Scottish Court of Session Decisions

This is a question in the locality of Dysart between the North British Railway Company and the Earl of Rosslyn, who is possessed of considerable property in the parish. The Edinburgh, Perth, and Dundee Railway Company some time ago acquired from the Earl of Rosslyn a portion of his ground, and on.. 10th November 1851 a decree-arbitral was pronounced by the late Mr James Horne, land surveyor; in a submission between the parties fixing the price to be paid by the railway company. This decree contains the following clause — “And further, I ordain that the feu-duty, if any, and public and parish burdens exigible from the portions of ground acquired, extending to 34.457 acres and 1.106 acres, as aforesaid, the gross rental of which, without deductions from such burdens has formed the basis of my calculations of its value and of the price herein allowed for it, shall in all time coming be paid by the said Earl of Rosslyn, with the exception of the poor's rates and prison assessments, in respect of the lands acquired by them as aforesaid; which poor's rates and prison assessments shall be paid by the said company.” In March 1856 the railway company obtained from the Earl of Rosslyn a disposition of. inter alia, the said ground, containing the following clause—“And I, the said James Alexander St Clair Erskine, Earl of Rosslyn, bind myself and my foresaids to free and relieve the said Edinburgh, Perth, and Dundee Railway Company and their foresaids of all existing feu-duties, casualties, and public burdens at and prior to the said terms of entry respectively” (being in 1846) “and also in all time thereafter, with the exception of poor's rates and prison assessment which have been or shall be laid or assessed on the said railway company, in respect of the said portions of ground hereby disponed, which poor's rates and prison assessments, together with any augmentations of existing burdens, and all new or additional burdens to be imposed on the said land, are to be paid by the said railway company from and after the foresaid terms of entry or the terms of the imposition of such augmentations or new or additional burdens.” In 1863 the minister of Dysart obtained an augmentation in a summons in which the railway company was not called. The Earl of Rosslyn's lands were localled upon for the whole of the old stipend, and none of it was localled on the lands of the railway company. The Earl of Rosslyn complains of this, and also that too large a proportion of the augmentation was localled upon him, and that none of it was localled on the lands of the railway company, whereas these should have been localled upon primo loco as free teinds. The railway company pleaded that, in respect of the terms on which their predecessors purchased the lands belonging to them from the Earl of Rosslyn, and of the provisions of the decree-arbitral and disposition, no part of the old stipend ought to be localled on their lands, and that the Earl of Rosslyn having paid the old stipend since the date of the conveyance to the railway company without objection, he was now barred from maintaining relief for any part of the old stipend. The railway company further pleaded that it was not liable in any part of the augmentation. The Lord Ordinary (Barcaple) found that the railway company were not entitled to be relieved from payment of stipend. To-day the Court adhered.