Scottish Court of Session Decisions

The Poor Law (Scotland) Act 1845 (8 and 9 Vict. c. 83) enacts—section 37—“And be it enacted that in estimating the annual value of lands and heritages the same shall be taken to be the rent at which, one year with another, such lands and heritages might in their actual state be reasonably expected to let from year to year, under deduction of the probable annual average cost of the repairs, insurance, and the expenses, if any, necessary to maintain such ands and heritages in their actual state, and all rates, taxes, and public charges payable in respect of the same.…”

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Section 45—“And be it enacted that in cases where any canal or railway shall pass through or be situate in more than one parish or combination, the proportion of the annual value thereof on which such assessment shall be made for each such parish or combination shall be according to the number of miles or distance which such canal or railway passes through or is situated in each parish or combination in proportion to the whole length.”

The Lands Valuation (Scotland) Act 1854 (17 and 18 Vict. c. 91), section 22, enacts—“The yearly rent or value, in terms of this Act, of the lands and heritages in any parish, county, or burgh, belonging to or leased by any railway or canal company, and forming part of the undertaking of such company, shall be ascertained as follows—that is to say, there shall be deducted in the first place from the cumulo yearly rent or value of the whole lands and heritages in Scotland as aforesaid of each such railway or canal company a sum equal to three pounds per centum of the whole cost as aforesaid of the stations … and other houses and places of business in Scotland of and connected with the undertaking … and the proportion of such diminished cumulo rent or value corresponding to the lineal measurement of the portion of the line … of such railway or canal company situated in such parish, county, or burgh, as compared with the lineal measurement of the entire line … with the addition of a sum equal to three pounds per centum of the cost as aforesaid of any station … or other house or place of business within such parish, county, and burgh, of or connected with the undertaking … shall be deemed and taken to be the yearly rent or value, in terms of this Act, of the lands and heritages in such parish, county, or burgh, belonging to or leased by such railway or canal company and forming part of its undertaking.”

The Lands Valuation (Scotland) Amendment Act 1867 (30 and 31 Vict. c. 80), sec. 4, alters three per centum in the above-quoted section to five per centum.

On 30th May 1905 the Parish Council of the City Parish of Aberdeen presented a petition in the Sheriff Court at Aberdeen, in which they sought to recover from the Caledonian Railway Company the sum of £452,13s. 8d. as the poor and other parochial rates due by the defenders, as assessed on their undertaking within the parish. The sum on which the assessment had been made had been arrived at by allowing, under section 37 of the Poor Law Amendment (Scotland) Act 1845, a deduction of 30 per cent. from the yearly value appearing in the valuation roll. The company claimed a larger deduction, and had offered to accept a deduction of 35 per cent., while maintaining that they were really entitled to 41 71 per cent. The company's undertaking within Aberdeen City Parish consisted of a terminus station, offices, and a small portion of permanent way.

The pursuers, inter alia, pleaded—“(3) The deductions claimed by the defenders in respect of repairs, insurance, and other expenses, so far as regards stations and other erections, being based on the cumulo cost of such repairs, &c., over their whole undertaking, and the defenders being only entitled to a deduction of the probable average cost of such repairs, &c., applicable to the stations and other erections lying within the pursuers’ parish, the defences are irrelevant and should be repelled.”

The facts of the case are given in the Sheriff-Substitute's note ( infra).

On 28th October 1905 the Sheriff-Substitute (Robertson) found that the deduction of 30 per cent. allowed by the pursuers upon the gross value of the defenders' undertaking within the City Parish was as much as the defenders were entitled to, and granted decree as craved.

“ Note.—The question to be decided in this case is the amount of deduction the defenders are entitled to have taken from their valued rent before poor and school rates are imposed.

The deductions are fixed by section 37 of the Poor Law Act of 1845, and are stated to be the probable annual average cost of the repairs, insurance, and other expenses, if any, necessary to maintain such lands and heritages in their actual state, and all rates, taxes, and public charges payable in respect of the same. The manner of dividing up the cumulo value of the railway into the different parishes is provided by section 45 of the above Act, as modified by the Lands Valuation (Scotland) Act of 1854, sections 21 and 22, and subsequent Acts. It is described in Deas on Railways (Ferguson), p. 854.

