Scottish Court of Session Decisions

This was an action at the instance of John Campbell Kennedy of Dunure, proprietor of the estate of Dunure, Girvanmains, and others, in the county of Ayr, against the Glasgow and South-Western Railway Company.

The pursuer averred that in connection with the construction of the Maybole and Girvan Railway a minute of agreement was entered into between the then proprietor of the said estate on the one hand and the Maybole and Girvan Railway Company on the other, by which it was, inter alia, provided that the company should make and maintain in full efficiency a siding of the said railway for the accommodation of the proprietor of Girvanmains and his tenants.

By a further agreement, dated 2nd and 4th February 1878, between the defenders (who by that time represented the said Maybole and Girvan Railway Company) and the said proprietor, the defenders acquired additional land, and agreed to fulfil the obligation in his favour, as follows:—“The company agree and bind themselves to continue to maintain and uphold in full efficiency in all time coming the foresaid existing siding ( i.e., the Bridge-mill siding), with a suitable and convenient access thereto from the Kirkoswald turnpike road, but with power to them, if they see fit, to deviate the said siding and access, but so that the deviated access shall join the said Kirkoswald turnpike road at the point where the present access joins that road, and that for the accommodation of the proprietor of the estate of Girvanmains and his tenants, and also the public, if and when the company so incline.”

The pursuer further averred that in 1873 the proprietor of Dunure raised a question with the defenders as to their not maintaining the said siding for his tenants in the sense of the first agreement, that ultimately it was agreed that the siding should be worked by the defenders, and that it should be available for the carriage of merchandise, parcels, goods, produce, minerals, and stock belonging to the proprietor and his tenants; that thereafter matters worked smoothly between them until a new stationmaster was appointed to Girvan station, who declined to receive small

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parcels of goods from the pursuer's tenants, and threatened to charge extra rates for their carriage; that since then the defenders had declined to furnish a sundries waggon for the despatch of goods, or to accept receipt at the siding of small parcels of goods duly tendered for consignation except upon payment of prohibitive rates, and that they refused to supply a crane for use at the siding.

The pursuer further averred—“(Cond. 6) In order to maintain the said siding in full efficiency in the sense of said agreement, and in accordance with the practice following upon it which prevailed between the pursuer and defenders prior to 1902, it is necessary that a sundries waggon should be made available at least once daily for the purposes of the traffic in small consignments of merchandise. A crane for use in connection with heavy traffic is also essential. Contrary to the said agreement the defenders leave the siding between the hours of 8 and 9 a.m. and 1 and 2 p.m. without anyone present during these hours for the receipt and despatch of traffic, and this has occasioned considerable inconvenience to the pursuer and his tenants. At all sidings on the defenders' system (in common with those of the other railway companies) which are maintained in full efficiency, a sundries waggon is provided at least once daily, and a crane is also set up for convenience in loading and discharging heavy merchandise, and at least one man is present in charge of the siding during the ordinary business hours of each lawful day. In particular, at the defenders' siding of Clune, near Monkton, where the traffic is insignificant compared with that of Bridgemill, an engine and van are sent out from Monkton station at least once daily, and the defenders accept and forward and deliver all goods from the smallest parcels upward. (Cond. 7) As the defenders, in breach of the obligations under the said agreement, and the practice following thereon, refuse to provide a sundries waggon once daily for small parcels, to keep attendants at the siding during ordinary business hours, and to furnish a suitable crane for the siding—these being necessary to the maintenance of the siding in full efficiency—this action has become necessary.”

In answer the defenders denied that the siding had not been maintained by them in full efficiency in the sense of the agreement, or that they had failed to attend to the regular working of the traffic at the siding.

They further averred—“(Ans. 6) The defenders have a man at the siding who does all that lies upon them in connection with the siding. He is off from eight to nine in the morning for breakfast, and from one to two in the afternoon for dinner. The attendance of a man at the siding during these hours is not required for the work at the siding. (Ans. 7) None of the provisions mentioned are necessary for the maintenance of the siding in full efficiency within the meaning of the agreement. Further, they are not required for the proper working of the siding—a matter not dealt with in the agreement. Explained that until the raising of the present action the pursuer had made no demand for a crane. Explained that the defenders are willing to provide a sundries waggon once daily at the siding, provided the pursuer guarantees daily traffic, and that such traffic will either amount to a full truckload or will be paid for as such. They are also prepared to keep a man at the siding during the whole day whenever the traffic warrants it. The defenders are also prepared to erect a crane when the traffic warrants it, or to give facilities to any trader for the erection of a crane if they find it necessary to have one.”

