Scottish Court of Session Decisions

An application having been made by Lord Belhaven to the Statute Labour Road Trustees of the parish of Cambusnethan on behalf of a railway company to carry a branch of the railway over the parish road to Lord Belhaven's coal work near the foot of Wishawtown, the trustees by minute of 11th September 1841 granted the same, and directed the surveyor to see that the work was properly done.

The railway crossing was duly made and used without complaint until 1889—horses being employed up to about 1866, when locomotives were introduced.

In 1889, however, the County Road Trustees of the County of the Middle Ward of Lanark, being in place and right of the Statute Labour Road Trustees of 1841, served a notice upon George Auldjo Jamieson, C.A., Edinburgh, as sole trustee under a trust-disposition granted by the late Lord Belhaven in 1859, requiring him to remove the crossing, and upon his refusing to do so they brought an action against him to have their order enforced, or alternatively, to have him decerned and ordained to grant a bond in favour of the pursuers in terms of a draft bond produced by which he should be bound and obliged to implement, “observe, and fulfil certain obligations, conditions, and regulations therein contained regarding the maintenance of the said level-crossing and the working of the traffic thereon, and the relief or indemnification of the pursuers against any loss or damage that may arise through the existence of the said level-crossing or from the traffic thereon, or in any manner of way in connection therewith.”

The pursuers averred that since the formation of the level-crossing, the volume of railway traffic over the same, as well as the volume of traffic passing along the public road which it traversed, had very largely increased, so that the safety of the public, for which the pursuers were responsible, was much endangered; that the population of the burgh of Wishaw, within which the level-crossing was situated, had increased from under 5000 in the year 1851 to over 13,000 in the year 1881, and that it had been the custom of the pursuers in the discharge of their duty as a public body, in all cases where a level railway crossing had been formed on any of the roads under their charge, to take from those interested in said crossings a bond similar to the draft bond produced.

They did not aver that any accident had actually occurred, or that the public had suffered any special inconvenience from the existence of the crossing.

They pleaded—“(1) The said level-crossing having been made in virtue of leave given by the pursuers' predecessors without onerous cause, and with no provision for its continuance during a fixed period, the pursuers are entitled to have the same removed after reasonable notice. (2) Separatim, the pursuers are entitled to have the crossing removed, as being in their opinion dangerous to the public safety. (3) The said level-crossing having been formed for the use and benefit of the defender upon a road under the control and management of the pursuers, and for the safety of which the pursuers are responsible, the pursuers are entitled to impose such regulations and conditions on the continued use thereof as they may deem reasonable and proper in the discharge of their duty.”

The defender pleaded, inter alia—“(5) The pursuers are barred from demanding the removal of the crossing, in respect of the minute dated 11th September 1841, and rei interventus following thereon … (6) The said crossing being necessary for the proper working of the defender's minerals and management of his lands, and not being dangerous to the public, ought not to be removed.”

A proof was led, the import of which sufficiently appears from the Lord Ordinary's note. Thereafter by minute the defender agreed to erect suitable gates at the levelcrossing, to remove certain levers and points, to grant a bond undertaking to relieve the pursuers of all responsibility for or claims in regard to damage caused by the existence of the crossing as distinguished from its use, and that his tenants using the crossing should grant bonds binding them severally to relieve the pursuers of all responsibility for or claims in regard to damage caused by the working of traffic upon the crossing, the owner of the engine of any train causing such damage being liable therefor, and that future tenants should be taken bound to grant similar bonds. The pursuers refused to accept this offer as it would not make the defender liable for all loss and damage connected with the level-crossing, whether arising from its existence or its use.

The Lord Ordinary ( Kyllachy) dismissed the action.

“ Opinion.—The pursuers here seek to enforce the removal by the defender of a certain railway crossing formed upon a road known as ‘The Manse Road,’ in the outskirts of Wishaw; or, alternatively, they seek to have the defender ordained to grant a certain bond, the terms of which are recited in the condescendence. The parties not being at one as to the history

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of the crossing and the circumstances which have led up to the dispute, I some time ago allowed a proof before answer; and that proof having now been taken, and the pursuers having declined to accept the terms offered by the defender in the course of the proof, and now embodied in the minute No. 93 of process, I have to decide the question at issue—a question which, as it seems to me, should never have arisen, and which is now at least reduced to a point so fine that (apart from the question of expenses) I can scarcely conceive how, as between two such parties, it comes to be litigated.

