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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> North British Railway Co. v. Birrell [1917] UKHL 102 (17 December 1917) URL: http://www.bailii.org/uk/cases/UKHL/1917/55SLR0102.html Cite as: 55 ScotLR 102, [1917] UKHL 102 |
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Page: 102↓
(Before the
(In the Court of Session, March 16, 1917, 54 S.L.R. 339.)
Subject_Railway — Statute — Construction — Superfluous Lands — North British Railway Act 1913 (3 and 4 Geo. V, cap. lxxxix), sec. 41 — Lands Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 19), secs. 120 and 121.
The North British Railway Act 1913, sec. 41, enacts—“And whereas lands have from time to time been purchased or acquired by the company, the Forth Bridge Railway Company, and by joint committees incorporated by Act of Parliament or Order on which the company may be represented, adjoining to or near to railways or stations belonging to the company or the Forth Bridge Railway Company, or belonging to or worked or managed by such joint committees, but such lands are not immediately required for the purposes of the undertaking of the company or of the Forth Bridge Railway Company or of such joint committees, as the case may be, and it is expedient that further powers should be conferred upon the company and the Forth Bridge Railway Company, and such joint committees respectively, with respect to such lands: Therefore, notwithstanding anything contained in the Lands Clauses Consolidation (Scotland) Act 1845, or in any Act or Order relating to the company or the Forth Bridge Railway Company, or any such joint committees with which that Act is incorporated, the company or the Forth Bridge Railway Company or any such joint committees shall not be required to sell or dispose of any such lands or any lands acquired under the powers of this Act which may not be immediately required for such purposes
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but may retain, hold or use, or may lease or otherwise dispose of the same in consideration of such rent or on such other terms as the company or committee exercising the said powers may think fit.” The North British Railway Company brought an action against the defender for a declarator that he had no right or title to object to their letting certain lands to a certain coal company for the purpose of sinking and working a new coal pit. Held ( rev. judgment of the First Division) that inasmuch as the above-quoted section applied to the lands, if superfluous, the company was entitled to the declarator asked.
Opinions that the company might not only let but sell the lands to which the section applied.
This case is reported ante ut supra.
The pursuers, the North British Railway Company and the Fife Coal Company, Limited, appealed to the House of Lords.
At delivering judgment—
The lands in question were formerly vested in the Seafield Dock and Railway Company, which was formed in 1883 for the purpose of building a dock which was to be connected by a railway with the Auchtertool Coal Pits, so that the coal might be dispatched by sea from the dock. The name of the company was in 1888 changed to that of the Kirkcaldy and District Railway Company. The time for the construction of both dock and railway was by various Acts extended, and in 1895 the undertaking was amalgamated with the undertaking of the North British Railway Company by section 38 of the North British Railway Act of that year (58 and 59 Vict. cap. cli), which incorporated the provisions as to amalgamation of the Railway Clauses Act 1863. By this amalgamation the powers of the old company vested in the North British Railway Company.
The dock has never been made, but the North British Railway Company has constructed a railway from Auchtertool Pits on part of the line proposed for the railway of the Seafield Dock and Railway Company, but ending in a junction with the North British Railway Company at the point shown on the plan, instead of being carried down to the site of the proposed docks.
The appellants, the Fife Coal Company, were desirous of getting the coal from the seams of coal under the bed of the Firth of Forth which they were to take by permission of the Crown, and for the purpose of getting access to them they wanted to sink a pit on the land coloured pink on the plan and referred to in the summons. It was proposed that the North British Railway Company should make a lease to the Fife Coal Company for this purpose. Mr Birrell was an adjoining proprietor, and he claimed that he was entitled to prevent the North British Railway Company from leasing to the Fife Coal Company any part of this land for the purpose of sinking the proposed pit. The ground of his objection was that he might have a right of pre-emption under the provisions of the Lands Clauses Act 1845 (8 Vict. cap. 19), secs. 120 and 121.
