SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT INVERNESS

 

A161/06

		INTERLOCUTOR   In causa
		DONALD HUGH ROBERTSON
		Pursuer
		against
		NETWORK RAIL INFRASTRUCTURE LIMITED
		Defenders

 

 

 

INVERNESS, 28^th May 2007

 

The Sheriff, having resumed consideration of the cause Sustains the pursuer's first plea in law; Repels the defenders' first plea in law; Holds that Answers 1 to 13 inclusive insofar as they relate to what is not known and not admitted or quoad ultra denied therein are not open to and removed from probation: Grants summary decree in favour of the pursuer ordaining the defenders to implement their obligations to restore the works which formed the level crossing at the two points lettered "G" in blue on the Title Plan for Title Number INV2804 within a period of 90 days from the date hereof and maintain thereafter in terms of section 60 of the Railway Clauses Consolidation (Scotland) Act 1845, 8& (Vict.C33); Quoad ultra before answer Allows both parties a proof of their respective averments; Assigns the cause to the Diet Roll of 6 June 2007 at 10.00am for the fixing of a proof before answer previously allowed; Finds the defender liable to the pursuer in the expenses as taxed occasioned by the diet of debate Reserving all questions of certification of the action as being suitable or otherwise for the employment of senior or junior counsel until the conclusion of the action.

 

Sheriff Colin Scott Mackenzie

 

NOTE

In this action there are two basic but quite different issues:- firstly the pursuer seeks decree in terms of the first crave for implement of an alleged obligation on the part of the defenders to restore over the defenders' railway a previously existing level crossing connecting two parts of the pursuer's farming enterprise at Easter and Wester Lovat near Beauly and separated by the said railway line. This may be termed "the Level Crossing Issues".

 

Secondly, the pursuer seeks decree (in terms of crave two) of implement in respect of an alleged obligation on the part of the defenders to maintain a drain leading under the said railway line (crave three) recompense of £59361, (crave four) implement in respect of an alleged obligation to clean and rebuild a culvert on the pursuer's land leading to the River Beauly or alternatively (crave five) recompense in the sum of £85,051 and (crave six) for the expenses of the action. The craves 2-5 could be grouped as "the Drainage Issue".

 

The debate focused on the defenders' first and third pleas in law namely:-

"1) The Pursuer's averment (sic) being irrelevant et separatim lacking in specification, the action should be dismissed"

and

3) The Pursuer's averments being irrelevant et separatim lacking in specification should not be remitted to probation".

 

A Note in terms of Rule 22 of the OCR (No.10 of process) together with supplement thereto (no.13 of process) was duly lodged by the defenders.

 

The two basic issues of the level crossing and drainage are really quite different in all essentials and accordingly I consider it appropriate and possibly less confusing to treat them entirely separately summarising the arguments and giving my decision on each issue in turn.

 

Dealing then, firstly, with the generalities of the level crossing issue:-

Parties were agreed that the fundamental legal question did not relate to a common law servitude but rather to a statutory right and whether that statutory right had been extinguished or not.

 

They were also agreed that there was not a huge dispute between them so far as many of the facts were concerned and that for present purposes the pleadings should be read on a pro veritate basis.

 

The background to the level crossing issue is covered in Articles 1 to 13 of the Record.

 

Read simply, the Record reveals that when the railway line was first laid down it cut the lands of a pre-existing farm in two. There is no dispute than the then railway company was, in terms of the Railway Clauses Consolidation (Scotland) Act 1845, section 60, obliged by the then proprietor of the surrounding farmland and within the appropriate statutory time limit to create an accommodation crossing at a specified point on the track so as to allow the farmer to move stock from one part of his farm to another. There is no present issue as to the difference if any between an "accommodation work" as referred to in statute and a "level crossing" as used in the Record and common parlance. There is no dispute but that such an accommodation crossing was in fact created and I did not gather that there was any dispute that the same was in use from round about 1915 until the early 1990s. There is also no dispute that lands on either side of the railway line fell into separate ownership in the early 1990s forming the lands then known generally as Easter and Wester Lovat respectively - (though to slightly confuse the matter Easter Lovat seems to have included within its bounds subjects which had once formed part of Wester Lovat, but that is not a matter upon which current argument is based). Sometime after ownership in the property was divided the then proprietor of Easter Lovat (being the land lying to the south of the railway line) asked that, while the defenders' precursors were in any event carrying out certain repair work in the vicinity, the gate on his side of the track be changed to a fence - which alteration was duly carried out, the metal strainers of the crossing gates being, however, left in position.

 

In or about 2000 the pursuer acquired the lands of Easter Lovat and then in or about 2002 also acquired those of Wester Lovat. Thus the farmland on each side of the track was reunited once more under the same proprietor.

 

In 2002 the pursuer advised the defenders that as he now owned the lands on both sides of the railway line, he now required that the former accommodation or level crossing be restored to allow him to move stock between fields on his farm.

 

The response of the defenders to the pursuer's request was that the statutory right in question was extinguished (a) when the property was split in the early 1990s and (b) when the proprietor of Easter Lovat had requested that the crossing be fenced across. A reunion of the subjects could not revive the obligation.

 

The pursuer claimed that the obligation was not so extinguished and that the duties imposed under section 60 of the said Act on the defenders are still in place and remain in all time to come.

 

There being impasse, action was accordingly raised.

 

There being no preliminary pleas on behalf of the pursuer, debate on the defenders' preliminary pleas took place on 28 March 2007 and lasted a full day.

 

Mr Sands, Advocate, addressed me first, on behalf of the defenders.

 

Defenders Introduction

Very helpfully Mr Sands went over the Record (which I had not previously had an opportunity to read except very superficially just before the case called). He expanded several points from the Record as undernoted (where reference to Articles of Condescendence includes the Answers thereto) before addressing me on the law, viz:-

Article 1 the term "accommodation works" means the closed up crossing, and railtrack remains responsible for the area in question. Safety issues are not relevant to the present debate.

