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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fraser (Fraser's Trustee) and Others v. The Caledonian Railway Co. [1910] ScotLR 76 (12 November 1910) URL: http://www.bailii.org/scot/cases/ScotCS/1910/48SLR0076.html Cite as: [1910] SLR 76, [1910] ScotLR 76 |
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In 1846 a railway company acquired certain lands by compulsory purchase under the Lands Clauses Act 1845. The proprietor having refused to grant a conveyance, the company in 1847 deposited the compensation found due and took possession. On the proprietor's death in 1874 the company obtained from his heir a conveyance in statutory form, which they recorded in 1875. In 1903 the superiors brought an action against the company for compensation for loss of casualties.
Held (1) that the execution of the statutory title in 1875 destroyed the superior's rights of superiority in the lands taken, giving to him as from that date a right to compensation therefor—a right which was not barred by the promoters having in the meantime obtained access to the land—and (2) that the pursuers were entitled to interest on such compensation from 1903, the date when their demand was made.
Dissenting Lord Johnston, who was of opinion that the recording of the statutory title did not affect the obligation on the company to pay the feudal charges, and that these (so far as not prescribed) subsisted till they had been redeemed, and that accordingly the pursuers were entitled to recover ( a) such charges down to the date of their redemption, and ( b) compensation for their loss, with interest on such compensation from 1903, the date when the company were called on to redeem.
On 8th December 1908 Major Francis Fraser of Tornaveen, Aberdeenshire, sole surviving trustee under the antenuptial contract of marriage between the late Mr and Mrs Fraser of Tornaveen, and others, brought an action against the Caledonian Railway Company for payment of (1) the sum of £885, with interest thereon at 5 per cent. from 14th December 1875, or otherwise from 25th February 1903, and (2) the sum of £307 odd.
In 1846 the defenders, in virtue of the powers contained in the Act 8 and 9 Vict. c. clxii, entituled “An Act for making a railway from Carlisle to Edinburgh and Glasgow and the North of Scotland, to be called the Caledonian Railway,” took compulsorily from N. D. Laurie of Lauriston, then proprietor of the lands of Orchardfield, in the county of Edinburgh, a portion
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of that estate. In 1847 the defenders, in virtue of another of their Acts, viz., the Caledonian Railway (Edinburgh Station and Branches) Act 1847” (10 and 11 Vict. c. ccxxxvii), compulsorily acquired from him an additional portion of that estate. Both of these Acts incorporated the Lands Clauses Consolidation (Scotland) Act 1845. Mr Laurie having refused to grant a conveyance of the ground taken, the compensation payable therefor was duly consigned in bank. At the time the defenders acquired the ground they made up no title thereto, nor did they pay to the then superior of the lands any compensation for loss of casualties. After Mr Laurie's death his heir-at-law granted a conveyance of both portions of ground to the defenders. The conveyance, which was dated 25th and 28th October 1875, and which was in the form prescribed by section 80 of the Lands Clauses Consolidation (Scotland) Act 1845, was duly recorded in the Register of Sasines on 14th December 1875. The superiors made no formal demand upon the defenders for compensation for loss of casualties till 25th February 1903. In 1907 the compensation payable to the superiors therefor was valued by an arbiter nominated by both parties as at three different dates, viz., 1846–47, when possession was taken, 1875 when the statutory title was recorded, and 1903, when the demand for compensation was first made. On the assumption that the claim fell to be valued as in 1846 the compensation was assessed at £381, and on the assumption that the valuation should be made as at either of the other alternative dates the sum payable was fixed at £885. The defenders were found liable in the expenses of the arbitration, these being afterwards taxed at £307 odd, the sum second concluded for. The pursuers in the present action were the representatives of the superiors in 1875 and 1903. They averred—“(Cond. 4) … Up to the date of their obtaining and registering said conveyance the defenders had no title to said portions of ground, but on their registering said conveyance they obtained a good and undoubted right and complete and valid feudal title thereto in all time coming in terms of said section 80. On their registering said conveyance the defenders took or otherwise destroyed the superiority of said portions of ground which until said date continued unaffected in the persons of the superiors thereof. The defenders, however, did not pay compensation to the superiors for their said estate of superiority. Under the titles on which Mr Laurie held, inter alia, said portion of ground the feu-duty was nominal, the proportion effeiring to said portions being only tenpence, and the entry of singular successors was untaxed. With reference to the statement in answer, it is admitted that said payment was made to the superiors of Orchardfield. Explained that said payment was made under error in law, in respect that at the date when said payment was made the relationship of superior and vassal did not exist between the parties in consequence of the extinction of the estate of superiority. (Ans. 4) The said conveyance is referred to. Admitted that the defenders did not pay compensation to the superiors for their said estate of superiority. Quoad ultra denied. Explained that on 3rd October 1877 the defenders paid to the superiors the sum of £500 in settlement of a composition then claimed in consequence of the death of Mr Laurie in 1874.”
