Scottish Court of Session Decisions

The North British Railway Company, first parties, and the Forth Bridge Railway Company, second parties, brought a Special Case for the opinion and judgment of the Court as to which of the companies was to bear the cost of compensating a lessee of minerals for leaving unworked the minerals required for the support of the railway which had been constructed by the second parties and handed over to the first parties under the provisions of the Forth Bridge Railway Act 1882.

The first parties owned and worked extensive systems of railways on the south and north sides of the Firth of Forth. The second parties were incorporated by the Forth Bridge Railway Act 1873 (36 and 37 Vict. cap. ccxxxvii), which authorised them, inter alia, to make and maintain a railway crossing the Firth of Forth by a bridge and connecting the systems of the first parties, and subsequently obtained further Acts of Parliament for this purpose.

The Case stated—“… 4. By the Forth Bridge Railway Act 1882 (45 and 46 Vict. cap. cxiv) the second parties were authorised to make and maintain a railway 4 miles 2 furlongs in length (in substitution of the railway (No. 1) authorised by the Act of 1873), commencing in the parish of Dalmeny in the county of Linlithgow by a junction with the Queensferry branch of the first parties, crossing by a bridge the Firth of Forth and terminating in the parish of Inverkeithing in the county of Fife by a junction with the Dunfermline and Queensferry branch of the first parties' railways. Under the Act of 1882 the second parties' undertaking is limited to the said railway 4 miles 2 furlongs in length including the Forth Bridge. The Lands Clauses Consolidation (Scotland) Act 1845, and the Railways Clauses Consolidation (Scotland) Act 1845, were incorporated with and form part of the said Act of 1882. 5. By section 38 of the Act of 1882, section 5 of the Act of 1878 was repealed, and it was provided, with regard to the railway authorised by the Act of 1882, as follows:—‘When and so soon as the railway shall have been constructed and shall have been approved by the Board of Trade the North British Company shall take possession thereof and shall for ever thereafter maintain in good working order and condition and work the railway in the same manner and with the same powers and obligations as if the railway formed part of the North British system, and the company shall maintain and keep in repair the structure of the bridge for carrying the railway over the Firth of Forth and all parts thereof except the permanent way thereon, and the North British Company shall maintain and keep in repair all other parts of the railway including the permanent way upon the said bridge and all signals and signal appliances necessary for the working of the railway.’ In this section ‘the company’ means the Forth Bridge Railway Company, the second parties to this case. 6. The second parties took and acquired the lands necessary for the construction of the railway, including the Forth Bridge, authorised by the Act of 1882, but in the case of the lands lying to the south of the Forth Bridge did not take or acquire the minerals in these lands, which accordingly were not included in the conveyances to the second parties, but remained the property of the landowners and subject to the provisions of the Railways Clauses Consolidation (Scotland) Act 1845. The second parties' railway and bridge were completed, approved by the Board of Trade, and taken possession of by the first parties in March 1890, and since that date the first parties have been in possession thereof in terms of the said section 38 of the Act of 1882. 7. In certain of

Page: 226↓

the lands acquired by the second parties for the purposes of their railway south of the Forth and in the adjoining lands there are minerals, including shale. None of said minerals belong to the second parties. In March 1920 the Dalmeny Oil Company, Limited (hereinafter called the Dalmeny Company), the lessees of certain of the said shale, gave notice, under the Railways Clauses Consolidation (Scotland) Act 1845, to the first parties of the lessees' intention to work certain shale under and adjoining the second parties' railway south of the Forth. The first parties intimated the said notice to the second parties. The second parties maintained that the matter was one for the first parties to deal with. The Dalmeny Company thereafter gave the same notice to the second parties as to the proposed working of the shale as they had previously given to the first parties. The first parties were advised that certain of the said shale should be left unworked for the support of the said railway, and it was arranged between them and the second parties that without prejudice to the contentions of each they should give joint notice to the Dalmeny Company that the parties required the Dalmeny Company to leave unworked certain shale, and intimate the willingness of the parties to make compensation to the Dalmeny Company for the same in terms of the Act of 1845. Such counter-notice was given by the parties to the Dalmeny Company of date 20th April 1920. None of the shale so required to be left unworked is necessary for the support of the structure of the bridge referred to in section 38 of the Act of 1882. 8. Compensation will be payable to the Dalmeny Company in respect of the shale left unworked for the support of the railway south of the Forth, and the first and second parties differ as to whether the compensation falls in law to be borne and paid by the first parties or by the second parties. 9. It is maintained by the first parties that the second parties as owners of the railway are bound in a question with the first parties to prevent the withdrawal by mineral workings of support from the railway, and that the stoppage of the shale workings and payment of the compensation for the shale for the support of the railway is a matter for the second parties and not for the first parties, that under the mineral sections of the Railways Clauses Act of 1845 the second parties alone have power to stop the working by counternotice and payment of compensation, that the first parties are under no obligation of relief to the second parties in respect of the compensation which will have to be paid to the Dalmeny Company in order to obtain the necessary support for the railway, that the maintenance of the railway for which the second parties are liable under the statutes does not extend or apply to damage to or the destruction of the railway by the withdrawal of support through mineral workings, and that compensation for stoppage of working is a proper charge against capital, and only the second parties can legally pay it out of capital. 10. The second parties contend that the reservation of the minerals in question to be left unworked for the support of the parts of the railway other than the structure of the said bridge being necessary for the maintenance and repair of these parts of the railway, the first parties are upon a sound construction of section 38 of the Act of 1882 liable as in a question with the second parties to bear and bound to pay or relieve them of and against the compensation payable in respect of the nonworking of said minerals. These parties admit that such compensation would be legally payable by them out of capital, but they do not admit that the first parties are unable legally to pay it out of capital.”

The question of law was—“Does the cost of compensating the Dalmeny Company for leaving unworked minerals (subjacent and adjacent) required for the support of the said railway south of the Forth Bridge fall to be borne by the first parties or by the second parties?”

Counsel for the first parties in opening the case referred to a previous litigation between the parties—1896, 3 S.L.T. 253, and 4 S.L.T. 373—in which the relation of the parties was defined, and the second parties held liable as owners of the railway to pay the rates and taxes thereon.

Argued for the second parties—In interpreting section 38 of the Act of 1882 the whole situation must be kept in view. The second parties were merely a constructing company, the first parties obtaining exclusive possession of the railway when constructed. The section was the result of an agreement entered into between the parties in order to decide which of them was to keep up the different parts of the undertaking. The first parties had agreed to keep up the railway, and the meaning of the section was that they had to do so. Further, the payment of the compensation was properly maintenance. The first parties could either pay compensation or allow the minerals to be worked out and repair the subsidence. The position was similar to that arising from encroachment by the sea, which the first parties were bound to prevent. It could not be maintained that the first parties had no power to pay the compensation. The right to necessary support was implied from the right to maintain— London and North-Western Railway Company v. Evans, 1893, 1 Ch. 16, per Bowen, L.J., at p. 28, and the obligation to maintain implied an obligation to prevent the support being interfered with. The right to do so followed from the obligation and the possession given to the first parties under section 38— Sevenoaks, Maidstone, and Tunbridge Railway Company v. London, Chatham, and Dover Railway Company, 1879, 11 Ch. Div. 625, per Jessel, M.R., at p. 634; The Queen v. Stephens, 1876, 1 QBD 703; North-Eastern Railway Company v. Scarborough and Whitby Railway Company, 1893, 8 Railway and Canal Cases, p. 157. It was not correct to describe this as a case of postponed payment for support. The second parties had bought the land subject to the exception of minerals which might not have been there.

Page: 227↓

At advising—