In Articles 2 and 3 there is no serious dispute between the parties.

Articles 4 and 5 may be accepted as correct though for the purposes of this debate only.

Similarly so may Article 6 be accepted as correct - though there could be matters there for proof or agreement at a later stage.

The dispute really starts in Article 7 but the distinction between an accommodation work and a level crossing does not arise for debate on the current preliminary pleas.

In Article 8 reference is made to the split in ownership. It is a matter of agreement that one of the proprietors asked that the crossing be fenced over. The metal strainers of the gates and the associated slipway remain, however.

Up to that point there is no real argument.

In the Answer to Article 9 it is admitted that the pursuer acquired East Lovat on or about 25 November 2002 and that the lands reverted to a common ownership but certain matters will be subject to proof including the fact that though trains may not actually run as fast as 75mph that is the permitted maximum limit at the locus of the crossing.

In Articles 10 and 11 there is no dispute. The 1845 Act and its English equivalent are of significance and the statutory terms are important to both sides.

Article 12 refers inter alia to the access bridge across the railway line the existence of which is not in dispute but there may be problems regarding its load bearing capacity.

Article 13 deals with the nub of the dispute.

 

The pro veritate principle applies and everything ties in with Point One of the Supplementary Rule 22 Note, which reads as follows:-

 

"In Articles 7 to 13 (in particular Article 12) the Pursuer avers that the Defenders have a continuing statutory obligation in terms of Section 60 of the 1845 Act to maintain the level crossing for the accommodation of the Pursuer. Any such obligation on the Defenders is extinguished if there is a separation of ownership of the land which is intersected by the railway track. On the Pursuer's averments it is clear that the lands at Easter and Wester Lovat Farms were under separate ownership prior to the Pursuer acquiring title. Accordingly the Pursuer's averments in this regard are irrelevant and the Defenders have no continuing statutory obligation to maintain the level crossing for the accommodation of the Pursuer".

 

Having made the foregoing expansions and explications Mr Sands then delivered argument along the following lines:-

 

Defenders' Submissions on level crossing issue

The pursuer, said Mr Sands, is seeking restoration of a pre-existing accommodation crossing. It is accepted that there was in fact such a crossing formerly operational at the locus giving access between two fields originally owned by the one person. It is agreed it was closed off after the ownership of the lands on each side of the railway line split. The defenders' position put very simply is that their obligation was extinguished when the land on each side of the line became held under separate ownership. Historically when railways were first constructed they often had to run through farmland. Prior to 1845 there were various separate statutes passed for different railway undertakings but in that year Parliament passed the Railway Clauses Consolidation (Scotland) Act (Def. Pro.1) (hereinafter referred to as the Scottish Act 1845) which regularised the basic conditions upon which future undertakings would operate. The particular railway we are dealing with was constructed about 100 years ago and the terms of the Scottish 1845 Act apply. It is accepted that certain accommodation works were deemed necessary at the time and that the defenders' precursors were obliged in terms of section 60 to make and maintain an accommodation crossing at the locus between two fields in common ownership and that that common ownership persisted until the 1990s. The question for the court is does the section mean that the defenders are obliged in perpetuity to maintain such a crossing even when the ownership of the land has been split between the two sides of the track and they've been requested to block off the crossing by one of the proprietors and that subsequently there has been a reunion of the lands in question under one ownership? The pursuer's position is that he has a statutory right which persists irrespective of what a former proprietor might have done. The defenders say otherwise. Mr Sands was unable to direct me to any Scottish authority supporting the defenders' argument but referred me to the corresponding English act - the Railway Clauses Consolidation Act 1845 S68 (hereinafter referred to as the English Act of 1845 which is largely in the same terms as S60 of the Scottish Act of 1845 and in respect of which there has been judicial interpretation. The English case of Midland Railway Co v Gribble 1895 2 Ch.827 (hereinafter Gribble, simpliciter) is almost exactly on all fours with the present case. In it a decision of Mr Justice Wright of the Chancery Division was largely upheld by the Appeal Court to the effect that once the original ownership had been (split) there was no right to use the crossing and that the railway company were at liberty to stop it - and further that the right having been abandoned (by the split in ownership) it could not revived even if the lands on the two sides of the railway again became vested in the one person. This argued Mr Sands, was exactly the position in this case. He could not find any Scottish authority in point but, he submitted, a clear decision from an English Court of Appeal had to carry very great weight and is persuasive. This was he accepted the high point of the defenders' case.

 

Mr Sands then turned to the general law in Scotland as it applies to this case. The right claimed is not, he said, a servitude right and he submitted that the judges in Gribble were correct when they said that the right did not run with the lands. Given that the accommodation in question was granted to the then landowners when the now separated fields were in singular ownership, when that ownership was divided it was quite clear that the accommodation right flew off. It was a one-off accommodation right and did not re-attach if the property came into singular ownership again. Here we are dealing with the extinguishing of a statutory obligation on a railway undertaking rather than the transmission of a right running with these lands. That is the issue. Although Gribble is the only case in direct point Mr Sands also referred me to Halsbury's Laws of England 3^rd Edition (Defs Pro.4) at paragraph 196 (page 215) as read in conjunction with paragraph 215 (page 220) on the obligation of the railway undertaker to make or maintain works for the accommodation of owners ...of lands adjoining the railway.

 

In anticipated response from the pursuer Mr Sands accepted that the circumstances in Gribble could be seen to be different in certain respects - in that case, for example, there is the mention of a "siding" which has no place in this current matter - but then neither is there mention in Gribble of another right of bridged access, as there is in this case.

