Judgment:
Lord Macnaghten—Notwithstanding the decision of the Court of Appeal and a certain hesitation on the part of the learned judge of first instance which led the Court of Appeal to think that they were about to “give effect to his real opinion” by overruling the judgment which he had pronounced, it does not appear to me that this case is one of any great difficulty. The question is raised on an award stated in the form of a special case. The arbitrator, who was appointed by the Board of Trade, was the late Sir Frederick Bramwell, a gentleman admittedly of extreme ability and of great experience in arbitrations of this sort. The parties to the controversy were, on the one hand the Swinton and Pendlebury Urban District Council, and on the other the Manchester Carriage and Tramways Company, Limited, who were (within the meaning of the Tramways Act 1870) promoters of a tramway in the district of the Swinton Council. The tramway under statutory powers and obligations was worked by the tramway company in connection with tramways constructed by the Salford Corporation, and by them leased to the company. In this way the tramway in question formed part of a continuous or through line to Manchester. Adjoining the Salford main line about a mile or three-quarters of a mile from the limits of the district of the Swinton Council, the tramway company had two depots, known as the Ford Lane depot and Church' Street depot. On the 22nd January 1901 the Swinton Council duly. gave notice to the tramway company that they were required to sell to the council under the conditions and in the manner provided by section 43 of the Tramways Act, so much of their undertaking as was within the district of the Swinton Council. On receiving the prescribed notice, the promoters are bound to sell to the local authority “their undertaking or so much of the same as is within” the “district,” and the purchasing authority is bound to pay “the then value”—that is, I think, the value at the date of notice (exclusive of any allowance for past or future profits of the undertaking or any compensation for compulsory sale or other consideration whatever) of the tramway and all lands, buildings, works, material, and plant of the promoters suitable to and used by them for the purposes of their undertaking within such district. The value is to be determined, in case of difference, by arbitration. What the arbitrator has to find is the value to the promoters, not the value to the purchasing authority. Nor are the promoters under any obligation, as the Court of Appeal seems to have thought, to make a good title to the adjuncts and accessories for which the purchasing authority has to pay. If their title be infirm, if their tenure be insecure, or their possession precarious, the arbitrator no doubt would take that into consideration in determining value, but the purchasers must pay the value of their adjuncts and accessories to the promoters whatever it was at the date of . the notice, even although they may be of little or no value to the purchasing authority. The notice of January 1901 was given at the instance of the Salford Corporation. Their lease to the tramway company was then about to expire. On its expiration they proposed to work a combined system of tramways through Swinton and Salford as one undertaking, and to work it by electricity instead of using horse-power. As the persons really interested in the purchase under an arrangement sanctioned by Parliament, they represented the Swinton Council in all the negotiations and proceedings consequent upon their notice to the tramway company. After a protracted hearing of much evidence, the arbitrator made his award on the 28th May 1903. The award sets out with minute and perhaps unnecessary detail the relative Acts of Parliament and orders, and the result of the evidence as to the two depots. And then there is a passage which seems to me to be not immaterial, having regard to the view taken by the Court of Appeal—“and pay for the actual tramways within their districts.” But they contended that under section 43 they were not compellable to purchase either the Ford Lane or the Church Street depot, on the ground that even if such depots or either of them were suitable to and used by the tramway company for the purposes of their tramways, they were both of them situated geographically without the district of the council, and that the said section only made it obligatory upon the local authority to purchase that which was within their district. Counsel for the tramway company contended that if such depots were in fact suitable to and used with their undertaking within the council's district,' the council were under the said section compellable to purchase them, although the depots themselves were outside the district. “I was asked,” the arbitrator adds, “by counsel for the Council to state my award in the form of a special case for the opinion of the Court on this point.” Now, stopping there, it seems to me that nothing can be plainer than this—that one question, and one question only, was intended to be raised by the special case. It is quite true that the arbitrator does not follow throughout this introductory statement the exact language of the section. In the earlier part he follows it literally. In the latter part he substitutes the expression “used with” for the words “used for the purpose of.” In my opinion that is a mere slip—a very natural slip—a slip which the arbitrator, if his attention had been called to it, would have been entitled to correct. Nor can I see that in this particular case there can be any difference in meaning between the two expressions. If a thing is suitable to and used with a tramway I am unable to imagine how the person or company so
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using it can avoid using it for the purposes of the tramway. By what perverse ingenuity could it be used otherwise? Then we come to the award. The arbitrator awards and finds “as a fact that the Ford Lane depot, although in a limited sense used with the undertaking of the tramway company within the district of the council, is not suitable to such undertaking.” Then he adds—“I further award and find as a fact that the Church Street depot was used with and is suitable to the said undertaking.” Then, following accurately the words of the section, he finds the value of the tramways and “of all lands, buildings, works, materials, and plant of the Manchester Carriage and Tramway Company suitable to and used by them for the purposes of the undertaking.” He finds separately
(a) the value of the tramways lines;
