No. 2. Mar. 20, 1901. v. Great North The defenders appealed. LORD CHANCELLOR.-In this case the pursuer raised an action with the object of compelling the railway company to keep up the works, fences, water-courses, and others, which the company were under an obligation to maintain, and to keep in repair the bottoms and sides of the streams which were deepened below the natural level by the railway company, and keep them clear in so far as they have been affected by the railway works. The main contention of the pursuer was based upon the language of a somewhat ungrammatically drawn instrument, which in the pursuer's view of its construction imposed upon the railway company the perpetual obligation not only to keep and maintain the existing water-courses and the like, but apparently to execute whatever works were necessary to drain the pursuer's lands in the neighbourhood of the railway works. or apply to the clause in question. They seem to me, in the structure of the sentence, to apply solely to the words which they immediately follow, viz.: "and to keep up the works, fences, water-courses, and others." Limited to those words, they are intelligible, although the expression is slightly inaccurate or elliptical, for it is not accurate to describe works as falling upon the company-what falls on the company being not the works but the keeping up the works. With this limited application, the reference to the Acts is good enough sense, although the expression is faulty, and the words of qualification are satisfied. With the more extended application, the construction becomes painfully difficult, for the substantive which is to be described as "falling upon the company" is the very complex one "the effective drainage of the lands in so far as the same may be interfered with by the railway works." Once this connection is assumed, the defenders proceed to make the adjective eat up the substantive, for they say that the words which I have so often quoted mean nothing more than drains," the reason being that the maintenance of drains is all that falls upon the company under the Railways Clauses Act. I regard this as an illegitimate process of construction. The question whether the words about the statute apply to the words about effective drainage is at least an open question; the words do not necessarily apply to them they do not primarily apply to them-they are satisfied without applying to them. Whether they do or do not apply to them must be determined, in part, by considering, first, what is the natural meaning of the words to which it is proposed to apply them, and then whether the epithet to be applied harmonises with or is repugnant to that meaning. If the result of that consideration be to shew that the proposed application creates a repugnancy, then it is also proved that the epithet does not apply. To make up your mind that the epithet applies, and then construe the substantive by the necessities of the adjective, is the course of reasoning adopted by the defenders, and in my judgment it is fallacious. I may add one remark on the construction of the passage in the disposition. The reference to the statutory obligations of the company seems to be introduced for the purpose of making it clear that the obligation about the effective drainage was not to come in place of the class of statutory obligations germane to that subject. This being done, the deed proceeds to lay on another obligation, which is admittedly conventional and not statutory. In the view which I take of the disposition, I have no occasion, and I do not think I have any right, to examine the decree-arbitral. I may say, however, that if the decree-arbitral be examined, the true inference seems It appears to me that before dealing with the case as appearing on this record, it is desirable to point out the state of the law as applicable to such questions. No. 2. Mar. 20, 1901. of Scotland There is no doubt that in this Act under which the railway was made, V. Great North as in most Acts of a similar character, obligations are placed upon the Railway Co. undertakers to make, keep, and maintain proper accommodation works for (among other purposes) the drainage of adjoining lands, but the obligation to keep and maintain is under the Acts limited to the keeping and maintaining of these works tales quales, and the Legislature has made proper provision for the sufficiency of such accommodation works by remitting that question to some tribunal whose determination shall be final, and has further provided in this, as in other Acts, that after a particular time no further works can be demanded by the adjoining proprietors. There does not appear in this case to be any question that the culverts and drains originally made are kept in proper repair, and it is not denied on the part of the railway company that if they were out of repair, there is a continuing obligation to keep and maintain them in proper condition. The limitation in this case is five years. The Acts were passed in the years 1846 and 1855, and, of course, unless some other obligation exists beyond that involved in the statute, and assuming that the accommodation to be that Lord Fife's trustee, Mr Chaplin, had made a claim (plus his other claims for compensation) either for money or (if the company chose to give it) for an undertaking to keep his drainage right; that the company had offered an obligation; and that the arbiters accordingly repelled his claim "excepting always the obligation," that is to say, on the footing that an obligation was granted. If the decree-arbitral meant that Mr Chaplin was to be remitted, as regards drainage, to his rights under the Railways Clauses Act, then his claim would have been repelled simpliciter, and no exception have been made of an obligation. Indeed here, as well as in the construction of the disposition, the defenders' argument is that the