 

The canal case of Swanhill Developments Ltd et alios v British Waterways Board 1998 JPL 153 has to be distinguished, said Mr Sands. That case is very different from the present one and depends on a specific interpretation of section 79 of the Grand Junction Canal Act 1793. There the Court of Appeal held that the riparian owner of one bank of the canal was entitled to exercise rights to build bridges across the canal and pipes underneath it. Gribble on the other hand is essentially on all fours with this case.

 

Winding up, Mr Sands asked the court to consider, along with what he had already said, the specifics of the defenders' pleas in law namely lack of specification on the part of the pursuer. The pursuer simply does not specify what "works" are required. Before the court can grant decree in terms of crave one the details of the precise "works" must be set forth. What, indeed, is meant by "the works"? The pursuer should have explained what was there before the separation of the properties and also what is there now. It is quite clear that crave one does not meet the necessary test and proof should not be allowed on the consequent averments.

 

Submissions by pursuer on level crossing issue

Mr Connell, QC, solicitor-advocate responded in manner following:-

 

Looking to the defenders' original Note of Basis of Preliminary Pleas (No.10 of process), Point 1 thereof has been superseded and Point 2 (that no civil liability could arise) has not been argued. The only matter being pursued is Point 1 on the Supplementary Rule 22 Note (No.13 of process) and the question the pursuer is being asked to meet is on the effect of title-separation. The matters of the bridge and the fence can on examination play no part as they have no bearing on the question and moreover nothing of moment has been argued in connection with the wording of the craves other than the suggestion that they are non-specific. In these circumstances Mr Connell wanted to turn directly to the question of the extinction issue based on the separation of ownership. There has to be a proper understanding of the parties' position. He stated them as follows:-

 

(1) Rights under section 60 of the Act are statutory rights expressed to be for all time. The railway is still there and the right in question is an accommodation work.

(2) These statutory rights are not servitudes nor yet are they English easements - and though the effects may be similar it is a different concept.

(3) The rights issue in respect of one occupation of adjoining lands. The defenders did say in the second point of their original Rule 22 Note that this situation did not found a civil action though the point is not, he understood, now argued, but there were a number of cases in the pursuers list of authorities which detailed possible claims.

(4) As statutory rights they are not governed by title in the same way as servitudes or English easements might be. They do not cease to exist merely because of a new owner comes into the picture.

(5) If the correct approach is to look at this matter as was done in Gribble then it does not work in situations where the right has been transmitted. In England there are particular difficulties to do with the succession to easements. If you have not transmitted them, say the English judges, then you must be taken to have abandoned them. In this case, however, all rights have been properly transmitted and there has been no abandonment in the title - not that that is the correct way of looking at things anyway, emphasised Mr Connell.

 

It is critical, continued Mr Connell, for the foregoing propositions to start with what is apparently accepted by the defenders - but for Gribble. There has not been much helpful discussion in Scotland. The nearest case he found is Dixon v Monkland and Kirkintilloch Railway Co 1840 2D 1470 (No.4 in the pursuer's list of authorities) where it was held (read very shortly) that the limits of a right of passage under a pre-1845 private railway act could only be determined under statutory construction and (on page 1476, 9 lines into the note) that "in truth" the right could not be considered to be a servitude at all. Accordingly, said Mr Connell, though there is a risk that such a right is taken to be a servitude you really cannot apply the common law of servitudes to it.

The question is not much further discussed in our courts but see Sudjik v British Railways Board 1979 SLT (Sh.Ct.) 64 where Sheriff Neil Macvicar QC held that the obligation to maintain an accommodation crossing persisted at all times - though not for all kinds of vehicles.

 

For completeness Mr Connell referred me to an unreported case of British Railways Board v George Macbeath (Dornoch Sheriff Court 1990) referred to in Paisley and Cusines Unreported Property Cases 463 at page 466 (pursuer's list of authorities no.15) where it appears that Sheriff Principal Ireland applied principles of interpretation commonly encountered in relation to servitudes. This however was essentially an interim interdict case where the sole question before the Court was whether the dominant proprietor of an accommodation access under section 60 of the 1845 Act could increase the burden on the servient by increasing the traffic from what the right had been granted for - and the fundamental nature of that statutory right vis a vis its common law near-equivalent was not addressed by Sheriff Principal Ireland.

 

Mr Connell then looked at the said English case of Gribble in its context and in some detail. Although, said Mr Connell, their lordships in the Appeal Court appear to understand that they are dealing with a statutory right they then become embroiled in issues of conveyancing and easements. Mr Connell asserted that such a statutory right does not need to be transmitted by title. Had there been no change in ownership there could have been no opposition. In an aside, he referred to Halsbury on the Laws of England. Where, he asked rhetorically, does one find Gribble in its index - not under the transmission of statutory rights but under the loss of right of way! In Gribble the judge at first instance held that the right though lost by a division of the ownership will revive should the land return to single ownership, though there was no reasoned discussion of that. It is a mistake, urged Mr Connell, to assume that the law in England to d with the transmission of burdens is the same as ours relating to burdens - especially that dealing with servitudes. The head-note of Gribble state that the case is all about conveyancing but his present case, maintained Mr Connell, has nothing whatsoever to do with conveyancing nor with the abandonment of right. In Gribble the appellant talks about a right of way - the respondents countering that it is not a right of way. Lord Justice Lindley (Gribble p289 half way down the page and at its foot) talks about vendors and abandonment. As can be seen at the foot of p830 and again in the factual narrative on 831, he simply became mixed up with the law of abandonment of easement. He has equiparated easement with statutory right. Similarly LJ Lopes deals with these questions on pp832 and 833. He opines that under the English system it would, paraphrasing him, have been necessary to have included a specific reservation of the right under the 1845 Act before such could have been retained on a division of ownership. Pausing, said Mr Connell, to consider the logic of Gribble, he asked if there had been a reservation does that mean that the right would have continued and it would not matter if the people were different? If that's right, then the notion that, on there being two ownerships rather than one the right is lost, rather flies off. Why should it make any difference? What Gribble doesn't say is that the right is lost on the title being split - it merely says that without reservation the right is lost. In any event, in Mr Connell's submission that whole discussion has to be consigned to one concerning rights of way and has nothing to do with the point taken by the defenders in their Rule 22 Note.

