Scottish Court of Session Decisions

By feu-charter dated 24th March 1779 the Magistrates and Council of Edinburgh feued to Alexander Reid, mason, in Edinburgh, a piece of ground bounded on the south by Princes Street—“Declaring always that the ground lying to the south, betwixt Princes Street and the lake called the North Loch, is and shall remain in all time coming as is directed by the decreet-arbitral pronounced by Mr David Rae, advocate, dated the 19th, and registered on the Books of Council and Session the 20th days of March 1776.” By his decree-arbitral Mr Rae found (1) that what are now known as the East Princes Street Gardens should, down to the verge of the North Loch, “be kept and preserved in perpetuity as pleasure-ground,” and “remain in all time thereafter as pleasure-ground for the benefits of the inhabitants;” (2) “that the foresaid space or piece of ground so to be kept as pleasure-ground, shall be dressed up at the expense of the Town Council as soon as may be, … and in the dressing of the ground that the Magistrates and Town Council … shall be liable to no further expenses than what may necessarily arise from humouring the natural lying and situation;” and (3) that “the ground formerly occupied by the North Loch should be dressed up by forming a canal and making up the banks in a decent manner.”

The restriction thus placed on the use, by the Magistrates, of East Princes Street Gardens was recognised and enforced by various Acts of Parliament, dating from 1816 to 1889. By these Acts it was declared that it should not be competent to the Magistrates or any other person, without the sanction of an Act of Parliament obtained for the express purpose, to erect buildings opposite Princes Street eastward of the Mound, or to discharge any restrictions regarding buildings contained in any feu-right, and that unless such sanction was obtained, the whole of the ground should be used as an ornamental area in all time coming. It was further enacted, inter alia, “any one or other of the proprietors or householders within the bounds of police of the said city for the time being”

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should be entitled to enforce the above declarations and restrictions.

In 1844 the Edinburgh and Glasgow Railway Company, now represented by the North British Railway Company, built what is now known as the Waverley Station, and with the authority of Parliament constructed a line which ran through the valley between the Old and New Town of Edinburgh on the site of what was formerly the North Loch.

In 1877 the ground feued in 1779 to Alexander Reid was acquired by Donald Macgregor, who built the Royal Hotel partly on that ground.

By the North British Railway (Waverley Station, &c.) Act 1891 (54 and 55 Vict. c. 192), obtained by the railway company for the purpose of improving the Waverley Station and improving part of their line, they were authorised to acquire a limited and defined portion of the East Princes Street Gardens from the Corporation of Edinburgh for the purposes of their railway.

By section 35 of said Act, containing thirty-five sub-sections, it is enacted that “For the protection of the said Provost, Magistrates, and Council of the City and Royal Burgh of Edinburgh (hereinafter called the Corporation), the following provisions shall have effect and be binding on the company.” The section then provides for the height and width of bridges, for the interference by the company with the surface of any street, road, or public path, foi tunnel faces, retaining walls, and fences in Princes Street Gardens, for interference with sewers and drains, and for matters of a like nature. … In regard to the East Gardens, sub-section 15 provides—“The company shall not take, acquire, or use any part of East Princes Gardens except the portions batched in red by Sir Julian Goldsmid, Baronet, the Chairman of the Committee of the House of Commons, … with such additional width as may be required for the walls enclosing the land acquired, the dimensions of which shall be agreed between the company and the Corporation, or failing agreement, as may be settled by arbitration.” Sub-section 17 provides—“Any land in the East Princes Street Gardens or West Princes Street Gardens which the company may under the powers of this Act acquire from the Corporation shall be subject to the existing restrictions applicable to the ground in the said gardens formerly acquired from the Corporation, whether imposed by Act of Parliament or by agreement, and shall, subject to these restrictions, be used in the same manner as the ground between the Waverley Bridge and the Mound now held by the company may be used.” By sub-section 20 it is provided that “the Incorporation may embank and plant the said East and West Princes Street Gardens in such a manner as to effectually screen the railways of the company from observation, and the company shall pay to the Corporation all reasonable expenses which the Corporation may from time to time incur for the purpose of restoring the disturbed ground in East and West Princes Street Gardens, and for embanking and planting the railway as aforesaid.” Sub-section 21 provides that, “except as hereinafter provided, the power of compulsory acquisition of land and of extinction of rights of way or passage, conferred by the Act, shall not extend to the North Bridge,” but the company may make such alterations on the bridge as may previously be approved by the Corporation in writing. Sub-section 22 provides—“Nothing contained in this Act shall prejudice or affect the rights of servitude or other rights of the Corporation, or of the vassals of the Corporation, in virtue of their title-deeds.” Sub-section 25 provides—“All the prohibitions, limitations, and restrictions applicable to the lands to be acquired within the city of Edinburgh shall apply to any company using or entitled to use the railway constructed on such lands and sub-section 38—“Nothing in this Act shall prejudice or affect the provisions, prohibitions, limitations, and restrictions contained in any prior Act, or in any agreements entered into by and with the company affecting the lands or property acquired or to be acquired by the company from the Corporation, or the use of such lands or property.”

