Scottish Court of Session Decisions

This was an action of suspension and interdict at the instance of James Coats junior, of Ferguslie, Paisley, and Sir Thomas Glen Coats, Bart., of Ferguslie Park there, against the Caledonian Railway Company, and the Paisley and Barrhead District Railway Company, whereby the

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complainers sought to have the respondents interdicted from prosecuting or following forth two notices to treat for the acquisition of certain lands belonging to the complainers, said entries being Nos. 7 and 6 of process, and both dated 28th July 1902.

The following narrative is quoted from the opinion of the Lord Ordinary ( Low):—

The question in this case is whether the respondents are entitled to acquire from the complainers certain portions of land belonging to the latter in regard to which notices to treat were given by the respondents the Paisley and Barrhead District Railway Company, whose undertaking has now been acquired by the respondents the Caledonian Railway Company. It is unnecessary to distinguish what was done by the one company and by the other, and accordingly I shall use the word respondents as including both companies.

The railway, for the purposes of which the respondents desire to acquire the lands in question, is a short branch line or siding leading from the main line of the Paisley and Barrhead District Railway to the Ferguslie Fireclay Works, which I understand belonged at the date of the notices to the testamentary trustees of the late Mr Brown of Shortroods, and now belong to Robert Brown and Son, Limited.

The first notice to treat which was given by the respondents was dated 22nd March 1902, and related to a plot of ground marked No. 83 on the deposited plan. The complainers admit that the respondents were entitled to acquire that piece of land.

On 30th May 1902 the respondents intimated to the complainers that they withdrew the notice of 22nd March, and in lieu thereof they served a second notice, which included not only No. 83 but also Nos. 87 to 96 both inclusive.

The reason why the respondents adopted that course was this. The respondents believed (and it was stated in the book of reference) that Nos. 92 to 96, both inclusive, which lie adjacent to No. 83, belonged to Brown's trustees. If that had been the case, the respondents by acquiring No. 83 would have been able to lead their line into the Ferguslie Works, which was the object for which they had obtained powers to make the railway. Upon the other hand, if they could not acquire Nos. 93 to 96, No. 83 would have been of no use to them, because there would have been a gap between the land acquired by them and the works.

As it is more convenient for all the lands which are to be taken from the same proprietor to be included in one notice, the respondents withdrew the notice of 22nd March and gave the notice of 30th May, which included both No. 83 and Nos. 92 to 96.

It also included Nos. 87 to 91 both inclusive. I understand that these pieces of ground were correctly described in the book of reference as belonging to the complainers. The respondents do not explain why they were not included in the first notice, but the complainers aver (Statements 19, 20, and 21 of their statement of facts) that the respondents included them in their second and subsequent notices, not because they require them for the purposes of their undertaking, but for the purpose of leasing them to Brown's trustees or to Robert Brown & Son, Limited. That, however, is a matter which I shall deal with afterwards.

The complainers contend that it was incompetent for the respondents to withdraw the first notice, and that therefore the second notice was altogether bad. There is no doubt that the respondents could not, without the consent of the complainers, withdraw the first notice to the effect of refusing to purchase No. 83, but when the respondents found that they required more land belonging to the complainers, I think that (assuming that the respondents were acting in good faith) it was very reasonable for them, and was also the most convenient course for the complainers, to withdraw the first notice as a separate notice and to give a second notice, which included both No. 83 and the additional ground which was required. I therefore think that so far there was no good objection to the second notice.

The complainers, however, objected to the notice upon other grounds. They appear to have founded upon the error in the book of reference in regard to the proprietorship of Nos. 92 to 96, and also to have maintained that certain of the plots of additional ground contained in the notice were not delineated on the deposited plan. The complainers therefore brought a suspension and interdict to have the respondents interdicted from proceeding under the second notice. The respondents thereafter applied to the Sheriff to have the book of reference corrected, and that having been done they lodged a minute in the suspension stating that they had withdrawn the second notice, and asking that the suspension should be dismissed, and that the complainers should be found entitled to expenses.