 

The case of British Railways Board v Glass 1965 Chancery Division 538 (pursuer's list of authorities no.24) may also be of some assistance, said Mr Connell. It distinguishes rights under statute and under rights of way. There the court was primarily concerned if there should be two different standards for the two kinds of rights. Sometimes conveyancers will lift whole phrases from statute to describe in a deed a common law right and the difficulty then arises to see the differences between the rights and to treat them differently. LJ Harman at page 559 discusses the ways in which there might be different users for the same right. The later case of TRH Sampson v British Railway Boards 1983 1 WLR 170 at 171 and 182 (pursuer's list of authorities no.28) looked at what accommodation work actually means and its nature and underlined the difference between ordinary right and statutory right.

 

If however one is looking for a legal basis of extinction then one has to look very hard indeed. The case of R Walker & Sons v British Railways Board 1984 1 WLR at 805 (list of pursuer's authorities no.29) is, nonetheless and for completeness, against me, said Mr Connell. It cites at p810 the Scottish case of Simpson v Caledonian Railway Co 1878 5R 525 (list of pursuer's authorities no.8) apparently approving the proposition that the duty to maintain accommodation works ceases when the purpose of the works is extinct. Gribble was also mentioned in R Walker & Sons with apparent approval. Mr Connell next referred the court to the case of Swan Hills Development Ltd v British Waterways Board 1998 JPL 153 (pursuer's list of authorities no.30). This English case may have related to a waterway and there are undoubted differences between a canal and a railway but it was held there by, he suggested, a very strong bench indeed that a statutory right to build bridges over and lead pipes beneath a canal was available to those who had ownership on even just one side of the canal. Lord Woolff's observations on pp160/161 and those of Lord Justice Peter Gibson on pp161/162 are very much in point. Lord Woolff in fact in referring therein to the case of Gribble says that the latter dealt with easements and was not of any assistance in resolving the issue of (statutory) right then before him. The only other discussion of the nature of these rights that Mr Connell said he could find is in another English case, this time a single judge decision, namely Freemans plc v Park Street Properties (Lincoln) Ltd 2002 2 P&CR30 at 444 (pursuer's list of authorities no.31) at 454 and 455. There Judge Richard Seymour QC distinguished between the effect of supervening unity of title of dominant and servient tenements where on a subsequent disposal the owner of the united tenements can parcel up that of which he disposes as he chooses (together with) whatever package of rights, if any, he wishes to confer - and the contrasting situation in that case involving a right under section 68 of the (English) Act of 1845 where that statutory right is expressed to exist in perpetuity. To find any mention of extinction of such a statutory right one has, reiterated Mr Connell, to look very hard indeed.

 

One has to come back to the defenders' Rule 22 Note, continued Mr Connell, and ask if there is in fact extinction of the right created in terms of the Scottish 1845 Act. The answer must be no. That statutory right is an independent right and there is no basis for saying that it becomes extinct because the lands connected by the accommodation works come into separate ownership. If the correct approach were to be as set forth in the Gribble case then the present pursuer would in fact be content to prove from the titles the burden in the Land Certificate but that is not the correct approach. The correct approach does not indicate extinction of the right but contra-indicates such extinction. If the court were to conclude that the pursuer is correct in this then there would be nothing left to argue about and the court might thereupon produce a judgment to that effect. Accordingly, Mr Connell invited the court to reject the defenders' rule 22 Note submission regarding the extinction of the statutory right under section 60 of the 1845 Act and uphold the pursuer's position forthwith.

 

Response by defender on level crossing issue

Mr Sands accepted that the converse of his motion could be summary decree in favour of the pursuer but that is not an option here as there are other matters to be explored at proof as well as section 60 of the 1845 Act - such as issues of health and safety. In any event he adhered to his position that the case of Gribble was very much in point. The pleadings as they stand, making reference to servitude right, are unhelpful - both parties are agreed that that is not what this case is about. Detailed matters of English law require proof just as do those of any other foreign jurisdiction - but this is an obscure area of our law and the pursuer has not come up with any Scottish authority which negates Gribble. Close attention should, however, be paid to what the English courts have decided in similar situations.

 

DECISION

ON FIRST OR LEVEL CROSSING ISSUE

I paid close attention to what had been submitted by both sides. I should say at the outset that though both submissions were very helpful on a hitherto largely unexplored if narrow topic, at the end of the day I preferred that of the pursuer and I will not repeat all that I have noted above from his solicitor-advocate. Nonetheless I found it all very persuasive.

 

Defenders' counsel could not be faulted in his approach. He, of course, led at the debate. He made all his points clearly and succinctly but essentially, though he accepted that it was a statutory right with which we were concerned, his main contention was that the English case of Gribble, so seemingly on all fours with this case, should be followed. He sought to distinguish the case of Swanhill Developments Ltd basically on the grounds that it related purely to a canal Act of 1793.

 

I rejected the defenders' arguments and took the line promoted by the pursuer as I expand upon the same below. I did not accept that the division of the ownership of the lands bordering the railway line necessarily brought the accommodation crossing to an end nor that the request by one proprietor to fence off a gate necessarily would have the same effect. If the pursuer's pleadings are relevant then there is no relevant defence pleaded to this part of the action. The only matter left relates in Answer 9 to other accommodation crossings and the fact that there are seemingly 25 train movements per day on the track in question where there is a speed limit of 75 mph. None of that is relevant either. Mr Sands accepted that a rejection of his argument could lead to summary decree in respect of the first crave but maintained that that crave lacked sufficient specification to grant decree in terms. I have a degree of sympathy with that last position but the difficulties such a decree might present for the pursuer, who has moved for it, may not be insurmountable.