The crossing in dispute was sanctioned, by minute of the road trustees of the day, on the application of the defender's author in the year 1841; and it has been in use ever since by the defender's tenants, forming part of a private line of railway which is the usual means of communication between various important works and the Caledonian Railway. This private railway, up to 1866 or 1867, was a horse railway. Since then the traction has been by locomotives. The road is not a main thoroughfare and is not much used; and I think that as regards the amount of the road traffic passing along it, and as regards the amount of the railway traffic passing across it, the result of the evidence is that while there has been a considerable increase as compared with 1841, there has been no material increase or other material change of circumstances for at least the last twenty or thirty years. The crossing is watched in the usual way by a watchman, who lives on the spot. It is admitted that there has never been any accident upon or in connection with it. There are numerous similar level-crossings all over the district and county, some of them upon roads more important and more largely used.

In these circumstances it is, I think, clearly impossible to entertain the pursuer's demand for the removal of the crossing. It is not necessary to affirm that when a crossing of the kind has been once sanctioned the owner acquires a permanent right which the road authority can in no circumstances recal. But where the construction of such a crossing has been authorised, and the crossing has thereafter been used for a period of fifty years, it is at least safe to say that the road authority seeking its removal must make out a strong case of public danger or public inconvenience, and will, moreover, scarcely succeed in making out such a case if the alleged danger or inconvenience turns out to be nothing new, and is no greater and no worse than is common to other level-crossings in the district. Now, as already indicated, it does not seem to be possible to make out such a case here, and therefore I rather gathered that the pursuers did not seriously press the first conclusion of their summons, their contention rather being that they are entitled to impose reasonable conditions, and that if these are not accepted the crossing must be removed.

Now, I am disposed to the opinion that it is always an implied condition of a grant or licence of this description that the grantee shall submit to such reasonable conditions as the road authority may from time to time find it necessary to impose; and therefore I think the question really is, whether the difference between the bond which the pursuers require as a condition of the continuance of this crossing, and the bond which the defender tenders in his minute, is a difference sufficiently material to justify the pursuers in requiring that the crossing shall be removed.

In my opinion, the difference between the parties in this matter is no difference at all. The defender offers to comply with all the structural requirements of the pursuers, and he also offers to become responsible for all accidents which may occur in consequence of the condition of the crossing. He also tenders the obligation of his tenants using the crossing to be responsible each for his own use of the crossing—the proprietorship of the engine drawing the traffic determining the responsibility in any case of mixed use. The pursuers, however, insist that the defender shall become liable, or that his tenants shall become conjunctly and severally liable for all accidents occurring through the negligent use of the crossing, whoever may be the party to blame; and it is upon this point that the parties have differed.

In my opinion, the pursuers are here asking what is unreasonable; or rather, the defender's offer meets, in my opinion, the full substance of the pursuers' demand. In the first place, I as yet fail to see how in any circumstances the pursuers could be sued (I mean successfully) for the fault of a person lawfully using the crossing, any more than for the fault of a person lawfully using the road. I do not therefore see the pursuers' interest to demand the special indemnity which they seek. But, in the next place (and assuming the contrary), the pursuers have failed to suggest any reasonable or practical ground for rejecting the obligation of the actual users of the crossing expressed in such manner that each shall be responsible for his own engine. The whole argument in the procedure roll went on the difficulty of ascertaining who was to blame in the case of mixed or rather combined trains, and the offer latterly made of making the ownership of the engine the test appears to me quite to meet that difficulty. I shall therefore, in respect of the defender's minute, dismiss the action; but as the defender's offer on record did not come up to the offer in the minute, and was not in my opinion altogether satisfactory, I shall (although with hesitation) find no expenses due to or by either party.”

The pursuers reclaimed, and argued—(1) They had an absolute right to have the level-crossing removed upon notice without assigning any reason— Fifeshire Road Trustees v. Cowdenbeath Coal Company, October 19, 1883, 11 R. 18. The trustees' right here was stronger because there was here no ish whatever. Road trustees had absolute authority as to granting or refusing such leave, and as to restrictions where leave was granted— Watson v. North British Railway Company,

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November 9, 1877, 5 R. 87, and July 5, 1878, 5 R. (H. of L.) 211. (2) The pursuers' demand as to a bond was reasonable. The crossing was entirely for the defenders' benefit and he should be made liable to the pursuers for any loss or damage. He could get bonds of relief from his tenants. The pursuers were not to be put to the necessity of finding out what person was in fault. (3) The defenders' offer was insufficient, e.g., the proprietorship of the engine would not be a conclusive test in the case of mixed trains.

Argued for the respondents—(1) Life in manufacturing districts could not go on unless road trustees could give manufacturers power to lay such railways. The leave given here was unlimited, and the road trustees were barred by acquiescence from now disputing the defender's right— Moir v. Alloa Coal Company, November 15, 1849, 12 D. 77. The pursuers had not proved either danger to the public or material change of circumstances which might have justified their demand. The Cowdenbeath case depended on the special terms of the contract. (2) The pursuers were entitled to regulate the traffic, but the bond offered to them was sufficient and gave them all they were reasonably entitled to demand.

At advising—