In the present case the Railway Company produces a statement showing the cost of repairs, &c., over its whole system for six years, by which it appears that taking these six years the average cost of repairs, &c., over the whole system is 41 71 per cent., and they claim this deduction from the valued rent of the Aberdeen City Parish. The Parish Council offered 25 per cent., and subsequently 30 per cent., and the Railway Company have offered to accept 35 per cent., Dut the parties cannot get nearer each other. The point of principle at issue is shortly this. The Railway, as I have stated, claim a deduction of 41 71 from the proportion of their total valuation effeiring to the Aberdeen City Parish, i.e., £5217. The pursuers argue, in the first place, that six years is too short a period, but secondly, and chiefly, they point out that the value of the Railway Company's property in the parish consists mainly of the value of station buildings, &c., the value of the line being only £012, while that of the station, &c., is £4605. Further, that it appears from the statement lodged by the Railway Company themselves that the cost of repairs, &c., upon stations does not constitute anything like so serious a yearly burden as the maintenance of the permanent way, nor does it amount to anything like the same percentage of the original cost, and further, that it is not an increasing burden. That by section 34 of the Act of 1845 it is clear that it is the lands and heritages within the parish that

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must be assessed, and similarly it is argued that the deduction under section 37 must be the deduction applicable to the lands and heritages within the parish. If this is sound, pursuers argue that obviously it would be unfair to allow the average deduction over the whole system to this parish, because in point of fact, taking the average deduction ( a) from £612 worth of permanent way, and ( b) £4605 worth of station buildings, &c., and adding them together, they would amount to a much less proportion of the total sum than 41 per cent.

I must say I see difficulties in carrying out pursuers' contention here, and I dare say in some parishes it may result in anomalous results. In many respects it would save trouble and come to pretty much the same thing in the end to adopt the Railway Company's contention. But if it is to be strictly construed, I think the pursuers are right. It is the lands and heritages within the parish that are assessable, and I think it should be the deductions properly falling to these lands and heritages that should be made.

I therefore adopt pursuers’ contention, and in respect of their offer fix 30 per cent. as the amount of the deduction to be allowed.”

The Railway Company appealed, and argued—The method of arriving at the valuation of the railway within a parish was prescribed by the Poor Law Act of 1845. The cumulo value of the whole undertaking was to be taken and divided among the parishes in proportion to the mileage therein. It followed that the proper deduction for repairs was the average cost thereof over the whole undertaking. The Lands Valuation Act of 1854 did not alter the cumulo basis although it provided for the deduction, before division by mileage, of 3 per cent. on the cost of stations; nor did subsequent Acts, although the 3 per cent. on the cost of stations provided by sec. 22 of the 1854 Act was altered to 5 per cent. by sec. 4 of the Lands Valuation (Sootland) Amendment Act of 1867 (30 and 31 Vict. c. 80). Division of the undertaking as a whole still remained the method for obtaining the annual value in the parish, and the repairs must also be on the undertaking as a whole. The parish was not entitled to get the benefit of the profits over the whole system and yet limit the deductions for repairs to the actual expenditure thereon within the parish. The following cases were referred to:— Edinburgh and Glasgow Railway Company v. Adamson, March 10, 1853, 15 D. 537 (at p. 542); and Sequel, June 28, 1855, 17 D. 1007, ( aff. June 7,1855, 2 Macq 331; Edinburgh and Glasgow Railway Company v. Meek, December 10, 1864, 3 Macph. 229, at p. 236; Edinburgh and Glasgoiv Railway Company v. Hall, January 19, 1866, 4 Macph. 301, 1 S.L.R. 113; and 2 S.L.R. 159; Inspector of Poor of St Vigeans v. Scottish North Eastern Railway Company, May 9, 1870, 8 Macph. (H.L.) 53, 7 S.L.R. 459; Magistrates of Glasgow v. Hall, January 14,1887, 14 R. 319, 24 S.L.R. 241.

Argued for the respondents—Section 45 of the Act of 1845 and sections 21 and 22 of the 1854 Act were to be read together. The same method should be followed in fixing the amount to be deducted as in fixing the value of the railway within the parish, i.e., the actual amount of the permanent way therein should be taken and the amount representing stations, offices, &c., and the deduction for repairs should be calculated as on the subjects within the parish, i.e., stations on which the cost of repairs was small, or permanent way on which it was large. Any other method would be unfair. The real question was what was the amount of average cost of maintaining the lands and heritages in the parish in their actual state. The Act of 1854, by providing for an allowance for stations, offices, &c., altered the method of assessment laid down in sections 34, 37, and 45 of the Act of 1845, and the words, “under deduction of the probable annual average cost of repairs,” &c , in section 37 of the 1845 Act meant repairs “within the parish.” These words were implied in the section. Reference was made to Edinburgh District Railway Company v. Arthur, February 24, 1858, 20 D. 677.

At advising—