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SCOTTISH_HoL_JURY_COURT

Page: 519↓

(1814) 2 Dow 519

REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS.

During the Session, 1813–14.

53 Geo. III.

SCOTLAND.

APPEAL FROM THE COURT OF SESSION.

No. 38

Shand Appellant

v.

Henderson, Clerk and Manager for the Aberdeen Canal Company, in behalf of the said Company Respondent

June 17, July 28, 1814.

CANAL ACTS.

Where a particular jurisdiction is appointed under a canal act to determine all questions that may arise respecting things to be done in pursuance or in execution of the act, if the canal proprietors do any thing in a way not exactly according to the terms of the act, and not strictly within the powers thereby given, the individual conceiving himself aggrieved, in applying for redress, is not limited to the particular jurisdiction; but the complaint is to be entertained by the ordinary jurisdictions, and the wrong to be redressed in the same way as other wrongs; upon the principle, that any thing done not in exact conformity with the provisions of the act, is not a thing done in pursuance and execution of the act, and therefore not confined to the particular jurisdiction.

Sentiente Lord Eldon, that though where a party stood looking on while an act not strictly legal was done, having the means, but without taking the proper steps, to prevent it, the remedy by injunction, which he would otherwise have, was gone—yet the Company were trespassers, and would be liable in damages; and that even if they entered on an individual's lands without authority, they were trespassers, and liable at least in nominal damages, because the act was unlawful.

Action.—1805, or 1806.

Summons.

Deviation.—Not taking the previous steps required by the act.

Judgment of Court below. Nov. 15, Dec. 8, 1808.

Appeal.

This was an action of declarator and damages by the Appellant, Shand, Advocate in Aberdeen, against the Respondent, Henderson, as representing the Aberdeen Canal Navigation Company. The summons

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stated, “that in 1798 the Company had, without any legal authority, seized upon, and appropriated to the use of the canal, part of his lands of Tanfield, severing and dividing the same in a very irregular and awkward manner;” and concluded to have that fact declared, and for damages. The illegality, as it was afterwards alleged, consisted in the Company having unwarrantably deviated from the line prescribed in the act under which they were constituted; and in their not having in the earlier proceedings, in occupying the Appellant's grounds, and settling the amount of his claims, strictly adhered to the previous steps required by the act. After answers on the merits, the Respondent stated, that a particular jurisdiction had been appointed by the act to settle all differences that might arise between the Company and the individual proprietors, in the execution of the act. After condescendance, the Lord Ordinary allowed a proof; but his interlocutor was altered by the Court, which sustained the defences, and assoilzied the Defender; “reserving to the Pursuer, if he shall be so advised, to prosecute his claims in terms of the Act of Parliament.” From this judgment the Appellant appealed; contending, that he was entitled to be allowed a proof that the Company had deviated, and taken his grounds without authority; in which case, he contended, the Court of Session, and not the particular jurisdiction, must decide as to the consequential damage.

Counsel: Romilly and Nolan for Appellant;
Adam and Horner for Respondent.

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Observations in Judgment.

Point of practice.

Lord Eldon, (Chancellor,) after stating the case. Their Lordships would permit him here to mention, that the action was not brought against the Company, but against the Clerk, or Manager; and he did not find any clause authorizing them to sue, or making them liable to be sued, by their Clerk. But if the Court of Session had a practice of its own on this point, he did not say that it ought to be disturbed ; but it was quite unknown to them in England.

Necessity of restraining Canal Companies within the powers prescribed by the acts.

By these canal acts, large powers were given, and private property largely sacrificed, on the ground of public utility; but when one considered the extent of these powers, in England as well as in Scotland, the necessity of restraining them within the precise limits to which the acts confined them must be obvious. The Court where he sat, if they did exceed them, would restrain them by injunction. If that was not promptly applied for, and the thing not strictly authorized by the act had been actually done, the party could not have that remedy, because the application was too late for that: but he apprehended the Company were trespassers, and liable in damages; and even if they entered on the land when not authorized by the act, the individual was entitled to call on them for nominal damages at least, because the entry was unlawful.

Terms of the act.

This act, like others of that description, enabled them “to enter into and upon the lands belonging to any person or persons, to survey and take levels of the same, and to set out and ascertain such part or parts thereof as the said Company shall think necessary and proper for the making, completing,

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maintaining, improving, and using the said canal:” and to do a variety of other strong acts.

Plan.

Deviation.

But their Lordships knew, that previous to passing these acts, there must be a survey, and a map, or plan, for Parliament to look at, to show the practicability of the object, and the exact line to be followed; and that this was kept in deposit, that it might be seen whether the terms of the act had been complied with. The act therefore provided, that the Company should not deviate from the course “delineated on the said map, or plan, &c. without the approbation and consent in writing, signed by the person or persons to whom any lands, &c. do or shall respectively belong, through or over which any deviation is decreed to be made,” &c.

