awards, the first dated 16th November 1889, in which, after hearing parties, he directed various operations to be carried out, and the second on 26th February 1890, in which he intimated that the works which he had directed to be executed in his previous decree-arbitral, had been carried out to his satisfaction, and that the streets which it had been necessary for the purposes of the works to open up, had been restored to their former levels. The clausesi the decree-arbitral, so far as material are quoted in the opinion of the Lord President.
The pursuer who raised this action in June 1889, averred that the defenders had not so made the bridge as to restore the roadway passing over it to the line and level of the street previous to the construction of the bridge, and the result was that her property was seriously injured. The drainage of the street was thrown back upon her property, and she would require to raise the level of the pavement and the floor of her tenements.
The defenders averred that the question whether Inverkip Street, where it had been interfered with by their operations, had been restored to its original level, was a dispute between the Police Board of Greenock and themselves, and was at the date of the raising of the present action before an arbiter, and they maintained that the street had been restored to its former level.
The pursuer pleaded inter alia—“(1) That the defenders had wrongfully altered the level of Inverkip Street, and that they were bound to restore the same, or to pay her the cost of doing so.”
The defenders pleaded inter alia—“(1) The pursuer has no title to sue. (2) The question whether Inverkip Street, where it has been interfered with by the defenders, has been restored to its original level, being a difference between the Police Board of Greenock and the defenders, at present referred to and depending before the arbitrator appointed by the Sheriff, in terms of the foresaid Act of 1884, the present action is incompetent. (3) The pursuer's statement is irrelevant and insufficient in law to support the conclusions of the summons. (4) The whole of the defenders' railway and works having been constructed in conformity with and under the authority of the provisions of the foresaid Act of 1884, and Acts incorporated therewith, any claims competent to the pursuer can only arise under said Act, and the present action is incompetent.”
On 10th December 1889 the Lord Ordinary ( Trayner) repelled these pleas, and allowed a proof.
The defenders reclaimed.
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After a short discussion the Court on 22nd January 1890 opened up the record and appointed the parties to revise their pleadings. The pursuer amplified her averments of injury and the defenders founded on the two awards which had been issued since the closing of the record. They added this plea—“(3) The said street, so far as interfered with by the defenders' operations, having been restored by them in terms of section 29 of the foresaid Act of 1884, and to the satisfaction of the arbitrator, all as found by his interlocutor of 26th February 1890, the action ought to be dismissed.” The Court also ordered intimation of the action to be given to the Police Board of Greenock, and directed that they should, if necessary, be called by a supplementary summons, in order that they might have an opportunity, if so advised, of objecting to decree passing against the Caledonian Railway Company in so far as such decree might affect the existing condition of Inverkip Street,
On 7th February 1890 a supplementary summons was raised by the pursuer Mrs Muir against the Police Board of Greenock.
On 25th February this action was, by interlocutor of the Lord Ordinary, conjoined with the action by the same pursuer against the Caledonian Railway Company.
Argued for the reclaimers the Railway Company—By the terms of their Act the only parties that the company had to deal with in regard to the restoration of any streets, the levels of which in the course of the operations had been interfered with, were the Police Board. No doubt that Board and the Company did not agree, but there was a reference to an arbiter in terms of the statute, who prescribed certain works which had been carried out, and the levels restored to his satisfaction. His award was final, and the Court could not get behind it without a reduction of the decree-arbitral. The pursuer had no title to sue such an action with a conclusion for damages. If she had suffered damage by the operations of the defenders she could get compensation under the Railways Clauses Act, sec. 16, and the Lands Clauses Act, sec. 6.
Argued for the respondent—The Railway Company had no right by their Act to interfere with the permanent level of the street. They might make a temporary alteration, but they were bound to restore things as they were. Owing to a mistake of their engineer a permanent alteration of level had been made, and that without the sanction even of the Police Board. Therefore the company were outwith their Act, and an action at common law for damages lay against them. If the Police Board had approved the pursuer could not have maintained her action. She was no party to the reference between the company and the board, and was therefore entitled to a proof of the loss she had sustained— Clyde v. Glas-qow District Railway Company, July 16, 1885, 12 R. 1315.
At advising.
