Scottish Court of Session Decisions

This was a suspension and interdict at the instance of the Caledonian Railway Company against the arbiters and oversman and the trustees of the late Thomas Barr, contractor, Uddingston, to interdict the arbiters and oversman from taking, or authorising any further proceedings to be taken, in an arbitration under the Lands Clauses Act, 1845, between the Company and Barr's Trustees, in reference to a claim by the latter for purchase money and compensation for the damage caused by reason of 3 acres and 21 poles imperial measure of Barr's farm of Brakenhill, Carluke, having in 1845 been taken by the Company for the purposes of their railway; or at least to interdict further procedure being taken in the arbitration till Barr's Trustees should, by judicial procedure or otherwise, establish

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a right and title to a lease of the said 8 acres and 21 poles.

The farm of Brakenhill was part of the entailed estate of Mauldslie, of which in 1845 Sir W. C. Anstruther was the heir in possession, and a portion of the estate, including the farm, was then liferented by Lady Anstruther, the widow of the former heir, during the life of the said Sir W. C. Anstruther. In 1803 the Earl of Hyndford, the proprietor of the property, granted a lease of the farm, for two lives, to one Robert Hamilton and his eldest son William Hamilton, excluding assignees and sub-tenants, and binding the tenant to reside on the farm. In 1845 William Hamilton was the liferent tenant, but resided in America; and the farm during the year 1844–45 was occupied by one Gibson, whose sub-lease from Hamilton had expired in 1844.

On the 21st October 1845 the Railway Company served on Sir W. C. Anstruther a notice to take 3 acres and 21 poles of the farm, and on 25th December 1845 a similar notice on Lady An-struther. The Company had previously entered upon the farm for the purpose of setting out the line of their works, and had cut the centre rut. The side ruts were afterwards cut, and the Company paid Gibson for the damage thereby occasioned. On 24th December a verbal agreement was made between Mr Denholm, factor on Mauldslie estate (subject to the approval of Sir W. C. and Lady Anstruther), Mr R. Hamilton, the liferent lessee's brother, on his behalf, and Mr Barr, by which Mr Barr was to get a sub-tack of the farm for twenty-one years from Martinmas 1845 and Whitsunday 1846; and the Anstruthers were to guarantee it for that period in the event of Hamilton dying sooner. On 26th January 1846 the approval of the Anstruthers to the proposed subtack was communicated to Mr Barr by letter from Mr Denholm, their factor, and Mr Barr entered upon the farm; but he never possessed the 3 acres and 21 poles, which were fenced off and used for the construction of the railway during the ensuing summer. Between January 1846 and February 1847, drafts of a sub-tack and separate obligation by the Anstruthers were prepared and revised for all parties, but were never executed. Mr Barr remained in possession, and (the sub-tack duty being greater than the rent in the liferent lease) he paid the rent due under the liferent lease to Mr Denholm, and the additional rent to Mr Hamilton. It was part of the arrangement of the parties to this subtack that Mr Barr should take the whole farm, and settle with the Railway Company for the compensation due for the land taken by them. On 11th July 1846 the Company served on Mr Barr a notice to take the ground. In 1850 the Railway Company settled the claims of Sir W. C. and Lady Anstruther, and undertook to settle the claims of the tenants, for which purpose it was arranged that the Company should draw, during the currency of the respective leases, the interest on the compensation money due to the Anstruthers, which was accordingly deposited in bank. The Company then got a disposition to the ground, with entry as at Martinmas 1845.

Mr Barr having died in 1859, a claim for compensation against the Company was made by his trustees, and was ultimately insisted in in 1869, when they served a notice, claim, and requisition on the Company, claiming an annual payment of £12, 3s. 1d. for the twenty-one years from 1845 to 1866, with periodical interest, in respect of the purchase money and compensation for the yearly damage caused, and a further single payment of £8,10s. as compensation in respect of the formation of new head-ridges, with interest; and they nominated an arbiter on their behalf. Thereafter the Company, under protest, nominated an arbiter, and an oversman was appointed by the arbiters. Mr Hamilton was not a party to these proceedings.

The delay in making the claim arose from Mr Barr, and afterwards his trustees, being unable to produce the liferent lease of 1803, which could not be found, and of which they had only a copy, and also from the want of an executed sub-tack.

In these circumstances the Railway Company, inter alia, pleaded that Mr Barr was not entitled to claim compensation, in respect that he was not lessee under a written lease prior to the Company's entry at Martinmas 1845, as at which date they had settled with the proprietor and occupant; and that, even assuming the drafts, sub-tack, and obligation to constitute a valid lease, they were entered into after the Company's entry to the lands; and further, that proceedings should be suspended or stayed till all having interest had been called, or till the question of title was judicially determined. The respondent's Barr's Trustees, inter alia, pleaded that possession and rei interventus having followed on the drafts, sub-tack, and obligation, &c., a good lease was constituted; that they, being in right of the original liferent lease of 1803, were entitled to compensation; and that the Company having settled with the landlord on the footing that the lands were under lease, and that separate compensation was payable to the tenants, were barred from objecting.

After proof, the Lord Ordinary ( Jerviswoode) found that Mr Barr held and possessed the lands under a written contract of lease for the period of twenty-one years from Martinmas 1845 and Whitsunday 1846; and that the Company had failed to establish facts, as averred on the record, relevant and sufficient to support the grounds of suspension; and therefore repelled the reasons of suspension and refused the note.

The case was heard on a reclaiming-note by the Railway Company, when it was maintained that the sub-tack was equivalent to an assignation to Mr Barr by Mr Hamilton of his claims for compensation against the Company. Further hearing was adjourned in order that the evidence of Mr Hamilton in America might be got as to the existence of the original liferent lease, and also as to his appearing in the case. A letter from Mr Hamilton was subsequently produced, which satisfied the complainers that the original lease had been lost, and that the copies of it put in during the proof could now be received as evidence. A minute was then put in for R. Hamilton, son of and factor for William Hamilton, craving leave to be sisted as a party to the process, and expressing his willingness to become a party to the arbitration.

The complainers having refused to proceed with the arbitration on that footing, an assignation in favour of Barr's Trustees was executed by R. Hamilton on behalf of Wm. Hamilton, of all claim for compensation competent to him, as liferent lessee, against the complainers, and a minute was lodged for Barr's Trustees, stating that they agreed to have the compensation due to them and to Hamilton settled in the arbitration, on the footing that they claimed in their own right, and as in right of Hamilton under the assignation, the value of Hamilton's liferent right in the land taken by the

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Company from Martinmas 1845, with interest, as in full of all claims competent to them and Hamilton against the complainers, and that they proposed to amend their claim in the arbitration accordingly. The debate on the case was then concluded, the complainers having refused to accede to the offer above mentioned, on the ground that the whole nature of the claim was altered from being a claim for Barr's Trustees for twenty-one years certain (leaving open Hamilton's claim for the remainder of his tenancy) to a claim for the value of Hamilton's life interest as at 1845, and that thereby the arbitration would cease to be under the statute, to which they were not bound to agree.

At advising—