Scottish Court of Session Decisions

On 12th December 1904 the Summerlee and Mossend Iron and Steel Company, Limited, brought an action against the Caledonian Railway Company. In it the pursuers sought, inter alia, declarator that the “defenders are bound and obliged to make and maintain at their own expense a level-crossing by railroad or cart road as the pursuers may choose at any period and at such a point as may be most convenient to the pursuers upon and across that part of the defenders' railway where the same passes through thepursuers' lands of Patonswell and Summerlee, in the county of Lanark, under and by virtue, inter alia, of a

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disposition granted by Alexander Blair, treasurer to and on behalf of the Bank of Scotland and others, with the consent of Wilsons & Company, carrying on business as ironmasters at Summerlee, in favour of Mark Sprot and others, proprietors of the Glasgow and Garnkirk Railway Company, dated 27th and 28th December 1841, and instrument of sasine following thereon, dated 10th, and recorded in the New General Register of Sasines, Reversions, &c., 27th May 1842, and plan docquetted and signed by the parties to the said disposition as relative thereto, the said level-crossing being one of four level-crossings described in said disposition and delineated on said plan, and so as to afford a free access at all reasonable times from the ground belonging to the pursuers on either side of said railway to the other side thereof.”

A conclusion followed for decree ordaining the construction of the level-crossing.

The following narrative of the facts and the early stages of the case is taken from the opinion of Lord Dundas—The pursuers, an iron and steel company, carry on their business in works near Coatbridge, erected about 1853 by their predecessors, Wilsons & Company, upon part of the Summerlee estate, which they had purchased for the purpose. About 1841 the Glasgow and Garnkirk Railway Company—absorbed four years later by the defenders, the Caledonian Railway Company—purchased from Wilsons & Company by private agreement a strip of their said estate, extending to about 2 1 2 acres, which ran right through, and (roughly speaking) bisected it, and upon this they laid down a portion of their railway, which is now used as one of the main passenger lines of the defenders' company. Part of the sellers' consideration consisted of certain stipulated accommodation works, the construction and maintenance of which were created real burdens upon the land conveyed. It is not disputed that the pursuers and defenders are now respectively vested in the rights and obligations arising out of these burdens. By the disposition conveying the strip of ground in 1841, it was, inter alia, declared that the sellers and others having right from them shall be allowed to cross at four level-crossings, either by railroad or cart road as they may choose, the said railway at any period at such points as may be most convenient for them, and which crossings, as now delineated on said plan first above mentioned, shall be made and maintained by my said disponees and at their expense.… The parties are agreed that the pursuers' rights to three of the level-crossings have been satisfied, discharged, or relinquished, and it is with the remaining one alone that this case is concerned. About 1902 the pursuers called upon the defenders to proceed with the construction of this crossing, which they maintained was of great and pressing importance to their business. A mass of correspondence followed, and the present action was raised on 12th December 1904. On 21st June 1905 the Lord Ordinary ( Low) found that the defenders were bound to make and maintain a level-crossing for the use of the pursuers upon and across their railway at or near a point marked upon a certain plan, and appointed the defenders to lodge a minute stating what steps they had taken or purposed to take for the construction of said level-crossing, and at or about what date they proposed to commence the work of construction. This interlocutor was apparently acquiesced in, and the defenders lodged their minute, objections to which for the pursuers and answers thereto for the defenders were subsequently put in. The objections and answers disclosed, inter alia, a disputed point which lies near the root of this protracted squabble. The pursuers objected that the defenders were bound to make and maintain all adjuncts to the crossing which the Board of Trade might prescribe as necessary for the safety of the public or of the traffic on the defenders' railway, but the defenders declined to construct any such adjuncts in so far as they might fall to be made upon ground belonging not to themselves but to the pursuers. The case thereafter went to sleep, but was awakened in the summer of 1907, when the Lord Ordinary (Salvesen) opened up the record, and allowed a statement of facts for the defenders and answers for the pursuers to be added to it. The new pleadings disclosed what had been going on while the cause slept. The defenders explained that they had constructed a crossing upon their own ground, that the pursuers had made lines or sidings on their property to connect with the crossing on both sides; that the defenders had on 27th October 1906 submitted a plan to the Board of Trade and asked them to approve of the crossing being put into use; that on 7th December 1906 they submitted another plan showing further works, and again asked for the Board's approval; that on 20th February 1907 one of the Board of Trade's inspecting officers, Colonel Yorke, had visited the locus, and that by report dated 28th February Colonel Yorke had declined to recommend the Board to sanction the use of the crossing. It is to be observed that the principal grounds upon which Colonel Yorke declined to recommend the Board to sanction use of the crossing were (a) the gradient—1 in 40—of the pursuers' mineral line on the west side, and (b) the fact that the crossing itself had been laid at right angles to the defenders' railway. As regards the first of these objections, the pursuers have stated on record that they “are quite prepared to reduce their gradient on the west side to 1 in 1000,” and again that they are “willing to rearrange their approach lines on the western portion of their own ground in any way that may be necessary in order that they may connect with the level-crossing when completed by the defenders.” As regards the second objection, it is important to observe that when the pursuers' agents, so far back as 15th February 1904, submitted to the defenders' agent a plan in conformity with which they requested that

