period the railway company could not be called on to execute any additional accommodation works. No. 2. Mar. 20, 1901. Lord Duke of Fife v. Great North Lord Morris. THE following narrative is taken from the judgment of Macnaghten:-"More than forty years ago, in 1855, the Great of Scotland North of Scotland Railway Company required to purchase and take Railway Co. for the purpose of their undertaking certain lands forming part of L. Chancellor the Fife estate. The estate at the time was held under strict entail, (Halsbury). and vested in one Thomas Robertson Chaplin, as trustee for the Lord Macfourth Earl of Fife, who was then heir of entail. The usual notices naghten. were given, and the parties went to arbitration under the Lands Lord Shand. Clauses Consolidation (Scotland) Act, 1845, for the purpose of Ld. Brampton. determining the sums to be paid by the company as purchase-money for the lands permanently taken, and as compensation for all damages sustained or to be sustained by the said trustee or by the estate of the said Earl by and through the works and operations of the railway company. 'The decreet-arbitral was dated the 5th of November 1856. The arbiters found the sums payable by way of purchase-money and compensation, and enumerated certain conditions to be observed by the parties, some in favour of the company and others in favour of the trustee, and then they proceeded as follows:-We hereby repel all other claims made by the said Thomas Robertson Chaplin as trustee foresaid in the said reference, and find that the foresaid sums are in full satisfaction of all claims competent to him against the said railway company under the said reference, excepting always the obligation upon the said company to preserve the effective drainage of the lands in so far as the same may be interfered with by the construction of the works, and to keep up the works, fences, watercourses, and others, falling upon the said company under the Railway Clauses Consolidation (Scotland) Act, 1845, and keep in repair the bottoms and sides of the streams deepened below the natural level by the railway company, and also to keep the same clear in so far as affected by the railway works.' The arbiters then directed that in respect the said lands were held under the fetters of strict entail,' the trustee should execute a conveyance in favour of the railway company on payment of the sums payable for purchasemoney and compensation in accordance with the provision of the Lands Clauses Act. "The conveyance was not executed until after the death of the fourth Earl and his trustee. It bears date the 11th of August 1859. It recites the decreet-arbitral and the provision for the execution of a valid and formal conveyance' which was to be made (as expressed in that recital) under the conditions and declarations contained in the said decreet-arbitral and hereinafter mentioned.' And then after recitals from which it appeared among other things that the purchasemoney and compensation had been paid 'in terms of the said decreetarbitral and Lands Clauses Act,' the lands permanently taken were duly conveyed to the railway company under the conditions contained in the decreet-arbitral, and with the following declaration:-‘Declaring that the said railway company shall be bound and obliged to preserve the effective drainage of the lands in so far as the same may be interfered with by the railway works, and to keep up the works, fences, water-courses, and others, falling upon them under the Railway Clauses Consolidation (Scotland) Act, 1845, and protect and keep in repair the bottoms and sides of the streams deepened below the No. 2. Mar. 20, 1901. v. Great North of Scotland Railway Co. natural level by the railway company, and also to keep the same clear in so far as affected by the railway works.' "It was common ground in the argument before your Lordships that the latter part of the declaration which I have just read referring to the bottoms and sides of streams deepened below their natural level,' and the corresponding passage in the decreet-arbitral, have no application to the circumstances of the present case. It is therefore unnecessary to determine the scope and effect of the provision embodied therein. If it be anything more than the recognition of an existing statutory obligation under the Railway Clauses Act, it is at anyrate not inconsistent with anything which that Act contains." The present action was raised in 1896 by the Duke of Fife against the Great North of Scotland Railway Company, to have it declared that the company were bound to implement the terms and conditions of the disposition of 1859, and in particular the clause or condition quoted above, and that the company had failed to implement the said clause. There was also a conclusion to have the defenders ordained to execute such works as might be necessary to satisfy their obligation, and there was a conclusion for damages. The Lord Ordinary (Low) after a proof, on 6th March 1897, dismissed the action.* * "OPINION. The object of this action is to compel the defenders to implement an obligation imposed upon them by the disposition granted in their favour in 1859 by the pursuer's predecessors, of the land acquired from them by the defenders for the construction of their railway. "The first question is as to the construction of the obligation. The first part of it runs as follows: Declaring that the said railway company shall be bound and obliged to preserve the effective drainage of the lands in so far as the same may be interfered with by the railway works, and to keep up the works, fences, water-courses, and others, falling upon them under the Railway Clauses Consolidation (Scotland) Act, 1845.' It "That is a very badly-expressed sentence, because there is no proper antecedent to the words 'falling upon them.' It is plain enough that these words were intended to refer to statutory obligations upon the railway company in regard to keeping up works, fences, water-courses, and others. is not so clear, however, whether the obligation to preserve the effective drainage is also a statutory obligation, or whether it is a contractual obligation imposed by the disposition. "There is no difficulty in seeing what is the nature of the obligation in regard to drainage if it is competent to look at the decree-arbitral. "In the decree-arbitral the arbiters, after fixing the