By the terms of a decreet-arbitral proceeding on a statutory submission between a railway company and the proprietor of lands taken for the construction of the railway, the company were taken bound to pay a certain sum as purchase-money, and to execute certain works, not including the drainage of the adjoining lands. In releasing the company from all other claims by the proprietor the decreet-arbitral excepted ‘the obligations 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, water-courses, and others falling upon the said company under the Railway Clauses Consolidation (Scotland) Act 1845.’ . .
A disposition was thereafter granted by the proprietor conveying the lands to the Railway Company, narrating, and bearing to be in terms of, the decreet-arbitral, and declaring as a positive obligation ‘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, and water-courses and others falling upon them under the Railway Clauses Consolidation (Scotland) Act 1845.’
Held ( rev. the judgment of the First Division) that the obligations in the disposition must be construed with reference to the decreet-arbitral and the statutory obligations imposed on the company, and therefore implied only a duty to maintain the drainage works originally executed within five years from the opening of the railway, as provided by the said Act (secs. 60 and 65), and excluded any demand for new works after the lapse of that period, and any question as to the sufficiency of the works originally executed.
Observed that the decreet-arbitral, by which the rights of the parties were defined and determined, was the governing instrument, and that the disposition, the main purposes of which was to confer a feudal title, was merely ancillary to, and must be disregarded so far as inconsistent with, the decreet-arbitral.
Judges:
Lord Chancellor (Halsbury), and Lords Macnaghten, Morris, Shand, and Brampton
Citations:
[1900] UKHL 630, 37 SLR 630
Links:
Jurisdiction:
Scotland
Land
Updated: 27 October 2022; Ref: scu.631499