By Acts obtained by the North British Railway Company in 1897, 1902, 1904, and 1916, they were enabled to retain and hold the lands which they had acquired for periods of time extended ultimately till 1919. In the meantime there had been passed the North British Railway Act 1913 (3 and 4 Geo. V, cap. lxxxix), and it is upon the 41st section of that Act that this case turns. It runs as follows:—“… [ quotes, v. supra in rubric] …”
It is admitted that the lauds in question are situate near to or adjoining the railway within the meaning of this section, and they are not immediately required for the purposes of the undertaking. The North British Railway Company assert that they are entitled under this section 41 to make a lease of the lands in question to the Fife Coal Company for the purpose of sinking a pit as proposed.
The respondents contend that the section on its true construction does not apply to the case of superfluous lands. For the purposes of the present proceeding it must be assumed that the lands are superfluous, but this is not admitted by the appellants to be true in point of fact, and in certain events the question might have to be determined on proof hereafter.
In order to determine whether superfluous lands are within the operation of section 41, it must be read by the light of the general law on the subject of superfluous land. The effect of sections 120 and 121 of the Lands Clauses (Scotland) Act 1845 is, that if the company do not sell superfluous lands within the period prescribed, they vest at the end of it in the adjoining owners, and that before selling superfluous lands the Company must, unless the lands are in a town or built upon or used for building purposes, offer to sell them to the owner of the lands from which such lands were severed, cr, failing him, to the adjoining owner. It appears to me that one object of section 41 of the Act of 1913 was to exempt lands adjoining or near the railway or stations from the obligations which the general Act of 1845 imposes in respect of superfluous lands. If the lands are not immediately required for the purposes of the railway, it may be a question of some difficulty to ascertain whether they may be ultimately required, in which case they would not be superfluous. Section 41 dispenses with any
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For this reason, in my opinion, the interlocutor of the Lord Ordinary should be restored, granting relief in terms of the summons.
I find myself in entire agreement with the judgment delivered by the Lord President, which dissented from the decision of his colleagues to reverse the judgment of the Lord Ordinary.
The defence to the action appears to me to fail upon another ground also. The interest in respect of which the defenders claim a right to object to the lease is that they would have a right of pre-emption in the event of the Railway Company proceeding to sell the land. The defenders can have no such right of pre-emption. Section 41 relieves the Railway Company from all obligation to sell, and it is only in respect of sales under the compulsion of forfeiture imposed by section 120 at the end of the time prescribed that the right of pre-emption given by section 121 applies. There is not and cannot be here any right of pre-emption, and on this ground also the defence appears to the to fail.
I am therefore of opinion that the judgment of the Inner House should be reversed and the interlocutor of the Lord Ordinary restored. The appellants should have their costs here and below.
Section 41 of the North British Railway Act 1913 does not apply to all the lands acquired by the companies and committees to which the section refers, but only to those adjoining or near to their railway or stations. Its operation is further confined to land not immediately required for the purposes of their undertakings. The section appears to me to include all land falling within the class ascertained by the first limitation, which is land other than that immediately required. It therefore includes land which is superfluous within the meaning of the Lands Clauses Consolidation (Scotland) Act 1845, sections 120 and 121—that is to say, it extends to land not required for the purposes of the undertaking which has not already vested in the adjoining owners by lapse of time under the statute. Section 41 provides that notwithstanding anything in the Act of 1845, or in any Act or Order relating to the companies or their undertakings, the companies or committees are not to be required to sell or dispose of any of this land, but may “retain, hold, or use, or may lease or otherwise dispose of the same, in consideration of such rent or on such other terms” as the company or committee, exercising the power conferred on it, may think fit.
The main point made for the respondents is that they have, under section 121 of the Act of 1845, a right of pre-emption which is or may be prejudiced by the proposed lease. There may well be such prejudice if the section applies, but I agree with the view of the Lord Ordinary and of the Lord President in the Inner House that this section is excluded by the operation of section 41 of the Act of 1913. I am unable to read the words “or otherwise dispose of” which occur there as limited to disposition ejusdem generis with retaining, holding, using, or leasing, for the simple reason that I cannot define any genus of which those powers are species narrower than disposition interpreted in the wide meaning contended against.