price to be paid by the defenders for the lands and for severance damage, and dealing with accommodation works, abatement of rents, public burdens, and the expenses of the proceedings, repelled all other claims made by the then proprietor of the lands, and found that the aforesaid sums are in full satisfaction of all claims competent to him against the said railway company under the said reference, excepting always the obligation upon the company to preserve the effective drainage of the lands,' and then the clause proceeds as in the disposition. "In the decree-arbitral, therefore, there is no ambiguity. What is excepted is the obligation' to preserve drainage, and keep up the fences, &c., in terms of the Railways Clauses Act, and it is plain that it was that obligation and no other which was intended to be incorporated in the disposition. "But the pursuer says that it is incompetent to look at the decreearbitral to aid in the construction of the clause in the disposition, and that The pursuer reclaimed. The First Division, on 23d November 1897, recalled the interlocu No. 2. Mar. 20, 1901. the natural interpretation of that clause is to impose upon the defenders the v. Great North obligation to do whatever is necessary in all time coming to preserve the of Scotland effective drainage of the lands. "Now, I do not think that it is incompetent to look at the decreearbitral. "The decree-arbitral and the disposition are two successive steps in the process by which the railway company exercised their statutory powers and acquired the lands, and the decree is not like negotiations or a previous agreement which the disposition superseded. I therefore do not think that it is incompetent to read the decree-arbitral in order to see what were the circumstances under which the disposition was granted, and what was the subject-matter with which it dealt. Again, it is not a question of controlling the words of the disposition. If the obligation in the disposition had been, upon a natural construction of the language used, different from the obligation in the decree-arbitral, I think that it would have been necessary to give effect to the former, either as superseding or being in addition to the obligation imposed by the decree-arbitral. But the only question here appears to me to be, to what does an ungrammatical and, if read literally, unintelligible sentence in the disposition refer? A reference to the decree-arbitral makes that clear, and shews that it refers to the obligation which had been already imposed by the decree-arbitral, and to nothing else. "The next question is, What are the obligations laid upon a railway company by the Railways Clauses Act in regard to drainage of lands interfered with by their works? I think that the only obligations are those contained in the 60th section of the Act under the heading of 'Drainage Works.' "The provision is that the company shall make, and at all times thereafter maintain, all necessary culverts and drains either over or under or by the sides of the railway, of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the making of the railway or as nearly so as may be, and such works shall be made from time to time as the railway works proceed.' "Now, it is not disputed that the defenders carried out these directions when they were constructing the railway, and it is not said that at the time the culverts and drains were not sufficient. Nor do the defenders dispute their liability to maintain the works which they made. "The pursuer's case is that the works originally made to provide for drainage are no longer sufficient, and that the defenders are bound now to do whatever is necessary to put the drainage of the lands in as good a state as it was in prior to the formation of the railway. "The question has arisen in this way. At the place in question the River Isla followed a winding course, and to save the expense of building bridges, the defenders exercised the powers conferred by the 16th section of the Railways Clauses Act and diverted the river, making it run in a new channel for a considerable distance along the railway line. Chiefly by reason of debris brought down by two streams which flow into the Isla, banks of sand and gravel have been formed across its course, and the effect has been to cause an accumulation of silt in the new channel, which has raised the surface level of the water considerably higher than it originally was. The result is that culverts and drains which when they were made had a sufficient outfall are now under water and of little use for drainage purposes. The pursuer does not say what he wants the defenders to do, but it is plain that what is required to make the drainage effective is to remove the banks which have formed across the river and clear out the new channel. Apart from the difficulty that the main bank is in the bed of the river Railway Co. tor of the Lord Ordinary, and found "that the railway works of the defenders have interfered with the drainage of the pursuer's lands so Mar. 20, 1901. that it has become ineffective, and that the defenders have failed to No. 2. Duke of Fife v. Great North of Scotland Railway Co. below the new channel, and on lands to which the defenders have no right, they contend that they are under no obligation to keep the new channel or any part of the river free of natural obstructions. "The defenders argued that the new channel was not a railway work in the sense of being one of the works authorised by their Act. As I have said, the new channel was made under the powers given by the 16th section of the Railways Clauses Act. But that Act was incorporated into the special Act, and it was by virtue of that incorporation that the defenders were able to exercise the powers contained in the general Act. Upon this point I need only refer to the judgment of Lord Cairns in regard to the analogous case of the diversion of a road in Rangeley v. Midland Railway Company, 1868, L. R., 3 Ch. App. 306. I therefore do not think the defenders can escape liability on the ground that the diversion of the Isla was not a work which they made under the authority of their Act. "But that does not greatly advance matters, because the question remains, When a railway company have altered the course of a river, what obligation are they under, if any, to maintain the new course of the river and keep it from being silted