Scottish Court of Session Decisions

In 1853 Sir Alexander Burnett, Bart., of Leys, residing at Crathes Castle, entered into an agreement with the Deeside Railway Company, by which the company, who had been authorised by their Act to construct their railway through the estate of Leys, agreed, besides making certain payments and preparing certain other works, to construct a siding “for the accommodation of the proprietor and tenants of the estate of Leys,” at which any of the passenger trains might be stopped, by signal, “so as to take up or set down any passengers proceeding from or to Crathes.” In 1863 it was resolved that a station should be erected there, and the then proprietor of Leys, Sir James Burnett, granted a feu-charter to the railway company by which, on the narrative that the company had agreed on his granting the charter to erect a station for passengers and goods, which would be of advantage to him and his tenants in Leys and Crathes, as well as to the public, he conveyed to them certain pieces of ground for a nominal feu-duty, but “declaring that the several pieces of ground above described are disponed, but without prejudice to the deed of agreement” of 1853 “for the purposes, and subject to the conditions, restrictions, and clauses herein contained, which are hereby declared to be real liens and burdens affecting the said pieces of ground, namely, the said railway company shall be bound within twelve months from the date of these presents to erect at their own expense on the said piece of ground first above mentioned, on the west side of the bridge over the road leading to the said bridge across the Dee in course of erection at Durris, a station for passengers and goods travelling by the said Deeside Railway, at which all passenger trains shall regularly stop, to be called the “Crathes” Station, containing a suitable waiting-room, covered passenger shed, platform, and all proper accommodation for first-class and other passengers, and to maintain such station in all time coming.” … “It being hereby expressly provided and declared that in the event of the said railway company not erecting said station within the time above mentioned … or at any time hereafter discontinuing the use thereof as a regular goods and passenger station of the said railway, then, and in that case, these presents and the rights to follow hereon shall ipso facto become null and void without declarator, and the said piece of ground, and all buildings and works constructed thereon, shall revert and belong to me and my foresaids, free and disencumbered of all burdens whatsoever, alike as if these presents had never been granted, and this without prejudice to our legal rights and remedies against the said railway company for obtaining implement of the prestations incumbent on them as above expressed.”

After obtaining the feu-charter the railway company erected a station at Crathes, which is between Aberdeen and Banchory. By the Great North of Scotland Act 1876 (39 and 40 Vict. c. 124) the Deeside Railway Company was amalgamated with the Great North of Scotland Railway.

In 1883 this action was raised against the Great North of Scotland Railway Co. by Sir Robert Burnett, son and heir-at-law of Sir James (to whom he had succeeded in the estates), as superior of the subjects feued to the defenders, to have it found and declared, but without prejudice to the agreement of 1853, “that the defenders are bound regularly to stop at the station called ‘Crathes,’ on the line of railway belonging to the defenders between Aberdeen and Ballater, for the purpose as well of taking up as of setting down passengers, all trains now and hereafter passing through the said station and carrying passengers, except only such trains as may be hired by an individual or individuals for his or their exclusive use, and without prejudice to the foresaid generality, that the defenders are bound, while and so long as they run the trains after mentioned for the conveyance of passengers, regularly to stop at said station for the foresaid purposes” (1) A train leaving (in summer) Aberdeen for Banchory, Aboyne, and Ballater on Saturdays at one o'clock; (2) a train leaving Ballater in summer at eight p.m. on Saturdays for Aboyne, Banchory and Aberdeen; (3) a train leaving (during the Queen's stay at Balmoral) Aberdeen for Banchory, Aboyne, and Ballater at 3.30 each day of the week except Monday; (4) a train leaving (during the Queen's stay at Balmoral) Aberdeen for Banchory, Aboyne, and Ballater at one p.m. on Sunday; (5) a train leaving (during the Queen's stay at Balmoral) Ballater for Aberdeen and intermediate stations at 3.5 p.m. on week days; (6) a train leaving (during the Queen's stay) Ballater for Banchory and Aberdeen at 10.45 on Sundays. Then followed a

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conclusion that the defenders should be “ordained, by decree foresaid, regularly to stop at the said station called Crathes, for the purpose as well of taking up as of setting down passengers, all trains now and hereafter passing through the said station, and carrying passengers, except only such trains as may be hired by an individual or individuals for his or their exclusive use, and without prejudice to the foresaid generality, the trains particularly above specified, or any similar or corresponding trains which may be substituted by the defenders for the said trains: And the defenders ought and should be interdicted, prohibited, and discharged by decree foresaid from running through or past the station called Crathes any train or trains carrying passengers, except only such trains as may be hired by an individual or individuals for his or their exclusive use, without stopping, for the purpose as well of taking up as of setting down passengers.”