Now, in so far as that section 22 relates to the alteration of the levels of streets, the condition imposed upon the company is that they must obtain the consent of the Board of Police to the alteration of such level. But then the 29th section must also be considered in reference to this matter, and it is very important to observe that that is a section which is declared by the opening words to be for the protection of the Provost, Magistrates, and Town Council of the burgh of Greenock, thereinafter called the Corporation, and of the Board of Police of Greenock, thereinafter called the Police Board. It is not a section upon which anybody else is entitled to found as a section protecting him or them. The only title to obtain protection under this 29th section is in the Corporation and the Police Board.
Now, with regard to these two bodies there are a great number of provisions made, to most of which it is quite unnecessary to refer in determining this case. But there is one sub-section marked with the letter C which requires to be attended to. It is No. 1 under letter C, and it provides that—“At least 21 days before the company commence any works, the execution of which would in any way interfere with or affect any of the public roads or streets in the burgh,” with certain exceptions, “the company shall give to the Police Board notice thereof in writing accompanied by plans, sections, working drawings, and specifications showing the manner in which such works are to be executed, and also the means to be employed for protecting the roads, streets,
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Now, that shows that the plans which are to be carried into execution require the approval of the Police Board, but it does not by any means appear—nay, the contrary is clearly implied—that the Police Board and the company are bound by one set of plans once produced. On the contrary, it is perfectly clear that the plans are to be adjusted between the parties in a reasonable manner, subject also to arbitration if that shall be necessary.
The 2nd sub-section of section 29, C, provides that the company shall restore as soon as possible the things that they have disturbed—the culverts, sewers, drains, and so forth, and also “restore any road or street so interfered with to its original level.” And then comes the arbitration clause, which is—“If the Police Board and the company shall differ upon or with reference to any plans, sections, elevations, working drawings, specifications, or other particulars which under the provisions hereinbefore contained are to be delivered by the company to the Police Board or by the Police Board to the company, or as to the mode of carrying out the same, or as to any other matter or thing arising under any of the provisions of this section (except so far as otherwise provided in this section), every such difference shall on the application of the company or of the Police Board be referred to the determination of an arbitrator.”
Now, I do not think it necessary to read any more of the statute. The result is this, that the company are authorised to carry their railway through the town of Greenock. In doing so, it is inevitable that they must interfere with drains and culverts and all manner of works of that kind which are common in cities, and also must interfere with the streets and roads, otherwise the railway could not be constructed. And there is here, I think, a complete code of regulations as to the way in which that interference is to be regulated, giving rights to the Police Board on the one hand, and to the company upon the other; and the result seems to me to be that if the two parties, the company and the Police Board are agreed, nobody else can interfere with them. These are the two parties to whom is committed the task of arranging this matter. The power is given on the one side of interfering with the streets, the power of restraint is given on the other side so far as they propose unreasonably or without the consent of the Police Board to carry out their operations.
Now, what has happened in the present case is simply this, the company gave the requisite notices to the Police Board, but they did not succeed in obtaining their consent. And therefore it became necessary to resort to an arbitrator; and the proceedings which took place before Mr Carrick, the arbitrator, seem to have been gone about very carefully and very regularly. I think it is only necessary to refer to two of his interlocutors—if they may be so called—one of the 16th November 1889 and the other of the 26th of February 1890. The former of these had been issued when the case was previously under discussion before us; the second has been pronounced since that date, and adds very materially to the light which we now have for the decision of this case. The first—the interlocutor of 16th November 1889—prescribed particularly the conditions upon which the railway comany were to interfere with this Inverkip Street which is in question, and the arbitrator gives very precise and minute directions as to how that is to be carried on. Having adjusted plans between the company and the Police Board, and signified his approval of them, he authorised the works to be executed in terms of these plans. And then upon the 26th of February 1890 he went and inspected the works again, and heard parties, and his finding is this, “that the works specified in the order of the 16th of November have been duly executed, and accordingly finds that the works referred to in this arbitration have been executed in accordance with the plans, sections, working drawings, and specifications approved of by the interlocutor of the 27th of April 1887, and that Inverkip Street so far as interfered with by the railway company's operations, referred to in this process, has been restored by them in terms of section 29 of the Caledonian Railway (No. 2) Act 1884, and to the satisfaction of the arbitrator.”