The defenders further averred — “Explained that the sum payable as compensation falls in terms of the statutes to be ascertained and valued as at the date of the acquisition of the said portions of land, viz., 31st August 1846, or alternatively as at the date of the pursuer's first demand for compensation, viz., 25th February 1903. Explained further that the said award was made under reservation of and without prejudice to the parties' rights and pleas in respect of the interest recoverable upon the sums fixed in the said alternative findings. In the event of it being held that the sum payable as compensation falls to be ascertained as at 1846 or as at 1875 the defenders aver and maintain that no interest is due on said sum, or at least that, in respect of the pursuers' delay in making their claim, interest should be restricted to 3 per cent. In any event, the defenders are entitled to credit for the sum of £500 paid in 1877 as aforesaid either in extinction pro tanto of the capital sum found payable, or alternatively in reduction of such interest, if any, as may be found payable on said sum.”
The pursuers pleaded, inter alia—“(1) The defenders having by completing a statutory title thereto on 14th December 1875 taken or otherwise destroyed the superiority of the two portions of ground, parts of the lands of Orchardfield taken compulsorily by them as aforesaid, are bound to pay full compensation therefor, and the pursuers as being in right of said compensation are entitled to decree for the amount thereof fixed by arbitration with interest at 5 per cent. from the date of said acquisition. (2) Alternatively the pursuers are entitled to decree for the amount of said compensation, with interest at 5 per cent. as from 25th February 1903, when the defenders were formally called on to pay compensation for the loss of casualties. (3) The payment of £500 having been made under error in law cannot in any event be pleaded as a set-off to the pursuer's claim.”
The defenders, inter alia, pleaded—“(6) The compensation payable by the defenders falling to be valued and assessed as at the dates of the acquisition of the said lands, the action should be dismissed. (7) In any event, the said sum of £500 paid on 3rd October 1877 falls to be deducted from the sum assessed as payable by the defenders in respect of said claim for compensation.”
On 12th August 1909 the Lord Ordinary (
Guthrie ) pronounced the following interlocutor:—“Decerns and ordains the defenders, under the first petitory conclusion of the summons, to make payment to thePage: 78↓
pursuers of the sum of £885, with interest thereon at the rate of 5 per cent. per annum from 14th December 1875 until payment, under deduction of the sum of £500 paid by the defenders to pursuers on 3rd October 1877, and which sum of £500, with interest thereon at 5 per cent. per annum from said 3rd October 1877, the defenders are entitled to set off against the foresaid sum of £885 and interest; and further, decerns and ordains the defenders to make payment to the pursuers of the sum of £307, 6s. 1d., in terms of the second petitory conclusion of the summons.” Opinion.—“The pursuers' claim against the defenders for loss of casualties was valued by an arbiter as at three alternative dates—1846–47, when the contract of purchase by the defenders from the pursuers' predecessors was completed and possession taken; 1875, when a statutory title was given by the pursuers and recorded by the defenders; and 1903, when the pursuers first demanded compensation for loss of casualties. If compensation falls to be assessed as in 1846–47, then prescription admittedly applies, and even if it does not, the pursuers do not represent, and have no assignation from, the then proprietors. No argument was submitted to justify 1903, so that the pursuers can only succeed if 1875 be the proper date. Their right to claim in that event is admitted in answer 5.
1. Date at which Compensation for Loss of Casualties falls to be assessed.—This question depends on when the pursuers' estate of superiority was extinguished, and must be solved by a construction of sections 80, 107, 108, 109, 110, and 126 of the Lands Clauses Consolidation (Scotland) Act 1845. The pursuers say that their estate of superiority remained unextinguished till the statutory conveyance was recorded; while the defenders allege that it was extinguished either on 31st August 1846, when notice completed the contract of purchase, or at least on 6th March 1847, when possession was taken.