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the crossing should be constructed, the crossing was shown not at right angles to the passenger lines but on a skew. After protracted delay the defenders' agent replied, on 13th September 1904, that ‘the plan shows a level-crossing on the skew instead of on the square, and as the company cannot agree to form the crossing on the skew I shall be obliged by your letting me have an amended plan showing the position of the crossing on the square.’ I do not know by what warrant the defenders considered themselves entitled to refuse a crossing on the skew and insist for one on the square; I understood their counsel to say it was because the square was shorter and therefore cheaper than the skew; but the important point is that the crossing has been laid on the square upon the demand of the defenders and against the original desire of the pursuers. It is true that on 4th October 1904 the latter furnished the defenders, in accordance with their demand, with a plan of the level-crossing on the square, but I do not think this could be held as a deliberate acquiescence in the proposed change, or as excusing the defenders from having to lay the crossing on the skew if that should be found necessary to the execution of their contractual obligation. The defenders have thus in point of fact constructed a crossing upon their own ground, except that a single rail has purposely been left unlaid to prevent its actual use, but this rail could as matter of practical work be laid in half-an-hour.”

On 4th March 1908 the Lord Ordinary pronounced the following interlocutor—“Decerns the defenders to complete the level-crossing at or near the point marked ‘A B’ on the plan, so as to make it available as a connection between the lines of railway or railway sidings constructed by the pursuers on their own land at each side of the defenders' railway, and that within the next fourteen days, but subject always to the pursuers' undertaking not to use the said level-crossing until they have reduced the gradient on their railway on the west side of the defenders' railway to one in a thousand; and grants leave to reclaim.”

Opinion.—“On 21st June 1905 Lord Low, before whom this action then depended, pronounced a finding that the defenders ‘are bound to make and maintain a level-crossing for the use of the pursuers upon and across that part of the defenders' railway which passes over the pursuers' lands of Patonswell and Summerlee, and at or near the point marked A B on the plan.’ By the same interlocutor he appointed the defenders to lodge in process a minute stating what steps they proposed to take for the construction of said level-crossing.

The defenders took no steps to have this interlocutor submitted to review; but in obedience to it they lodged a minute in which they stated that they had instructed their engineer to proceed with the work of constructing the level-crossing in question so far as situated on their own ground, and that the work of construction would be commenced not later than 15th August 1905, subject to the regulations of the Board of Trade, and subject further to the pursuers executing the necessary work in connection with the extension of said level crossing into their own land as might be required and approved of by the Board of Trade. The pursuers lodged objections to this minute, in which they took exception to the qualification with regard to the regulation of the Board of Trade, maintaining that it was for the defenders to make all adjuncts to said level-crossing which might be prescribed by the Board of Trade as necessary adjuncts for the purpose of securing the safety of the public and of the traffic on the defenders' line of railway. The defenders admit this, subject to the important limitation that they do not propose to construct any such adjuncts in so far as they fall to be made on property belonging to the pursuers.

The defenders thereupon proceeded to construct the level-crossing; and they have laid rails across the public line and have erected a gate at each side of the level-crossing. They have, however, left one rail of the crossing on the east side of the railway unlaid; so that in its present condition the crossing cannot be used. It was at first proposed to put the levelcrossing on the skew, but the defenders ultimately elected to make it at right angles to the existing railway; and this is how it has been constructed.