 

Section 60 of the Scottish Act of 1845 read shortly is as follows:-

"The company shall make and at all times thereafter maintain the following works for the accommodation of the owners and occupiers of lands adjoining the railway; (that is to say) Such and so many convenient gates, bridges, arches, culverts and passages, over, under, or by the sides of or leading to or from the railway, as shall be necessary for the purpose of making good any interruptions caused by the railway to the use of the lands through which the railway shall be made; and such works shall be made forthwith after the part of the railway passing over such lands shall have been laid out or formed, or during the formation thereof;

Also sufficient posts, rails, hedges, ditches, mounds, or other fences, for separating the land taken for the use of the railway from the adjoining lands not taken, and protecting such lands from trespass, or the cattle of the owners or occupiers thereof from straying there out, by reason of the railway, together with all necessary gates, made to open towards such adjoining lands, and not towards the railway, and all necessary stiles; and such posts, rails and other fences shall be made forthwith after the taking of any such lands, if the owners thereof shall so require, and the said other works as soon as conveniently may be;

Also all necessary arches, tunnels, culverts, drains, or other passages, either over or under or by the sides of the railway, of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the making of the railway, or as nearly so as may be; and such works shall be made from time to time as the railway works proceed .....".

 

Section 60 continues with a penultimate paragraph concerning the provision of watering places for cattle and then concludes with a provision that the railway company is not required to make such accommodation works as would obstruct the working or using of the railway in respect of which the owners may be compensated - neither of which paragraphs needs detain us meantime.

 

The English Act 1845 section 68 is word for word the same as section 60 of the Scottish Act as above (save for a final paragraph not quoted here which deals with possible compensation- and though both acts provide for a similar remedy thereanent, neither final paragraph has any bearing on the present dispute).

 

The nub of the accommodation or level crossing issue is as Mr Sands put it very succinctly, if slightly jocularly, has the pursuer here been Gribbled?

 

There is no direct binding authority on the point which is being made by the defenders. Given, however, that the relevant sections of both the English and the Scottish versions of the legislation are to all intents exactly the same and that an English Appeal Court came in the 1895 case of Gribble so firmly to the conclusion which the defenders here assert and that in remarkably similar situations it might ordinarily be thought that there was not much more to be said. The case of Gribble, moreover, seems to have been generally accepted in a subsequent succession of cases and in the literature as finally settling the question of whether a right to an accommodation crossing under the 1845 Act is lost or abandoned on the bounding titles being split - though the rules which are applied in Gribble relate (according to Lord Woolff in Swan Hills Development Ltd v BRB - in paraphrase) merely to the domestic technicalities of easements and not to statutory right. Gribble goes on to consider whether on reunification of title the right may revive following such abandonment or otherwise - deciding against such revival and overturning the judge at first instance's finding on that aspect of the case.

 

When one studies the reasoning in Gribble, however, it seems to me as if there have been certain conclusions reached there which may depend upon certain peculiarities of English conveyancing and their common law which we in Scotland might not necessarily follow. Common law rights may be created in different ways with us - Stair refers to "our ancient and immemorial customs" (1.1.16) - contract and prescription among them. The rules for determining whether a common law right has been extinguished are also clear enough - contract and prescription again among them. Parties in this current case, however, are agreed that we are only dealing with statutory right and not a common law right and we did not explore in debate any possible peculiarities of the law of easement etc. which might have led the bench in Gribble to decide as they did.

 

It seems to me that as we are here dealing solely with a statutory right, the judges in Gribble made a number of assumptions about the effect of their common law rules on statutory rights which would not fit in too well with our jurisprudence.

 

Looking therefore at the matter afresh and, notwithstanding that the act creating the right in question applied only to Scotland, the Scottish Act of 1845 was a General Act of the UK Parliament, consolidating a whole series of earlier legislation and applying a unified system over the whole country. As a Public General Act it superseded the earlier acts and remains in force until repealed or otherwise modified through amending legislation. The company and its successors, the defenders, are obliged in terms of the act to "make and at all times thereafter maintain". That is, surely, not capable of interpretation as anything other than a right in perpetuity? There is nothing that I could see in the act about such a right ever being extinguished for any reason whatsoever other than by supervening legislative process nor, short of the destruction of the subjects, does our common law so far as I can see give relief to the servient proprietor in the manner suggested in Gribble. Parliament alone gives a statutory right and Parliament alone can take it away - but a provisional order or unopposed amending private legislation is by no means impossible of attainment - if circumstances change sufficiently to merit such a course of action. There is, in my view, no unbridgeable gap which demands a common law stop-gap remedy. Even were that not so it seems to me that the courts in Scotland have been reluctant to provide such stop-gap findings unless grave injustice would result. In any event according to Rankine on Landownership at p443 "there is no authority in the law of Scotland for the proposition that a dominant owner is held to relinquish an undoubted right of servitude by altering his mode of enjoying it...and it is certainly not so where the rights are indicated by discontinuous use such as servitudes of way" which may have a certain relevance. All that is not to say that statute law is not to be interpreted according to our ordinary domestic rules - but what has to be guarded against, I most diffidently opine, is the confusion of statute right and common law right. Sometimes it is difficult to discuss one without using the vocabulary of the other - for example in this case the right of an accommodation crossing is so like a servitude right of way in its effect that invariably one starts to think of dominant and servient tenements and the whole common law baggage which effeirs to and controls servitudes. Purely for descriptive purposes the use of a common vocabulary may be unavoidable but it seems to me that one must be careful in so doing not to confound the two rights - for the manner of their creation is certainly and their extinction may well be quite different. There should also be taken into account the fact that while the common law rights of servitude and easement may indeed be the same in many respects in Scotland and England - as Lord Chancellor Campbell opined in the case of Cochrane v Ewart 1860 22D 358, here there is no question but that we are presently discussing a statutory right which was created in terms of the 1845 Act. According to Rankine on Landownership (p 425) a grant of servitude may be constituted by Act of Parliament. The statutory right which concerns us was, however, not specifically declared in the 1845 Act to be a servitude right. Servitudes can, of course, be created by implication (per Lord Kincraig in the case of Central Regional Council v Ferns 1979 SC at 139) but this current grant was a specific grant of a right and needs no process of implication. As Lord Kincraig said in the 1979 case (which related to certain rights created in terms of the Water (Scotland) Act 1946 relating to trunk water mains) "...the effect of the (statutory) section is either to create a servitude of aquaeductus ....or to create rights and duties similar if not identical with (emphasis added) those of a servitude of aquaeductus ...". If I may comment thereon I do not see why, even if the rights and duties there were in fact identical, the rules which have developed to qualify common law rights should necessarily apply to their statutory twins. A statutory right is surely always unqualified save in its own terms. A right established at common law is, it seems to me, always subject to qualification - therein lies a very big difference. So far as the 1845 Act is concerned the particular accommodation right of crossing is spelled out and while it may be convenient to call it a quasi-servitude and even treat it generally as a servitude and use common law terms to describe its functions, when we look at such a statutory right that has not been hitherto authoritatively interpreted in this country it is necessary, in my most humble opinion, to look at the matter from first principles.