The second notice therefore is out of the way, because I do not think that the complainers can object to the respondents withdrawing it, the position that they took up being that it was bad. The suspension is still in Court, but I understand that the only question between the parties is whether it should be dismissed, as the respondents desire, or whether an interim interdict, which was granted in the Bill Chamber, should be made perpetual. I do not think that that is a matter which affects the question raised in the present proceedings.

The next step taken by the respondents was to serve two new notices upon the complainers (dated 28th July 1902). One of the notices (No. 7 of process), the notice first mentioned in the prayer of the note, included No. 83, and Nos. 87 to 96, both inclusive, in so far as the ground represented by these numbers was within the limits of deviation. The other notice (No. 6 of process), the notice mentioned second in the note, included Nos. 92, 93, 94, and 95, in so far as the ground represented by these

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numbers was outside the limits of deviation.

The respondents' reason for giving two notices was, I understand, that the complainers had maintained that the respondents were not entitled to take the ground which was the subject of the notice No. 6 of process, because it was not delineated upon the deposited plan.”

Of the plots of ground referred to it is only necessary for the purposes of this report to describe No. 94, which was partly within and partly outside the limits of deviation. That portion of it which was outside the limits of deviation appeared on the deposited plan as being enclosed only on the north, south, and west sides. The northern boundary was marked as a railway siding, and the lines by which it was marked terminated abruptly at a point, to the east of which nothing was marked on the plan. The southern boundary was a road, and the lines by which it was marked also ended abruptly, and were not carried so far to the east as the marking of the railway siding. The northern and southern boundaries were not marked as parallel, but as converging gradually towards the east. The question with regard to this plot of ground was whether it was “delineated,” and embraced all the ground within a straight line drawn between the termini of the northern and southern boundaries, though no such line was marked on the plan.

The complainers pleaded—“(2nd) By the notice to treat of 22nd March 1902 a valid contract to take the lands therein specified was concluded between the respondents and the complainers. Said contract cannot competently be rescinded by the respondents, and the subsequent notices, which are based on the pretended rescission thereof, are incompetent and illegal…. (6th) The first of the notices complained of is invalid in respect that it embraces the land taken under the contract on 22nd March 1902, and incompetently attempts to substitute for said contract a contract to take said land and an additional piece of land. (7th) The two notices complained of taken together include, et separatim the notice second complained of deals exclusively, with land which is outwith the respondents' statutory limits of deviation, and which is not delineated on their deposited plans, and which the respondents have no authority to take. Said notices are therefore entirely invalid.”

The respondents pleaded—“(4) The prayer of the note should be refused, in respect that ( a) the complainers are barred from objecting to the withdrawal of the notice of 30th May 1902, having pleaded in the previous note of suspension and interdict that the said notice was invalid; ( b) the respondents are entitled to acquire the subjects included in their notices to treat of 28th July 1902; and ( c) that the said subjects are required by the respondents for the purposes of their undertaking.”

On 16th July 1903 the Lord Ordinary ( Low) pronounced the following interlocutor:—“Having considered the cause, in regard to the notice first-mentioned in the note, Interdicts, prohibits, and discharges the respondents in terms of the prayer of the note; and in regard to the notice mentioned second in the note, before answer allows to the complainers a proof of their averments in statements on record Nos. 19, 20, and 21, and to the respondents of their answers thereto, and appoints the same to proceed on a day to be afterwards fixed.”

In this interlocutor there was a clerical error to correct which for “first mentioned” read second mentioned, and for “mentioned second” read mentioned first.

Opinion.—[ After the narrative quoted above his Lordship proceeded]—“The complainers now seek to have the respondents interdicted from proceeding upon the two last notices on four grounds. They contend (1) that the respondents' statutory powers to take land compulsorily had been exhausted by the notices to treat already given; (2) that it was incompetent todivide the land which it was desired to take from one proprietor into two parts and serve a notice in regard to each part; (3) that the notice No. 6 of process was bad because it included land not delineated upon the plan; and (4) that the respondents did not require the whole of the land included in the notices for the purposes of their railway, but gave notice to take part of it with the view of handing it over to Robert Brown & Son, Limited.