The conclusions of the action were, inter alia, as follows :—“( First) that … the defenders were bound to maintain and uphold in full efficiency in all time coming the siding known as Bridgemill siding, situated on the defenders' line of railway, and that for the accommodation of the pursuer and his tenants of the lands of Girvanmains; and ( Second) that the defenders were bound to receive or accept delivery at the said siding of all parcels, goods, merchandise, produce, or stock duly tendered by the pursuer, his tenants, or others acting under his authority, and timeously transmit the same on being paid for the carriage thereof the ordinary rates legally exigible therefor, according to the weight and character of same, and the defenders ought and should be decerned and ordained by decree foresaid to do every act or deed necessary to maintain and uphold the said siding in full efficiency, and in particular to provide a staff of servants or employees reasonably sufficient to arrange for the despatch and receipt of traffic at said siding during the usual business hours on every lawful day, and to supply thereat sufficient plant, machinery, engines, waggons, and whole appliances necessary for this purpose, and without prejudice to said generality the defenders ought and should he decerned and ordained by decree foresaid to supply a sundries waggon when required for the transmission of all parcels of merchandise and goods, and especially of parcels of small size or weight at said siding at least once daily, or at such further or other times as may be determined in the course of the process to follow hereon as may be necessary for the due and reasonable maintenance of the traffic of the pursuer and his said tenants at said siding, to station at least one of their servants at said siding for the receipt and discharge of traffic during the hours from 8 a.m. to 9 a.m., and from 1 p.m. to 2 p.m. on every lawful day, and to erect or provide on a convenient site at said siding a good and sufficient crane, with all the necessary appliances thereof, capable of being used for the discharge of all heavy goods, merchandise, or produce duly consigned to the said siding for the pursuer and his said tenants, or for receipt of such heavy goods, merchandise, or produce duly tendered to the defenders at said siding by the pursuer and his said tenants,”

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The pursuer pleaded—“(2) In respect it is necessary for the maintenance of said siding in full efficiency in the sense of said agreements that the defenders should work the siding at all reasonable times, that a sundries waggon should be transmitted daily thereto, and that a crane should be erected thereat, the pursuer is entitled to decree of implement in terms of the conclusions of the summons.”

The defenders pleaded—“(1) The first declaratory conclusion being unnecessary, and the Court having no jurisdiction to deal with the other conclusions, the action ought to be dismissed. (2) The action as laid is incompetent. … (4) The defenders having made and maintained said siding in a state of full efficiency, and any question as to the working of the siding being outside the agreement, the action ought to be dismissed.”

On 8th July 1905 the Lord Ordinary ( Ardwall) pronounced the following interlocutor:—“Repels the first and second pleas-in-law for the defenders, and before further answer allows to the parties a proof of their averments, said proof to proceed before the Lord Ordinary on a day to be afterwards fixed, reserving all questions of expenses.”

Opinion.—“The principal question which has been argued before me is whether the obligation ‘to maintain and uphold in full efficiency in all time coming a siding of the said railway for the accommodation of the proprietor of the estate of Girvanmains and his tenants' undertaken by the defenders in the minute of agreement between the Maybole and Girvan Railway Company and the pursuer's author dated May 1858, and the subsequent agreement between the defenders and the pursuer's author, dated 1878, is an obligation confined to the structural maintenance of the siding and works connected therewith, or whether it extends to and includes the working of the siding in an efficient manner. It was argued for the defenders that it had been decided in the case of Sir E. B. Lytton v. The Great Northern Railway Company, 2 K. and J. 394 (1856), that the words ‘construct and maintain,’ as applied to a siding, meant structural maintenance only, and that the addition of the words in the agreement under consideration ‘in full efficiency’ merely qualified the obligation of structural maintenance, and that accordingly there was nothing in the said agreement applicable to the working of the siding. It was admitted for the pursuer that he had no ground for complaint regarding the structural maintenance of the siding in question, and the result is that if the defenders' construction of the contract is sound the action would fall to be dismissed as irrelevant. I am not prepared to accept the defenders' construction of the agreement. In the case cited no such words occur as ‘in full efficiency,’ and my opinion is that these words put a meaning on the obligation to maintain and uphold, and show that it includes both structural and working maintenance. The words ‘in full efficiency’ are, I think, wholly inapplicable to structural maintenance; indeed they are absurd when applied in such a way. Any conveyancer would smile at a draft lease which purported to lay an obligation on a tenant to maintain the farm, houses, and buildings ‘in full efficiency,’ and the very etymology of the word ‘efficiency’ shows that it is inapplicable to the mere maintenance of a material structure. I am accordingly of opinion that the obligation under consideration binds the defenders to maintain the siding, both as regards structure and working, in an efficient condition, that is, so as to make it in all respects efficient for the conduct of such goods traffic as is proper to a siding of that description.

