Scottish Court of Session Decisions

The Magistrates of Inverness brought an action of declarator against the Highland Railway Company that the company were bound to pay compensation in respect of the superiority of, or otherwise to redeem the feu-duties and casualties appertaining to, certain portions of land (Needlefield, Gairbreeds, &c.) acquired by the defenders from Baillie of Leys under the Highland Railway Act 1865, of which land the pursuers claimed to have been superiors.

The defenders pleaded, inter alia—“(1) No title to sue. (2) The pursuers' averments are irrelevant and insufficient to support the conclusions of the summons.(3) On a sound construction of the statute founded on by the pursuers, the defenders are not liable in either compensation or redemption to the pursuers, and should be assoilzied accordingly. (4) The pursuers' claim is excluded by reason of mora and taciturnity. (7) In any event, no apportionment of said feu-duties and casualties having been made, the present action is premature and should be dismissed.”

The facts of the case and the averments of parties appear in the opinion ( infra) of the Lord Ordinary ( Mackenzie), who on 3rd February 1909 allowed the pursuers a proof and repelled the second and seventh pleas-in-law for the defenders.

Opinion.—This action by the Magistrates of Inverness against the Highland Railway Company is for compensation for loss of feu-duties and casualties in respect of land to which the company obtained a statutory title under the Lands Clauses Act 1845, and of which the pursuers say they were superiors.

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The lands so acquired by the company were a portion of the estate of Mr Baillie of Leys. The conveyance was dated and recorded in the Register of Sasines in 1874, in terms of the Lands Clauses Act.

The pursuers aver that prior to the date of the acquisition of the lands by the defenders they were held by Mr Baillie off the pursuers as superiors. They state that the last investiture was a charter of confirmation in his favour in 1857. The defenders do not admit that the pursuers were superiors of the subjects. They maintain the defenders have not set out a relevant defence to the case they aver on record as to their right to the superiority of the lands in question, and found on the authority of Earl of Breadalbane v. Macdougall, 8 R. 42, affd. 8 R. (H.L.) 92. The pursuers must, however, to succeed in this action, adduce a good title under section 110. There is now no relationship of superior and vassal between the pursuers and defenders. There must be proof on this point.

Unless the pursuers can instruct that they were superiors of the lands, the further questions argued do not arise. The parties, however, urged that it would be convenient if an opinion were expressed upon the point whether, assuming the pursuers to be right, and that they were the superiors, they have any claim for compensation against the defenders.

This depends upon the sections of the Lands Clauses Act 1845, which were the subject of detailed criticism in the cases brought against the present defenders by the Magistrates of Elgin, 11 R. 950, and by the Magistrates of Inverness, 20 R. 551.

The summons in the present case concludes that the defenders are bound to pay the pursuers compensation in respect of the superiority of the lands, or otherwise to redeem from the pursuers the feu-duties and casualties and pay the price as the same may be fixed by arbitration, or otherwise determined in one or other of the modes prescribed by the Lands Clauses Act 1845. The first conclusion was said to give effect to the view of the Lord President in the Elgin case, and to be based on sections 109 and 126 of the Act. The alternative conclusion is supported by the opinion of Lord Kinnear in the Inverness case, and is rested on a construction of section 107. It would serve no good purpose to discuss now which alternative should be adopted if each leads to the same conclusion, viz.—that the defenders must pay the pursuers a sum of money which, whether it be called compensation or redemption money, is to be calculated, in either case, upon the same principles.

The title which the Railway Company obtained here was, as in the Elgin case, under section 80 of the Act. The effect was that the company got an independent right without any relation to the superior at all as regards title. The only relation the company could have to the superior would be one arising out of a liability for money. The Lord President dealt in the Elgin case with the case where a portion of land only was taken out of an estate held by the seller under the same titles (that is the case here), and observed—‘It is quite just and consistent that, as the superior is to lose his security for feu-duties and casualties in so far as regards the subjects conveyed to the railway company, he should be compensated therefor. That is a principle which runs through the whole of these statutes.’ This proceeded on the view that section 126, taken along with section 109, provides for compensation in a case where a portion only of the lands are taken, and that section 107 applies where the whole of the lands are taken.

