Caledonian Railway Company v Jamieson
| Jurisdiction | Scotland |
| Judgment Date | 17 November 1899 |
| Docket Number | No. 31. |
| Date | 17 November 1899 |
| Court | Court of Session |
Lord Kincairney, Lord Trayner, Lord Justice-Clerk, Lord Moncreiff.
PropertyTitle to heritageIdentification of subjectPrescriptionProofRailwayGround occupied by a railway.
In 1848 the Barrhead Railway Company constructed, under statutory powers, a colliery branch line on ground which they had purchased from the Nitshill Coal Company, but to which they obtained no disposition nor title under their statute. By statute, passed in 1849, all the railways, works, lands, tenements, and hereditaments and all rights, privileges, powers, and authorities given to or vested in the Barrhead Railway Company were transferred to or vested in the Caledonian Railway Company, and were, by subsequent statute passed in 1869, transferred to and vested in the Caledonian and the Glasgow and South-Western Railways jointly. In 1882 the Nitshill Coal Company disponed to A the ground intersected by the colliery branch line, by disposition which excepted the ground sold to the Barrhead Railway Company, for the purposes of their branch line, and now occupied by said branch line. This disposition was duly recorded. In 1898 the Caledonian and the Glasgow and South-Western Railway Companies brought a note of suspension and interdict against A to have him interdicted from encroaching on a piece of waste ground lying between the branch line and a row of cottages belonging to A, and erected on the ground disponed to him by the Nitshill Coal Company. The complainers founded on their statutes, and averred that the ground in question was part of the ground purchased by the Barrhead Railway Company from the Nitshill Coal Company in 1848, and that from that date onwards the complainers and their predecessors in the railway had had exclusive possession of the said piece of ground as their property for the purposes of their branch railway, and in virtue of and in accordance with their statutes. In defence A founded on his disposition, and denied that the piece of ground in question fell within the exception therein contained. A proof was allowed. There was nothing in the evidence as to the sale by the Nitshill Coal Company to the Barrhead Railway Company to shew the position or extent of the ground sold; but the complainers led evidence with the view of shewing that they and their predecessors in the railway had had possession of the ground in question from 1848the date of the saletill the raising of the action. The respondent led evidence with the view of shewing contrary possession by him since the date of his disposition.
The Court (aff. the judgment of Lord Kincairney) refused the note, holding (1) that the complainers had not produced a title habile to found a prescriptive right to the ground in question; (2) that the exception in the disposition to A excepted only ground now occupied by the railway, i.e., occupied in 1882, the date of the disposition; and (3) that the ground in question did not fall within the exception, and was carried by the disposition, in respect that the complainers had failed to prove that the ground was occupied by the railway in 1882.
By disposition dated 6th, 7th, and 10th, and recorded in the General Register of Sasines 15th February 1882, the Nitshill and Lesmahagow Coal Company sold to Robert Jamieson a portion of ground therein described and extending to about six acres at Nitshill, Renfrewshire, but excepting always from the said piece of ground, inter alia, a piece of ground sold to the Glasgow, Barrhead, and Neilston Direct Railway Company for purposes of a branch from their main line to the Victoria pit, and now occupied by said branch line.
The branch line mentioned in the disposition, known as the Victoria Pit Branch Railway, was constructed in 1848 by the Glasgow, Barrhead, and Neilston Direct Railway Company under statutory powers. In 1849, under the powers of the Caledonian Railway (Glasgow, Barrhead, and Neilston Direct Railway Lease) Act, 1849, the Glasgow, Barrhead, and Neilston Direct Railway, including the Victoria Pit branch, was leased to and became vested in the Caledonian Railway Company for a period of 999 years. In 1869, under the Caledonian and Glasgow and South-Western Railways (Kilmarnock Joint Line) Act, 1869, the whole property, rights, &c., of the Caledonian Company in connection with the Barrhead Railway were vested in that company and the Glasgow and South-Western Company jointly.
On 13th April 1898 the Caledonian and the Glasgow and Southwestern Railway Companies presented a note of suspension and interdict against Mr Jamieson, praying (1) to have him interdicted from entering upon the land, property, or works forming the Victoria Branch Railway, comprehended within the fences erected by the complainers or their predecessors for separating the land taken for said branch railways from the adjoining land not taken; and (2) to have him interdicted from removing, breaking down, or interfering with the fences on either side of said branch.
The question in dispute between the parties related to the property of a strip of waste ground, about 150 feet in length and of an average breadth of 6 feet, lying between the lines of the Victoria Branch Railway and a row of houses belonging to the respondent, known as the Railway Row. This strip of ground was bounded on the side nearest to the rails by an imaginary line running parallel with the rails, and about 10 feet from them. The respondent averred that a dry stone wall had at one time stood on this line, and formed the boundary between his property and that of the complainers. The strip of ground in question was bounded on the side furthest from the rails partly by the back walls of the respondent's row of houses, and in continuation thereof (after the houses ended) by a line drawn in the same direction, till it reached a public road. The complainers averred that this was the boundary between their property and that of the respondent, and that there...
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