Scottish Court of Session Decisions

The Lanarkshire and Dumbartonshire Railway Company by Act of Parliament (54 and 55 Vict. c. 201) were authorised in 1891 to construct a line of railway starting from the Caledonian Railway at a point close to the Queen's Dock, Glasgow, and extending to Dumbarton. By sec. 6 of the said Act (which is entitled “for the protection of the North British Railway Company”) it is provided, sub-sec. 4—“Railway No. 1 shall be carried under the North British Company's Glasgow City and District Railway, and under the joint sidings and works of that company and the Caledonian Company at Stobcross in tunnel, and the company shall not, without the previous consent of the companies owning the same, in the construction of such tunnel, break open the surface of the ground, or in any way raise or interfere with the rails of the North British Company, or of the joint property of that company and the Caledonian Company, but the company may open the surface where necessary for the purpose of temporarily supporting or protecting the railways or sidings of those companies from injury during the construction of the railway.”

By the same section, sub-sec. 7, it is provided that “All bridges and works which may be constructed by the company, so far as passing over or under, or in any manner interfering with any lines, works, or lands belonging to the North British Company, shall be of such design and materials as shall be approved of by the engineer for the time being of that company, and shall be constructed and completed under the superintendence, and to the reasonable satisfaction in all respects, of such engineer, and according to working plans, sections, and specifications to be submitted to and approved of by him previously to the commencement of the works affecting the property of the said company, and all costs, charges, and expenses incurred by such engineer in relation to the matters aforesaid shall be paid by the company.”

By the same section, sub-sec. 10, it is provided—“If any difference shall at any time arise between the company and the North British Company, or their respective engineers, with respect to any of the matters above referred to in this section, such difference shall be determined by an engineer, to be appointed by the Board of Trade, on the application of either of the said companies, at the cost of the company, and the decision of such engineer shall be final and conclusive.”

In 1892 the Lanarkshire and Dumbartonshire Railway Company intimated to the North British Company that they proposed to construct the tunnel, referred to in sub-section 4, and they submitted plans to the North British Railway Company's engineer for his approval, in terms of sub-section 7. On the plans being approved the Lanarkshire and Dumbartonshire Railway Company proceeded to construct the tunnel, and in order to provide for ventilation carried a shaft from the roof of the tunnel to the surface, opening upon the area of ground occupied by the Stobcross depot. On 6th March 1895 the North British Railway Company raised an action against the Lanarkshire and Dumbartonshire Railway Company, craving the Court to ordain the defenders to remove the shaft and restore the surface to its original condition. The pursuers averred that the shaft had been made without their knowledge, and that on receiving information as to it in November 1894, they had remonstrated with the defenders, who had stopped work for a short time, but had recommenced and concluded it in January, 1895. They further averred that the defenders had been allowed access to the ground only for the purpose of making the tunnel, and also that the plans submitted to their engineer did not disclose that a ventilating shaft was contemplated. They further maintained that even if this were the case the engineer had no authority to consent to the construction of the tunnel, his authority being limited to the approval or disapproval of the plans.

They pleaded—“(2) The defenders not having obtained the consent of the pursuers, in terms of section 6, sub-section 4, of the defenders' Act of Parliament, the works complained of are illegal, and the defenders should be ordained to remove them, and to restore the ground in terms of the conclusions of the summons.”

The defenders averred that the shaft had been constructed in the knowledge and with the consent of the pursuers' engineer, who had approved of the plan showing the proposed shaft. They also averred that the work was completed under the supervision of the pursuers' inspectors, and that no objection had been taken to the shaft till it was nearly completed. They maintained that these facts constituted consent to the construction of the shaft on the part of the pursuers, and further, that the action was excluded by the above clause of reference.

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On 11th July 1895 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“Finds that the question between the parties falls to be determined by an arbiter appointed by the Board of Trade, in terms of section 6, sub-section 10, of the defenders' Act: Therefore sists process to enable either of the parties to make application to the Board of Trade for the appointment of an arbiter, with a view to the cause being remitted to such arbiter upon his appointment, &c.

