Scottish Court of Session Decisions

The object of this action was to have it found and declared that a piece of ground in the possession of the defenders was the property of the pursuers the North British Railway Company. The ground in question was 212 decimal parts of an acre in extent. It lay immediately to the east or north of Springfield Station, parish of Cupar, and county of Fife, on the pursuers' railway.

The defenders resisted the action on two grounds—First, That the ground in question was conveyed to their predecessor the late Mr Moon by the railway company, and was included in their titles; and second, if this were not so, yet that the ground vested in and became the property of Mr Moon on 31st July 1860 in virtue of the 120th section of the Lands Clauses Consolidation Act as being superfluous land remaining unsold at that date, being ten years after the expiration of the time limited for the completion of the works, he being the owner of the land adjoining.

In 1846 the Edinburgh and Northern Railway Company acquired from Lady Maitland a piece of ground amounting to 16 176 acres for the purposes of a railway which they were then making from Burntisland to Perth. The Act authorising the making of this railway was 8 and 9 Vict. c. 58, and was dated 31st July 1845, and the period for completing the works thereby authorised was five years from that date. The line was opened for traffic in 1847, and Springfield Station was erected on the ground acquired from Lady Maitland. After this had been done there remained some land which was not then used for the purposes of the railway. This consisted of a field about four acres in extent lying immediately to the north (or east) of Springfield Station, and between the railway and the road from Springfield to Cupar. In 1849 the railway company let this field to Mr Moon, and it was subsequently occupied by him for agricultural purposes.

In 1853 the company had got into pecuniary difficulties, and had adopted an Arrangements Act with their creditors under which it became necessary or desirable that all superfluous lands held by them should be sold and the proceeds applied in extinction of their liabilities. The directors ordered a survey to be made of their lands, and a report to be made to them of such portions of the lands as were not required for railway purposes and might be sold.

In 1854 Mr Paterson, their resident engineer, reported to them that a portion of ground might be sold at Springfield Station, and his report was accompanied by a plan showing the ground which he considered might be so sold. This ground as delineated in the plan was 3·750 acres in extent, and was a part, but not the whole, of the ground which had been let to and was then in possession of Mr Moon.

By disposition dated 30th November 1854 the Edinburgh, Perth, and Dundee Railway Company, which had then come in place of the Edinburgh and Northern Railway Company, and which was at the date of this action represented by the pursuers, sold to Mr Moon all and whole “that portion of ground measuring 3 acres and seven hundred and fifty decimal or one thousandth parts of an acre imperial measure, as laid down on a plan thereof subscribed of even date herewith as relative hereto, which piece of ground lies between our railway on the west or north-west and the road from Springfield to Cupar, where it passes Clushford Bridge and Russelmill on the east, and is bounded as follows, viz., by our said railway on the west or north-west, the said road from Spring—field to Cupar on the east and north-east, and the station called Springfield Station of our said railway on the south parts.” The plan was produced, and it was admitted that it was the plan which Mr Paterson had prepared as above mentioned. On comparing it with the ground in possession of the defenders, and which was in Mr Moon's possession as tenant at the date of the transaction, it appeared that there was a small piece of ground not included in it. This piece of ground lay immediately to the east or north of Springfield Station, and was made up of a small part of the end of the field let to Mr Moon next to the station, and a narrow strip of ground lying along the line of the railway, part of the same field. It amounted in all to 212 decimal parts of an acre, and was the land in dispute. The whole piece of ground, including the portion in dispute, remained in Mr Moon's possession down to his death in 1876.

It was averred on behalf of the defenders that the measurement in the plan was a mistake, and that it was the intention of parties that Mr Moon should have the whole portion of ground occupied by him, which they alleged was correctly described by the boundaries.

This was denied by the pursuers, who averred that the plan was quite accurate, and that it was their intention all along to retrn the piece of ground in question for railway purposes. It was further alleged by them that the engineer who prepared the plan had left their employment before the transaction was completed, and that his successor was not sufficiently well acquainted with the circumstances to detect that Mr Moon had taken possession of more than was conveyed to him, and that it was in consequence of the urgent necessity for increased accommodation at Springfield that inquiries were made in the course of 1877 which led to the discovery that this portion of ground had been retained.