The pursuer set forth that he was in course of feuing ground at Crathes, and that with regard to that circumstance, and not merely for the convenience of his family and tenants, it was of great importance to him that all passenger trains should be regularly stopped at Crathes, but that the defenders were not doing so, but had recently commenced to run the trains specified in the summons without causing them to stop regularly at Crathes, and had disputed his right to have them stopped.

The defenders made the following explanation of their running of the trains to which the summons referred—“Admitted that the defenders have been running the trains mentioned in the summons since they were commenced to be run without causing them to stop regularly at Crathes station.” … “With regard to the trains run during Her Majesty's stay at Balmoral, it is explained that these trains are called the Queen's Messenger trains, and are run for the sole purpose of accommodating Her Majesty's couriers, and the defenders receive a special subsidy for these trains, and are bound to run them within a limited time between Ballater and Aberdeen. Further, it is explained that of these trains, the train fourth mentioned in the conclusion of the summons is run as a special express mail-train under an agreement with Her Majesty's Postmaster-General, dated 20th and 2tith October 1881, and particularly section 14 thereof. The said agreement and correspondence relative thereto are referred to. This train the defenders are bound to run within such time as may be required by the Post Office authorities. The defenders receive a subsidy from the Post-Office in respect of this train. These trains form no part of the ordinary service of trains on the Deeside line, and, as already explained, it was not till 1877 that the pursuer or his authors claimed any right to have these trains stopped at Crathes Station. With regard to the Saturday excursion trains mentioned in the summons, it is explained that these also form no part of the regular service of trains on the line. They are special cheap excursion trains to Banchory, Aboyne, and Ballater, and the defenders do not book, and never have booked, passengers for them at or to Crathes Station. In a similar way other cheap excursion trains are run from and to these three principal stations on different holidays, fast days and other special occasions, and these trains the pursuer claims should also stop at Crathes. There is very little traffic to or from Crathes Station, and it would be a cause of serious inconvenience to the public, as well as of material delay and expense to the defenders, to stop all these said trains at an insignificant roadside station such as Crathes, where there is a very limited amount of traffic, and a small and sparse population. Further, such trains are not the trains contemplated in the said feu-charter.”

They also set forth that since the feu-contract the circumstances had greatly changed, the line, which had at that date stopped at Aboyne, having been extended 11 miles further to Ballater, and a great development of the traffic having taken place, resulting in the necessity, in the interest of public convenience, of running express trains to the principal stations (Banchory, Aboyne, and Ballater).

The pursuer explained, with regard to this answer, that the “trains styled by the defenders Queen's Messenger trains, were merely fast passenger trains, open to all members of the public, though the defenders may be subsidised to run them. The defenders' failure to stop them at Crathes was and is a violation of the feu-charter referred to, and was never sanctioned or acquiesced in by the pursuer or his predecessor. The other trains referred to are also open to all members of the public, though the defenders have within the last few years ceased to book passengers for them at Crathes Station.

The pursuer pleaded—“(1) On a sound construction of the feu-charter and Amalgamation Act libelled, the pursuer is entitled to decree of declarator as concluded for. (2) The pursuer, as superior of the subjects referred to, is entitled to enforce the obligation in question against the defenders as his vassals therein.”

The defenders pleaded—“(1) On a sound construction of the said feu-charter, the defenders sufficiently comply with the obligations therein imposed on them by causing to be stopped at Crathes Station all ordinary passenger trains, such as were in use to be run at the date of the said feu-charter, and were then in intuitu of the parties thereto. (2) The Queen's Messenger trains referred to in the summons being express trains run under special arrangement with and paid for by Her Majesty, the pursuer is not entitled to insist that the said trains shall be stopped at Crathes Station. (3) The excursion trains mentioned in the summons not being part of the ordinary passenger service of trains, but express trains run for traffic between special places and on special occasions, the pursuer is not entitled to have the same stopped at Crathes Station. (4) In view of the changed and changing circumstances of the Deeside line, the pursuer is not entitled to decree as concluded for, and in no view ought decree to be pronounced in terms of the general declaratory conclusions of the summons.”

A proof was led, the import of which appears from the opinion of the Lord Ordinary.

The Lord Ordinary ( Kinnear) assoilzied the defenders from the conclusions of the summons.”

“ Opinion.—The defenders do not dispute that under this obligation they are bound to cause all passenger trains running upon their line for the ordinary service and traffic of the district to be stopped at Crathes; and upon the other hand, it is not disputed that if this be a correct construction

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of their obligation, it has been well performed. Crathes is not a very populous place; it cannot have a very large traffic; there are sixteen passenger trains (eight each way) calling there daily during the summer season; and upon the evidence which has been led there cannot be the least doubt that the accommodation thus afforded for railway travellers is amply sufficient for the requirements of the place.

But besides these regular trains there are certain occasional trains carrying passengers between Aberdeen and Banchory or Ballater, which do not stop at Crathes; and the question is, whether these trains also are or are not within the true intent and meaning of the contract?