I am of opinion that the pursuers are right, and that 1875 is the proper date. Although a completed purchase took place on service of the notice, the question remained open, as between the proprietor and the Railway Company, whether this would involve destruction of the superior's right to casualties. Had these two subsequently resolved to cancel the purchase, the superior could not have objected, and his right to casualties would have remained unaffected. Equally, while under section 80 either proprietor or company could have insisted on a statutory title, it was open to them by agreement to have executed and accepted an ordinary feudal title completed by recorded sasine, which would have left the superior's position untouched. After service of notice the proprietor could have conveyed to another, and on registration would have given a feudal right preferable to that of the Railway Company, voidable only, even after possession, if the third party were in bad faith to found on his title. In these circumstances I do not see how, unless the contrary appears in the statute, the superior's rights could be affected by any proceeding prior to the recording of the statutory title, to which he was no party, and with which he had no right to interfere. I do not think the sections founded on by the defenders justify the conclusions drawn from them. Section 126 shows that it was anticipated that compensation for casualties would be paid before entering upon the lands, because it was anticipated that a statutory title would be executed and recorded before taking possession. But if this has not been done, and the question remains open whether the casualties will ever be extinguished, it does not follow, either from the letter or the spirit of the Act, that compensation is to be ascertained as at a date anterior to the recording of the instrument, which for the first time affects the superior's rights. The cases of Magistrates of Elgin v. Highland Railway Company, 11 R. 950; Magistrates of Inverness v. Highland Railway Company, 20 R. 551; and Magistrates of Inverness v. Highland Railway Company, 46 S.L.R. 676, do not seem to me to touch the question raised in this case. These cases decide that compensation for loss of casualties is not excluded from failure to claim it before possession is allowed to be taken; but they do not deal with the question of the date at which compensation is to be assessed, whether at the date of the notice, or at the date of taking possession, or at the date of recording the statutory title, or at the date of making the claim.
2. Interest.—Although not a condition-precedent, it was the defenders' duty to pay compensation for extinguished casualties before taking possession of the ground, the acquisition of which by them was not intimated to the superior. The ground has been a profit-earning subject in their hands, and I see no sufficient reason why interest should not be allowed, or why the rate of interest should be less than 5 per cent.
3. Defenders' Claim to set off £500 paid by them on 3rd October 1877.—This sum was paid to the pursuers in settlement of a composition claimed by them in consequence of the death of Nathaniel Donaldson Lawrie, of whom the ground had been acquired by notice in 1846. The pursuers plead that this sum, having been paid to them under error in law, cannot be set off by the defenders. I think I am not precluded from refusing effect to so grossly inequitable a plea. The money was claimed by the pursuers. They were not entitled to it, and they cannot found on their own mistake as to the footing on which payment fell to be made. It would be against ‘good conscience’ to hold otherwise— Dixons v. Monkland Coal Company, 5 W. & S. 445. On this sum, which I hold must be set off, interest will run at 5 per cent.…”
The defenders reclaimed, and argued—The superior's claim arose in 1846, on the company's entry to the lands, and he ought to have made it then. The taking of the land put an end to the feudal relation, and
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that being so he had no title to sue— Magistrates of Elgin v. Highland Railway Company, June 20, 1884, 11 R. 950, 21 S.L.R. 640; Magistrates of Inverness v. Highland Railway Company, March 16, 1893, 20 R. 551, 30 S.L.R. 502; Magistrates of Inverness v. Highland Railway Company, March 19, 1909 S.C. 943, 46 S.L.R. 676. The only claim he had was for compensation, and he could have enforced it by preventing entry on the land (section 126). If, however, as here, he had neglected to enforce it, his claim was gone. A superior was clearly not entitled to lie bye for many years and then make a claim, for the data necessary to fix it might have entirely changed. The logical inference therefore was that it arose at or prior to the company taking possession. It was the intention of the Act to put an end to burdens affecting the land taken, subject of course to compensation. So much so was this the case that the only parties entitled to notice were the owners of the land to be taken— Clark v. School Board for London (1874), L.R., 9 Ch. App. 120; Macey v. The Metropolitan Board of Works (1864), 33 L. J. Ch. 377. The date of recording the title could not be the date of compensation, for that would infer that the superiority existed after the land had been taken, which was inconsistent with the provisions of the statute. Further, the omitted interest clauses (117, 118) fixed the compensation as at the date when the interest was destroyed, and that was when the land or interest was taken. Argued for respondents—The question really came to this—When did the company acquire a “complete and feudal title?” It could not be the service of the notice or the entry on the land, for neither affected the superior's right to the land. His right to it was not affected till the company recorded their title and deprived him thereby of his vassal in the land. The company, moreover, were bound to complete a title— Alexander v. Bridge of Allan Water Company, February 4, 1868, 6 Macph. 324, 5 S.L.R. 227. Till the vassal's assignee claimed to enter in his own right by recording his title the superior was not affected. That being so, his right to compensation did not arise till the assignee recorded his title. If the assignee refused to pay compensation the superior could interdict him using the lands, for he was given his statutory right subject to payment of compensation. The Elgin case relied on by the reclaimers was distinguishable, for that case was decided on the hypothesis that a title had been recorded. The Lord Ordinary therefore was right.