The provision of the statute in regard to superfluous lands (8 Vict. c. 19, see. 120) was as follows:—“And with respect to lands acquired by the promoters of the undertaking under the provisions of this or the Special Act, or any Act incorporated therewith, but which shall not be required for the purposes thereof, be it enacted as follows—Within the prescribed period, or if no period be prescribed, within the ten years after the expiration of the time limited by the special

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Act for the completion of the works, the promoters of the undertaking shall absolutely sell and dispose of all such superfluous lands in such manner as they may deem most advantageous . . . and in default thereof all such superfluous lands remaining unsold at the expiration of such period shall thereupon vest in and become the property of the owners of the lands adjoining thereto in proportion to the extent of their lauds respectively adjoining the same.”

The pursuers' second plea-in-law was as follows—“(2) The defenders have no right or title to the said piece of ground as surplus land under the statute referred to, in respect—1, That it never was surplus ground in the sense of the said statute, nor dealt with as such; 2, that when the adjoining land was sold to Mr Moon it was appropriated and reserved for station purposes; and 3, that it was required, and would have all along been used as such had it not been for the illegal possession thereof by Mr Moon.”

After a proof—the import of which sufficiently appears from the Lord Ordinary's note and the opinions of the Court—the Lord Ordinary ( Adam) on 24th July 1878 decerned in favour of the pursuers the North British Railway Company. His Lordship added the following note:—

“ Note.—[After stating the facts ut supra]—Reading, therefore, the title in connection with the plan alone, it is clear that this is not included in the conveyance to Mr Moon. But the disposition also contains a description by boundaries of the subjects disponed, and they are described as bounded ‘by our said railway on the north or north-west,…and the station called Springfield Station on the south parts.’ It is said that this gives to the disponee a right to the ground up to the railway fence on the north and north-west, and to the station on the south parts. It is the fact that the ground then possessed by Mr Moon extended to and was bounded on the north and north-west parts by the railway, and by Springfield Station on the south. But the Lord Ordinary is of opinion that what was conveyed by the disposition was a limited and specified quantity of ground, amounting to 3 acres 750 decimal parts of an acre lying within the lines shown on the plan, and no more. It is not disputed, and is proved, that the defenders have this quantity of ground without including the land in dispute. The Lord Ordinary is therefore of opinion that the land in dispute is not included in the defenders' titles. North British Railway Company v. Magistrates of Hawick, December 19, 1862, 1 Macph. 200.

But this gives rise to the second question, whether on 31st July 1860 the ground in question was ‘superfluous land?’

It appears to the Lord Ordinary that the question to be decided is, whether, although the lands were not in actual use by the railway company, there was at the time a reasonable prospect of their being ultimately required and used for the purposes of the railway? Hooper v. Bourne, May 8, 1877, 2 L.R., Q.B.D. 339; Dec. 18, 1877, 3 L.R. Q. B.D. 258. Betts v. Great Eastern Railway Company, June 6, 1873, 8 L.R. Excheq. 294; Feb. 25, 1878, 3 Excheq. Div. 182. Great Western Railway Company v. May, June-25, 1874, 7 L.R. E. and I. Appeals 283.

It is material to notice that the land in question is of very small extent, and is contiguous to the railway and station. Further, the Lord Ordinary does not doubt that it was bona fide and purposely retained by the railway company in the year 1854, in the view that it would be ultimately required and used for the purposes of the railway. The Lord Ordinary does not think that evidence that the land was intended to be included in the disposition by the railway company to Mr Moon is admissible for the purpose of construing the deed, but it seems to be quite admissible for the purpose of showing that the land was then considered by the company to be superfluous land, and as such was intended to be sold by them. Mr Paterson, their local engineer, who reported to them on the subject, states that he was perfectly well aware of the law on the point, and advisedly retained the land.