On the railway company proceeding to enter on and use for their works the portion of the gardens granted them by the Act, Donald Macgregor presented a note of suspension and interdict against the railway company, in which he asked that the respondents should be interdicted “from entering upon East Princes Street Gardens, and, in particular, that part thereof lying immediately to the north of the existing line of railway belonging to the respondents, or of the retaining-wall between the said line and the said gardens, and from in any way destroying or interfering with the trees or shrubs thereon, and from in any way using the same for railway purposes, or otherwise than as pleasure-ground, or contrary to the terms of the decreet-arbitral pronounced by Mr David Rae, advocate, dated 19th, and recorded in the Books of Council and Session 20th March 1776, or from altering the present state or condition thereof.”

The complainer sought interdict on three grounds—(1) He maintained that the respondents' proceedings were unauthorised by their Act of 1891. (2) He maintained that the respondents should have given him notice in terms of sections 17, 18, 83, and 84 of the Lands Clauses Consolidation Act 1845 (8 Vict. c. 19). These sections enact that when the promoters of an undertaking require to purchase land they must “give notice thereof to all the parties interested in such land,” and that the promoters must before entering on such lands either have paid or deposited in bank the purchase-money or compensation agreed or awarded to be paid “to every party having any interest in such lands.” (3) He maintained that the lands were of the nature of a commonty, and that the procedure prescribed by sections 93 to 98 of the Lands Clauses Consolidation Act 1845, viz., the convening of a meeting “of the parties entitled to

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any rights of property, or servitude, or other rights in or over such lands,” and the appointment of a committee to treat with the promoters of the undertaking for the compensation to be paid for the extinction of such rights, must be followed before the respondents were entitled to take possession of any part of the gardens.

The complainer pleaded—“(1) The respondents having no power or right to deal with the said East Princes Street Gardens in contravention of the complainer's rights therein, and being about to do so, interdict should be granted as craved. (2) The respondents' proceedings being contrary to the terms of the said decreet-arbitral and statutes, interdict should be granted as craved. (3) The respondents' proceedings being contrary to the terms of the said decreet-arbitral and statutes, and to the serious loss and damage of the complainer, interdict should be granted as craved. (4) The respondents' proceedings being unauthorised by the statute of 1891 founded on, interdict should be granted as craved. (5) The respondents not having taken the necessary steps to acquire or extinguish the complainer's rights, if it were otherwise competent for them to do so, interdict should be granted as craved.”

On 4th November 1892 the Lord Ordinary ( Low) repelled the reasons of suspension, and refused the prayer of the note.

“ Note.—[ His Lordship set forth the pursuer's title]—Therefore by virtue of his title there is a binding restriction or servitude in favour of the complainer's property over East Princes Street Gardens. He has also, under the Acts of Parliament to which I have referred, a title as a householder of Edinburgh to enforce the restriction over the gardens, but I apprehend that his right to obtain the interdict which he now asks is rested entirely upon the servitude right. …

Although the only interdict asked by the complainer in the note is an absolute and perpetual interdict, he maintained, alternatively, that he was entitled to interdict the respondents from taking possession of the lands unless and until they compensated him for the injury which his property will sustain through the execution of the works.

In support of his claim for absolute interdict the complainer founds upon section 35 of the Act of 1891, sub-sections 17, 22, 25, and 38. The most important of these sub-sections is No. 22. If the complainer is not entitled to success upon that sub-section I think that it is clear that none of the others will aid him.

Sub-section 22 is in the following terms—‘Nothing contained in this Act shall prejudice or affect the rights of servitude or other rights of the Corporation, or of the vassals of the Corporation, in virtue of their title-deeds.’

