Scottish Court of Session Decisions

The estate of Lundin, in the parish of Largo, and county of Fife, is intersected by a line of railway which was constructed by the Leven and East of Fife Railway Company in virtue of the Leven and East of Fife Railway Act 1855 (18 and 19 Vict. cap. 45).

Section 36 of the Act provides as follows—“And whereas the Standard Life Assurance Company, the owners of the estate of Lundin, in the parish of Largo, have laid out a portion of the said estate on the proposed, line of railway to be let in lots or

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feus for building: Be it enacted that the company shall erect and maintain a temporary goods and passenger station at or near to Sunnybraes, or at any other point on the said estate which may be agreed upon by and between the company and the owners of the said estate for the time; and at the said station all ordinary trains shall stop for the purpose of traffic; but providing always, that if upon the expiration of five years from the opening of the line of railway the traffic done at such station shall not be of sufficient extent to remunerate the company for the maintenance of the said station, the obligation to maintain the said station shall be no longer binding on the company: And it is further provided that for determining whether such station shall be maintained, or shall be abandoned as aforesaid, the decision of James Horne, land valuator in Edinburgh, whom failing, of John Dickson, farmer, of Saughton Mains, as sole arbiters in succession, shall be final and binding on the company and the owners of the said estate for the time being.”

In accordance with this enactment a railway station, known as Lundin Links Station, was erected near Sunnybraes on the estate of Lundin. No proposal to abandon it seems ever to have been made.

On the contrary the following agreement, dated 29th September and 29th October 1858, was entered into between the Standard Life Assurance Company as owners of Lnndin estate, and the Leven and East of Fife Railway Company—“Whereas by Act of Parliament (18 and 19 Vict. cap. 45), it was by section 36 thereof enacted [ recites the section above quoted]: And whereas it has now been agreed, in consideration of the advantages to be acquired by the railway company as after provided, that the said station should be completed, not as a temporary station, but as a permanent station, in consideration of the obligations underwritten: Therefore it is hereby agreed—…. First, The said railway company shall within eight months from the last date hereof complete the said railway station at or near to Sunnybraes as a permanent goods and passenger station, according to a plan and estimates to be subscribed as relative hereto, and shall thereafter uphold and maintain it at their own expense in all time coming… Third, The said assurance company shall contribute the sum of £445 towards the expense of completing the said station and approach thereto from the turnpike road, being a difference between the estimated cost of £680, and the sum of £235 to be contributed by the said railway company; said sum of £445 being payable by the said assurance company on the completion of the work, and on the final report of the said engineers or oversman, or during the progress of the work, in partial payments, on their report that an equivalent expenditure has been properly made. Fourth, The said assurance company shall, within eighteen months from the last date hereof, cause four villas to be erected on the said farm of Sunnybraes. Fifth, The said assurance company shall not insist on the erection for five years from the last date hereof of the bridge at the east end of their property, which the said railway company agreed to construct in terms of agreement between the said two companies dated 9th June and 3rd July 1856. Sixth, The said assurance company shall, within eight months from the last date hereof, put the private road leading northwards through the estate of Lundin, until it joins the statute labour road at Thomsford, into a sufficient state of repair for a statute labour road.”

The agreement contained no obligation to stop trains at Lundin Links Station. The said station was duly completed in terms of the agreement as a permanent goods and passenger station.

The North British Railway Company acquired the whole undertaking of the Leven and East of Fife Railway Company, including the line which intersects Lundin estate, in 1877.

Mr Allan Gilmour acquired the estate of Lundin by purchase from the Standard Assurance Company in 1872, and he was succeeded by his son Mr John Gilmour in 1884.

