Scottish Court of Session Decisions

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The respondents in this action, Patrick Playfair and others (Walker's trustees), were owners of certain subjects in the neighbourhood of Eglinton Street, Glasgow, and they claimed from the complainers, the Caledonian Railway Company, compensation in respect of their property having been injuriously affected by the execution of certain works by the complainers, in virtue of the powers conferred on them by The Caledonian Railway (Gordon Street, Glasgow, Station) Act 1873. For the purpose of settling the amount of compensation by arbitration, in terms of The Lands Clauses Consolidation (Scotland) Act 1845, the respondents nominated Mr George Bell, architect, Glasgow, to be arbiter on their part, and the complainers nominated Mr Thomas Binnie as arbiter on their part, but under protest that the respondents Walker's trustees had no right to any compensation, and that no dispute had arisen between the parties entitling the respondents to insist in the arbitration. Mr Bell and Mr Binnie accepted the office of arbiters and appointed as oversman in the reference Mr William M'Jannet, writer in Glasgow, who accepted the office on 14th March 1879. The complainers on 19th March presented this note of suspension and interdict in the Bill Chamber for the purpose of having the respondents Walker's trustees and the arbiters and oversman interdicted from proceeding with the arbitration. Interim interdict was granted on that day by Lord Adam, and was continued by Lord Gifford on 28th March 1879, on which day the note was passed for the trial of the questions upon which the parties are at issue. A record was afterwards made up in the case.

The facts, in so far as admitted, were as follows:—The respondents' property was occupied as a cotton mill, and was bounded on the north by Canal Street, on the east by Francis Street, and on the South by Victoria Street. The east front of their premises was parallel to and about 90 yards distant from Eglinton Street, which was one of the main thoroughfares of the portion of Glasgow on the south side of the Clyde. Canal Street and Victoria Street were public highways, and were, until the operations of the complainers after mentioned, level streets intersecting Eglinton Street at right angles, and affording direct and easy access between that street and the north and south sides of the respondents' property. At a considerable distance north of Canal Street there was another street named Cook Street, running westwards from Eglinton Street and parallel to Canal Street, but there was no communication between Canal Street and Cook Street except by Eglinton Street. In 1873 the complainers applied to Parliament for powers to make a new line of railway on the site of part of the west side of Eglinton Street. It appeared to the respondents that if the proposed operations were sanctioned by Parliament, Canal Street and Victoria Street and the access to Eglinton Street would be so much interfered with that their property would be seriously injured, and they accordingly joined certain other owners of property in the neighbourhood in petitioning Parliament against the complainers' Bill. While the Bill was in dependence in the House of Lords the committee of the House refused to hear the petitioners on the preamble, but intimated that they would be heard in support of clauses for the protection of their interests. Before any such clause came to be discussed, the complainers (through their agents Messrs Grahames & Wardlaw) prepared and offered to the petitioners the following undertaking provided they would withdraw their petition. And the petitioners (including the present respondents) in respect of the undertaking agreed to withdraw, and did withdraw, their opposition to the Bill—which thereafter was passed into law as “The Caledonian Railway (Gordon Street, Glasgow, Station) Act 1873.”

The undertaking, which was in the form of a letter, was dated 4th July 1873, and addressed to the claimants, sealed with the common seal of the railway company, and signed by the secretary of the company, and was in the following terms:—“Gentlemen,—In consideration of your withdrawing all further opposition to this Bill, we, the Caledonian Railway Company, do hereby undertake, that if and so far as you are in the judgment of the arbiters or oversman or jury to be appointed under the Lands Clauses Consolidation (Scotland) Act 1845, as after mentioned, injuriously affected by the construction of any of the works authorised by this Bill, your claim for compensation shall not be barred by reason of our not taking any part of your respective lands, and the amount of such compensation, if any, if not agreed upon, shall be determined in the manner provided by the Lands Clauses Consolidation (Scotland) Act 1845 for the determination of cases of disputed compensation; but without prejudice to all claims competent to you, or any of you, under and by virtue of the said Act, and of any other Acts regulating the construction of railways, and in all cases where the lands of you, or any of you, or any part thereof, may be taken by us for the purpose of this Act.”

The formal claim and notice, in which £2600 was demanded as compensation for injury, loss, and damage to property, was based on the ground that the railway company “have demolished the houses and shops and other buildings forming the west side of Eglinton Street at this place, and substituted therefore a railway, thereby permanently taking away the thoroughfare from that part of the street. They have also shut up Canal Street and diverted Victoria Street to the south, thereby causing a detour to all traffic entering or leaving the claimants' property, of 1032 1 2 feet on the north and 150 feet on the south entrance, and they have further injured the gradients of these accesses from 1 in 712 to 1 in 19 on the south entrance, and from 1 in 158 to 1 in 34 on the north entrance. They have also obliged the claimants, in place of their former level entrances into Eglinton Street, to enter a narrow street or road called Salkeld Street, which neither has nor ever can have shops or buildings or thoroughfare, and by these operations they have greatly diminished the value of the claimants' property.” In the record the respondents further averred that they had a special interest in these streets, which had been formed and maintained by them and their predecessors, and which formed the special, and indeed the only, accesses to their property, and that the construction of railway works “across the line of the foresaid streets cuts off the access between the respondents' property and Eglinton Street, the leading thoroughfare of the district, and necessitates a long detour for all carts, carriages, and passengers coming to or leaving the respondents' works. The direct

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access which the respondents formerly had by the said street to Eglinton Street rendered their property more valuable, and by the construction of the complainers' said works it has been permanently damaged and its value greatly diminished.” The complainers' answer was that the respondents' property “has sustained no permanent or peculiar physical injury, and although the respondents in using Victoria Street as altered have to use at some distance from their property a somewhat steeper gradient than before, they have to do this in common with all the members of the public who require to use the said streets;” and they maintained that the injury which the respondents alleged was not such as could be made a ground of compensation under any of the statutes.