At advising—
The Railway Company served their notice on the proprietor of the property in the year 1846, and entered into possession in 1847. The proprietor refused to convey, so they deposited the amount of compensation awarded and awaited until his death in 1874, when they obtained from his heir a conveyance in statutory form, which was recorded in the year 1875. The pursuers made no claim for compensation in respect of their superiority until 1903.
The question at issue is whether their claim of compensation has prescribed, and if it has not, as at what date it is to be calculated and paid? This depends upon whether the superior's rights were brought to an end and resolved into a mere personal claim for money compensation in 1846/47, or in 1875, or even later in 1903.
This being the question at issue, it is to be determined on a consideration of the enactments of the Lands Clauses Consolidation (Scotland) Act of 1845, which provides for the acquisition of lands for the purposes of undertakings authorised by local and personal Acts, which incorporate it. It thus provides for purchase by agreement, for compulsory purchase and ascertainment of compensation, for payment, and for the transfer of title.
The phraseology of the Act is not entirely uniform or consistent. But a general consideration of its provisions has satisfied me that, not only where it speaks of the “owners” of any land to be acquired, but also where it speaks in various phrase of parties having any right or interest in such lands, it confines its attention to the owner in the popular sense, or in legal terms to the proprietor of the dominium utile, and to those whose rights or interests are carved out of his, to the exclusion of the encumbrancer, and still more particularly of the feudal superior, the latter of whose rights are not considered as rights or interests in such lands but as something separate. Hence no notice to take is required to be served on the superior. He cannot, I think, though opinions have been incidentally expressed to the contrary, prevent possession being taken without first compensating him; and he may remain uncompensated without the promoters of the undertaking being restricted in subsequently dealing with him by the terms of section 117, which empowers them to purchase omitted interests in lands only where the omission to acquire has arisen from mistake or inadvertency.
But under the general heading of lands subject to rent charges, &c., which prefaces section 107 and following sections, special provision is made for dealing with the interests, inter alios, of the superior, and it is clear that in the minds of the draughtsmen of the statute, who were adapting the corresponding English Act to Scotland, there was no very intelligent distinction between the feu-duties and casualties of the superior and English rent charges. The preamble to this fasciculus of clauses is general, and applies without distinction to any lands which shall (confining attention to that part of it which is directly pertinent to the present question) be charged with any feu-duty and casualty of superiority. I do not think it is necessary to canvas the meaning of the word “charged.” I think it is intended to cover
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I must now advert for a moment to two earlier sections of the statute, viz., sections 74 and 80, in order to contrast them and their purpose and effect with section 110 and its purposes and effect.
Assuming lands purchased or taken under compulsory powers, and compensation agreed on or awarded, how is conveyance to be made and title completed? Section 74 says that the owner of such lands shall duly convey to the promoters, or as they shall direct; and section 80, by reference to Schedules A and B, defines the form of statutory conveyance, and declares that such conveyances being duly executed and being registered, “shall give and constitute a good and undoubted right and complete and valid feudal title in all time coming to the promoters of the undertaking, and their successors, and assigns, to the premises therein described, any law or custom to the contrary notwithstanding.” Turning back to section 74, the case of the owner failing to convey is met by empowering the promoters to expede a notarial instrument reciting certain matters specified, and to register it; “and such instrument being registered in the Register of Sasines in manner hereinafter” ( i.e., by section 80) “provided in regard to conveyances of lands, shall have the same effect as a conveyance so registered.”