Mr Moon was allowed to continue in possession of the whole ground just as before, probably because the company did not require the ground immediately, and because they did not consider it worth their while to resume possession of so small a piece of ground until they should require to use it. From the fact of Mr Moon being in the possession of the ground, and in consequence of Mr Paterson having left their employment soon after the sale, the company seem to have lost sight of the fact that the whole ground had not been sold to him. The true state of matters appears, however, to have been known to their local officials. It appears from the evidence of Mr Harkness, their station-agent, that this very ground was pointed out to him by a former station-agent as being the property of the company. It would also appear that Mr Moon was himself aware that part of the ground was not included in his titles. It is proved that about five years ago the railway, acting on the information of Mr Harkness, moved back their fence from 2 1 2 to 3 feet into the ground possessed by Mr Moon, for the purpose of laying an additional line of rails. Mr Moon was aware that this was done but he made no complaint. It is more than probable that he would have done so had he thought the company were taking his land.

The Lord Ordinary therefore thinks that it may be safely assumed that the railway company in 1854 advisedly retained the land for the purposes of the railway, and he thinks that they exercised a sound judgment in that respect.

But the question is, whether, if a claim had been made to the land by Mr Moon in 1860, the company would have been entitled to retain it as being required for the purposes of the railway, or whether it would have been held to be superfluous land, and so vested in Him? It appears to the Lord Ordinary that, having regard to the small extent of the land, and its situation with reference to the railway and station, it could not then have been affirmed that there was no reasonable prospect of its being required and used for the purposes of the railway, keeping in view the ordinary development of traffic which might be expected to take place.

It appears to the Lord Ordinary to be material to keep in view, that when this question has to be considered, the compulsory powers of purchase by the company have expired, and that they have no means of providing for the future development of traffic except by retaining land for the purpose, although such land may not at the

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time be actually required for present use. The judgment of the company is not so conclusive as to whether or not land ought to be retained for future use; but it appears to the Lord Ordinary that unless there is some reason to suppose that the company are not acting bona fide in the matter, but are seeking to retain the land for some other purpose, it ought not to be taken away from them unless it be very clear that there is no reasonable prospect of its being ultimately required for railway purposes. The company have bought and paid for the land, and they cannot replace it should they afterwards come to require it.

But it is said that the question must be regarded with the light which the facts of the case now known throw upon it. It is said that the land has not been required for use for nearly twenty years; that it is not reasonable that a company should be allowed to retain land unused for so long a time in the expectation of its being ultimately required: and that therefore it could not, or at least that it ought not, to have been affirmed in 1860 that the land was required for the purposes of the railway. Now, no doubt, if when the question is tried a considerable period has elapsed, and the land is even then not being used for the purposes of the railway, it may perhaps be inferred, with more or less force, that it could not have been predicated of the land that it would be required for the purposes of the railway within a reasonable time. But if, as in this case, the land is actually required at the time the question is tried, that seems to the Lord Ordinary to be nearly conclusive the other way, unless, indeed, the necessity for its use is to be attributed to something noviter emergens, something which could not have been foreseen or anticipated at the expiry of the ten years.

If accordingly this case had been tried in 1860, and it had then been admitted or proved that the land in question would certainly be required for the purposes of the railway at the present time, the Lord Ordinary thinks that the company would have been entitled to retain it. It would not have been the case of the company attempting to retain land for an indefinite time.

The peculiarity of this case is, that the defenders and their predecessor have been in possession of the land since 1854, and the action takes the form of the company endeavouring to recover the land from the adjoining proprietor, and not of the adjoining proprietor seeking to get possession of the land from the company. That circumstance, however, does not seem to the Lord Ordinary to affect the law of the case. If the Lord Ordinary is right in holding that the land is not included in the defenders' titles, then the defenders are in possession without a title, unless their statutory title is good. Whether their statutory title be good or not depends on the answer to the question of fact, whether or not the land was superfluous land in 1860. But the fact that the land has been in possession of the defenders does not make it the more or less superfluous, or the more or less likely to be required for railway purposes.

