Scottish Court of Session Decisions

The railway of the defenders passes over part of the quarry-field of Hailes, the property of the pursuer, Sir William Gibson Carmichael of Skirling, Baronet. The Companys' Act provides that, in addition to the value of the surface land to be taken from the proprietor of Hailes, the Company should pay the value of the whole stone under the surface so taken, and the extent and quality of the stone so taken should be ascertained as in ordinary cases of disputed compensation; provided that the value of the Said stone should be payable from time to time as often as a face of rock at least 130 feet in length was worked up to the north or south boundary of the railway, such payment to be only to the extent of the value of the stone opposite to such face. With this special Act were incorporated the Lands Clauses Consolidation (Scotland) Act 1845, and the Railway Clauses Consolidation (Scotland) Act 1845. In 1849 the working of the quarry had almost reached the northern boundary of the railway, and the defenders' agents intimated that the Company desired that the workings should not be carried further south than a line 48 feet distant from the railway, and that when a face of rock was worked up thereto to the extent specified in the Companys' Act, they would be ready to arrange a reference as to the amount of compensation. Various communications then took place between the parties, two submissions being entered into for the purpose of determining the sum payable by the Company, both of which fell. In March 1864 the pursuers intimated to the Company their desire that the sum should be settled by a jury, in terms

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of the Lands Clauses Act, unless the Company were willing to settle otherwise by payment of the sum claimed. In the following month the Company intimated their refusal to pay the sum claimed, and their intention to petition the Sheriff for a jury, giving notice, at the same time, that they were willing to pay to the pursuers the sum of £7005 in full of all claims. This sum being refused by the pursuers, a jury was summoned in July 1864. The jury returned a verdict finding that the rock under the railway was 260 feet long by 90 feet wide, and that the value thereof was £5272 sterling as at 31st December 1852. The Sheriff then pronounced an interlocutor, in which he “approves of the verdict, and finds and declares in terms thereof accordingly; and farther, in respect the verdict has been for a less sum than had been previously offered by the Company as the value of the subjects in question, finds the claimants liable in one-half of the expenses incurred by the respondents.” That interlocutor was advocated in the Court of Session, and in 1866 the Lord Ordinary remitted to the Sheriff, with instructions to recall that part of the interlocutor which found the pursuers liable in one-half of the expenses incurred by the defenders.

The pursuers, Sir William Gibson Carmichael, and the trustees of his predecessor in the estates, then brought an action against the railway company concluding that the railway company should be ordained to make payment “to the pursuers of the sum of £5272 sterling, with interest thereon at the rate of £5 per centum per annum from the 31st day of December 1852 years until payment, or such sum as our said Lords shall modify as the interest to which the pursuers are entitled on the said sum of £5272. And further, it ought and should be found and declared, by decree of our said Lords, that the defenders are bound to make payment to the pursuers of all reasonable charges and expenses incurred by the pursuers incident to an inquiry held in virtue of the provisions of an Act of Parliament, entitled, ‘The Lands Clauses Consolidation (Scotland) Act 1845,’ before the Sheriff of the county of Edinburgh, and a special jury at Edinburgh, on the 18th day of July 1864, and following days, under a petition, dated the 20th day of April 1864, and presented to the said Sheriff by the defenders; and the defenders ought and should be decerned and ordained, by decree aforesaid, to make payment to the pursuers of the sum of £2000, or such other sum as our said Lords shall modify as the amount of such reasonable charges and expenses incurred by the pursuers incident to the inquiry aforesaid, with interest thereon at the rate of £5 per centum per annum until payment.”

The Lord Ordinary ( Barcaple) gave effect to the contention of the pursuers, and decerned for £5272, with interest from 31st December 1852, and gave expenses. The defenders reclaimed to the First Division, but the Court unanimously adhered.

The defenders appealed.

Lord Advocate, and Cotton, Q.C., for them

Mellish, Q.C., and Pearson, Q.C., in answer.

At advising—