On 22nd October 1892 Mr John Gilmour raised an action of declarator against the North British Railway Company to have it declared (1) “that the defenders are bound to cause all ordinary trains now and hereafter passing Lundin Links Station, on their line of railway between Thornton Junction and Anstruther, for the purpose of traffic, to stop, for the purpose of traffic, at the station called Lundin Links Station” in terms of the enactment and relative agreement between the pursuer's authors and the defenders' authors above quoted; and (2) that the trains leaving Thornton Junction daily for Anstruther at 11·38 a.m., 3 p.m., and 5·34 p.m. respectively, and the trains leaving Anstruther daily for Thornton Junction at 7·45 a.m., 9·40 a.m., and 4 p.m. respectively, “are ordinary trains within the meaning of the said section of the said Act of Parliament, and that the defenders, while and so long as they run the said trains above specified, are bound to cause the said trains to stop for the purpose of traffic at the said Lundin Links Station.”

The pursuer stated (Cond. 2) that his authors, the Standard Assurance Company, opposed the Bill for the construction of the railway in question before Parliament, but withdrew their opposition after certain negotiations. “Among the stipulations in favour of the said assurance company as owners foresaid, and their successors in the said estate, in virtue of which their opposition to the Bill was withdrawn, (was an obligation on the part of the Leven and East of Fife Railway Company to erect a station near Sunnybraes, on the Lundin estate, and to stop all ordinary trains at the said station.”

The defenders answered—“(Ans. 1) The pursuer has no title to enforce the provisions of the statute or agreement on which he founds. (Ans. 3) Any obligation to stop trains at Lundin Links Station, referred

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only to the temporary station and not to the permanent station, and only to ordinary trains as distinguished from fast or express trains.”

The pursuer averred that until the Forth Bridge was opened in 1890, all passenger trains between Thornton Junction and Anstruther stopped for traffic at Lundin Links Station, but that since that date several ordinary passenger trains daily passed the station without stopping, particularly those libelled in the summons. He averred that the want of railway facilities was a bar to the successful carrying out of a feuing plan which he proposed, and which would greatly enhance the value of his estate.

The defenders admitted that the trains referred to did not stop at Lundin Links Station, but explained that four of them were express trains which did not commence running on this branch line till the opening of the Forth Bridge. They contended that express or fast trains were not in contemplation of the parties in 1855, and that the statutory obligation to stop trains, even if applicable to the permanent station, did not apply to these trains. They also averred that ordinary trains had all along, since the opening of the present station, passed Lundin Links Station without stopping there, and that it was only threequarters of a mile distant from the next station, Largo, and that the traffic at it was very trifling.

The pursuer pleaded—“(1) In terms of the provisions embodied in the Act of Parliament and the relative agreement libelled in the summons, the defenders are bound, when called upon by the pursuer, to cause all ordinary trains on the line between Anstruther and Thornton to stop for the purpose of traffic at Lundin Links Station. (2) The trains mentioned in the summons are ordinary trains within the meaning of the said Act of Parliament, and the defenders are therefore bound to cause the same to stop at Lundin Links Station. (3) The defenders having failed or refused, when called upon, to carry out the provisions of the said Act of Parliament and the said agreement, the pursuer is entitled to decree of declarator and for implement, as concluded for.”

The defenders pleaded—“(1) No title to sue. (4) The defenders should be assoilzied in respect that they are under no obligation to the pursuer.”

On 3rd February 1893 the Lord Ordinary ( Stormonth Darling) repelled the first plea-in-law for the defenders, and allowed the parties a proof of their averments.”

“ Opinion.—This is an action at the instance of the present proprietor of the estate of Lundin in Fife, and the purpose of it is to compel the defenders to stop all ordinary trains, and in particular certain specified trains, on their line of railway between Thornton Junction and Anstruther, at Lundin Links Station. The sole question which I have to decide at present is whether the pursuer has a title to sue. I am of opinion that he has.

It appears that the line of railway which intersects the pursuer's lands was constructed by the Leven and East of Fife Railway Company, under the ‘East of Fife Railway Act 1855.’ The estate of Lundin then belonged to the Standard Life Assurance Company, but it was sold in 1872 to the pursuer's father, who was succeeded by the pursuer in 1884. The whole undertaking of the Leven and East of Fife Railway Company was acquired by the defenders in 1877.