I have already indicated my opinion upon the first of these objections. The respondents having, under a misapprehension as to the proprietorship of certain lands, included in their first notice a smaller portion of the complainers' property than they required, were in my judgment entitled to withdraw that notice and serve a second notice including the additional lands as well as those included in the first notice. To do so was the best course to follow in the interest of the complainers, because it is desirable that all the lands which a railway company wish to take from the same proprietor should be included in one notice, and indeed the inconvenience of any other course is the ground upon which the second objection is rested. In regard to the second notice, I have already pointed out that the complainers maintained on various grounds that it was incompetent, and therefore cannot object to its having been withdrawn.

The second objection is, I think, also untenable. If a railway company find that they require more land than they at first contemplated, they may give a second notice to treat for the acquisition of additional land. Therefore to serve two notices upon the same proprietor is not necessarily incompetent, and when as here a question has been raised whether a railway company has power to take certain portions of the lands of a proprietor, I think that they are justified in making these portions the subject of a separate notice. If they do not do so they run the risk of the notice being held to be wholly bad.

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The third objection is of a different character, and is, in my opinion, well founded. One of the parcels of land included in the second notice is No. 94, which I understand is described in the book of reference as a yard used in connection with the Ferguslie Works. It seems to me that in so far as it is outside the limits of deviation that parcel is not delineated at all. The respondents contended that the boundaries on each side were shewn, on the one side a road (which is not numbered on the plan), and on the other side an old railway siding which is numbered 95, and that number 94 must be regarded as including the ground between the road and the siding. In short, the respondents propose to delineate No. 94 by drawing a line, which is not on the plan, from the point where the delineation of the road upon the plan ceases to the point where the delineation of the old siding ceases. I am unable to adopt that view. If in order to delineate No. 94 it is necessary to assume a line or boundary which is not shown upon the plan, it follows that No. 94 is not in fact delineated on the plan. Further, it seems to me that the road is not shown on the plan as forming the boundary of any subjects which the respondents are authorised to take except No. 84. The road is no doubt carried a little beyond the limits of No. 84, but that, I think, is simply intended to show that the road in fact continues in that direction. I rather think that the same thing may be said of the old siding in so far as it is outside the limits of deviation, but that is not so clear. Assuming, however, that No. 95 includes the whole of the old siding shown upon the plan and that that siding may be regarded as representing one boundary of 94, the respondents would derive no benefit, because the result would be that two boundaries of No. 94 (represented by two lines practically at right angles) would be shown, but that the extent of No. 94 in other directions would not be in any way limited or defined. I am therefore of opinion that the respondents were not entitled to take the lands outside of the limits of deviation which they claim to be included within No. 94. I may refer to the cases of Protheroe, 1891, 3 Ch. 279, and Place, 32 S.L.R., p. 145, which seem to me to be directly in point.

The next question is, what is the result as regards the notice to treat, No. 6 of process, if the respondents are not entitled to take the land which they have there described as No. 94? Is the result that the notice is altogether bad, or that they are entitled to take the other lands described in the notice which are delineated on the plan?

I should have expected that question to have been settled long ago, but so far as I can find there has only been one decision on the point. That was a judgment by Lord Kyllachy in 1895, in the case of M'Callum v. Glasgow District Subway Company, which is only reported in the Scottish Law Times, vol. iii., No. 310. Lord Kyllachy held that where a notice to treat included land which the company was not entitled to take, it was altogether bad, and the company could take no land at all under that notice.

I observe also that Mr Deas in his work upon the Law of Railways says (p. 145) that a notice to treat has the effect of determining that the company ‘shall in no event take less, nor, without additional notice, take more land than that defined and described by the notice. It fixes in fact one of the essentials of a contract of sale, namely, the precise subject-matter of the contract.’