The words “dispose of” therefore include sale, and the main objection to the appellants' pleadings based on want of specification in that view disappears. I have read attentively the reasons for a narrower construction put forward in the judgments in the Inner House of both Lord Skerrington and Lord Johnston. It appears to me that these reasons attribute an unduly narrow and artificial meaning to the expressions used by Parliament. We cannot, sitting in a court of justice, speculate on what may or may not have been present in the minds of those who passed the Act under interpretation. Our duty is simply to give to its words the interpretation which would be regarded as the natural one unless that would lead to something not short of absurdity.
It is sufficient for the purposes of this appeal to point out that the lands to which section 41 applies are not the whole of the lands belonging to a railway company, as made the subject of sections 120 and 121 of the General Act of 1845, but particular lands which are dealt with in section 41 of the Special Act. The latter section contains an unrestricted power of leasing, and although I have already intimated that I should hold that the general words “otherwise dispose of” which follow are sufficient to confer a power of sale, I do not think that this point really arises in this appeal. For it is sufficient for the purposes of this case to come to the conclusion that the right of pre-emption conferred by section 121 of the general Act on an adjoining owner is abrogated by the explicit terms of section 41, at the least sufficiently to preclude him from objecting to any lease which can fairly be regarded as such.
This disposes also of the point relied on by Lord Johnston as to relevancy.
One of the learned Judges of the First Division would have dismissed the action as incompetent on account of its form—a
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It is next said that the pursuers do not disclose precisely what sort of lease they are going to grant, and that the action is therefore irrelevant. I do not think so. It is, indeed, only an advantage to the defender that no such disclosure is made, for he will prevail if he can show that he can object to any form of lease.
I pass to the merits. Now the defender is not a shareholder, and he has no title to plead ultra vires as to what the Railway Company propose to do with their own property. His only title is his prospective right of either (1) pre-emption or (2) ownership through forfeiture of the land in question.
Lands, whether superfluous or not, which have been purchased by the Railway Company are their property. But section 120 of the Lands Clauses Act imposes a duty on the company to sell such lands as are superfluous within a certain period with the sanction of forfeiture if they do not do so. Section 121 then says that if there be a sale there shall be a right of pre-emption in the person from whose property the lands were taken, or failing him in the contiguous owner. But then, after a set of statutes which prolonged the period fixed by section 120, and which had the effect of keeping that period still unexpired, there was passed section 41 of the North British Railway Act of 1913. That provided that notwithstanding any previous Acts certain lands, viz., lands belonging to the company and adjoining railways or stations belonging to the company, and not immediately required for the undertaking of the company, should not be required to be sold, but that the company might retain, hold, and use or lease, or otherwise dispose of the same on such terms as they thought fit. That seems to me in plain words to stop all effect of sections 120 and 121 of the Lands Clauses Act. It only remains to see whether the lands in question (1) belong to the company, (2) are adjoining the company's railway or stations, (3) are not immediately required for the company's undertaking. All these three questions of pure fact are admitted, and that to my mind ends the question.
But for the marked division of opinion in the Courts below I should have considered this a reasonably plain case. It turns, in my view, on the construction of the 41st section of the North British Railway Act 1913 (3 and 4 Geo. V, cap. lxxxix). The facts having been fully stated already I therefore abstain from re-stating them save so far as is necessary to make my judgment intelligible. The lands in reference to which the controversy arises are 17 acres in extent. Of those 15 acres were in the year 1897 acquired by the Kirkcaldy and District Railway Company from Earl Rosslyn and his trustees, and in the same year the remaining 2 acres were acquired by the company from Mr Munro Ferguson of Raith and Novar. Mr Birrell, the respondents' predecessor, was the owner of lands adjoining these 17 acres. He acquired them from Earl Rosslyn and his trustees in the year 1893, and was therefore the singular successor of Earl Rosslyn in those lands from that date. By the North British Railway Company's Act 1895 (58 and 59 Vict. cap. cli) the undertaking of the Kirkcaldy and District Railway Company was amalgamated with the North British Railway Company and the former company was dissolved. In the judgment of Lord Skerrington I find two very important statements made—first, that the respondents' senior counsel in his argument before the Inner House, founding on the 121st section of the Lands Clauses Consolidation (Scotland) Act of 1845, rested his defence exclusively upon his clients' possession of a right of pre-emption of 15 of the 17 acres of land vested in the Railway Company which his own lands adjoined, and