(b) the value of the land and buildings constituting the Church Street depot and the tramway lines therein and the tramway line in Church Street leading into the depot; and (c) the value of the fixtures and fittings in and upon the Church Street depot as per the valuation there in before referred to. The total was £49,006. But the arbitrator adds that should the Court be of opinion that the Council were not compellable to purchase or pay for the Church Street depot, then the last two items, which amounted together to £24,317, were to be deducted, and the value was to be reduced to £24,689. The learned judge of first instance answered the question in favour of the tramway company. The answer of the Court of Appeal was in favour of the Swinton Council. The learned Lords Justices of the Court of Appeal inferred from the variation in language to which I have referred that there was some ambiguity in the award, and that the arbitrator had it in his mind to submit to the Court some question of law which he certainly did not formulate, and which the learned counsel for the Swinton Council candidly admitted that he did not ask him specifically to state. What that question could possibly have been I am unable to imagine. The question of user was a mere question of fact. The question of suitability was a mere question of fact. Both those questions had been answered by the arbitrator, and answered, your Lordships will observe, as questions of fact in favour of the Swinton Council. The only question which the arbitrator reserved—the question depending on geographical position—was not argued seriously at your Lordships’ Bar. It was determined in favour of the appellants by the learned judge of first instance. The Court of Appeal apparently did not think it worth discussing. And, speaking for myself, I do not think that it is open to argument. The learned Lords Justices in the Court of Appeal seem to have been much impressed with the consideration that the arbitrator was a gentleman of much experience and ability. They thought it most unlikely that he should have made a slip or a blunder, as they termed it, and therefore they came to the conclusion that he must have meant something by the change in his language. Well, persons of the greatest experience and ability do make slips sometimes, and I must say that I should have thought it much more likely that a man of experience and ability should make a slip than that anybody of common sense in a serious document, and after much consideration, should present to the Court a conundrum in the form of a cryptogram. It is not, perhaps, uninstructive to find that both the learned and experienced counsel in their address to the arbitrator made just the same slip, if it be a slip, and that the learned counsel for the Swinton Council was, if I may venture to say so, the first offender. I therefore move your Lordships that the order appealed from be reversed, and that the order of Channel], J., be restored, with costs both here and below.
Lord Robertson—It is certain that in this special case the arbitrator directly, expressly, and formally states one point for the opinion of the Court. It is certain that no other point is directly, expressly, or formally stated by him, or indeed stated at all. The most that can be said, or has been said, is that it is to be inferred from his having mentioned certain things which would be relevant to the consideration of another question, that he really intended to submit that other question. To this there seem to me to be several answers, and the first is that the arbitrator has shown by the structure of his special case that his way of stating a point for decision was to state it directly or expressly, and I must say that I think this conclusive. But secondly, even if it were permissible to infer that the arbitrator really intended to submit a further point from his having mentioned things relevant for its discussion, it must be remembered (and has been forgotten) that this is not merely a special case but an award, and many things are relevant to the award, and of a kind usually inserted in an award, which may not bear on the point submitted for decision. This special case is presented not under sec. 19 or the Arbitration Act, which provides for special cases pure and simple, but under sec. 7 (6), which provides for awards being stated in the form of a special case. Now it cannot be affirmed of all that is set out in this special case that it is relevant either to the question admittedly stated or to the question which it is now sought to evolve out of it, and the reason is that the document serves the double purpose of award and special case. Even if all the passages in the award which are founded on by the respondents could be pressed into their service they are ultimately confronted with the difficulty that the arbitrator has decided that the depot was suitable to the use of the undertaking. Now it is against this conclusion that the respondents invoke the consideration of distance and inaccessibility, and this conclusion is determined against them in the exact terms of the statute. I am unable to think that there is any veiled importance or significance in the use of the word “with” in the award. There is no limit or suggestion
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in the award of any intention in this abbreviation, and in the proceedings the word “with” was treated by both parties as convertible with the more ample expression of the statute. I have only to add that in my opinion the words “within such district” qualify the word “undertaking,” and not the words “lands, buildings, works, materials, and plant of the promoters.” The reading which I adopt is the natural reading, and the reason of the thing is adverse to the opposite view, for it cannot be suggested that stables, which might be close to the district although outside it, should be excluded from the clause, while the opposite construction breaks down entirely over the words “materials and plant.” I am for reversing the judgment appealed against.
Lord Lindley—I am also unable to agree with the Court of Appeal in this case. The arbitrator here was not stating a case for his guidance before making his award; he made an award and set out the facts which he considered material in order to make it intelligible and satisfactory. But he made it, as he had power to do, subject to a question of law, which he was asked to state, and did state in very clear terms, in order that it might be decided by the Court. He was not requested to state, and did not in fact state, more than one question for such decision, and that question was whether the Church Street depot, which was outside the Swinton district, had to be paid for. The question submitted by the arbitrator to the Court for decision has been properly decided, and this is now scarcely disputed. But your Lordships are asked to say that the Swinton District Council desired to raise another point of law, and that the arbitrator has stated the facts in such a way as to show that he intended to raise another question, namely, whether the Church Street depot could in point of law be said to have been “suitable for and used by the company for the purpose of the company's undertaking.” Counsel frankly admitted that the arbitrator was never asked to refer any such question to the Court, and I cannot myself see that he has in fact done so. The question of suitability is one of fact, and the arbitrator has found that question in favour of the selling company. It requires no little ingenuity to discover that such a question can be regarded as a question of law; but assuming that it can be so regarded, it is in my opinion manifest that no such question was intended by the arbitrator to be referred to the Court, and that he has not in fact stated any such question for its decision. I am convinced that the words “used with” in the award are only an abbreviation for “used for the purposes of,” and that the arbitrator used the two expressions not intentionally by way of contrast, but inadvertently as synonymous. The appeal ought to be allowed with costs in the usual way.
