Scottish Court of Session Decisions

In the year 1865 it was arranged between the Strathspey Railway Company and the Highland Railway Company that a junction should be formed between their lines of railway at a point about three miles north of Boat of Garten Station. The object of the arrangement was to allow the Strathspey Railway Company to run their trains into and out of Boat of Garten Station, and in order to do so it was necessary either that the trains should run over the single line of the Highland Railway from the point of junction to Boat of Garten, or to lay down a second line of rails. As the former alternative would have been attended with great danger, the Highland Railway Company agreed to lay down the requisite second line of rails at their own expense, and it was agreed that the Strathspey Company should pay them a yearly sum for the use of the line and of the Boat of Garten Station.

The agreement between the said companies was embodied in the 30th section of the Strathspey Railway Extension Act 1865, which, on the narrative that there was at present a single line, and that it was to be doubled, and to be used by the Strathspey (afterwards Great North of Scotland Railway) Company for the purposes of their traffic upon the terms and conditions thereinafter expressed, provided:—“The Highland Company shall, upon notice requiring them so to do being given to them in writing by the company, proceed forthwith to construct all the necessary works for laying down, and shall lay down, an additional line of railway upon so much of the Highland Railway as will be situate between the point of junction with that railway hereby authorised and the Boat of Garten Station, and they shall construct all such works and afford all such accommodation at and in connection with the said station as may be requisite or necessary for the use of this said additional line of railway for the purposes of the traffic of the company (including in such term, for the purposes of this enactment, any company for the time working the Strathspey Railway) and the interchange of traffic with the Highland Company at that station; such doubling of the said railway and other works shall be completed by the Highland Railway Company within the time specified in the notice to be given to them by the company as aforesaid, and so that the same may be ready for use on the opening of the railway hereby authorised; and if not completed at such time the Highland Company shall thenceforth, until such completion, pay to the Company a daily penalty of £20. The company on the first of January in every year, or within fourteen days thereafter, shall pay to the Highland Company £7 per centum per annum upon the outlay incurred by that company up to that date in constructing the necessary works for and in laying down such additional rails, including the cost of the land required for such additional rails, and of all alterations of the Highland Railway, or of any of the works connected therewith necessary for or consequent upon the laying down the said additional line of rails, such percentage to be computed from the date or dates of the actual expenditure by the Highland Company of the cost of constructing the said line and works. The company shall pay to the Highland Company, in respect of the use of that company's Boat of Garten Station, and the works and conveniences connected therewith, such rent and such proportion of the salaries of the officers and servants required to work the traffic of that station, and of the cost of maintaining the station buildings, as failing agreement shall be settled by arbitration in manner hereinafter provided. The said additional line of rails and other works shall be the exclusive property of the Highland Company, and may be used by them for the general purposes of their undertaking: Provided always that it shall be lawful for the company, but subject always to the bye-laws and regulations of the Highland Company, to run over and to use, with their engines, carriages, and servants, and for the purposes of their traffic of all kinds, the said additional line of rails, and the conveniences connected therewith, at the said Boat of Garten Station, upon payment of the sums of money hereinbefore expressed, and the company shall be entitled to charge and receive tolls for and in respect of all traffic passing over the said additional line of rails coming from or destined for the railway of the company. The said additional line of rails and other works shall be made and maintained by the Highland Company to the reasonable satisfaction of the chief engineer for the time being of the company. The company shall, if they require such accommodation, erect in connection with the said additional line of rails their own engine-shed, turn-table, water-tank, and other works necessary for the accommodation and working of their locomotives and carriages, and the Highland Company shall afford to the company all due and proper facilities for so doing not inconsistent with the convenient and economical working of their own traffic. All needful facilities shall be offered by, and all such duties shall be performed and services rendered by, the Highland Company at the Boat of Garten Station as may be necessary for the accommodation, interchange, and transmission of the traffic coming from or destined for the undertaking of the company…. If and when the Highland Company shall double its line of railway between the said Boat of Garten Station and Grantown, such an alteration shall be made in the terms of payment on which so much of the said railway as is situate between the point of junction therewith of the railway hereby authorised and the Boat of Garten Station shall be used by the company as shall be agreed between the companies, or as failing agreement shall be determined by arbitration in the manner hereinafter provided. The company shall not, except with the consent in writing of the Highland Company, take up any passengers, parcels, animals, goods, minerals, or other matters or things at the Boat of Garten Station, or at the junction of the railway hereby authorised with the Highland Railway, or at any intermediate point or place on that railway, and deliver the same at any other station on that railway, nor in any way whatsoever interfere with the local traffic of the Highland Company.”…

By the Great North of Scotland Railway Amalgamation Act 1866 the Strathspey Company was amalgamated with the Great North of Scotland Railway Company, and all its rights and liabilities were taken over by the amalgamated company. The Highland Company constructed the additional line of rails soon after the passing of the Strathspey Extension Act, and the Great North of Scotland Railway Company after its amalgamation

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in 1866 had the use of the said line of rails, and ran its trains into Boat of Garten Station.

The sum ultimately settled to be due to the Highland Co. as percentage on cost under the agreement was£1519 at January 1868, and £854 annually thereafter, while the rent for Boat of Garten Station was fixed at £85, and a certain proportion of the salaries of the officials was also to be paid.

The Great North Company began to use the new line in 1866, and from that date to the date of this action the Highland Company paid both the owners ‘and occupiers’ share of the rates, taxes, and road assessment due in respect of the line.