The complainer contends that although the respondents are authorised to take part of East Princes Street Gardens for their works, the sub-section which I have quoted makes it illegal for them to do so, because they cannot execute their works without extinguishing the servitude in favour of his property as regards the ground taken. In short, the complainer maintains that he and some other feuars in Princes Street in the same position are empowered absolutely to veto the undertaking authorised by the Act. It is extremely unlikely that the Legislature intended to give the complainer or any other person such a power; but as the enactment in the subsection does not bear to be limited in any way, it is necessary to consider the context and the purpose of the 35th section in order to see whether the construction put upon it by the complainer is the true one—[ His Lordship read parts of section 35 already quoted].

It is thus evident that the 35th section is not a part of the Act which confers powers upon the railway company, but that, on the contrary, it is intended to enforce certain restrictions upon the company in favour of the Corporation. I therefore cannot agree with the complainer that subsection 22 falls to be construed strictly and as rather against than in favour of the company. The argument might be quite well founded if the enabling sections of the statute were under construction, but does not, in my judgment, apply to the 35th section, which, as the counsel for the respondents put it, is truly an Act obtained by and in favour of the Magistrates incorporated in the Act obtained by the company.

If the provisions of sub-section 22 of section 35 are to be read in the sense contended for by the complainer, then that sub-section is not only repugnant to the purpose of, and the express powers conferred by other sections of the Act, but is also repugnant to the other provisions of the same section. For example, the limitation contained in sub-section 15, of the extent of the ground which the company are to be entitled to take in the gardens necessarily implies that they have power to take land there; and the provision in sub-section 20, that the power of compulsory acquisition of land shall not apply to the North Bridge, necessarily implies that they are to apply to the other lands delineated on the deposited plans, and described in the books of reference.

The case therefore stands thus—Power is given in the usual terms to the company to take land in Princes Street Gardens; but, for the protection of the Corporation, it is provided in the 35th section that they are not to take above a certain amount. Then, according to the complainer's contention, the company are absolutely prohibited from affecting certain rights of servitude, although they cannot use one foot of the ground which they are authorised to take in the gardens without to a certain extent affecting these rights of servitudes. Such a result would be so inconsistent with the whole scope and purpose, as well as with the express provisions of the statute, that effect cannot, in my judgment, be given to it if the words of the sub-section relied on are fairly susceptible of a different interpretation.”

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In my opinion, not only are the words susceptible of a different interpretation, but the expressed object of the 35th section, and the character of the provisions which its various sub-sections contain, demonstrate to my mind that the enactment in the 22nd sub-section is subject to, and operates only in so far as not inconsistent with the previous provisions of the Act.

I am therefore of opinion that the complainer is not entitled absolutely to prevent the respondents taking any part of East Princes Street Gardens.

The complainer next maintained that he was at all events entitled to interdict the respondents from entering upon the lands unless and until they had settled his claim for compensation for the injury which their works will inflict upon his property. His contention is mainly founded upon sections 17, 18, 83, and 84 of the Lands Clauses Consolidation Act of 1845.

I am of opinion that it is settled that these sections do not apply to a person in the position of the complainer— Don v. The North British Railway Company, 5 R. 972; Hammersmith, &c., Railway Company v. Brand, L.R., 4 HL 171, and especially Lord Colonsay's opinion, 206, et seq. They apply only to persons whose lands are taken, or who have an interest in the lands which are taken which the company must purchase. No part of the complainer's lands are taken, or sought to be taken, nor has he any interest in the lands which the company must purchase. The only interest which he can claim is that he is proprietor of a tenement in favour of which a negative servitude exists over the lands taken. When the company acquire these lands (which they have compulsory powers to do) the servitude is extinguished. They do not require—probably they are not entitled—to purchase the lands, and also to purchase freedom from the servitude. The owner of a dominant tenement has not an interest in the servient tenement within the meaning of the sections of the Lands Clauses Act referred to. His interest is in the dominant tenement, which the respondents do not propose and have not the power to take. Any injury which the complainer may suffer by the execution of the works is not by reason of any interest which he has in the servient tenement being taken away, but by reason of the value of the dominant tenement being depreciated. Very likely the complainer's property has been injuriously affected, and I do not suggest that he is not entitled to compensation. All that I decide is that he is not in the position contemplated by the sections of the Lands Clauses Act upon which he founds. He was not, in my judgment, entitled to notice under these sections, nor is he entitled to prevent the respondents taking possession of the lands until they have settled his claim of compensation or made a deposit by way of security.

