Scottish Court of Session Decisions

Lord President—I am quite satisfied that this application should be granted, and an interlocutor pronounced in the terms suggested in the Lord Ordinary's report, “authorising and requiring the Inclosure Commissioners of England and Wales to proceed upon the application to them by the petitioner in virtue of the Improvement of Land Act 1864, and to deal with the same according to the provisions of the foresaid Act, authorising them on that behalf, notwithstanding the circumstances that the petitioner is the father of a person entitled to an estate in the lands to be improved under the foresaid application to them, and that such person is a minor.” There is one difficulty suggested by the Lord Ordinary to which it is necessary to advert, as our attention has been so specially directed to it. His Lordship says—“An agreement has been made by the promoters of the Kelvin Valley Railway with the North British Railway which practically amounts to a guarantee of 5¼ per cent. per annum on the stock of the Kelvin Valley Railway from the time it is opened, with an option to the North British Railway to purchase the stock at a premium of 10 per cent.; and it is the fact that the construction of the Kelvin Valley Railway is not contingent on the proposed subscription of £5000 being made to it by the petitioner. It is apparent, therefore, that the increased value of the lands by the making of the railway does not depend on the application being granted. The lands will be equally increased in value whether the application be granted or refused.” Now, his Lordship does not express an opinion that it is indispensable to the success of the application that the petitioner should show that without his assistance the railway would not be made, but he suggests that that is a possible interpretation of the clause under which the application is made. Now, I do not think that that clause is susceptible of such an interpretation. The party must no doubt be interested in the construction of the railway, and there is no reason to doubt that the petitioner is in that position. This small branch line of two miles in length is of local value, intended to benefit the estates through which it passes, and it was therefore very natural that the Railway Company should try to induce the landowners in the district to interest themselves in the proposed line. If the construction of the Railway must under the Act depend on the petitioner's subscription being made, the case is not in that position at all, for the investment is plainly a very satisfactory one, and therefore there can be no difficulty in getting the money; but I have no idea that it is necessary to prove that the petitioner's subscription is indispensable to the carrying on of the undertaking. In all other respects the petition is satisfactory.

Lords Deas, Mure, and Shand concurred.

The Court pronounced this interlocutor:—

“Authorise and require the Inclosure Commissioners of England and Wales, acting under the Statute 27th and 28th Vict. chap. 114, commonly called the “Improvement of Land Act 1874,” as regards lands in Great Britain, to proceed on the application to them by the petitioner, and to deal with the same according to the provisions of the said Act, authorising them on that behalf, notwithstanding the circumstance that the petitioner is the father of a person entitled to an estate in the lands to be improved under the foresaid application immediately after the petitioner, and that such person is a minor: And direct that the costs of the application to the Court and of the procedure following thereon, as the same shall be taxed by the Auditor of Court, shall be decerned to be part of the expenses of and incidental to the said application to the said Commissioners, and decern; and remit to the Auditor to tax the account of said costs.”