United Kingdom House of Lords Decisions

The case went before Neville, J., on the claim of the appellants to obtain the declaration to which I have referred, and Neville, J., decided in their favour; he thought that the case was really governed by the case of Midland Railway Company v. Great Western Railway Company (L.R., 8 Ch. 841), in which a company that had got all the rights of another company, including a junction with full powers to that other company to get on to the Great Western line, and which also itself possessed running powers over the Great Western, was held to have full running powers over the part of the Great Western line which was in question. But obviously in that case the rights were very different from the rights here. In that case there were the fullest rights in existence. Farwell, L.J., in distinguishing that case, points out that what we have here is a question of a quite different kind, turning on the terms of an amalgamation. Objections were raised by the respondents to the amalgamation with the Derbyshire Company at the time when the negotiations for it took place, and these objections were got over by inserting the sections of the Act of 1863 under which the Great Central, the amalgamating company, got nothing more as against the Midland than the amalgamated company the Derbyshire had before the amalgamation. Then he goes on to point out that by sec. 38 of the Act of 1863 the undertaking, rights, powers, and so on of the Derbyshire Company became vested in the appellants and were to be held, used, exercised, and enjoyed by them in the same manner and to the same extent as was the case at the time of the amalgamation.

Now the point becomes a very simple one if you once come to the conclusion that the rights of user of the amalgamating company—that is to say, the Great Central— are not to be greater in respect of the powers as regards this junction than the rights which existed at the time when the Derbyshire Company themselves possessed those rights. We are not dealing here with any question of facilities. We are dealing with what is quite different, a question of running powers; we are dealing with a question of user in that sense only. I am unable to come to any other conclusion that that Farwell, L.J., and the Court of Appeal were right in construing the sections of the Act of 1863 as confining the Great Central Company to the exercise of such running powers—and of no more—as the Derbyshire Company possessed at the time of the amalgamation. If that is so, then, as the Derbyshire Company did not possess these rights, the claim on which the action is put forward was not well founded and the judgment of Neville, J., was consequently wrong. I agree entirely with the view taken by the Court of Appeal, and especially with the reasoning of Farwell,

L.J., and I consequently move your Lordships that the appeal be dismissed, with costs.

Lord Parker—I agree. It appears to me that the real distinction between this case and the Hereford case (Midland Railway Company v. Great Western Railway Company, L.R., 8 Ch. 841) is that in the Hereford case the new access had been acquired for the purposes of the company which had the general running powers, and therefore could naturally be used in connection with those running powers. In the present case, however, the new access has not in any sense been acquired for the purposes of the undertaking of the Great Central Company as it existed prior to the amalgamation; it has been acquired only for the purposes of the undertaking transferred upon the amalgamation; and therefore, having regard to sec. 38 of the Railways Clauses Act 1863, it appears to me that it cannot be used in connection with the running powers which formerly attached only to the Great Central Railway Company.

The Earl of Halsbury, and Lords Atkinson, Mersey, and Sumner expressed their concurrence.