Scottish Court of Session Decisions

Mr Mercer, proprietor of the lands of Kevock Mill, Lasswade, presented a petition against the Esk Valley Railway Company, the North British Railway Company, and the Shotts Iron Company, asking to have them interdicted from proceeding further with the construction of a railway siding, loading of bank, access, and other works, at a point the complainer's lands at Kevock Mill, and from passing along or using in any way that part of the private road leading from the Lasswade public road to Kevock Mill, which passes through the complainer's lands.

The Esk Valley Railway Company was incorporated in 1863, and obtained power for making a line of railway from near Eskbank to a point near Springfield paper works, passing through the complainer's lands. The complainer alleged that the line, as constructed by the Esk Valley Railway Company, was not on the line sanctioned by their act of incorporation, nor within the limits of deviation allowed by the railway acts and the act of incorporation, nor on a line agreed to by the complainer, in certain agreements which he set forth, but on ground belonging to the complainer, to which the railway company has no title whatever. He complained, farther, that the levels, gradients, and curves of the line, as constructed, were discon-form to the said act and agreements, and that the railway company had wrongfully failed to implement the obligations undertaken by them in the said agreements, in consideration of which the complainer had consented to the deviation from the Parliamentary plan. In 1867 the Esk Valley Railway Company had leased their line to the North British Railway Company. Recently they had commenced to construct n siding, loading-bank, and access to loading-bank, at a point on the line as at present constructed through the complainer's lands, and had intimated to the complainer their intention to use these works, when completed, as well as the road leading from the Lasswade public road, through the complainer's property, to Kevock Mill, for the purpose of conveying ironstone from the mineral field leased by the Shotts Iron Company from Sir George Clerk, to the line of railway. The road which the respondents so proposed to use was, the complainer alleged, a private road, forming part of his property.

The defenders relied chiefly upon a sub-lease from the tenant of Kevock Mill of the ground for the siding, and contended that, as his sub-tenants, they were entitled to the use of the road in question, to which he had right, for the purpose of access to the ground so sub-let.

The Lord Ordinary ( Mure) granted interim interdict, holding it to be clear from the admissions on record, that a part of the ground on which the access to the loading-bank in question had been formed was beyond the ground which the company were to take for the purposes of their Act, and that the complainer was entitled to interdict, unless it could be shown that the tenant of Kevock Mill had power to sub-let the ground for the purposes to which it was proposed to apply it, and to give them and the other respondents right to use the rand to Kevock Mill as an access to the loading-bank. His Lordship was inclined to hold that the tenant had no such power, and that the complainer was entitled to interim interdict during the trial of the question of right.

The Railway Companies reclaimed.

Dean of Faculty Moncrieff and J. M'Laren for them.

A. R. Clark and Shand for complainer.

The Court adhered.