In the Inverness case, Lord Kinnear (at p. 571), dealing both with the case where the whole and only a portion of the lands are taken, said—‘The defenders cannot continue to hold the lands without paying or redeeming feu-duties and casualties.’ This proceeded on the view that section 107 applies both where the whole and a portion have been taken.

It is clear from the opinion of the Lord President that section 108 provides that the compensation is to be ascertained according to the usual way, not only in the case provided for by section 107 (what the pursuers here call redemption), but also in the case where only a portion of the lands has been taken, under section 109. Lord Kinnear's view was that sections 107 and 108 are applicable generally to all cases in which any lands are charged with feu-duties and casualties whether the whole or only a portion is taken; that section 108 regulates the settlement of compensation in any case of the kind described where differences arise; and that section 109 deals with a specific case falling within the general rule, not by exempting it from the operation of the regulations already laid down, but by providing the necessary data for enabling them to be carried into effect. Therefore in dealing with a case for compensation in the circumstances which have arisen here, it appears to me, in accordance with the opinions both of the Lord President and Lord Kinnear, that here section 108 applies. If and when the stage of arbitration is reached the question for the arbiter would, in my opinion, be to determine the consideration to be paid by the Railway Company for the discharge of the lands taken by them from the portion of the charges thereon to which the pursuers may be entitled in terms of section 108.

Neither side founded upon the terms of sections 117 and 118, or maintained that there had been a failure through mistake or inadvertency to pay compensation.

It would of course be necessary, as only a portion of the lands have been taken, that the machinery of section 109 should be invoked before recourse can be had to section 108. The Sheriff must, failing agreement, apportion the charges between the lands taken and the remainder of the estate. It was argued that until this was done it was the owner of the rest of the estate that remained liable for the whole feudal obligations to the superior as if no part of the land had been taken from him, and Macfarlane v. Monklands Railway Company,

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2 Macph. 519, L.J-C. Inglis, p. 531, was founded on. The opinion there expressed was, however, on the terms of the Special Act, which was different to the Lands Clauses Act. The argument of the defenders on this point is quite inconsistent with the opinions in the Elgin and Inverness cases.

The defenders' seventh plea is that no apportionment of feu-duties and casualties having been made the action is premature. The summons, however, is only to have a right declared; there is no conclusion that the defenders are bound to arbitrate. Until the right is declared no good purpose would be served in applying to the Sheriff. Further, there is an averment on record that the cumulo feu-duty was apportioned by agreement when the lands were taken—the portion allocated on the lands taken by the defenders, and since paid by them, being 14s. 11d. This is denied by the defenders. There will have to be proof on this point also.

The defenders' fourth plea of mora is one which will be dealt with after the proof. It cannot be sustained upon the statements on record.

The argument that there is no relevant averment of any loss depends upon the argument that the original vassal is still bound for the whole feudal obligations relating to the land the Railway Company has taken. This, as already indicated, is, in my opinion, not sound. If it is unsound, then the pursuers, if they prove they are the superiors, have had a right taken from them by the statute, and for this the statute says they are entitled to be paid.

“The defenders' second and seventh pleas will be repelled, and a proof allowed.”

The defenders reclaimed, and argued—Here only a part of the estate was taken, and until apportionment of the charges between the lands taken and the remainder of the estate was made by the Sheriff the owner of the remainder of the estate was liable for the whole feudal obligations to the superior— Macfarlane v. Monklands Railway Company, January 20, 1864, 2 Macph. 519. The defenders' fourth plea-in-law of mora should be sustained.

The pursuers argued— The Magistrates of Elgin v. Highland Railway Company, June 20, 1884, 11 R. 950, 21 S.L.R. 640, decided that the pursuers were entitled to compensation, which was preserved by the proviso in section 126 of the Lands Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 19), and only when compensation was paid did the superior lose his rights. Section 107 applied equally where the whole or part only of the estate was taken by the defenders, and they could not continue to hold unless they either paid or redeemed the existing feu-duties and casualties— Magistrates of Inverness v. Highland Railway Company, May 16, 1893, 20 R. 551, 30 S.L.R. 502.

At advising—