United Kingdom House of Lords Decisions

Subject_Provisional Order — Harbour — Dock — Support — Working of Mines — Railways Clauses Consolidation (Scotland) Act 1845, secs. 70 to 78, Applied to Dock. Headnote:

This Order was promoted by the North British Railway Company for a number of objects, of which only four were opposed. The more important of the unopposed objects were to get authority to amalgamate the North British and West Highland Railways, and to make a working agreement between the former and the Invergarry and Fort Augustus Railway Company.

The opposed objects of the Order were as follows:—(1) Power to acquire certain land for railway sidings at Methil Docks; (2) protection of the Methil Docks from the working of the minerals lying underneath them; (3) power to close Leven Dock; and (4) dispensation from the requirement that they should render annual accounts for their docks to the Board of Trade separately from those for their railway.

The first of these objects was opposed by Mr Randolph G. Erskine Wemyss, the Wemyss Collieries Trust, Limited, and the Wemyss Coal Company, but after evidence had been led a settlement was arrived at, and a clause giving effect thereto was adjusted and passed.

The second object of the Order referred to the working of the minerals under Methil Dock No. 2, the construction of which was authorised by the North British Railway (Methil Harbour) Act 1891. The promoters now proposed to apply to this dock the provisions of sections 70 to 78 inclusive of the Railways Clauses Consolidation (Scotland) Act 1845, in order to protect it from possible danger owing to future working of the coal lying under the dock.

This was opposed by the objectors, who argued—There were two Clauses Acts passed about the same date, viz., the Harbour and Docks Clauses Act 1847, and the Railways Clauses Act 1845. It was unprecedented and incompetent to apply the provisions of the Railways Act to docks, and thus to introduce into a private Act a provision differing from the general statute law. Further, under the agreement between Mr Wemyss and the Railway Company, when the latter acquired the site of the dock, Mr Wemyss was entitled to take out all the coal underlying it. This was just an attempt to get behind that bargain. The proper course for the Railway Company would have been to have bought the coal out and out before constructing the dock. The objectors were quite willing even now that the coal should be taken on the footing that the area of coal to be left unworked should be fixed now, and payment therefor made now.

Leven Dock, the closing of which was proposed by the Order, was taken over from Mr Wemyss by the promoters in 1889, who at the same time came under an obligation to maintain it. The promoters now stated that the dock had ceased to serve any useful purpose, owing to the construction of better docks at Methil, that owing to its position it was impossible to keep it open with a reasonable amount of dredging, and that it had become a danger to public health owing to the pollution of the river Leven. They proposed to fill up the dock and substitute for it an open jetty for small craft.

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This was opposed by Mr Wemyss's representatives and also by Mr Christie of Durie, the original proprietor of the harbour of Leven, who had transferred his rights under agreement that the dock was to be maintained as a public harbour. They maintained that the dock was of value to the neighbouring agricultural community, and that the Railway Company should not be allowed to evade an obligation to maintain undertaken by them under private contract, and which they had recently been ordained to implement by decree of the Court of Session.

The proposal to authorise the promoters to dispense with the requirement that they should render separate accounts to the Board of Trade for their dock undertaking was opposed on behalf of the traders, who urged that there was no good reason for altering the general law on the subject.

On the question of protection of Dock No. 2 from the effect of mineral working, the Commissioners found the preamble proved, and a clause was subsequently adjusted applying sections 70 to 78 inclusive of the Railways Clauses Consolidation (Scotland) Act 1845 thereto.

As regards the closing of Leven Dock, the Commissioners found the preamble proved, subject to the adjustment of a clause duly providing for the erection of the proposed jetty, &c., and for the expense of upkeep thereof.

As regards dispensation from rendering separate accounts for the docks, the Commissioners found the preamble proved.