Now, these findings are final. We cannot touch them. Some observations have been made as to whether the arbitrator has not exceeded his powers. I do not see the slightest foundation for these observations, but if there were we could not give effect to them unless this award could be set aside by reduction, which has not been proposed. We take therefore these findings of the arbitrator as final and conclusive between the company and the Police Board and the corporation, because the corporation have not in any way objected to the proceedings.
The pursuer of this action is an individual proprietor in Inverkip Street, and the ground of her complaint is that her property in Inverkip Street has been injuriously affected by the operations of the railway company in altering, to the extent of some inches up to a foot it is said, the level of the street upon which her property abuts; and upon that ground she proposes that all this statutory arrangement between the railway company and the Police Board shall be set aside, and that Inverkip Street shall be restored precisely to its original level. Now, it appears to me,
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But the pursuer also asks for damages in respect of what has been done. That seems to me to be just as plainly excluded as the other. If the operations of the railway company have been conducted within the powers conferred upon them by their statute they cannot be liable in damages at common law, because nobody can be liable in damages at common law except either for a wrong or a breach of contract, and neither the one nor the other is alleged. It cannot be a wrong at common law to carry out regularly the provisions of an Act of Parliament. To exercise the powers of an Act of Parliament is not a wrong. It may be very injurious to the private party, and for that there is a remedy of a different kind, but it never can be a legal wrong, and therefore it never can be made the foundation of an action of damages. I think therefore that the pleas stated by the defenders in their amended record are perfectly well founded as regards the third, fourth, and fifth pleas. The one is “that the said street, so far as interfered with by the defenders, having been restored by them in terms of section 29 of the foresaid Act of 1884, and to the satisfaction of the arbiter, all as found by his interlocutor of 26th February 1890, the action ought to be dismissed.” The second is an objection to the relevancy of the statements of the pursuer, and I think that plea is also well-founded. The fifth plea is this, that “the whole of the defenders' railway and works having been constructed in conformity with and under the authority of the provisions of the foresaid Act of 1884, and Acts incorporated therewith, any claims competent to the pursuer can only arise under said Acts, and the present action is incompetent.” The last of these pleas plainly refers to the claim which is competent to a landowner whose land has not been taken, but has been merely injuriously affected by the execution of the railway works. I am therefore for altering the Lord Ordinary's interlocutor, and sustaining these three pleas.
In all this the Police Board was charged with the public interest only. They had no right to represent the interest of private individuals whose properties abutted on the streets. All differences between the railway company proposing to execute their works and the Police Board as representing the public objecting to these works were to be referred to arbitration, and in point of fact everything in regard to these streets was so referred, and the arbiter has expressly found that the works as executed were in accordance with the plans as approved of by him. That seems to me, having regard to the averments on record, to put an end to any question being raised as to the lawfulness of the works which the Railway Company executed. Accordingly I am of opinion with your Lordship that the pursuer here has no title to present an application such as this to have the street restored, for that was a matter entrusted to the Police Board. But the works having been completed, I do not doubt that if it can be shown that they have injuriously affected the pursuer's property there must be a claim of compensation, and I entirely demur to the notion that the company could say that the arbiter having authorised the works under the statute is a sufficient answer to that claim of compensation. The very fact of the arbiter having authorised works which have created an injury to a neighbouring proprietor is the ground on which compensation is claimed. The Railways Clauses Act provides for such claims, and in this statute, section 31, we have a provision in paragraph 8 that “nothing in this enactment contained, nor any dealing with any property in pursuance of this enactment, shall relieve the company from the liability to compensation under the Lands Clauses Consolidation (Scotland) Act 1845, or under any other Act.” Therefore I think that in so far as the pursuer of this action can show that her property has been injuriously affected, her, claim is a good one; but a claim on the footing that she can found on the provisions inserted for the protection of the public, or a claim of damages in respect that these provisions were not fully carried out, cannot be maintained by her. Therefore I agree with your Lord-ship that we must sustain the defences.
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The Court recalled the Lord Ordinary's interlocutor and sustained the second, third, and fourth pleas-in-law for the defender.
Counsel for the Pursuer— M'Kechnie— Salvesen. Agent— W. B. Glen, S.S.C.
Counsel for the Defenders— D.-F. Balfour, Q.C.— R. Johnston. Agents— Hope, Mann, & Kirk, W.S.