These are of three kinds —

1. There are certain trains called Queen's Messenger trains, which are run only during Her Majesty's stay at Balmoral for the conveyance of the Queen's Messengers from Aberdeen to Ballater, and from Ballater to Aberdeen. These trains were not running at the date of the feu-contract, but since 1865 they have run regularly for the purpose I have mentioned during the various periods when the Court has been at Balmoral This has been done under an arrangement with the Home Office, which appears to have been first proposed in 1864 by letter from the secretary of the company to General Gray on 2d June 1864, in which he offers on behalf of the company, ‘in consideration of a specified subsidy, to run a special train daily during Her Majesty's residence at Balmoral from the south, due at Aberdeen at 3 p.m., and to the train leaving Aberdeen at 4 15,’ and also to convey the passengers betwixt Aboyne, beyond which place the railway was not at that time carried, and Ballater by carriage and pair in connection therewith. The arrangement thus proposed was, with some immaterial modifications, accepted, and has been carried out ever since; and it appears that during the last ten years the special subsidies which the company has received from the Home Office for these trains has amounted to £9278, being on an average, £927 a-year. By their primary purpose, therefore, these are special trains for Her Majesty's service, paid for by special subsidy from the Home Office. They do, however, at least occasionally, carry other passengers. Members of the Queen's household, other than the Queen's Messengers, may travel by them, paying the ordinary fare; and ordinary passengers by the south train to Aberdeen are allowed to travel by them, and for their convenience the trains may be stopped at any station on the line on notice being given to the guard. It would appear that travellers going south have also been allowed to travel by them. But still they are not trains for the accommodation of the public, but special trains for the service of Her Majesty. The manager says that he looks upon them as being under the control of the Home Office, except in matters of working, and it is obvious that this must be so, because if the special purpose for which they are hired by the Home Office is the conveyance of Queen's Messengers to and from Ballater, their hours of starting and places of stoppage must be regulated, as far as possible, according to the exigencies of Her Majesty's service, and not according to the general convenience of ordinary travellers. It may happen that the special purposes of the trains may be quite consistent with their stopping at Crathes, but it may happen otherwise, and accordingly the defenders maintain that they are not bound to stop these trains at Crathes regularly for the purpose of taking up or setting down any passengers who may desire to travel to or from that station.

2. The train described in the fourth conclusion of the summons as the train in use to be run during Her Majesty's stay at Balmoral, leaving Aberdeen for Banchory, Aboyne, and Ballater at one o'clock p.m. on Sundays, is in much the same position. By a series of contracts between the company and the Postmaster-General, for the conveyance of Her Majesty's mails, it has been stipulated, inter alia, that in addition to certain specified mail-trains the Postmaster-General may at any time, and at any station, require the company to provide and run any other express or special train for mails, guards, and post-officers when and as he shall think fit, and in that case the company shall provide such express or special trains accordingly for a compensation to be fixed at certain rates. Under these stipulations, and in compliance with a special requisition from the Post Office, the train in question has been in use to be run since 1871 for the conveyance of mails to Balmoral during Her Majesty's stay. The contention of the defenders is, that passengers may be carried by this train so long as the Post Office does not object, and in fact they have been in the habit of booking passengers by it to Crathes when desired to do so, as well as to Banchory and Ballater, but they do not stop regularly at any intermediate station, and by the contract they maintain that the train is subject to the control of the Postmaster-General, who may regulate as he thinks fit the stations at which it shall stop.

3. The remaining trains are Saturday excursion trains, which are run during the summer months chiefly for the accommodation of the working-classes, who have a half-holiday on Saturday afternoon. They run between Aberdeen and Ballater, stopping at Banchory and Aboyne. No luggage may be carried by this train, and the passengers who travel by it must have special excursion tickets, issued only at Aberdeen, and at very cheap rates. On the journey to Ballater passengers may be set down at Banchory and Aboyne, but no passengers are taken up; and on the return journey the excursionists who were set down at Banchory and Aboyne in going out may be taken up again, but no passengers are set down. The train was advertised as an express train in the company's time-tables for June and September 1882, but in future the company do not propose that it shall be run regularly every Saturday during any specified period, but only on those Saturdays upon which a sufficient number of passengers present themselves to make it worth while, and according to the evidence of the manager it is impossible that it should be run at the present rates, or so as to-serve the particular purpose in view if it were necessary that it should run regularly, or that it should regularly call at an intermediate station such as Crathes.

