Scottish Court of Session Decisions

This was a note of suspension and interdict presented at the instance of the Solway Junction Railway Company against John Jackson, Shawhill. near Annan, tenant of the brickwork and clayfield of Whinnyrigg there, and others, arbiters in an alleged submission between the railway company and Jackson. The complainers prayed the Court to interdict the respondents from assessing, under the Lands Clauses Consolidation (Scotland) Act, 1845, the compensation claimed by the respondent Jackson from the railway company in respect of clay said to be permanently covered by their line of railway since its construction and detour, for access to clay at the west side of the line. Jackson, on the ground that he had in 1859 leased from the proprietor of the lands of Whinnyrigg the whole common clay under these lands, and that these lands embraced the lands through which the defenders' railway passed, claimed that he had an interest and claim which might be made the subject of a statutory submission with the suspenders, under the Lands Clauses Consolidation (Scotland) Act and relative statutes; and further, that certain proceedings had been gone into in the way of such statutory arbitration, which it was partly the object of the present suspension to stop. The complainers pleaded that Jackson had no right or interest in the lands in respect of which he claimed compensation, and that they (the railway company) were therefore entitled to interdict, as craved. The parties differed (1) as to whether an expression in the clay lease, “lands of Whinnyrigg,” embraced all the lands of Mr Halliday (the proprietor), or was confined to the portion of them formerly going by the names of Old and New Whinnyrigg; and (2) as to whether the statutory taking by the railway company was equivalent to a resumption or exclusion by the landlord under the lease.

The Lord Ordinary (Gifford) pronounced the following interlocutor:—.

“ Edinburgh, 4 th December 1873.—The Lord Ordinary having heard parties' procurators, and having considered the closed record, proof adduced, and whole process: Finds it sufficiently instructed that the respondent John Jackson had, under his lease granted to him by the Rev. Walter Stevenson Halliday, dated 19th November 1859 and 11th March 1861, No. 51 of process, an interest in the whole common clay in the lands of Whinnyrigg which belonged to the said Walter Stevenson Halliday: Finds that, according to the true construction of the said lease, having regard to the circumstances in which it was entered into, the ‘lands of Whinnyrigg’ therein mentioned embraced, and must be held to embrace, the lands through which the defenders' railway passes, and accordingly Finds, in point of law, that the suspender had an interest and claim which might be made the subject of a statutory submission with the suspenders under the Lands Clauses Consolidation (Scotland) Act, and relative statutes: Therefore repels the reasons of suspension: Finds the statutory arbitration orderly proceeded, and appoints the same to be carried out, and decerns: Finds the respondent entitled to expenses, and remits the account thereof to the auditor of Court, to tax the same, and to report.

Note.—The principal, and indeed the only, question in this case is, whether the respondent, as mineral or clay tenant under the lease No. 51 of process, had or had not such an interest in the lands through which the suspenders’ railway passes as to be the subject of a statutory submission under the Lands Clauses Act and relative statutes? The Lord Ordinary answers this question in the affirmative, and accordingly he has repelled the reasons of suspension, and allowed the statutory submission to proceed. He decides nothing as to the nature or extent of the respondent's claim. He does not even attempt to define the jurisdiction of the statutory arbiters or oversman. It would be dangerous to do so. If the arbiters or oversman exceed their powers or jurisdiction, this must be rectified in another form. It is enough for the disposal of the present action to find that the respondent, as clay tenant, has an interest or possible interest in the lands taken by the suspenders.

(1) The great dispute between the parties is whether the expression in the lease, ‘lands of Whinnyrigg,’ embraces all Mr Halliday's lands, or is confined to that portion of them which formerly went by the names of Old and New Whinnyrigg. On this point there has been a good deal of evidence, and somewhat nice questions arise as to the competency and effect of portions of this evidence.

On the whole, the Lord Ordinary thinks it sufficiently proved that in the sense of the lease, and according to the true meaning of the contracting parties, the ‘lands of Whinnyrigg’ embrace Mr Halliday's whole lands, which were then all let to one agricultural tenant. No doubt the lands were acquired at separate times, and had originally a great variety of different names. But Whinnyrigg was the original acquisition of the Halliday family. The extent of Whinnyrigg, Old and New was greater than that of the other lands, and in some of the titles, which include Seafield and Walls, for example, in the precept of clare constat, No. 27 of process, the Hallidays are designed as ‘Esquire of Whinnyrigg.’ It was very natural that the new acquisitions should be added to the old, and fall under the old name.

It is proved by the factor on the estate, who adjusted the lease, that he used the word ‘Whinnyrigg’ as embracing the whole lands, and that he used the word as synonymous with Seafield. It is also proved that the whole lands were pointed out o the tenant, and actually pitted for clay, as the ands the clay in which was to be let, and the clay

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is reserved from the agricultural lease of the whole lands. The Lord Ordinary thinks this evidence competent, not as controlling or overruling the terms of the lease, but as explaining the meaning of a word or name used in the lease, and which word or name does not explain itself. If competent, the evidence leaves little doubt that the clay in the whole lands was let to the respondent. Certainly both lessor and lessee understood Whinnyrigg as comprehending the whole farm.

(2) The Lord Ordinary does not think that the statutory taking by the Railway Company is equivalent to resumption or exclusion by the landlord under the lease. Taking by the railway was not the thing contemplated by the clauses of resumption; and the tenant was entitled to assume that the landlord resuming would not resume in the same way, or so prejudicially, as the railway has done. Besides, the landlord never in fact attempted to resume or exclude, and it is jus tertii to the Railway Company to say that he might have done so. The right to resume or exclude under the lease does not accrue to the Railway Company by the mere fact of their taking a stripe of ground through the farm.”

The Railway Company reclaimed.

At advising—