 

The 1845 Act remains in force and has not been amended in any presently relevant way - either by Statute Law Revision or otherwise in such a manner that repeal of section 60 or part of it is to be presumed. According to the case of Lang v Munro 1892 Whites Justiciary Reports vol.3 201) repeal is not to be presumed (even by a later amendment) if ...it is possible to give any reasonable meaning to the earlier not specifically repealed act. The case of Lang was a justiciary matter to do with public health legislation but in it Lord Adam at page 213 (read shortly) said:-

"... railway legislation proceed(s) upon the application of persons interested, and are generally granted if unopposed, unless there be anything in them contrary to public policy ...... Therefore it is very right that if a private individual has made a contact with a railway company, and that contract has been embodied in an Act of Parliament, not necessarily putting it as a contract, but imposing building conditions or the like - it is quite right, I say, that the person whose right has been ratified by Parliament should be entitled to trust to it, unless he gets notice to the contrary .....".

 

While in this current case it may not be the exact situation that a pre-existing right has been ratified by Parliament, a right has certainly been granted to the owners and occupiers of the land in question and that in terms of an Act passed by Parliament and it further seems to me that the owners and occupiers of the lands should similarly be able to trust to it until advised to the contrary. The recurring question is can such contrary notice stem other than from amending legislation?

The first thing I look for is guidance on how to interpret statute. I have consulted Gloag and Henderson, "The Law of Scotland" 10^th edition as well as Maxwell on Interpretation of Statutes and Craies on Statute Law. The former authority quotes Lord Reid in Black-Clawson International Ltd v Papierwerke Waldhof-Aschchaffenburg AG 1975 AC591 at 613 where he said "We are seeking not what Parliament meant from the words it has chosen to enact but what they said" and the general rule according to both Maxwell and Craies in modern statutes (other, it seems to me, than for those which apply European law) is that if the meaning of the statute is plain and unambiguous then it must receive effect. It appears to me that:-

(a) the meaning of section 60 is plain and unambiguous.

(b) that a statutory right of an accommodation crossing exists at the locus following on the provisions of section 60.

(c) that the said right may be similar to but is in any event not a servitude right of way.

(d) that the said right is permanent

(e) that there is no statutory provision for its extinction

(f) that the manner of its extinction at common law, if that is indeed possible, has no been judicially determined in Scotland

 

In these circumstances then it is with a considerable degree of trepidation that I turn to the English case of Gribble. Though it is now considerably more than a hundred years since it was decided it seems to have been taken as the last word on the matter in England ever since and is also referred to in Scottish writings as authority for the proposition that the right given by the Act is essentially the same as an easement and will fly off if the title for the lands on either side of the railway is ever split and will not revive should the title be reunited. Now I have difficulty in following the logic of what is said therein - largely, I have no doubt, because I do not properly understand the various English terms of art used in Gribble. Lord Chancellor Campbell, who in spite of his surname was an English lawyer and whom I have quoted above, did not in fact say in Cochrane that the terms easement and servitude were interchangeable - only that in certain circumstances their effects were the same. I heard no evidence at all about the state of English law concerning these matters - we were only at the stage of debate after all. I was, however, told by Mr Sands that Mr Connell has an English legal qualification as well as those for this country, and for whatever that may be worth Mr Connell said somewhere in his submission that the terms of servitude right and easement are not interchangeable. Whether I be right or wrong in my recollection I am left wondering whether a Scottish Appeal Court would reach the same conclusion as did their English counterparts. In Gribble, LJ Lindley at the foot of page 830 seems to treat the accommodation right granted in terms of section 68 of the English Act 1845 as being entirely equivalent to a private right and that seemingly in every respect. He says that "the words 'shall at all time maintain' do not in fact bear their near and natural meaning if the person through whose land the railway passes doe not want the right. Having asked for this accommodation and got it he could if he chose release I; and if he chose to release it there would be an end of the statutory obligation to maintain it. The maintainance is not a public duty; it is a duty to him privately, and, of course, to those claiming under him".