second, that the case was argued by both sides on the footing that the only “undertaking” to be considered in reference to the determination of the question whether these 17 acres were “superfluous” land or not was that of the North British Railway Company. Lord Johnston said that counsel for the respondents assumed that the only “undertaking” which need be considered was that of the North British Railway Company as it stood at the time or might thereafter be extended. And the Lord President said that the ground of the respondents' defence was that these 17 acres of land were superfluous lands within the meaning of the 120th and 121st sections of the Lands Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 19). These two sections are identical in terms with the 127th and 128th sections of the Lands Clauses (England and Ireland) Act 1845 (8 and 9 Vict. cap. 18). Therefore the English authorities apply. In both statutes superfluous lands are defined to be lands acquired by the promoters of the undertaking under the provision of the Lands Clauses Act of 1845 or the Special Act, or any Act incorporated therewith, which shall not be required for the purposes thereof, or, as it has been put by Lord Cairns in Directors of Great Western Railway Company v. May, L.R.,
Page: 106↓
The statutory obligation imposed upon the promoters by the 120th section has a sanction attached to it. If the company fail to discharge their obligation within the period named, the superfluous lands remaining unsold will at the expiration of that period revert to the owners of the adjoining lands. That forfeiture clause embodies the principle referred to by Lord Cairns in the above-mentioned case at the bottom of page 293 of the report, namely, the principle of securing “to the landlords from whom land was taken by compulsion the reverting, as nearly as the Legislature can accomplish it, of all land which becomes useless or is not wanted for the national enterprise which had been sanctioned.” The statute does not specifically provide for the case where, as in the present, the landlord from whom the lands were compulsorily taken has alienated all his interest in those portions of his lands which adjoined the lands so taken. It is well established that the point of time at which the lands so to be forfeited are decided to be superfluous lands is the precise time at which the forfeiture operates, namely, the expiration of the time within which the promoters are bound to sell or dispose of them. If the promoters are relieved from this statutory obligation they are in no default—the forfeiture never takes place. In further pursuance of the same policy in favour of landlords a condition is by the terms of the 121st section of the Act of 1845 added as to the mode and manner in which the obligation imposed by the preceding section is to be discharged. The latter is merely ancillary to the former section. It prescribes that before the promoters of the undertaking dispose of any such superfluous lands (that is clearly those particular superfluous lands which the preceding section required them to dispose of) unless the lands be situate in a town, or be built upon, or used for building purposes, they shall offer to sell the same to the person then entitled to the lands (if any) from which the same were originally severed. It then makes further provisions in case this person should refuse to purchase. If the promoters, or, which is the same thing in this case, the appellant company, within the period fixed proceed to sell or otherwise dispose of the original lands acquired for the purposes of their undertaking, they must be in a position to establish that these lands are then superfluous lands. That has been decided to be a mixed question of law and fact not very easy to answer. The action of the promoters in offering the lands for sale as superfluous lands would be strong but not conclusive evidence on this point, and the lands cannot be held to be superfluous lands so long as there is a reasonable probability that they will be required at some future time for the purposes of the undertaking.— Macfie v. Callander and Oban Railway, [1898] AC 270, 25 R. (H.L.) 19, 35 S.L.R. 415.
Between the date of the amalgamation of the two companies and the passing of the Act of 1913 three statutes were passed, extending the time for the sale by the appellant company of its superfluous lands or some of them.
By the first the North British Railway (General Powers) Act 1897 it is provided that, notwithstanding anything contained in several Acts named, the company may retain and hold any lands belonging to them in the parishes mentioned in the schedule to the Act which have not been theretofore applied to or were not required for the purposes of the company, but which were situate near or adjoining any railway or station of the company, or in the opinion of the company may be required by them for the purposes of stations, sidings, or other conveniences, for the period of five years from the passing of the Act. But at any time during this period the company might, and at the expiration of the period should, sell and dispose of, as superfluous land, all such parts of those lands as should not then have been applied to, or were not then required for the purposes of, their undertaking. The extension of the time is confined to the particular class of land thus mentioned. The next of these Acts, passed in 1902, deals with such lands of this class as are situated near or adjoining any railway or station of the company, and extends the period as to these for five years, and as to the rest of the lands mentioned for two years.
