Scottish Court of Session Decisions

On 26th January 1905 Miss Janet Addie, Braidhirst, Motherwell, and others, the testamentary trustees of the late Alexander Addie of Braidhirst and Milton, in the county of Lanark, brought an action against the Caledonian Railway Company to have the company ordaitied to implement an obligation undertaken by it under a disposition granted by the pursuers in its favour, dated 9th and recorded 10th November 1900, of certain pieces of land in the parish of Dalziel, Lanarkshire, which obligation was in the following terms:—“But these presents are granted and the said three pieces of ground and others above disponed are so disponed always with and under the burdens, conditions, declarations, obligations, reservations, and others following, namely—(1) the said company shall construct and maintain in all time coming, at their own expense, one accommodation bridge over or under the branch railway intended to be formed by the said company on the said portions of land above disponed, at a point shown on the plan signed as relative hereto, marked A, or at such other point as may be arranged between … acting for us, whom failing … and the said company's engineer, said accommodation bridge, if over the said intended branch railway, to have a clear width of 40 feet between the parapets, and if under to have a span of not less than 40 feet and a height of not less than 15 feet. Plans and sections of the bridge to be constructed by the said company, and of the approaches to said bridge, shall be submitted to our engineers before the construction thereof is commenced, and if there shall be any difference between us and the said company with reference to design, character, or construction of said bridge, or as to the gradients or inclination of the approaches thereto, or otherwise in relation to said bridge or approaches, the same shall be determined by.…”

On 6th July 1905 the Lord Ordinary (Low) gave decree, and on 14th March 1906 the First Division adhered and remitted to the Lord Ordinary to proceed. The pursuers thereafter moved the Lord Ordinary ( Salvesen) in the Motion Roll to ordain the defenders to commence building the bridge and its approaches. The defenders, however, maintained that they were not bound to do more than build the bridge, and that the pursuers were bound to make the approaches at their own expense.

On 5th June 1906 the Lord Ordinary pronounced the following interlocutor:—“The Lord Ordinary … decerns and ordains the defenders to commence the construction of the accommodation bridge referred to in the summons, including the approaches thereto … , and that within the period of one month from this date, and thereafter to proceed with the same continuously, and complete the same within the space of nine months from the date of commencement”

“ Opinion.—The merits of this case have already been disposed of, and the only point which still remains undetermined is whether the defenders are bound to pay the cost of the approaches to the accommodation bridge which they have been held bound forthwith to construct. The defenders maintain that they have satisfied their contractual obligation when they have constructed the bridge itself, and that the pursuers must at their own expense make the approaches.

The decision of this important question depends, in the first place, on the terms of the obligation on which the action is founded. The leading provision of the clause is that the defenders are to ‘ construct and maintain in all time coming at their own expense one accommodation bridge over or under the branch railway intended to be formed on the portions of land disponed.’ There follows a provision as to the site of the bridge and the width and height of the span. Then occurs a clause which was strongly founded on by the defenders and which is in these terms—‘Plans and sections of the bridge to be constructed by the said company and of the approaches to said bridge, shall be submitted to our (that is, the pursuers’) engineers before the construction thereof is commenced.’ It was argued that here a sharp distinction is drawn between the bridge to be constructed by the company and the approaches to the bridge, which are not said to be constructed by the company. In my opinion this is too critical a construction of the clause. I think the bridge must be held to include its approaches, and that these are only referred to in the quoted clause in order to make it plain that the pursuers shall have an opportunity of submitting the question as to the gradients or inclination of the approaches to arbitration, in the event of their being dissatisfied with the plans submitted by the company. If the company have nothing to do with the erection, it is not easy to understand why their engineer should be at the

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trouble of making plans of the approaches.

The pursuers’ interpretation of the clause is further aided by a consideration of the circumstances under which the disposition came to be granted. The defenders wished to construct a branch railway, and for that purpose they needed to acquire land belonging to the pursuers. The construction of the railway could not fail to cause damage by severance, and it was obviously to minimise such damage by affording a connection between the different portions of the pursuers' land that the obligation to construct the accommodation bridge was undertaken. Now it was left in the hands of the Railway Company to decide whether the bridge should be on the level of the land, as it might well be if the railway were constructed in a cutting, or be carried over or under it. The height of the bridge (above a fixed minimum) fell also to be determined by the company. It is therefore obvious that the cost of construction of the approaches might vary indefinitely according to the method that the Railway Company adopted of making their line. I think it could scarcely have been the intention of the pursuers that in this respect they were to be left at the mercy of the defenders when they took them bound to construct the accommodation bridge. Further, I do not think that a bridge can be properly described as an accommodation bridge which does not afford a complete connection between the portions of ground severed by the line. It was conceded that an accommodation bridge which a railway company are compelled to construct under the Railways Clauses Act includes the approaches to it, and I do not doubt that the agreement embodied in the disposition, and which was intended to obviate the Railway Company having recourse to compulsory powers, was not intended to be less effective in safeguarding the landowner's interests.

There was some discussion as to the time within which the bridge should be constructed, the pursuers pressing for a period of six months, and the defenders asking that it should be extended to twelve. Mr Guthrie satisfied me that six months was on the short side, but I think that the bridge with its approaches might quite well be completed within nine months from the date of commencement.”

The Railway Company (leave having been given) reclaimed, and argued—The Lord Ordinary was wrong. His Lordship had disposed of a serious and important question in the Motion Roll, and the matter had not been sufficiently discussed. There was a clear distinction in the clause in question between the bridge and the approaches. The construction of the latter was more important for the company than the construction of the bridge, for it might involve their having to buy the necessary ground. The agreement implied that the company were to build the bridge and the landowner to make the approaches.—Railway Clauses Act 1845 (8 and 9 Vict. c. 33), sec. 14, was referred to.

Argued for the pursuers (respondents)—The Lord Ordinary was right. An accommodation bridge meant bridge and approaches. That was the meaning of “accommodation bridge” in the Railway Clauses Act 1845, sec. 60. Reference was also made to the following cases— Bex v. West Riding of York (1806), 7 East. 588; Beg. v. Mayor of Lincoln (1838), 8 A. and E. 65; Nottingham County Council v. Manchester Railway Company, August 7, 1894, 71 L.T. 430.