“As regards the special trains for Her Majesty's service under arrangements with the Home Office and the Post Office, I think it very clear that these are not within the true intent and meaning of the contract. They were not running at the date of the contract so as to be specially excepted, but they are not trains of the character which

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must be supposed to have been within the contemplation of the parties. Any difficulty which might otherwise have arisen from the very comprehensive terms of the contract appears to me to be removed by a concession which the pursuer makes, not merely in argument, but by the conclusions of his summons. For the summons necessarily involves a concession that the general words, ‘the contract,’ cannot be applied without some limitation. If the words are to be construed according to their primary and literal meaning, passenger trains must mean trains carrying passengers as distinguished from trains carrying goods. But the pursuer admits that special trains, hired by individuals for their own use, are not included. Now, there is nothing in the terms of the context upon which that limitation can be supported, unless it be the stipulation that the trains should be regularly stopped, which the defenders maintain points at ordinary and regular trains as contra-distinguished from trains that are merely occasional. But the pursuer rejects that interpretation of the words, and the limitation, which he admits must therefore be taken as a concession that the general words, if they are to be construed reasonably, must be limited in their application by reference to the subject-matter. It is accordingly admitted to be clear, from the nature of things, that the contract could not have been intended to apply to what are commonly called special trains, although they are certainly passenger trains as contra — distinguished from goods trains. This is an excellent illustration of the rule that ‘words, if they be general and not precise, shall be restrained unto the fitness of the matter.’ But the same reasoning applies just as forcibly to special trains hired by a department of Government for Her Majesty's service as to special trains hired by individuals for their own use. And if these trains, whether private or Government trains, may be run without stopping at Crathes so long as they carry only the hirer and his friends in the one case, or the particular persons for whose accommodation they ore subsidised in the other, it can make no difference that the hirer—whether an individual or a department of Government—is content that other persons travelling that way should be permitted to take advantage of any surplus accommodation the special train may afford, so long as such incidental uses do not interfere with the primary purpose for which it is hired. The pursuer says that by letting people who are not going to or coming from Crathes travel by these trains the company is giving an advantage to other stations on the line which they deny to Crathes Station. But there is nothing in the contract to prevent such an incidental convenience being afforded to travellers elsewhere than to Crathes. If all the passenger trains within the true intent of the contract are stopped by the company in terms of their obligation, the pursuer has no ground of complaint, because passengers are allowed to travel by other trains which, not being within the true intent of the contract, he cannot require to be stopped at Crathes.

The question as to the Saturday excursion trains is in some respects a different one, because these are entirely under the control of the railway company, but I think it is to be solved by the same considerations. These are not ordinary trains for the general traffic of the district, but occasional trains for a special purpose, which does not admit of their being stopped at intermediate stations. It is manifest, from the evidence of the manager, that these are not such trains as, in a reasonable administration of the railway, would or could have been run for the accommodation of such a station as Crathes, and that is enough to show that they are not of the character contemplated by the contract. It is in accordance with rules that are constantly acted on, that in construing such a contract, regard should be had rather to the clear intention of the parties than to the literal meaning of particular words. But the clear intention of the contract was to secure for Crathes a certain advantage which the parties must be supposed to have had distinctly in view. It appears to me that, both from the terms and the subject-matter, it may be reasonably inferred that the advantage contemplated was not the prohibition of occasional excursion trains to other stations, but the regular stoppage of regular trains at Crathes; and if the superior and his feuars have received, as I think they have, all the benefit which according to the clear intention of the contract it was calculated to secure for them, they cannot be allowed to press its terms unduly so as to obstruct the general management of the line for the public accommodation.”

The pursuer reclaimed, and argued—On a sound construction of the clause contained in the feu-charter he was entitled to insist on the defenders stopping at Crathes all passenger trains. The Queen's Messenger trains and excursion trains undoubtedly came under this category. The former were really merely fast passenger trains open to all members of the public, although the defenders were subsidised to run them, and the latter were also purely passenger trains. The pursuer was not insisting in a right of which he could not legally demand specific performance. Such a right was a perfectly well recognised one in the law of England.— Rigby and Another v. Great Western Railway Company, December 1, 1845, 15 L.J., C.L. 60; Greene v. West Cheshire Railway Company, November 1871, 13 L.R., Equity 44; Hood v. North-Eastern Railway Company, March 1870, L.R., 5 Ch. App. 525. The right must be construed strictly against the company— Turner v. London & South-Western Railway Company, January 1874, L.R. 17, Equity 561; and the defenders were not entitled to set up the inconvenience to the public as a reason for not performing the agreement— Raphael v. Thames Valley Railway Company, December 1866 L.R. 2, Ch. App. 147.

The defenders replied—It was clear, on a consideration of the proof, that the trains in question were not in any sense ordinary passenger trains. They did not come, then, under the agreement. They were not in contemplation of parties at the date of the feu-charter. The arrangements for pursuer's accommodation were thoroughly satisfactory, eight trains stopping daily at Crathes, which number was amply sufficient for so small a place as Crathes— Turner v. London & Southwestern Railway Company, January 1874, L. R. 17, Equity 561.

At advising—