The third Act, that of 1904, enabled the company to retain and hold for ten years from the commencement of the Act any lands acquired by them upon which the adjoining owner had not entered, and which have not yet been applied for the purposes of the
Page: 107↓
Section 41 of the Act of 1913 is not general in its scope. It recites that lands have theretofore from time to time been acquired by the company adjoining or near to railway stations belonging to the company, but which are not immediately required for the purposes of the undertaking of the company. These constitute the first class of lands with which the section deals. It recites that it is expedient that further powers should be conferred upon the company in respect of them, and proceeds to enact that notwithstanding anything contained in the Lands Clauses Consolidation (Scotland) Act 1845, or any Act or Order relating to the company with which that Act is incorporated, the company shall not be required to sell or dispose of any such lands, but may retain, hold, or use, or lease or otherwise dispose of the same in consideration of such rent or on such other terms as the company exercising such powers may think fit. In the second place, it deals with lands subsequently acquired under the Act of 1913, with which the appeal is obviously not concerned.
Now in the first case the compulsory sale or disposal of land belonging to the company only applies to superfluous land. They are not required to sell or dispose of any other kind of land, and I have only to repeat that it appears to me to be plain that when the statute provides that the company shall not be required to sell or dispose of any particular land the natural meaning of the provision is that the lands are of the kind which the company was theretofore bound to sell or dispose of, namely, superfluous land and none other.
Much importance was attached to the words immediately required. They are introduced for the first time into those Acts, and it is said that the words should have been “it is not reasonably probable will be required,” or such like words, these being properly descriptive of superfluous lands. The words are not happily chosen, but land which it is reasonably probable will never be required for a particular purpose is certainly not “immediately required” for that purpose. Moreover, the additional powers given to the company are not such as would reasonably be given if they were merely to be exercised during a very short period of time.
They may hold and use these lands, lease, or dispose of them on any terms they think fit. These are the additional powers which could only be exercised if the original restraints were not removed. The word “sell” is not used, but would, I think, be included in the words “disposed of.” For the purpose of this case it is not necessary to determine whether the company could sell or not, as the company only propose to lease these 17 acres to the Fife Coal Company to enable them to sink a shaft to reach the coal measures lying underneath the sea, and to place rails upon the surface upon which the trucks of the latter company may run and carry away their coals. It was suggested that the leasing of this 17 acres of land was devoting it to the purposes of the undertaking, as the Railway Company would get the haulage of the coal won and the shaft would be, as it were, a kind of underground station. I do not say there may not be much in this, even though the Fife Coal Company might not be bound to bring their coal over that company's lines, if the company had a fair chance of getting that traffic. I prefer, however, to rest my judgment on this, that when the whole of section 41 is taken together its meaning is reasonably clear, and that if these 17 acres of land “adjoin or lie near the railway” as I understand is not now disputed, the appellants are empowered to do that which they have proposed to do, and that the respondents' alleged rights of pre-emption are only interfered with if at all to the extent authorised by this Statute of 1913. That statute is a private Act, no doubt, but so in truth is the statutory enactment which confers the right of pre-emption.
The Lands Clauses Consolidation Acts of 1845 merely contain the clauses usually theretofore embodied in private Acts of Parliament. They are to be incorporated with and form parts of private Acts subsequently passed authorising the taking of lands for undertakings of a public nature.