Notwithstanding that it is said (section 80) that either of these courses shall confer a complete and valid feudal title, it is manifest that it does nothing of the kind. It creates an unassailable statutory title no doubt, nominally in the promoters, but really in a statutory corporation assumed to have perpetual existence, but that title is independent of feudal tenure, and establishes no relation whatever between the promoters or the company and the superior.
Sections 107 to 111 are then the complement of sections 74 and 80. The feudal tenure and the feudal relation in its bearing on title being gone, the beneficial interest of the superior had to be provided for. It would have been forfeited on the letter of sections 74 and 80 without some further provision. Accordingly these sections 107 et seq. provide for the situation created
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Accordingly these sections 107 et seq., the feudal tenure having already been destroyed, provide for discharge on compensation of the feudal charges or superiority dues. And how is this effected as matter of title? That is provided for by section 110, on the same lines as were adopted in making title to the dominium utile, viz., by the execution voluntarily of a discharge, or in default the expeding of a notarial instrument and registering the discharge or the instrument “in the manner hereinbefore provided in the case of the purchase of lands,” whereupon the feu-duty, &c., “or the portion thereof in respect whereof such compensation shall so have been paid, shall cease and be extinguished.”
I think I am justified, therefore, in saying that section 110 is the complement of sections 74 and 80; and although the statute bears evidence of having been a very inartistic if not careless adaptation of an English Act to a totally different system of law and tenure, still if a broad view be taken, what the Legislature intended can, I think, be seen and receive effect with some consistency. I have endeavoured to analyse the scheme, because I have thought it necessary as the foundation of this opinion, and because it is a necessary precedent to the consideration of an isolated section in a subsequent part of the Act which is supposed to create difficulty, and to need reconcilement with the provisions with which I have hitherto been dealing. But what these sections 107 et seq., taken by themselves, provide is, I think, shortly and very clearly this, that there shall be no compulsitor upon the promoters to take the initiative in compensating and redeeming the dues of superiority in whole or in part as the case may be, and that so long as they hold off and do not do so, while the legal relation of superior and vassal is not constituted between them and the superior, by reason of the provisions of sections 74 and 80 for the transfer of title, which in my opinion makes the promoter's title when statutorily completed analogous to an English freehold title, as that title has subsisted since the abolition in England of feudal tenure, they are still bound until redemption to make payment of the dues and fulfil all the obligations of the vassal just as if that relation had been constituted. Accordingly I do not think that the fact of the promoters or the company making up a statutory title and vesting themselves with all the rights which that title confers, in any way affects the obligation imposed on them by section 107, and that whether they acquire in whole or in part. But they may offer to redeem, and they may be called upon to redeem, and whenever they pay or deposit the compensation, by registering either a voluntary or a notarial discharge, they vi statuti extinguish all further liability to the superior for such dues and obligations. The superiority both as a feudal relation and as a patrimonial interest is then wiped out.