“But the defenders further maintained that assuming that what I have above said to be the tine construction of the agreement, the question of efficient working of the siding in the particulars concluded for by the pursuer is a question not for this Court but for the Railway Commissioners, on the ground that it is really a question as to what reasonable facilities should be given to traders at that siding by the defenders, and that in such a question the Railway Commissioners have an exclusive jurisdiction. I may say at once that my own view is that the questions presently at issue between the parties are exceedingly suitable for the decision of the Railway Commissioners, but the parties have not chosen to submit these questions for the decision of that tribunal, and I am unable to hold that the jurisdiction of this Court is ousted, or that I am entitled to send the questions at issue in the present case to the Railway Commissioners for their decision. I may refer to the case of the Barry Railway Company v. Taff Vale Railway Company, L.R. 1895, 1 Ch. D. p. 128, where it was held in a matter similar to the present that the Railway Commissioners had no exclusive jurisdiction, and that the jurisdiction of the ordinary courts of law was not ousted. But further, I have doubts as to the competency of the Railway Commissioners to deal with the present questions, because the pursuer is not here asking as a member of the public for reasonable traffic facilities; he is claiming his rights as an individual under a private agreement with the defenders. Beyond deciding as I have done on the general construction of the agreements I do not think it right to go further at present in deciding upon the relevancy of the action. Without a proof I am not prepared to say that under the said agreements the pursuer is entitled to succeed in the specific demands he makes in the summons. Further, the second of the two agreements above alluded to proceeds on the narrative that the siding mentioned in the first agreement was constructed ‘and is now being worked and maintained by the company, and then the first article provides as follows—‘the company ( i.e., the defenders) agree and bind themselves to continue to maintain and uphold in full efficiency in all time coming the foresaid existing siding.’ I think that considering this clause it is only

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right that before deciding further on the relevancy of the action there should be a proof to show (first) what construction the parties themselves put upon the agreements as shown by the past working of the siding, and (second) for what kind of traffic and to what extent it is reasonable that the defenders should provide facilities at the siding in question. To illustrate what I mean I may say that it would appear to he doubtful for instance whether the defenders were bound to provide facilities at the said siding for ordinary parcel traffic, and whether the traffic at the siding was so large as to make it reasonable that the defenders should keep two men constantly at said siding simply to avoid the slight interruption between 8 and 9 a.m. and 1 and 2 p.m. when the single man whose services as a rule would appear to be enough was absent at his breakfast and dinner.

“I accordingly think the proper course is not to deal with the defenders' third plea at present, but to allow a proof before answer.”

The defenders reclaimed, and argued—They were not bound to do more than maintain the physical structure of the siding. A proof was unnecessary, for the real question was as to the construction of the agreement. The case of Lytton v. The Great Northern Railway Company, 1856, 2 K. & J. 394 (cited by the Lord Ordinary), was in favour of the reclaimers. Any inquiry as to the practice was irrelevant. The action should therefore be dismissed. Questions in regard to the working of the siding, or as to the provision of proper facilities for traffic, were for the Railway Commissioners and not for the Court—Railway and Canal Traffic Acts 1854 (17 and 18 Vict. cap. 31), secs. 2 and 3; 1873 (36 and 37 Vict. cap. 48), sec. 6; and 1888 (51 and 52 Vict. cap. 25), sec. 8. [The Lord President referred to the case of Cowan & Sons, Limited v. North British Railway Company, March 19, 1901, 3 P. 677, 38 S.BR. 514.]

Argued for the respondent—The agreement referred both to the structure and the working of the siding. It had not been maintained in full efficiency. Evidence as to the working would be competent evidence, in the light of which the Court might construe the agreement. In Lytton's case (ut supra) proof was allowed. The Lord Ordinary had only allowed a proof before answer and the Court would not readily interfere with a limited allowance of proof. The question as to the efficiency of the siding was one for the Court and not for the Railway Commission—Darlaston Local Board v. London and North Western Railway Company [1894], 2 Q.B. 694; Brown and Theobald on Railways, p. 112.

At advising—