obligation founded on was mere superfluous words. The observation which I have made on the decree-arbitral suggests that its effect depends on the record on which it adjudges. We were told that, in fact, the claims submitted to the arbiters have been lost; and all this rather confirms one's belief in the soundness of letting the disposition tell its own story. The view which I have now presented of the case gives rise to this issue of fact-have the works of the defenders so interfered with the drainage of the pursuer's lands as to render it ineffective? It seems to me that the pursuer has succeeded in establishing his case. se.] I would propose that we should recall the Lord Ordinary's interlocutor, and find that the railway works of the defenders have interfered with the drainage of the pursuer's lands so that it has become ineffective, and that the defenders have failed to fulfil the obligation incumbent on them under and in terms of the disposition of 11th August 1859 to preserve the said drainage effective. By adopting a declaration of this kind we shall protect the defenders against the suggestion that we are enforcing against them any obligation arising out of the statutes, or from anything other than the specific conventional obligation undertaken in this particular deed. LORD ADAM, LORD M'LAREN, and LORD KINNEAR Concurred. No. 2. works were sufficient and proper at the time they were made, which in my view cannot now be disputed, there is no ground for the pursuer's contenDuke of Fife tion that the railway company are bound to execute new works. Mar. 20, 1901. v. Great North of Scotland Assuming as I do, on this part of the case, that the accommodation works Railway Co. originally executed must be held to be sufficient and proper for the purpose, it is not competent to raise again the question, which ought to have been determined within five years from the passing of the Acts. The whole purport and object of such a limitation would be defeated if it were possible to raise such questions after the limited period. The policy of the Railway Acts is to limit the period within which railway companies may exercise certain powers, e.g., the power of taking land within a limited time, and it would be very unreasonable to suppose that the Legislature had intended to cast upon them a perpetual obligation, which at the same time it deprived them of the power of fulfilling. The learned counsel who have argued on the part of the pursuer have hardly contested that this is the state of the law if the obligations on which they insist are simply to be found within the language of the Act of Parliament, but they insist that the instrument to which I have referred involves a much wider obligation, and apparently it is contended that the obligation is to keep the drainage of the lands effective so far as their works interfere with it. Now, it becomes necessary to consider what is the history of the claim on which reliance is placed. It is a deed of disposition executed in pursuance of a decreet-arbitral, and I cannot entertain a doubt that that decreet-arbitral which is recited in the disposition, and which the disposition itself refers to as dealing with a matter now in debate" is quite properly referred to by the Lord Ordinary as expounding what is the extent and meaning of the language of the disposition. This is not a question of attempting to alter or qualify a deed by matter external of the deed itself, but it is in truth an exposition by the very deed itself of what was its bearing and intention. Now, the decreet-arbitral, in pursuance of one direction of which this deed was executed, was a proceeding under 8 and 9 Vict. c. 19. The matter remitted in pursuance of the statute was, what sum should be paid in respect of the land which the railway company were taking under the powers of the Act. Of course where portions of land adjoining the railway or intended railway were being taken, the question of what accommodation works were to be executed by the company would naturally and justly affect the amount which the company were called upon to pay, and in the decreet-arbitral now in question certain accommodation works (not, however, including drainage works) are recited as being part of the obligations undertaken by the company. Those who drew the decreet-arbitral when they were in ordinary form releasing the railway company from anything further than the payment of the purchase-money and the execution of the works, appear to have been struck by the generality of the language whereby the railway company were to be released, and by way of caution they inserted a parenthetic exception pointing out that this general release was not to operate to relieve the company from such statutory obligations as by law they were already under. No. 2. Mar. 20, 1901. Notwithstanding the generality of the language, I cannot think that such an exception was necessary. The arbiters would have no authority to override the Act of Parliament, and as I have said, drainage was not a matter Duke of Fife dealt with by the arbiters themselves, and indeed under the circumstances v. Great North I doubt if they would have had authority to do so. The framers of the disposition in endeavouring to give effect to the decreet-arbitral inverted the mode in which the rights of the railway company were to be preserved as well as the rights of the adjoining proprietors, and put into the disposition as a positive obligation what had only been preserved in the decreet-arbitral itself by way of exception. But it seems to me that this can make no difference in the operation of the deed. It is manifest that what was intended was to draw a deed in pursuance of the directions of the decreet-arbitral, and I entirely agree with the Lord Ordinary that, reading the two instruments together, it is impossible to doubt what is the meaning and intention of the deed