The present action was raised by the Highland Railway Company for declarator that the defenders were occupiers of the line of railway made by the pursuers under section 30 of the Act of 1865, and were liable for the rates and taxes payable for the line in respect of occupancy, and in any event for declarator that the defenders were bound to free the pursuers of all rates and taxes in respect of occupancy, and in particular of those paid by them since the line was laid down, and to recover the sum of £971, 10s. 8d. from the Great North Company as the amount of occupiers’ rates which the pursuers had paid, and which they maintained that the defenders as occupiers of the piece of line made by the pursuers in terms of the statute already referred to ought to have paid.

The pursuers averred that the defenders had had the exclusive use of the said line of rails from 1866, and that they themselves had no intention of using the said line, as there was no connection between that line of rails and their own except the station sidings at Boat of Garten.

The defenders averred that the line in question was part of the pursuers' undertaking, who were entitled under the Act as above quoted to use it for their ordinary traffic. They also alleged that they had all along paid the rent fixed for the use of the station at Boat of Garten, and the percentage on the outlay on the additional line fixed by the statute.

The defenders also denied their liability to pay occupiers’ rates, on the ground that they were not so entered in the valuation roll, and that an attempt to get them so entered was refused by the assessor, and his decision was not appealed from by the pursuers.

The pursuers pleaded, inter alia, “(1) The defenders being the occupiers of the said line of railway, are liable for the proportion of the rates therefor payable by occupiers.”

The defenders pleaded, inter alia—“(2) That the action was irrelevant. (3) The defenders not being occupiers in the sense of the Acts imposing the assessments sued for, and separatim, not being entered in the valuation roll as such occupiers, are entitled to absolvitor;” and (4) “The defenders having fulfilled all the obligations incumbent on them under sec. 30 of the Strathspey Railway Extension Act 1865, are entitled to absolvitor.”

The Lord Ordinary ( Trayner) pronounced this interlocutor:—“Sustains the second and fourth pleas-in-law for the defenders, and also the first part of the third plea-in-law: Assoilzies the defenders from the conclusions of the summons, and decerns: Finds the pursuer liable in expenses, &c.

“ Note.—The pursuers seek to have it declared that the defenders are occupiers of a line of railway which connects their several undertakings, and that in respect of such occupancy the defenders are liable for certain rates and taxes. The defenders maintain in defence that they are not occupiers of the railway in the sense of the Acts imposing the assessments sued for; that their right in the railway is not occupancy but use; and that the amount which they are bound to pay in return for such use is fixed by statute, and excludes liability for the claim now made by the pursuers. The solution of the question at issue depends upon a construction of the 30th section of the Strathspey Extension Act 1865, whereby it is provided that the pursuers should make the line of railway in question, that the defenders should be entitled ‘to run over and use’ it, and that the defenders should be bound to pay the pursuers in each year ‘£7 per centum per annum upon the outlay incurred by that company up to that date’ in the construction of the said line of railway. The defenders maintain that their rights of use thus conferred upon them is in effect a right of running powers, while the pursuers say that the defenders' right may more correctly be represented as that of tenantry. I am of opinion that the defenders are right. There are two provisions in the statute which seem to me inconsistent with the idea of the defenders being the tenants or occupiers of the line—(1) The line (declared to be the exclusive property of the pursuers) is one which ‘may be used by them’ (the pursuers) ‘for the general purposes of their undertaking.’ The defenders have not the exclusive use or occupancy of the line (which is a general feature of tenantry); they are at best but joint-tenants or occupiers of the line along with the pursuers, who may use it for the general purposes of their own undertaking. That they have not in point of fact so used the line of railway in question (as they allege) is not of any moment. They may commence and continue to use it as and when they please. (2) The use to which the defenders may put the line of railway is not unrestricted, nor is it such use, in its manner or extent, in their own character, as might be expected if they were tenants and occupiers. They are only entitled to use the line ‘subject always to the bye-laws and regulations’ of the pursuers' occupancy. These two provisions seem to me to exclude the idea of the defenders being the tenants of the line in any ordinary sense. I think the right of the defenders is plainly enough expressed in the words of the statute as a right to ‘run over and to use’ the line in question, subject to the restriction I have already pointed out. Beyond that the defenders have no right.

I regard the statute as equally clear upon the question of the defenders' obligations; not only does it fix that the defenders are to pay £7 per cent. upon the pursuers' outlay, but it adds that the defenders are to have the right ‘to run over and use ‘the line of railway ‘upon payment of the sums of money hereinbefore expressed.’ I can read this only as entitling the defenders to the right conferred, on payment of the amount fixed by statute, exclusive of all other charge or liability—otherwise the defenders would be liable in return for the right conferred upon them not only in the sum expressed in the statute, but in something beyond and in addition to which the

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statute stipulates. Although not necessary to the decision of the case, I may say that, in my opinion, the plea of incompetency urged by the defenders is not well founded. Hogg [June 22, 1880], 7 R. 986.”

The pursuers reclaimed, and argued—The question was, whether the true position of the defenders was not that of occupants? There was something more here than mere running powers. This was shown (1) by the objects for which the line was made as shown by the clause in the Act; and (2) the fact that the defenders had had exclusive use of the line so made. The position of the defenders was that of occupant, and they should be taxed as such— Simpson v. Dennison, 10 Hare's Chan. Rep. 51.

Counsel for the defenders were not called upon.