up? I do not find in the statute any obligation of any kind laid upon a railway company in regard to the diverted part of a river. I shall consider presently whether the new channel of the river is to be regarded as part of the railway,' to which the obligation in regard to drainage works in the 60th section of the Railways Clauses Act applies, but apart from that provision the statute seems to contemplate that where the course of a river is altered the new course shall simply become part of the river, and that the railway company shall have no obligations in regard to it any more than they have in regard to other parts of the river. Of course that is on the assumption that the diversion is properly executed. If the work was unskilfully or negligently done, and injury followed to adjoining lands, I apprehend that the railway company might be liable in damages at common law. "Upon the question whether the drainage provisions of the 60th section apply to the new channel of a river, there is more difficulty. The drains which the company are by that section directed to make are to be 'sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the making of the railway.' The expression 'the railway' is defined in the Act as meaning 'the railway and works by special Act authorised to be constructed.' That may mean only the works which are specified in the special Act, and not works which are only authorised by the incorporation into the special Act of the Railways Clauses Act. Further, it rather appears that the works referred to in the definition do not include all works which a railway company may make, because the expression the undertaking' is defined as meaning the railway and works of whatever description by the special Act authorised to be executed.' On the other hand, in the case of Rangeley to which I have referred, Lord Cairns said that the 16th section of the Railways Clauses Act appeared to him to shew conclusively that the diversion of the footway was part of the works authorised by the company's Act.' Further, if a company diverts a river for the purpose of making their line, there is the same reason for compelling them to restore drainage intersected by the new channel as there is for compelling them to restore drainage intersected by their line. "I do not think, however, that that is a question which it is necessary to determine in this case, because it appears that the drainage works which the defenders made when they constructed their line and the new channel were designed in view of the fact that the river, instead of following its old fulfil the obligation incumbent on them under and in terms of the disposition of 11th August 1859 to preserve the said drainage effective, and decern." * No. 2. Mar. 20, 1901. v. Great North course ran alongside the line, and were intended to preserve drainage which Railway Co. had been affected both by the new channel and by the line. "Further, I think that it is plain that the defenders cannot now be called upon to execute new works, because by the 65th section of the Act it is provided that the company shall not be compelled to make any further or additional accommodation works after five years from the opening of the railway for public use.' . "The question, therefore, comes back to this, whether the defenders are bound to clear away banks which have formed, and silt which has been deposited in the bed of the river, so as to reduce the level of the water in the new channel to what it originally was. For the reason which I have given, I do not think they are under obligation to do so. " * LORD PRESIDENT.-In constructing their railway, the Great North of Scotland Railway Company diverted the River Isla at a part of its course where it formed a bend. The new course cut the arc, so to speak, and thus saved the company from having to form two bridges. The new channel was formed alongside of the railway-the land both for it and for the railway being acquired from the Earl of Fife. From the configuration of the ground, the land at this part of the Isla was not easily drained; and the disposition, which formed the title of the railway company to the land so taken from Lord Fife, contains this clause :"Declaring that the said railway company shall be bound and obliged to preserve the effective drainage of the lands in so far as the same may be interfered with by the railway works." The present action is rested on the allegation that the works of the railway company have so interfered with the drainage of the lands that it has ceased to be effective, and the company, who are defenders, are called on to restore the drainage to a state of efficiency. Now, the Lord Ordinary's opinion contains a great deal of discussion about the statutes and about a decree-arbitral which is narrated in the disposition. In my view the first question is, what is the meaning of the obligation which is founded on? and is there any ambiguity in its terms? Unless there is such an ambiguity, I do not think that we have got anything to do with the decree-arbitral or with the statutes. Now, the obligation which I have read seems to me to be perfectly intelligible, and to contain no ambiguity at all. The company undertake to keep the drainage of the lands effective so far as their works interfere with it. There is no question which are "the lands"; they are the lands portions of which are disponed to the company (as is made clear by a reference to the immediately preceding clause). Now, the diversion of the Isla was a work which manifestly interfered with the drainage of the land which formerly drained into the old course of the Isla, and now must necessarily drain into the new course. Accordingly it is quite intelligible that the company should undertake to keep the drainage of the lands effective. In this view I cannot affect to find any difficulty in construing the clause primarily in question, and I have therefore no need to inquire whether the decree-arbitral or whether the railway statutes contain any such obligation. Whether they do or do not, there is the obligation written plain in the disposition. It is attempted, however, to perplex the clause upon which I have commented by saying that it is qualified by the words "falling upon them under the Railways Clauses Consolidation (Scotland) Act, 1845," which occur a little further on. I do not think that these words are attached to |