No doubt, if the company had been all along aware that the land in question was their property, and had nevertheless allowed the defenders to continue in undisturbed possession of it, it would be a very material fact in the case, because it might reasonably be inferred therefrom that the company had abandoned the land to them as superfluous land. But, on the other hand, if the fact be, as the Lord Ordinary thinks it is, that the company had lost sight of the fact that the land was theirs, it furnishes a reason why the land was not sooner used. It is proved that several years ago plans were made for the purpose of improving the station, which showed the land in dispute was required for an access to the station, and the land would undoubtedly then have been used had the company known it was theirs, or if they had funds to acquire it. In point of fact a part of it has actually been taken, and is now used for railway purposes. On the whole matter the Lord Ordinary is of opinion that in the year 1860 there was a reasonable prospect that the land in question would be required and used within a reasonable time for the purposes of the railway, and that therefore the land was not superfluous land at that date, and therefore did not then vest in Mr Moon.”

The defenders reclaimed, and argued—The state of the facts as regarded the possession for the last twenty years raised a strong presumption against the company, and the onus lay upon them to prove that the defenders were not properly in possession of the piece of ground. (1) The ground was conveyed to them by the company, and was properly described in the conveyance by boundaries; the measurement and the plan were wrong as the description by boundaries showed. (2) Even if that were not the case, they and their authors were in lawful and proper possession of the ground as being superfluous land since 1860, ten years after the time when the company's undertaking was to be finished. By the Statute (8 Vict. cap. 19), sec. 120, no transference was necessary, the ground passed ipso facto if when the time expired it was not made use of, or if there were not a reasonable prospect of its being made use of. There could be no such prospect here, for the time expired in 1860, and it was only in 1877 that the railway company found they required the ground, and the reasons that had made it necessary for them had arisen unexpectedly, long after 1860. The ground here in question was clearly “superfluous” ground in the words of the statute, more ground having been taken for the execution of the work than was needed — Lord Chancellor (Cairns) in May v. Great Western Railway Company, June 1874, 7 L.R., Eng. and Ir. App. 283, (292); Hooper, &c. v. Bourne, &c., L.R. 3 Q.B. Div. 258; and cases quoted in the Lord Ordinary's note, supra.

Argued for respondents—The sale by the railway company to the defenders' author in 1854 was so to speak a sale by picture, for the plan was expressly referred to. The plan excluded the piece of ground in question, and it corresponded with the measurement which also excluded it. There was no doubt therefore that the piece of ground in dispute had been retained by the company, and advisedly retained. On the second point the Legislature, while giving large powers to railway companies to take land, and not making the proof of the essentiality of the land asked for very stringent in the first instance, had provided safeguards to proprietors of land so as to prevent land being taken, or at all events kept, by railway companies which was not actually necessary. This explained how this question had

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arisen, and the main point to be determined was what was the meaning of superfluous lands under the statute. In the corresponding English Act, which was in the same terms as the Scotch Act, the lands were said to be “lands which shall not be required,” and these words were future and prospective in their meaning. It was therefore not necessary that the lands should be actually required at the end of the ten years, but that there should be a reasonable prospect of their being needed, which there undoubtedly was here, and it was only the fact of the company being ignorant of their own rights which prevented their being claimed before there could be any vesting in the adjoining owners. The Court would require to be satisfied that there had been a breach of duty or a default on the part of the company in not offering the lands for sale to the adjoining proprietor. The land had never been used for any special purpose, as e.g. a garden. Mr Moon had merely been allowed to work it, the company not requiring it at the time. The fair tests proposed by Lord Cairns in the case of May v. Great Western Railway Company (quoted supra) were conclusive and exhaustive, and the ground in question could not fairly be included in any of them.

Authorities— Stockton & Darlington Railway Company v. Brown, 9 Clark and Finelly H. of L. Cases, 246, and cases quoted supra.

At advising—