 

It appears to me as if Lord Justice Lindley in that last sentence equiparates the statutory right to a private contractual right running with the titles to the land. That does not seem to me to be right (though it may be so in terms of English law). Lord Woolff clarified the matter for me to an extent when he said that Gribble only dealt with easements - which as I have noted above are not necessarily to be taken as even the equivalent of servitudes far less the statutory right we are here dealing with - and that being so I consider that such persuasive power as Gribble possesses even in a case so seemingly on all fours with the present is therefore distinguishable and flies off. I do not see the court's exposition on abandonment as being helpful and I am left wondering why abandonment should necessarily be held to have followed in the circumstances adumbrated. Perhaps Gribble's authority would revive were the present pursuer to plead his case based solely on the question of title and common law servitude right (as he says he is if necessary prepared to do) - though given the apparently fundamental differences between easements and servitudes such revival may itself be unlikely. In any event I find it difficult to understand why non-use for any length of time should extinguish a statutory right nor that that right should be lost through the action of one of the owners of the split title in seeking to have one of the gates fenced over. Things might well be different at common law, of course, particularly with regard to the closure of a gate and whether or not that implied some sort of bargain, but that as I have concluded is an entirely different matter. Even at common law there are certain rights which are imprescribable and were it necessary to d so it might be argued that the present statutory right is, while not of the same nature as one of these, at least similar with similar consequences - unless, that is, the machinery for its specific extinction were to be set up by statute. As I do not hold that the accommodation crossing right has been lost it is perhaps not strictly speaking necessary for me to go on to consider whether it could be revived upon the title being reunited. However, I should be in error and it be held by a higher court that in such a case the statutory right is suspended just because the titles have been split, I confess I cannot see the justice in a new owner of both properties who has repaired the split in title not being able to claim the original right - nothing having otherwise changed and there being no intervening contract between the owners of the lands on both sides of the track and the railway company nor any amending legislation disposing of the right. It may be that in the present case the defenders might have been able to obtain, while the property was split and that without opposition or difficulty, a Parliamentary Order disposing of the bounding owners' rights in this matter - but such was neither sought nor obtained so that can only be speculative. The fact remains that nothing was done when it might have been done and the defenders may have missed an opportunity to change the situation without opposition.

 

I have to say that on this first issue of the accommodation crossing I much prefer the pursuer's arguments and found them to be compelling. That being so, I find that on the pleadings the defenders have not satisfied me that they have a relevant answer to the pursuer's averments. The consequences for this case are not only do I repel the defenders' plea in law in respect of this first issue but it follows that their answers in respect of the issue are not admitted to probation and accordingly the pursuer is entitled to summary decree in the first crave of the summons.

 

Defenders' submissions on second or drainage issue

Mr Sands next addressed the Court on the second part of the day's debate. The background is contained in Articles and Answers 14 to 27 and the 2^nd and 4^th pleas in law of the defenders apply. He indicated that he might have to go beyond what is in Articles 15 and 19 (to which Mr Connell responded that a certain latitude might be expected).

As, continued Mr Sands, there is now no suggestion that there is no foundation for a civil case arising from the averments on Record he did not propose to address the court on the second point of the initial Note of Basis of Preliminary Pleas (No.10 of process).

 

Turning to what is claimed on Record by the pursuer Mr Sands pointed out that it is there alleged that during 2001 certain engineering works carried out by the defenders or by those on their behalf, all in the vicinity of the pursuer's lands, that certain drain covers were permitted to be dislodged and were not replaced so that some extra ballast then being laid down on the track fell into the drain and to a degree choked it or connected field drains and causing it or them to silt up. In so pleading the pursuer has, said Mr Sands, attempted to intertwine a common law case based on an alleged duty to act in a reasonable manner with a statutory case under section 60 of the Scottish Act of 1845 - vide the pursuer's second plea in law. Given that the pursuer has just the one plea in law covering Articles of Record numbers 15, 18, 19 and 20, the defenders have a right as a matter of fair notice to know what exactly is the pursuer's position. In the statutory case was it the defenders' direct responsibility or were others acting on their behalf? There is a clear clash between Articles 15 and 19. In Answer 15 the defenders deny that the carried out any work as specified - the pursuer must say who did it. Might the pursuer not ask if such is not within the defenders' knowledge, asked Mr Sands rhetorically, before proceeding to supply his answer that surely is it is not for the defenders to prove the pursuer's case for him. The pursuer would be entitled, he suggested, to enrol a motion for inter alia specification of documents in that connection - but he has not done that which should have been his starting point. The defenders have a right to know who it is alleged was involved as that becomes of great importance in connection with the defenders' liability for the actings of third parties. That said, Mr Sands accepted that in certain circumstances an employer can be liable for the acts and omissions of a third party. Because however of the clash between Article 15 and Article 19 and because the defenders have been given no notice whatsoever of who was involved it is wholly unreasonable that the defenders be expected to make up a defence on the basis of these pleadings. There needs to be much greater specification. Another difficulty lies in the fact that in Article 18 the pursuer offers to prove that in terms of section 60 the defenders have a continuing obligation to maintain the drainage as it was before the railway came into existence. Again, is he referring to the defenders or to those acting on his behalf? A question for the court is have the defenders been given fair notice here? At Article 19 the pursuer avers that certain duties lie on the defenders - is the duty alleged a common law duty? Only half of the formula is there. There are numerous failures alleged but what are the duties breached?

(At this point Mr Connell raised an objection to the line taken as it went well beyond the terms of the Rule 22 note. Mr Sands replied that he could do so on cause shown - namely that this was the first time the matter had been passed to counsel and some points had not been covered. Much of the work, he continued, as detailed in Craves 2 and 4 seemed on his reading of Articles 14-27 to be required to be carried out on the pursuer's own ground which raised the question of the competence of such orders. On Mr Connell renewing his objection Mr Sands accepted that such was indeed beyond the scope of the Rule 22 note).