As already mentioned, arbiters and an oversman were nominated, but under protest on the part of the Caledonian Railway Company, who thereafter presented this suspension, on the ground that the injury which the respondents alleged in their claim was not such as could be made a ground of compensation under any of the statutes—in point of fact, that the respondents had not made a relevant allegation of injury.

The Lord Ordinary ( Curriehill) repelled the reasons of suspension and recalled the interim interdict, and decerned, holding that the grounds of damage alleged were relevant, and that the Court ought not to interfere to prevent the arbitration from proceeding.

In the note appended to his interlocutor his Lordship said (regarding the effect of the undertaking)—“I am inclined to think that that letter does not amount to an absolute undertaking to submit to arbitration whatever claim for compensation the respondents might bring forward on the ground that their property was ‘injuriously affected.’ I think that the true meaning of the undertaking was this, that although no part of the respondents' lands was taken by the railway company for the purposes of their Act, they were nevertheless to be entitled to insist before arbiters or a jury upon all claims, on the ground of their lands being injuriously affected, which would have been competent to them had any part of their lands been taken. I do not think that the letter, when fairly construed, binds or was intended to bind the railway company to submit to arbitration any claim by the respondents for compensation unless they were in a position to allege that their lands were ‘injuriously affected’ within the meaning of the various Consolidation Statutes regarding such claims.”

His Lordship then gave his reasons for holding that the complainers were entitled, in terms of the 6th section of the Railway Clauses Consolidation (Scotland) Act 1845, to insist in a claim for compensation as being “injuriously affected” by the operations of the company.

In regard to the question whether the averments of injury to their lands made by the respondents were such as would in law entitle the complainers to compensation, his Lordship, in coming to the conclusion that the averments were relevant, said—“The next and the truly important question in this case is, whether the averments of injury to their lands made by the respondents are such as if proved to the satisfaction of arbiters or of a jury would in law entitle them to compensation? Questions of this kind are always attended with more or less difficulty, and there have been numerous decisions both in this country and in England—several of them judgments of the House of Lords—all of which, however, it is not very easy at first sight to reconcile. But I think on a careful study of these cases it will be found that the principle which runs through them all is this—that in order to found a claim for compensation in respect of railway works ‘injuriously affecting’ land, the injury must be a real injury—that is, it must physically injure or otherwise permanently diminish the value of the lands. Personal inconvenience to the proprietor, which he shares with the rest of the public, will not ground a claim for compensation. There must be some special or peculiar damage done to the lands by reason of the construction of the works, and the damage, as I have said, must be of a permanent and not a temporary character. It will depend very much upon the facts ascertained by the arbiters or the jury whether or to what extent the claim for compensation is well founded.”

His Lordship thereafter referred to and commented upon the cases (1) of the Caledonian Railway Company v. Ogilvy, 1855, 2 Macq. 229, which he distinguished from the present case as follows:—“In the present case there are positive averments of injury to the respondents' property by the actual shutting up of two direct accesses to Eglinton Street by the substitution of a deviation road upon steep gradients instead of practically level roads, and by the deviation road being so constructed that the access to Eglinton Street is now long and circuitous, in place of being short and direct, and is moreover made in the form of a mean and narrow street, in which there would be little thoroughfare and few shops of any consequence. In short, it is averred that the operations of the railway company have ‘injuriously affected’ the respondents' lands by impairing the accesses to them, and thereby diminishing their value as commercial subjects.” (2) Chamberlain v. The West End of London and Crystal Palace Railway Company, 1862, 2 B. and S. 605 and 617, which his Lordship stated closely resembled the present. (3) Beckett v. The Midland Railway Company, 1867, L.R., 3 C.P. 82. (4) The Metropolitan Board of Works v. M'Carthy, 1874, L.R., 7 E. and I. Apps. p. 243.

His Lordship concluded as follows:—“I have quoted at length these passages from the opinions of Lord Chelmsford and Lord Penzance [ i.e. in the case of the Metropolitan Board of Works v. M'Carthy] because it appears to me that they are in every sentence applicable to the present case. The averment of the respondents is that the direct and level access which they had by means of the highways called Canal Street and Victoria Street to the great public thoroughfare called Eglinton Street was a valuable accessory to their property, and that the obstruction of that direct access, and the substitution of a circuitous deviation road of greater length, of steep gradients, and passing through a new and mean street, has permanently diminished the value of the property. These averments, if true, appear to me to be as relevant to found a claim for compensation under the Railways Clauses Act as the corresponding averments in the cases of Chamberlain, Beckett, and M'Carthy. It will, of course, be the duty of the arbiters to determine upon the evidence laid before them to what extent, if any. the respondents'

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premises have in point of fact been permanently injured and diminished in value. It may be that they are situated at such a distance from Eglinton Street that a direct access to it by means of Canal Street and Victoria Street was of little or no value; but that is a matter, as I have said, for the arbiters, and not for the Court to determine. I am therefore of opinion that the arbitration must proceed, and that the present suspension ought to be refused with expenses.”

The complainers having reclaimed, their Lordships of the Second Division did not decide the question of the relevancy of the grounds of damage, but reserved their opinion upon that point, holding that the complainers were bound by the undertaking quoted above to proceed with the arbitration in the meantime, though the question as to the relevancy of the grounds of damage might be raised at a later stage.

At advising—