Note.—“The question in this case is whether a certain ventilating shaft, constructed by the defenders in the roof of a tunnel on their railway where it passes under certain property of the pursuers, was constructed with the consent of the pursuers. If there was no consent, it seems to be conceded that the structure was illegal and must be removed. But the defenders maintain that the pursuers did consent to the work, and their consent is said to have been obtained in this way: That the plans of the tunnel, which required under the statute to be submitted to the pursuers' engineer, showed the ventilating shaft in question as part of the proposed works, and that the engineer approved of this plan, including the proposed shaft. The pursuers, on their part, deny that the plan showed a ventilating shaft or any work of that description, and they further maintain that the engineer of their company had no authority to consent to the construction of the shaft, his authority being, as they say, limited to the approval or disapproval of the plan of the tunnel.

In these circumstances there is plainly an issue of fact which has arisen between the parties—an issue, at all events, involving the construction of the plans of the tunnel which were submitted to the pursuers' engineer; and what I have to determine is, whether the issue thus arising is one which falls to be remitted to an arbiter in terms of sub-section 10 of section 6 of the defenders' Act. The defenders contend that that arbitration clause applies, and that the action should be sisted to enable an application to be made to the Board of Trade, and should then be remitted to the arbiter to be appointed by that Board.

I have come to the conclusion that there is no sufficient reason for denying to the language of the arbitration clause its prima facie and natural latitude. I think that the language of the clause is wide enough to cover any dispute which may arise under the section in question—that is to say, any dispute with regard to the execution of the works in question which may arise between the parties. But even if it were to be held implied—as the pursuers maintain—that the matters to be referred to the engineer appointed by the Board of Trade were only matters of engineering, I am not prepared to say that that construction would exclude the remit which is asked in this case, because, as I have said, the one question—perhaps the main question—between the parties is as to the true reading of certain plans submitted by one engineer to another; and that seems a matter peculiarly appropriate for the determination of an engineer. I propose therefore not to dismiss the action, because a clause of that kind does not oust the jurisdiction of the Court, but to find that the question between the parties falls to be determined by the arbiter appointed by the Board of Trade, in terms of section 6, sub-section 10 of the defenders' Act, and therefore to sist process to enable either of the parties to make application to the Board of Trade for the appointment of such arbiter, with a view to the case being remitted to such arbiter upon his appointment.”

The pursuers reclaimed, and argued—The question involved in the case was not a question of engineering skill, but a question of law raised by the pursuer's plea that the defenders had made an illegal use of their lands. The defenders had acted out with the statute altogether, not having obtained the pursuer's consent under sub-sec. 4 of sec. 6. It was outwith the scope of the engineer's authority to sanction the construction of the shaft, even if he actually did so. Whether he did so was a question of fact and not a question of engineering skill, and was not therefore appropriate for reference to an engineer. Sub-section 10 however widely construed did not cover such questions as these. Indeed, sub-section 4 did not really apply to works of a permanent character, but to the operations during the course of construction, and accordingly, even if questions raised under it were to fall within the arbitration clause, the present question would not be included.

Argued for defenders—The question in dispute was covered by the arbitration clause in the statute. The same point had been settled in the case of Magistrates of Glasgow v. Caledonian Railway Company, 1892, 19 R. 874, where the arbitration clause was very similar in its terms. The question whether the plans submitted to the pursuers' engineer had disclosed the contemplated shaft, was certainly a difference covered by the words of the arbitration clause, which were imperative. It was a fit subject for the arbiter appointed to determine— Great North of Scotland Railway Company v. Highland Railway Company, 1871, 9 S.L.R. 92; Caledonian Railway Company v. Greenock and Wemyss Bay Railway Company, 1874, 1 R. (H.L.) p. 8. The case of Hodgson v. Railway Passengers Assurance Company, 1882, 9 Q.B.D. 188, showed that it lay upon the. pursuers to show that a good reason existed to prevent the arbitration clause applying, and this they had failed to do.

At advising—