These provisions may be modified by the Special Act which incorporates them. The only respect in which the construction of a private Act differs from that of a public Act is as to the strictness of the construction to be given to the private Act when there is any doubt as to its meaning. In the Altrincham Union Assessment Committee v. Cheshire Lines Committee, 15 QBD 597, Lord Esher at page 603 said—“In the case of a public Act you construe it keeping in view the fact that it must be taken to have been passed for the public advantage, and you apply certain fixed canons to its construction. In the case of a private Act, which is obtained by persons for their own benefit, you construe more strictly provisions which they allege to be in their favour, because the persons who procure a private Act ought to take care that it is so worded that that which they desire to obtain for themselves is plainly stated in it. But when the construction is perfectly clear there is no difference between the modes of construing a private and a public Act.” In my view it is clear that the appellants have the right they claim to exercise and which the respondents challenge, namely, the right to lease these 17 acres of lands to
Page: 108↓
The decision in the appeal depends upon the construction of section 41 in the North British Railway Act 1913, but it is necessary to refer shortly to the relevant sections of the Lands Clauses Consolidation (Scotland) Act 1845. These sections refer to lands acquired under statutory powers but not required for the purposes thereof. The meaning of these words has been exhaustively considered in the corresponding sections of the English Act in the case of the Great Western Railway Company v. May [Law Reports, 7 English and Irish Appeals, 283]. Section 120 provides for forfeiture if superfluous lands are not sold and disposed of within ten years after the expiration of the time limited in the Special Act for the completion of the works. There was no forfeiture in the present case at the passing of the North British Railway Act 1913. Section 121 gives a preemption right to the person then entitled to the lands (if any) from which the superfluous lands were originally severed or to several persons whose lands immediately adjoin such lands, unless the lands are situate within a town or are lands built upon or to be used for building purposes. If this section applies to the lands in question the appellants could not succeed, but in my opinion its application has been expressly abrogated by section 41 of the North British Railway Act 1913.
I confess that I am unable to see any difficulty in the construction of this section, and it appears to me to have been carefully drawn to prevent the risk of misunderstanding. The first question which arises is whether the lands in question come within the provisions of the section. The first condition is that the lands should have been purchased or acquired by the appellants. This condition has been fulfilled. The second condition is that the lands should be adjoining to or near to railways or stations belonging to the company. It is admitted by the respondents that the land in question comes within these territorial limits. The third condition is that the lands are not immediately required for the purposes of the undertaking of the company. The fact that the land is not immediately required for the purposes of the company is not in dispute, but it is said that some difficulty arises from the introduction of the word “immediately.” I think that there are two answers. In the first place the word should be interpreted in its ordinary usual meaning, and secondly, its introduction may be readily explained by the complex inquiries which may arise if it is attempted to determine, not only whether land is immediately required, but whether though not immediately required it may or may not be so required at some future time. I therefore come to the conclusion that the lands in question are clearly within the provisions of the section.
The section enacts that notwithstanding anything contained in the Lands Clauses Consolidation (Scotland) Act 1845, or in any other Act or Order relating to the North British Railway Company, the North British Company shall not be required to sell or dispose of any such lands or of any lands acquired under the powers of this Act which may not be immediately required, but may retain, hold, or use, or may lease or otherwise dispose of the same in consideration of such rent, or on such other terms as the North British Railway Company may think fit. The section therefore in terms makes the forfeiture section of the Lands Clauses Consolidation (Scotland) Act 1845 inapplicable, and authorises the North British Railway Company to retain, hold, or use the lands in question without limit of time. It was, however, argued on behalf of the respondents that although section 120 of the Lands Clauses Consolidation (Scotland) Act 1845 was rendered inapplicable the pre-emption rights conferred in section 121 remained in force. I think it is impossible to hold that a pre-emption right, which in the general Act would have terminated at a definite time, has by the operation of this section been indefinitely prolonged. The truth is that the appellants are only exercising a statutory right which the Legislature has expressly conferred upon them and which they derive directly from statutory legislation. The appellants are authorised to lease the lands in question, and this is what they are proposing to do. I desire, however, to add that in my opinion the words “lease or otherwise dispose of” give to the Railway Company all the ordinary rights of a landowner in respect of all lands which come within the provisions of the section.
I agree in the opinions expressed by the Lord Ordinary and the Lord President. The appeal succeeds, and the respondents should pay the costs here and below.
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Their Lordships allowed the appeal with expenses and restored the judgment of the Lord Ordinary.
Counsel for the Appellants (Pursuers)— Macmillan, K.C.— Hon. Wm. Watson, K.C. Agents— James Watson, S.S.C., Edinburgh— John Kennedy, W.S., Westminster.
Counsel for the Respondents (Defenders)— Wilson, K.C.— Condie Sandeman, K.C.— Hamilton. Agents— Guild & Guild, W.S., Edinburgh— Thorne, Priest, & Company, London.