I come then to the above-mentioned general section, the provisions of which have created difficulty before, and doubtless will again, and which have justly been described as ambiguous, and to some extent even unintelligible. I admit that it is ambiguous, and on the surface unintelligible, not made the less so that it contains a patent mistake either of draughtsman, transcriber, or printer. But, notwithstanding, I cannot strain it as I am asked by the defenders to do, to override the intelligible and consistent scheme of the statute, as I have endeavoured to unfold it. Section 126 is among a number of isolated general provisions, and it is obvious that it is intended not to affect the general scheme, which is complete in itself, but to supply something awanting, to provide for some special need or fancied need. What that need, or rather fancied need, was has I think been conclusively explained by the late Lord President Inglis, then Lord Justice-Clerk, in the Monklands Railway case ( 2 Macph. 519). I refer to his Lordship's exposition of the effect which the old freehold or superiority franchise had upon the development of railway legislation in this department. This freehold franchise was abolished in 1832, and the Act in question in the Monkland case was passed so soon thereafter as 1835. It was not therefore to be wondered at that clauses, hitherto considered necessary to preserve those voting superiorities, were thoughtlessly continued in a private Act only three years later in date than this abolition. But having been thus unreflectingly continued, and probably stereotyped in the period from 1832 to 1845, while it is
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The first part of section 126, then, is unintelligible as it stands, for it is absolutely impossible to contend that “titles to be granted in manner herein mentioned” can do other than affect or diminish the right of superiority in the same. This part of the clause must therefore be held either to override all that has gone before, in which case it upsets the whole scheme of the Act, or must be taken as pro non scripto, or must be explained away. I think the only feasible explanation is equivalent to taking it as pro non scripto. But if that is necessary I wholly fail to see how the second limb of the same connected sentence can be preserved and receive effect as if it were a separate and independent provision containing an absolute and general enactment. Nor am I aided in overcoming this difficulty by the consideration that, taken as an independent and general enactment of absolute application, it is inconsistent with a comprehensive and intelligible scheme already completely dealt with in the statute as a unum quid, and that it can only be given the effect claimed for it by ignoring the condition contained in the proviso which follows it. In truth, it contains in itself an indication that the origin I have suggested is correct. The final words “nor shall the said company be bound to enter with the said superior” have some sense if the object of the whole is the conservation of a superiority voting qualification, but they are unmeaning if not ridiculous as a tag to an Act which has already abolished, except by the choice of the promoters, the feudal relation, and provided for the completing of title without any entry with or other reference to the superior.
But though I have adopted the explanation of this section given by the late Lord President Inglis, the opinion I have formed does not depend on its acceptance. It is at least a feasible explanation. No other has been offered or attempt made to reconcile its inconsistencies. Whatever be the history of section 126, it is impossible to interpret it intelligibly as a whole with reference to the law as it stood in 1845, and the situation created by the scheme already completely set forth in a definite compartment of the statute. And it is, I think, equally impossible to take some lines of it and sever these from their context, and say, taken by themselves, they are capable of an intelligible meaning, and they must receive literal effect, though to give it them should upset the general scheme of the portion of the Act in question to which they are assumed to be relative.
I venture very humbly to conclude that the whole of section 126 is a blundered addition to the statute, which can have no effect on its interpretation and application, and which though coming later in the statute cannot be strained and twisted to override a previous complete and consistent series of provisions.
Applying, then, the enactments of sections 107 to 111 to the present case, as the
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As the feu-duty is practically illusory, there is nothing in the first item, unless there had happened to accrue a casualty during the period when the dues of superiority remained unredeemed. Had, for instance, Mr Lawrie sold his property, subject to the taking by the company, and the rights acquired by them thereby, to a stranger, a composition would have been due and have become exigible by conjunction of the death of Mr Lawrie in 1874 and the passing of the Conveyancing Act of that year. But it was explained at the Bar that Mr Lawrie's property transmitted to his heir-at-law, and therefore that nothing had accrued on this head.
The second item, i.e., the compensation, has been assessed at £885. But then, on an erroneous conception of their liability, the defenders made payment of a composition of £500 in 1877, as in respect of their assumed entry, by recording their title in 1875. For this the pursuers must give credit, notwithstanding that it was paid in error in law. It was paid and accepted on an erroneous view of the rights of parties, which the pursuers now repudiate by the present claim. If so they must refund the payment made. They cannot both approbate and reprobate the error.
But in coming to the above conclusion, while I fully accept the judgment in the case of Magistrates of Elgin v. Highland Railway Company, 11 R. 950, I cannot fail to see that my opinion, though it receives support from the learned Lord Ordinary who is now one of your Lordships, is not in accordance with the views expressed by the eminent Judges in the Inner House who pronounced that judgment. The position of that case has given me much difficulty, and caused me to hesitate whether I was justified in expressing the opinion which I have formed.