The pursuers, in order to connect their railway with the level-crossing, also constructed lines on their own ground on either side. On the west side the gradient of the line was 1 in 40, and on the east side 1 in 971.

The defenders thereupon approached the Board of Trade to send an inspecting officer to inspect the level-crossing and sanction its use, with the result that a report was prepared by Colonel Yorke. He took exception to the inclination of the mineral line being 1 in 40, and also to the crossing having been formed at right angles so as to make it impossible to insert catch-points in the mineral railway sufficiently near the public lines to adequately protect them. He accordingly stated his inability to recommend the Board of Trade to sanction the use of this crossing. Matters have since remained at a deadlock, parties having differed as to their legal obligations in the matter—the pursuers apparently declining to approach the Board of Trade on the footing that they possess no jurisdiction over a crossing of this kind. They have, however, on record expressed their willingness to reduce the gradient on the west side to 1 in 1000, which will certainly obviate one of the objections of the Board of Trade inspector to the use of the level-crossing. I think they are well advised in making this offer, because as the mineral line on each side of the level-crossing falls to be constructed by them, I think there is an implied obligation upon them so to construct the line as not to make the level-crossing unnecessarily dangerous.

The defenders boldly maintain that they

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have fulfilled the obligation which was incumbent upon them under the interlocutor of Lord Low, and that they are now entitled to be assoilzied. If I were prepared to adopt the defenders' view, I should have thought the more appropriate course would have been to dismiss the action on the ground that it had served its purpose; but it is quite plain that so long as the rails do not extend from one side to the other of the level-crossing, the defenders' obligation can in no sense be held to have been implemented. The real question, however, in the case seems to be, upon whom the burden falls of satisfying the Board of Trade, for that department undoubtedly possesses jurisdiction over the defenders with regard to the conduct of their traffic on their public lines.

The argument for the defenders on this head may be briefly summarised as follows. In 1841, when the obligation which it is sought to enforce in this action was undertaken, railways in this country were still in their infancy. Supervening legislation, however, has conferred large powers on the Board of Trade with regard to the regulation of railways. In 1842, by the Act 5 and 6 Vict. cap. 55, sec. 4, it was enacted that no railway or portion of a railway should be opened for the conveyance of passengers until notice of the intention to open it should have been given to the Board of Trade, and until the Board of Trade should be satisfied that such opening might take place without danger to the public; and by the Act 34 and 35 Vict. (1871) cap. 78, sec. 5, the provisions of the earlier Act were extended to the opening, inter alia, ‘of any crossing on the level which forms a portion of or is directly connected with a railway on which passengers are conveyed, and has been constructed subsequently to the inspection of such railway on behalf of the Board of Trade previous to the original opening of such railway.’ The defenders say that the crossing in question comes under this section; and that, just as supervening legislation might have discharged them of the obligation to construct a levelcrossing at the place in question by prohibiting its construction, so it falls upon the pursuers, so far as any works require to be made on their ground, to satisfy the Board of Trade inspector by constructing such works at their own expense.

In the absence of the Board of Trade I cannot, of course, decide what jurisdiction they possess in the matter so as in any way to bind them, but as between the parties to the present case I think I am bound to express my opinion of the effect of section 5 of the 1871 Act, and I have come to the conclusion that it has no application to the crossing in question. It is plain that this level-crossing does not form a portion of a railway on which passengers are conveyed, any more than a cart road on the level could be held to form a portion of such a railway. Is it then directly connected with such a railway? Mr Cooper argued that it was in physical contact with a passenger line, and therefore must be treated as being directly connected to it within the meaning of the section. I cannot so read it, because this may be predicated of every level-crossing over passenger railways, and yet I think it is plain that the Act does not apply to the construction of every level-crossing. At all events, the pursuers are willing to take all risks of the Board of Trade interfering with their operations; and if the Board of Trade have jurisdiction over them they can, of course, enforce it whenever the pursuers propose to use the level-crossing. I do not think, therefore, that the sections quoted afford any obstacle as between the parties to this case to the pursuers obtaining the decree which they seek.