The defenders say, that whatever the rights of the Standard Life Company may have been, the pursuer has no title to enforce these rights. Now, it would obviously be a very odd thing if a landowner, in stipulating with a railway company for the benefit of his estate, whether before a Private Bill Committee or by direct contract, should so word his clause or his contract that if he sold the estate next day all benefit to the estate would be lost. I say it would be a very odd thing to do, and not what one would naturally expect. But, of course, the case must be decided, not on probabilities, but on the actual words used, and it is therefore necessary to examine the statute and the agreement on which the case depends.

[ After narrating their substance]—“It is clear that in framing the clause in the Act the Standard Company were not unmindful of the interests of their successors in the estate. The stipulations, both as to fixing the site of the station, and as to making the decision of the arbiters final, expressly refer to the owners of the estate for the time being. That being so, I think the whole clause must be read as giving singular successors in the estate a right to enforce the obligations thereby imposed on the railway company. But then it is said that the clause requires merely the erection and maintenance of a temporary station. Perhaps it is a sufficient answer to say that the word ‘temporary’ is not defined, and that so long as the station is, in point of fact, maintained (there being no proposal even now to abandon it) the obligation to stop trains subsists. But I think that the agreement of 1858, reciting as it does the clause in the Act, must be read as relative thereto. It is true that the agreement does not refer, in its operative clauses, to succeeding owners of the estate, except in so far as it describes the station as ‘permanent,’ and requires the railway company to maintain it ‘in all time coming.’ But it would be a strange result if the agreement were construed so as to give the railway company all the benefits of the pecuniary and other prestations performed by the assurance company, and at the same time to absolve them from the obligation to maintain the station and to stop trains the moment there was a change in the ownership of the estate. The very silence of the agreement as to the stopping of trains is, I think, significant of the view that the agreement was truly ancillary to the Act. Surely it could not be maintained that the assurance company, in stipulating for the conversion of the station from a temporary into a

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permanent station, lost the right to have ordinary trains stopped there. Yet that would be the result of holding, as the defenders maintain, that the agreement was intended to supersede the 36th clause of the Act. On the other hand, if the assurance company preserved their right to have trains stopped notwithstanding the silence of the agreement on that point, how is it possible to limit the subsistence of the 36th clause to the period of their ownership, in the face of its express provisions as to the owners of the estate for the time being? It seems to me that the true view of the agreement is that it was simply intended to take the place of the arbitration contemplated by the Act as to the continued maintenance of the station, leaving all questions as to the effect of its continued maintenance to be determined by the Act.

“The parties are at issue as to whether the trains mentioned in the summons are ‘ordinary’ trains within the meaning of the statute, and I shall therefore repel the plea of no title to sue, and allow a proof.”

The defenders reclaimed, and argued—The inductive clause of section 36 of the Act meant that the railway company gave the proprietors five years to develop their feuing-plan; if after such a fair trial there was sufficient traffic, the station would be maintained, but not otherwise. Under the statute there was no obligation to maintain a permanent station at all, or if there was such an obligation, that was all that was left to the arbiters; they had no power to decide what trains were to stop. The matter never went to arbitration owing to the agreement of 1858, which came in place of the obligations about stopping the trains, &c., contained in the statute. No doubt the statutory obligation was not expressly discharged, just because it was only meant to last for five years, but it was superseded by the agreement. Maintenance of the station was incumbent on the railway company under the agreement; stopping of the trains was not. The object of the clause as to stopping of the trains was to show whether there was a remunerative traffic. The pursuer required to show that the temporary agreement as to stoppage of trains was carried forward into the new agreement, and he had failed in that.

Argued for the pursuer and respondent—Section 36 of the Act was not a provision for guaging whether the traffic was remunerative enough to pay for the upkeep of a station; it was a general condition in the permanent interest of the proprietor. If the former construction were right, it should have been expressed. Besides, it would have been unreasonable to insert a clause which introduced an unremunerative element during the five experimental years if in future the traffic so guaged was to be conducted on a different principle, and only some trains were to stop. The words “the said station” and “as aforesaid” in the latter part of the section must be read in connection with the first part as meaning a station at which all trains stop. The subsequent agreement did not discharge the obligation; it was merely ancillary; the railway company waived its right to have an arbitration at the close of the probationary period in return for certain prestations by the proprietors of the estate.

At advising—