The action was in the ordinary statutory form which the Conveyancing Act of 1874 provided to replace the declarator of non-entry. It was a superior's remedy, attempted to be taken where no relation of superior and vassal existed. As the Judges in the Inner House pointed out, this was the sufficient and proper answer to the action, and it would have resulted in its being dismissed, but for some reason they proceeded to deal with a plea based on section 126, to the effect that the action was excluded by that section, and to express opinions on the general interpretation and application of the Act, which, though wholly unnecessary for the judgment, as a question of competency takes precedence of a special plea in bar of the action, were the foundation of their interlocutor, which recalled the Lord Ordinary's and sustained this plea. I am precluded therefore from treating the opinions of the Court as obiter merely. But no such claim as is here in question was before the Court, and more than one of the Judges in the Inner House indicated that there might, notwithstanding their judgment, be a relation between the promoters or the company and the superior as regards a liability for money. I cannot think that the question of such liability is concluded against the superior by a judgment pronounced under such peculiar circumstances, though unquestionably it would lie on him in the circumstances to show good cause why the question should be reconsidered. With the utmost deference to the Judges who took part in the decision in the Elgin case in the Inner House, I still think that notwithstanding the decision in the second Inverness case, 1909 S.C. 943, such cause exists.
I do not think that the question is in the least affected by the first Inverness case, 20 R. 551, the decision in which is entirely in accordance with the view I have taken of the statute.
Lord Johnston's opinion practically comes to this, that there is no claim for compensation or redemption — for I think my learned brother treats these two things as the same—until it is made, and that in the intermediate period, that is to say, the time from the taking of the lands until the
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The complainers argued that the whole alteration of the position of parties took place when the lands were taken. Now I do not think that was so at all. The statute begins with the provisions for notices and so on, and then after dealing with the various ways in which notices are to be given, it provides that parties are to be called, and that parties who are not in a position to treat may be dealt with under the 74th section, which enacts (omitting unnecessary words) that on the compensation agreed on being deposited in bank, the owner of such lands shall, when required to do so by the promoters of the undertaking, duly convey such lands to the promoters of the undertaking, and in default thereof—that is to say, if he will not or cannot do so—then they are to take a notarial instrument, and when the notarial instrument has been stamped the lands are to vest absolutely in the promoters of the undertaking, which notarial instrument being registered in the register of sasines is to have the same effect as the statutory conveyance so registered. Now that seems to me to make it perfectly clear that really nothing passes until there is either a conveyance or a title made up by this notarial instrument, and I think the judgment of the Court in the Alexander case, 6 Macph. 324, makes that quite clear. In that case it seems to me that the promoters would have been entitled to possession, although they had not completed a title, if the whole matter had been ended by the service of the notices as was argued to us. Accordingly I think that case really destroys the argument for the complainers.
My view, therefore, of the whole matter comes to be, that it has been practically decided that the moment a statutory title is taken the promoters have a title independent of the superior altogether, and that it has been decided that, nowithstanding the blundering expression of section 126—for nobody can take that section as it stands, it has to be adapted whatever view is taken—there is no superior the moment his rights are taken away by the execution of the statutory conveyance. I think a right to compensation and a right to be paid a sum for redemption are separate things,
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The result of that would be that the date would be that which the Lord Ordinary has taken here, namely, that of the execution of the statutory title in 1875, and not as my Lord Johnston thinks when the claim was made. But as it happens there has been an award here, and the sum is precisely the same at whichever date you take it, and the result is the same as that at which Lord Johnston has arrived, for although the date is different, it is quite settled by the case of Caledonian Railway Co. v. Sir William Carmichael, 2 H.L. (Sc.) 56, that interest is not payable until the demand is made, and consequently interest is not payable here because the superior made no demand. The view of the House of Lords, further, is that interest can never be due unless a person is in some way in default of paying. The sum of course is that found by the arbiter. The £500 which was paid in October 1877 must be taken as a payment to account of the debt due but not demanded, and consequently the sum now payable under the decree will be the £885 minus £500, with interest upon the difference between these sums from the date of the demand in 1903.
The Court pronounced this interlocutor—
“Recal said interlocutor: Decern and ordain the defenders under the first petitory conclusion to make payment to the pursuers of the sum of £385, with interest thereon at 5 per centum per annum from the 25th day of February 1903; and further decern and ordain the defenders to make payment to the pursuers of the sum of £307, 6s. 1d. sterling, in terms of the second petitory conclusion of the summons: Find the pursuers entitled to expenses, and remit,” &c.
Counsel for Pursuers (Respondents)—Solicitor-General ( Hunter, K.C.)— Chree. Agents— Melville & Lindesay, W.S.
Counsel for Defenders (Reclaimers)— Clyde, K.C.— Blackburn, K.C.— Hon. W. Watson. Agents— Hope, Todd, & Kirk, W.S.