I think that that last sentence explains the ground of the conclusion arrived at both by Lord Kyllachy and Mr Deas. It is settled that a notice to treat concludes a contract for the sale and purchase of the land described and referred to in the notice in this sense, that the company are thereby bound to purchase and the proprietor to sell the lands, even although the price, which is in ordinary circumstances an essential term in a contract of sale, cannot be fixed until afterwards. The position of matters was thus stated by the Lord Justice-Clerk (Inglis) in Forth and Clyde Junction Railway Company v. Ewing, 2 M. 693—‘The special Act is substantially an offer of the land by the landowner to the company, and notice by the company of their intention to take the land is an acceptance of that offer.’

Now, of course, if the notice is an acceptance of a statutory offer to sell the lands which the company are authorised to take, it follows that no contract is concluded by a notice which includes lands which the company are not authorised to take, because in that case the acceptance does not square with the offer.

But to say that the Special Act and the notice constitute an offer and acceptance is rather to state the legal result of the Act and the notice than the actual fact. I was therefore at first inclined to think that it would be pedantic to carry the analogy of an offer and acceptance so far as to say that if the company in error include in a notice a plot of land which they have not power to take, as well as various plots which they have power to take, they must drop the notice altogether, and cannot take the plots in regard to which there is no question as to their right. If they were allowed to do so the landowner would not be prejudiced, because the company would get what they had statutory authority to take, and no more, and the landowner would be compelled to sell what the statute obliged him to sell, and no more.

Upon further consideration, however, I have come to see that there is another side to the question. If the company is entitled to take under such a notice as I have figured the part of the lands described which they have authority to take, then the landowner must also be entitled to insist that they shall take that part of the lands. That, I think, would be a very unfortunate position of matters for railway companies. A case might very well occur in which, if a railway company could not

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get the whole of the land included in a notice it would be necessary for them to divert the proposed line of the railway to such an extent that they would not require any land at all belonging to the owner to whom the notice had been given. If in such a case the owner was entitled to compel the company to take so much of the lands included in the notice as they had power to take, the result would be that they would be saddled with lands which they did not require.

I therefore think that as a contract of sale and purchase, although of a somewhat peculiar nature, is undoubtedly concluded by the service of a notice to treat, it is necessary, for the protection of the parties, to apply the ordinary rule that the subject-matter of the contract shall be precisely ascertained, which it cannot be if the notice includes anything more than lands which the company are authorised to acquire.

[ The Lord Ordinary then dealt with the fourth ground of objection, but as this ground was not insisted in when the case came before the Inner House it is not considered necessary to report that part of his opinion, or to refer further to this part of the case.]

The respondents reclaimed, and argued—(1) with regard to the notice to take lands within the limits of deviation, the objection to this notice that it embraced lands which had been included in an earlier notice that had been withdrawn could not be sustained; the respondents' statutory powers were not exhausted by the earlier notice. (2) With regard to the notice to take lands outside the limits of deviation, all the lands there referred to were delineated; the deposited plan made it clear what lands the notice was intended to embrace; a line might be drawn joining the termini of lines marked on the plan— Dowling v. Pontypool, &c. Railway Company (1874), L.R. 18 Eq. 714; Finck v. London and South Western Railway Company (1889), L.R., 44 Ch D 330. In any event, assuming that part of No. 94 was not delineated, and that the notice was bad with regard to that part, it remained effectual with regard to the rest of the lands which it embraced; the notice was given to treat for the “said respective areas of land, or any of them.”

Argued for the complainers—(1) with regard to the lands within the limit of deviation, this notice embraced lands part of which had been included in an earlier notice that had been withdrawn; the earlier notice constituted a binding contract which could not be varied by one of the parties thereto without the consent of the other. (2) With regard to the notice to take lands outside the limit of deviation, that portion of No. 94 which was outside the limit of deviation was not delineated, and therefore could not be taken by the respondents— Protheroe v. Tottenham and Forest Gate Railway Company, (1891), 3 Ch. 278; Place v. West Highland Railway Company, December 12, 1894, 32 S.L.R. 145; the notice was therefore bad with regard to that portion of No. 94, and being bad in part it was wholly bad— M'Callum v. Glasgow and District Subway Company, December 7, 1895, 3 S.L.T. 310; Wrigley v. Lancashire and Yorkshire Railway Company (1863), 9 Jur. N.S. 710.

At advising—