Mr Sands' principal concern was, he said, that the defenders have not been given any fair notice of who breached what duties or how they have failed to perform them. He referred to a case (additional to the defenders' original list of authorities) of Kennedy v GlenbelleLtd 1996 SC 95, a First Division case of, he said, limited relevance here but which illustrates the importance of giving fair notice of what the defence is alleged to have done, what they should do now and how they are liable. In this present case there are no averments on Record which say why or how the defenders are liable at common law for their acts or omissions nor are there averments on Record to say why they should be liable for their contractors. That may be a defect which is capable of amendment so that it may not be fundamentally irrelevant and Mr Sands accepted that it would be possible to construct a relevant case both at common law and for breach of statutory duty against the defenders and ay involved on their behalf. The court was directed to a number of cases, firstly to the case of Duncan's Hotel, Glasgow v J & A Ferguson 1972 SLT 84 (No.5 in defenders' list of authorities) where Lord Stott considered the extent to which liability might flow from casual negligence at the hands of an independent contactor where some form of personal obligation lay upon the contractor's employer.

 

Another case, namely that of Dignon v Irvine and Others 1999 SCLR 601 (No.6 in defenders' list of authorities) illustrates common law liability where a third party might be involved. For the situation where the employer is under a statutory duty Mr Sands next turned to Walker on Delict 2^nd ed. P.160 where the learned author states that where a person is bound by a statutory duty he cannot escape liability by delegating it or employing an independent contractor to perform it and quoted a variety of authorities for that proposition. Accordingly said Mr Sands it is sufficient for pleading purposes if the present defenders could be held liable in the stated circumstances. Looking back to the pursuer's last stated authority (Freemans plc v Park Street Properties (Lincoln) Ltd) that does show quite clearly how the present defenders could be liable and, although that is a case based on section 68 of the English Act of 1845, Mr Sands stated he was happy to depart from his former position. All the same, although there is no suggestion in the defenders' pleadings that they can never be liable at common law nor at statute for work done by others, before the court can arrive at that stage the defenders have to have fair notice of the duties incumbent upon them, the breaches of these duties, how they arose and how the are continuing, on what basis they may be held to be liable for the actions of a third party at common law or statute. It would be wholly inequitable to allow the pleadings to remain as they stand. Without going through the terms of Articles 14 to 27 of the Record individually Mr Sands urged the court to read section 60 of the Scottish 1845 Act taking due regard to the precise wording of that section and of the defenders' obligation thereunder - and to excise from these averments those parts where the pursuer seeks to have work carried out on the defenders' own lands. He also pointed out that in the original Rule 22 Note the question of economic loss was foreshadowed and that would be a matter for a proof before answer when expert evidence may be required and questions of foreseeability raised.

 

RESPONSE BY PURSUER IN SECOND OR DRAINAGE ISSUE

Mr Connell riposted strongly that there was no basis for extending this debate beyond the terms of the Rule 22 Note and its supplement. The presence of counsel is no sufficient reason for so doing. The only matter properly before the Court is the heart of what Mr Sands has submitted. He, however, has chosen to attack the whole of the pursuer's case in respect of the drainage issue though the position he takes up is a matter of admission in these pleadings. Look said Mr Connell, at page 10 of the Record, see Answer 18: the defenders have accepted an unqualified statutory duty. In the already quoted case of Freemans plc v Park Street Properties (Lincoln) Ltd at p453 it was common ground that there was strict liability in such circumstances. In the present case the details are given in enormous detail. It is all said to be a failure to maintain drains. Article 15 details that railroad ballast entering the drainage system is the alleged problem. The defenders say there were others acting on their behalf who were carrying out certain engineering works at the locus at the alleged time but that these works would not have caused the problem. The body responsible for the operation of the railtrack is the defenders. When the pursuer says that someone was adding ballast to the line and the defenders admit that engineering works were being carried out at the time and place in question by a third party then, if they want to claim that the third party was responsible, they should say so. If ballast did get into the drainage system then that is a matter for proof as are the ensuing problems. The averments are clear and adequate and a continuing statutory duty on the part of the defenders is largely a matter of admission. A simple matter of there being ballast in a drain does not admit of there being much elaboration. The mechanics of how all of this should be presented are clearly set down in Freemans plc. The obligations of the present defenders are clearly set out in the pleadings and the defence is simply ill-founded. The additional case of Kennedy v Glenbelle quoted by the defenders doesn't really help at all said Mr Connell and Professor Walker's authority on the points covered was not he thought terribly reliable. All the outstanding matters are appropriate for a proof before answer and he so moved.

 

Mr Sands did not want to add anything to his previous submissions.

 

DECISION

On Second or "drainage" issue

This time matters were more straightforward. The argument was in any event in much shorter compass though the defenders' same preliminary pleas of relevancy and specification were involved. If I understood Mr Sands' position correctly he no longer wished to maintain that the defenders could not be held liable on the pleadings for a breach of a statutory duty and departed from his previously held position but his continuing complaint was that the common law situation had not been set down (though that defect might be correctable) and in any event there was an intrinsic lack of fair notice of who breached what duties and how. A proof before answer might be seen to be appropriate.

 

Mr Connell's response was essentially very simple. The circumstances, he maintained, are pleaded in enormous detail and there is no lack of specification. All the outstanding matters are suitable for a proof before answer in his view.

 

From the pleadings it did not strike me that the pursuer is in fact seeking a common law remedy though if he is then I might have a degree of reservation concerning the extent of his specification but a statutory case on the other hand seems to me to have been amply made out in the pleadings. There is no doubt always more that can be added to any set of pleadings but I see no immediately obvious fatal omission in this case. At the end of the day I prefer the pursuer's submissions and in any event the defenders themselves seem to be content that there be an enquiry into the averments. The appropriate course to follow accordingly is to repel for the second time the defenders' preliminary pleas to the relevancy and specification and allow a proof before answer in respect of the pursuer's averments.

 

Expenses

Parties having agreed that expenses should follow success I have found the defenders liable to the pursuer in the expenses occasioned by the diet of debate as taxed but have reserved all questions of certification of the action as being suitable for the employment of junior or senior counsel until the conclusion of the action and such further submissions made as advised.