itself. In my view, this disposes of the case, because, though questions of fact have been entered into, if the obligation founded on them is limited in the way which I have suggested, there is no fact in proof which establishes that the railway company have not fulfilled their obligations, and to my mind it would be a very serious thing indeed if, many years after the railway had been constructed, it could be contended that entirely new obligations could be created so that questions which ought to have been determined at the formation of the railway should be raised many years afterwards when circumstances, and indeed the natural conditions of the soil or the flow of the river, might have entirely changed. I do not think it necessary to enter into the question of whether or not the complete diversion of a stream, or a portion of a stream, would carry with it, apart from any specific directions of the statute, any obligation in respect of the drainage of adjoining lands. Prima facie, one would suppose that a section authorising a diversion should itself provide for the conditions under which such a diversion was authorised, and if not provided for the rights and incidents of the diverted portion of the stream would carry with it the same rights and incidents as existed in the original portion of the stream diverted. But I say that in this case that question does not appear to me to arise, because in either event it either was or was not a condition of things which required the execution of drainage works. If it did, they should have been executed within the five years; if they did not, no subsequent action by anyone but the railway company themselves could cast upon them a new obligation. As to the matters of fact with which the Lord Ordinary has dealt, both in respect of the nature of the action now raised, and in respect of the proper parties to be called if some action other than the present one were in debate, I am in entire agreement with his Lordship, and I have nothing to add to what he has said. For these reasons I move your Lordships that the interlocutor appealed against be reversed, that the judgment of the Lord Ordinary be restored, and that the respondent do pay to the appellants the costs both here and below. LORD MACNAGHTEN.-(After the narrative above quoted)—The interlocu of Scotland Railway Co. No. 2. Mar. 20, 1901. V. Great North of Scotland tors under appeal are founded entirely on the opening words of the declaration, to the effect that "the said railway company shall be bound and Duke of Fife obliged to preserve the effective drainage of the lands so far as the same may be interfered with by the railway works." Taking those words by Railway Co. themselves without attending to the context, and excluding altogether from their consideration both the terms of the decreet-arbitral and the provisions of the Railway Clauses (Scotland) Act, 1845, the learned Judges of the First Division hold that the obligation upon the railway company is "perfectly intelligible." They construe it as unlimited in extent. "There is the obligation," they say, "written plain in the disposition"; there is no need to inquire whether the decreet-arbitral or the Railway Clauses Act contains any such obligation; the Court has nothing to do with the Act or the award. Such being the view of the Court, the finding in the interlocutor of 23d November 1897 was that the railway works had interfered with the drainage of the pursuer's land, and that the defenders had failed to fulfil the obligation incumbent on them under and in terms of the disposition of the 11th of August 1859 to preserve the drainage effective. On the 21st of June 1898 the Court made a remit to a civil engineer to report what works were necessary to render the drainage effective. A report has been made recommending works outside the property of the railway company, the cost of which is said to be estimated by the company's engineers at £4000. Now, the first observation which occurs to one in reference to the interlocutors under appeal is that if the railway company have indeed undertaken the obligation which the learned Judges of the First Division fasten upon them, they have taken upon themselves a burden from which the Railway Clauses Act expressly and in terms protects railway companies. Section 65 of that Act provides that the promoters shall not be compelled to make any further or additional accommodation works for the use of adjoining owners after the expiration of the prescribed period, or if no period be prescribed, after five years from the opening of the railway for public use. In the present case, many years after the statutory period has expired, the Court orders the appellants to make further and additional accommodation works, involving a present outlay of large amount and an indefinite liability in the future, while there is nothing in the conveyance or in the decreet-arbitral or in the evidence to suggest that the railway company ever dreamed of waiving the benefit of section 65, or were ever asked to make so foolish a sacrifice. Then comes the question, has the Court of Session rightly construed the obligation on the part of the railway company, and are they right in shutting their eyes to the Railway Clauses Act and the decreet-arbitral? I think not. The decreet-arbitral and the conveyance are both parts of one and the same transaction. The governing instrument is the decreet-arbitral. The conveyance was executed in obedience to the directions contained in it. The conveyance was necessary for the purpose of constituting a valid feudal title to the lands taken permanently, but for no other purpose. The obligations imposed upon the company by the decreet-arbitral, or rather I should say recognised therein as being incumbent upon the company, do not derive their validity or gain any additional force from being "mentioned" in the |