Particular jurisdiction.

Limits of the jurisdiction.

If the Company entered without taking the preliminary steps incumbent on them, they were trespassers.

The act contained the usual clauses about tolls, &c. and then authority was given to Commissioners in these words:—

“Whereas differences may arise between the said Company, &c. and the owners of, or persons interested in, the lands, grounds, &c. which shall or may be taken, &c.; be it therefore enacted, that the Commissioners for the land-tax for the time being for the county of Aberdeen, &c. the Representatives in Parliament for the said county and royal burghs of Aberdeen, &c. the Sheriff Depute for the said county, &c. are hereby appointed Commissioners for settling, determining, or adjusting, all questions, matters, and differences, which shall or may arise between the said Company and the several proprietors of, and persons interested in, any lands,
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grounds, &c. that shall or may be taken, used, affected, damaged, or prejudiced, in pursuance or in the execution of any of the powers hereby granted, and for the other purposes in this act mentioned.”

The authority of the Commissioners then extended only to such matters and differences as might arise from what should be done in pursuance or in execution of the powers thereby granted. But the act having required that a particular line should be followed, if that line had not been followed, and the Company had cut through an individual's grounds without his consent, he apprehended that it was impossible to say that they were proceeding in pursuance and in execution of the powers thereby granted. They were only doing so when they proceeded according to the exact terms and provisions of the act. Put it in another view; if the parties could not agree as to the value of the grounds that might be required, and if the Company proceeded without taking the previous steps incumbent upon them to take under the act, he was of opinion that they, became trespassers. They must proceed according to the terms of the act, if they meant to say that the jurisdiction constituted by the act was the only jurisdiction which ought to deal with the matter.

Principle on which the Court in England proceeded in question relative to the powers and acts of canal companies.

One was anxious therefore to point out, that their principle in England was this,—that the Company should not be interfered with if they acted within their powers; but that, for the very reason that such large powers were given, the Court would keep them strictly within the limits of those powers.

If a man stood looking on, and did not apply in time, he lost his remedy by injunction ; but if operations, or even the entry on the lands, were not authorized, the Company was liable in damages.— The amount of damages would be affected by the conduct of the party.

Without stating at length all that happened, it

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appeared difficult to say that a regular and strictly legal mode of proceeding had been here adopted. The remedy by injunction was quite out of the question. If a man stood by, and knowingly suffered the operations to be carried on, without taking the proper steps, though he had the means, to prevent them, he ought not to have an injunction. But though he had neglected to apply for that, it did not follow that he should be deprived of his right of action, and his remedy by damages. But, as a general observation, he might say, that the amount of the damages ought to be calculated with a view to the conduct of the individual; and where he stood by, without taking any steps to interfere, a jury would perhaps not give damages worth seeking for. But if the Company did any thing which the law did not authorize them to do, though the damages might be nominal, he did not mean to say that the suit ought not to be entertained.

The particular jurisdiction confined to things done in pursuance and in execution of the act.

Cause remitted, with a declaration of the principle, that the particular jurisdiction was confined to things done according to the act.

The conclusion then was this,—the Court did not say but that something might have been done which might be a fair ground of complaint somewhere, and it “reserved to the Pursuer to prosecute his claims in terms of the Act of Parliament;”—meaning, he supposed, that he ought to go to the Commissioners, and that the Court could not deal with the question. That, however, depended on this consideration;—If the acts done were within the powers given, the probability was, that the legislature intended to give a local summary jurisdiction, and not to leave the Company, in every question that might arise, to be dragged before the Court of Session. But if the acts done were not

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within the powers, then redress was to be sought for the wrong in the same manner as for other wrongs. It appeared to him, looking at all the circumstances,—(he did not say what might be his opinion as to the litigiousness of such a proceeding as this, if the case were his own; he had only to look at the legal rights of the parties, in dealing with the cases of others,)—that if these acts were not such as the Act of Parliament authorized, their Lordships had no right to send the Appellant to the Commissioners; and of course the Court of Session had no right to do so. In order to settle the principle, therefore, he proposed that they should declare, that the Commissioners were not authorized by the act to settle, determine, or adjust, any questions, &c. that might arise by reason of any proceeding not conformable to its provisions—such proceeding not being in pursuance, or in the execution, of the powers granted by the act; and that with this declaration the cause should be remitted, for the Court below to give judgment accordingly. ( Vide Agar v. Regent's Canal Company.)

Judgment.

Remitted, with the above declaration.

Solicitors: Agent for Appellant, ——.

Agent for Respondent, Chalmer.

1814