The complainer also founded (as an alternative, I suppose, to his argument upon the 17th, 83rd, and 84th sections) upon sections 93 to 98 of the Lands Clauses Act, and argued that to entitle the respondents to take possession of any part of the Gardens they must follow the procedure provided in these sections. Now, these sections fall under the general heading, ‘And with respect to such lands as shall be of the nature of commonty, be it enacted as follows.’ The question therefore is, whether the Gardens are lands ‘of the nature of commonty.’ They certainly do not constitute a commonty within the meaning of the law of Scotland. But the complainer says that they are of the nature of commonty because he and other feuars in Princes Street have servitudes over them, and under the Acts of Parliament to which I previously referred the proprietors and householders of Edinburgh are given a title to enforce restrictions as to their use. If that view is sound, then I apprehend that the first thing which the company would require to do would be to convene a meeting of the Princes Street feuars who have servitudes, and also of the whole proprietors and householders within the police burgh of Edinburgh, for the purpose of appointing a committee to treat with the company for the compensation to be paid for the extinction of their rights. It is difficult to believe that the Legislature intended such a proceeding to be imperative in such a case as the present.

I do not think, however, that the Princes Street Gardens can in any reasonable sense be said to be lands ‘of the nature of a commonty.’ The Gardens admittedly belong in property to the Lord Provost, Magistrates, and Council, and no other person has any right of property in them, or any right to occupy or use them. The fact that a negative servitude is constituted over the Gardens in favour of certain feus in Princes Street clearly does not make them of the nature of a commonty, nor, in my judgment, does the fact that the Magistrates are restricted by Act of Parliament as to the use to which they are to put the ground, and that any householder in the burgh is given a title to insist that the restriction shall be observed. The most that can be said is that the proprietors—the sole proprietors—are by statute limited to a particular use of the lands. But lands in that position are so far from being a commonty that I do not think that by any reasonable interpretation of the words they can be said to be ‘of the nature of a commonty.’

Upon the whole matter I am of opinion that the note must be refused with expenses.”

The complainer reclaimed, and argued—1. This being a private Act of Parliament, must be construed strictly. The compulsory powers given to a railway company should be construed so as not to be extended beyond the express words of the Act or their necessary implication— Moncreiffe v. Perth Harbour Commissioners, March 9, 1843, 5 D. 879; Caledonian Railway Company v. Edinburgh and Glasgow Railway Company, December 12, 1874, 17 D. 162; Lamb v. North London Railway Company, May 3, 1869, L.R., 4 Chan. App. 522. The rights of feuars like the complainer had

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been recognised all through in the previous Acts of Parliament. Their interests had never been allowed to be interfered with. Sub-section 22 of section 35 of the present Act expressly declared that their rights were not to be prejudiced; that was a condition imposed on the railway company. 2. Even if his first argument was wrong, the complainer was entitled, as an owner of a right in this ground, to notice before the railway company entered on this ground, in terms of section 17 of the Lands Clauses Act. He was therefore at least entitled to interim interdict until he got such notice, and the compensation for the injury done to him had been deposited in bank, in terms of sections 83 and 84. A mortgagee having an equitable mortgage over certain lands by holding the titles had been held entitled to receive notice of an inquiry as to the amount of compensation to be paid for the lands under the statute— Martin v. London, Chatham, and Dover Railway Company, June 29, 1866, L.R., 1 Chan. App. 501. The complainer had a far greater interest in the present case; he had a right in the land actually taken. This distinguished his case from those quoted by the Lord Ordinary. 3. Under sections 93 to 98 of the Lands Clauses Act the railway company should have convoked a meeting of all having rights of property or servitude or other rights in or over these lands in order that compensation might be fixed for the extinction of these rights.

Argued for the respondents—1. Subsection 22 of section 35 must be read so as not to be repugnant to the Act. That sub-section meant that the rights of servitude were to be respected except in so far as they were necessarily encroached on by the carrying out of the Act. The only servitude over the ground in question was that the line of sight must not be interfered with. The ground in question was in fact not within the range of the servitude; it was part of the solum of the North Loch. 2. and 3. The opinion of the Lord Ordinary on these heads was right, and it was unnecessary to enlarge on it. His judgment should be affirmed.

At advising—