In the view that I have taken it is unnecessary to consider the question whether, if catch-points or stop-blocks should ultimately require to be made on the pursuers' line so as to guard against the risk of accident to the public traffic, the expense of constructing such would fall upon the pursuers or the defenders. For all I know the Board of Trade may not in the end insist on any such works, now that the pursuers have agreed to reduce the gradient. Something will also depend upon how far such precautions may be necessary because of the largely increased traffic upon the line. The pursuers' view would seem to be, that whatever requires to be done to enable the defenders to implement their obligation to the pursuers, in so far at least as that has been occasioned by a change in the character and amount of the traffic on their lines, must be done at their expense; but as there has been no inquiry into the facts I refrain from saying anything further.

“I was informed by Mr Cooper that the single rail which is still unlaid on the east side of the railway can without difficulty be put down within half-an-hour. I propose to give the defenders a fortnight within which to do this work; and to make the use of the crossing subject to the pursuers first reducing the gradient of their mineral line on the west side of the public road to 1 in 1000.”

The defenders reclaimed, and argued—The Regulation of Railways Act 1871 (34 and 35 Vict. cap. 78), sec. 5, applied the provisions of the Railway Regulation Act 1842 (5 and 6 Vict. cap. 55) to the level-crossing here, and made the sanction of the Board of Trade necessary to its use. The Board of Trade had refused their sanction. Their decision could not be reviewed by the Court— Attorney-General v. Great Western Railway Company, 1876, L.R., 4 Ch. Div. 735. The Board of Trade's refusal was based chiefly on the inadequacy of. works on the pursuers' lands, with which the defenders had nothing to do. The defenders had neither right nor duty to enter on lands not belonging to them for the purpose of making adjuncts to the level-crossing The level-crossing had been made, and nothing more could be or had to be done by the defenders. There was, for example, no obligation on the party bound to make a bridge over a railway line to make the approaches thereto, apart from special statutory provision. The defenders

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therefore had fulfilled their obligation. Alternatively, if the actual making of the crossing was not fulfilment, anything more had become impossible by reason of the refusal of the Board of Trade to sanction the crossing. The sanction of the Board of Trade was necessitated by legislation subsequent to the constitution of the obligation, and it had therefore become impossible of performance, and the defenders were discharged— Baily v. De Crespigny, 1869, L.R., 4 Q.B. 180; Caledonian Insurance Company v. Matheson's Trustees, June 4, 1901, 3 F. 865, 38 S.L.R. 691; Newington Local Board v. Cottingham Local Board, 1879, L.R., 12 Ch. Div. 725. The Railway Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 33), secs. 41 and 58, were referred to.

Argued for the pursuers (respondents)—The Railway Regulation Act 1842, and the Regulation of Railways Act 1871, did not apply to the present level-crossing, which was not a portion of nor directly connected with a passenger railway. “Directly connected with” implied that it would be possible for trains to pass from the one line to the other— Attorney-General v. Great Western Railway Company, 1872, L.R., 7 Ch. App. 767. But whether these Acts applied or not, the defenders' obligation was to give the pursuers a levelcrossing which could be used, and that obligation they certainly had not fulfilled. If it were necessary for the defenders in fulfilling that obligation to enter on the pursuers' lands, they were both entitled and bound to do so. They were bound to make all the adjuncts and appliances, whether on their own land or on the pursuers'— Addie's Trustees v. Caledonian Railway Company, July 7, 1906, 8 F. 1047, 43 S.L.R. 769; Wishaw and Coltness Railway Company, &c. v. Dixon, February 9, 1849, 11 D. 557; Todd v. Midland Great Western Railway Company, 1881, L.R., Ir.,

9 Ch. Div. 85. There was nothing in the necessity for the sanction of the Board of Trade which excused performance of the obligation, and there was no question of impossibility of performance by reason of supervenient legislation. It might be that the effect of subsequent legislation was to make the defenders' obligation more onerous, but that did not excuse non-performance— Dunbar's Trustees v. British Fisheries Society, July 12, 1878, 5 R. (H. L.) 221, 15 S.L.R. 772. Counsel also referred to Mackay v. Dick and Stevenson, March 7, 1881, L.R., 6 A.C. 251, 8 R. (H.L.) 37, 18 S.L.R. 387.

At advising—

The opinion of the Court was delivered by