Scottish Court of Session Decisions

The Glasgow, Yoker, and Clydebank Railway Company, incorporated by Act of Parliament, 1878, are empowered by their Act of 1893 to divert the Forth and Clyde Canal, and the Boquhanran Road, near Clydebank, for the purpose of constructing a branch line. While these operations were in the course of being carried out, Mr William Van Vleck Lidgerwood served a notice of claim against the Railway Company, dated 3rd May 1895. The notice was in the following terms:—“The claimant is heritable proprietor of land at Clydebank, in the parish of Old Kilpatrick and county of Dumbarton, bounded on the north by the centre of the road to the south of the North British Railway; on the east by ground belonging to the Singer Manufacturing Company; on the south by land belonging to the proprietors of the Forth and Clyde Canal; and on the west by the Boquhanran Road, with the buildings and other erections thereon. The claimant himself occupies the said lands and buildings in connection with his business. In exercise of the powers conferred upon them by ‘The Glasgow, Yoker, and Clydebank Railway Act 1893,’ the said company are in course of diverting the Forth and Clyde Canal so as to take away from the said land about 900 feet of canal frontage. The said company further are in course of diverting the Boquhanran Road so as to take away from the said land about 120 feet of frontage to that road. The taking away from the said land of the canal and road frontage above referred to will injuriously affect the said land and the buildings thereon, and cause serious loss and damage to the claimant as owner and occupier thereof. In respect of the above-mentioned injurious affection to the said land and buildings, and all loss and damage incurred and to be incurred by the claimant as owner and occupier thereof, the claimant claims as compensation from the said Glasgow, Yoker, and Clydebank Railway Company the sum of (£7680) seven thousand six hundred and eighty pounds; and unless the said company be willing to pay the amount of compensation above claimed, and enter into a written agreement for that purpose within twenty-one days after the receipt of this notice, the claimant requires that the amount of such compensation shall be settled by arbitration in the manner provided by ‘The Lands Clauses Consolidation (Scotland) Act 1845,’ and ' The Railways Clauses Consolidation (Scotland) Act 1845.’ ”

On 31st May the claimant, by deed of nomination and submission, nominated Mr William Copland, engineer, Glasgow, as arbiter on his part, and on 21st June the Company, under protest and without admitting liability, nominated Mr William Borland as their arbiter.

The company thereafter presented a note of suspension and interdict against the claimant and the two arbiters, craving the Court to suspend the proceedings in the reference, and to interdict the arbiters from assessing the compensation claimed by the respondent Lidgerwood.

The complainers averred—(Stat. 2) “The lands belonging to the respondent William Van Vleck Lidgerwood, in respect of which he claims compensation for alleged damage by the exercise by the complainers of the powers conferred upon them by their said Act of 1893, are situated to the north of a strip of land which intervenes between his lands and the said canal as existing. The said respondent's lands are bounded on the west by the Boquhanran Road, but they nowhere immediately adjoin the said canal, nor does the canal intersect his lands. & A strip of land from 30 to 100 feet wide lies between the respondent's lands and the portion of the canal to be diverted.” (Stat. 3) “The complainers,

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under the powers of their Act, are diverting the canal to the southward, and are also constructing a new road leading from the Boquhanran Road under the old line of the canal as diverted. The Boquhanran Road northward of the canal is not interfered with by the operations of the complainers in the slightest degree. The line or levels of the said road are hot altered in any way. The only part of the said road which is vested in the respondent William Van Vleck Lidgerwood, or adjoins his property, is the part of the road northwards of the canal. The said road southwards of the canal is only available for foot passengers, but the new road will be available also for vehicular traffic.”

The complainers pleaded—“(1) The complainers are entitled to interdict as craved, in respect that the lands of the respondent William Van Vleck Lidgerwood are not situated so as to give him any right to compensation in terms of the ‘Lands Clauses Consolidation (Scotland) Act 1845, ‘and the Railways Clauses Consolidation (Scotland) Act 1845.”’

The respondent averred that he would be deprived of access to the canal, that the road facing his lands was to be blocked up by the complainers, and that accordingly his lands would he injuriously affected, and maintained that he was entitled to have the amount of damage resulting therefrom assessed by arbitration in terms of his notice of claim.

The Lord Ordinary, on 14th November, allowed a proof before answer.

Both parties reclaimed against the interlocutor, the complainers asking that interdict should be granted, and the respondent that it should be refused, without a proof.

Argued for respondent—If a proof were allowed at this stage, the parties would be put to the double expense of a proof before the Lord Ordinary, and of a second proof before the arbiters. The respondent had averred a relevant case for compensation in respect (1) of the cutting off of his access to the canal— M'Carthy v. Metropolitan Board of Works, 1874, 7 E. & J. App. 274, and (2) of the diversion of the road. With regard to the averments of the complainers that they had not interfered with the road ex adverso of his lands, the fact that they had blocked up one end of it “injuriously affected” his lands in the sense of the Act— Walker's Trustees v. Caledonian Railway Co., January 21, 1881, 8 R. 405, March 29, 1882, 9 R. (H. of L.) 19. Accordingly he had put in a relevant claim stating a proper case for arbitration, and the complainers had not stated sufficient objections to it to entitle them to have an inquiry at this stage. The objections would have to be very strong to induce the Court to interfere in the manner desired by the complainers— Dumbarton Water Commissioners v. Blantyre, November 12, 1884, 12 R. 115. No legal question had been raised by the complainers, and if any such should arise in the course of the reference, which the arbiters were unable to deal with, these might be brought before the Court subsequently to the reference.

Argued for complainers—This was a case where there was reasonable danger of the arbiters going wrong. The complainers maintained that there was not a well-founded claim for compensation at all, and the arbiters would simply direct their attention to the amount, and would not consider the possibility of there being no legal claim at all. On the respondent's own averments they had no claim. (1) With regard to the road, his claim was based entirely on loss of frontage, but the complainers were not depriving him of frontage, and the fact of their blocking the road at one end did not entitle him to compensation— Newport Railway Company v. Fleming, November 12, 1879, 7 R. 179, March 19, 1883, 10 R. (H. of L.) 30. In Walker's Trustees a public street had been blocked, but here there was really no loss of access. (2) With regard to the canal, there was both a conflict in fact as to whether he had a frontage, and in law as to his title to a right of access, and the arbiters were not a proper tribunal to determine the latter point.