Superior and Vassal – Feucontract – Railway – Access – Railway Clauses Act 1845 (8 and 9 Vict. c. 33), sec. 6
A railway company having obtained an Act enabling them to pass through certain lands, served a statutory notice to take part of a field which the proprietor was engaged in feuing. Before the notice was served the proprietor had granted a feu of part of the field as laid down on a plan referred to, ‘with free ish and entry thereto by the streets laid down on said plan, but in so far only as the same may be opened and not altered in virtue of the reserved power after mentioned,’ which reserved power was ‘full power and liberty to vary and alter the said plan or streets or roads delineated thereon, in so far as regards the ground not already feued, in such manner as they shall think fit.’ The railway was not formed for five years after this feu was granted, during which time there was an access for carts across the part of the field on which the railway was to be formed, but there was no road. When the railway was formed the vassal claimed compensation under section 6 of the Railway Clauses Consolidation Act 1875, on the ground that the operations, though they did not touch his feu, were injurious, as they cut off the existing access and prevented the superior from making the roads he was bound to make under the feucharters. Held ( dub. Lord Chancellor) ( aff. judgment of First Division) that as the superior was not bound under the feucontract to construct a road, the vassal had no claim under section 6 of the Act against the company.
Observed ( per Lord Watson) that if the vassal’s feuright had conferred a right to have the street opened up at a future date, the superior’s reservation of power to alter the feuing plan would have afforded the company no answer to the vassal’s claim for compensation.
Judges:
Lord Chancellor, Lords Blackburn, Watson, and Fitzgerald
Citations:
[1883] UKHL 536, 20 SLR 536
Links:
Jurisdiction:
Scotland
Land
Updated: 29 June 2022; Ref: scu.636761
