assume that the case of Macandrew did apply, and asked them to consider whether the pursuer had used all reasonable precautions in emerging from the side street. The jury's verdict shews that they considered that the pursuer had exercised proper care in coming out of Saltoun Street.

abnormal conditions under which the tramway 2nd Div. car was driven that the accident took place. I M'Allester am therefore of opinion that the jury were right Corporain holding that the defenders had not proved Glasgow. that the pursuer had been guilty of contributory negligence.

The last case referred to was that of Radley (1 A.C. 754), which was explained by Lord President Dunedin in the case of Mitchell (1909 S.C. at p. 749). Assuming contributory negligence on the part of the pursuer, I am of opinion that the driver of the tramway car had time and opportunity to obviate the consequences thereof, and that accordingly he alone was to blame for the accident. There was time for the driver of the tramway car, after the pursuer had placed himself in jeopardy, either to warn the pursuer, to slacken the speed of his car, or, if necessary, to stop his car altogether. He did none of these things, and the doing of one of them would, in all probability, have prevented the accident.

Counsel for Pursuer, Watt, K.C., D. Jamieson ;
Agents, Manson & Turner Macfarlane, W.S.-
Counsel for Defenders, Wilson, K.C., M. P. Fraser ;
Agents, Simpson & Marwick, W.S. D. O. D.

FIRST DIVISION.

The next case to be considered is that of Fraser (10 R. 264). This case, as I read it, lays down no general principle as to contributory negligence. In particular it does not affirm that it is necessarily negligent to cross in front of an approaching vehicle. Fraser was decided as it was because of the particular act of negligence committed by the injured boy. He made to cross a distance of 17 feet while the approaching car was only five or six yards from the place where he was knocked down by the horses. The opinions of the Lord President, Lord Mure, and Lord Shand make it plain that they were deciding the case on these special facts. Thus Lord Mure says: "There are two points to be considered-first, the distance the boy had to go after he left the pavement; and, second, the distance the car was from the point at which he attempted to cross at the time he left the pavement." And Lord Shand says: "The short distance which the car had to travel before it reached the place where the boy left the footpath and tried to cross is a most material circumstance." There is nothing in the opinions of the judges of the majority or in the decision in the case which is inconsistent with Lord Fraser's general statement: "In itself it cannot be held to be rashness to cross a street in front of an advancing carriage. It must depend upon the 73. The North British Railway Company distance from the carriage whether it would be safe and proper, or foolhardy and rash, to make the attempt." common sense, and also good law, which should never be divorced from common sense. We know that damages are frequently awarded in cases of this description, and we were informed that only the other day, in a case against the Musselburgh Tramways Co., not reported, the Extra Division, in a case where the facts closely resembled those of the present case, found that the driver of the crossing vehicle was not in fault, but that the sole cause of the accident was the negligence of the driver of the tramway car.

(The Lord President, Lords Johnston and
Skerrington.)

16th March 1917.

v. Birrell.

That seems to me to be sound | I. Railway - Superfluous lands - Pre-emption — Lands

Clauses Consolidation (Scotland) Act 1845 (8 Vict.
cap. 19), sections 120-123-North British Railway Act
1913 (3 & 4 Geo. V. cap. lxxxix.), section 41-Statute of
1913 providing that railway company should not be
bound to sell lands not immediately required for
railway purposes, but should be entitled to retain,
hold, or use, or to lease or otherwise dispose of them
as they thought fit-Company proposing to let such
lands with power to lessee to sink a coal-pit-Held
(diss. The Lord President) that the right of pre-
emption conferred by the Act of 1845 upon the
proprietor from whom superfluous lands had been
acquired was not taken away by the Act of 1913,
and that a singular successor of the proprietor was
entitled to object to the proposed use of the lands.

The question of the conduct of the injured II. Process-Declarator-Negative declarator-Action by

person seems thus to be a jury question, and
the decision of the jury ought to stand unless it
be shewn that, in the language of Lord Fraser,
the attempt to cross was a "foolhardy and rash"
act. There must always be calculation in cross-
ing a street and sometimes miscalculation, but
whether, in the latter case, there is negligence
in the sense of the law of reparation depends on
the particular circumstances of the case.
In the
present case my opinion is that the pursuer took
reasonable precautions for his own safety, and
it was because his calculations were upset by the

railway company concluding for declarator that
the defender had no right or title to object to the
company letting the lands for certain purposes-
Opinion (per Lord Johnston) that the action was
incompetent.

(Reported ante, 1916, 1 S.L.T. 46.)

Reclaiming Note against an Interlocutor of
Lord Cullen.

The North British Railway Co. and the Fife
Coal Co. Ltd. raised an action against Alexander

tion of

March 6,

1917.

The averments of the parties and the relevant statutory provisions sufficiently appear from the the opinions of the judges of the First Division (infra).

On 18th December 1915 the Lord Ordinary (Cullen) found, declared, and decerned in terms of the conclusions of the summons.

The Defender reclaimed, and the case was heard before the First Division on 20th and 21st February 1917.

On 16th March 1917 the Court recalled the interlocutor of the Lord Ordinary and dismissed the action.

Lord Skerrington.-The pursuers' written pleadings are confused and obscure, but not I think to such a degree as to necessitate the dismissal of the action as wholly irrelevant. It will, however, conduce to clearness if I state in my own words, and in their logical order, the propositions in fact and in law which, if I rightly understood the speeches of the pursuers' counsel, they wish us to affirm, and the affirmance of each and all of which is, in my judgment, a condition of the pursuers' success in the action. These propositions are three in number, viz.: First, that certain lands acquired by the pursuers the North British Railway Co., and not immediately required for the purposes of their undertaking, are adjoining or near to railways or stations belonging to that company, and are therefore lands to which section 41 of the North British Railway Act 1913 applies. Second, that this section takes away from the defender any right of pre-emption with respect to these lands which may previously have been vested in him, by virtue of section 121 of the Lands Clauses Con

Counsel for the Defender cited the following authorities: Lands Clauses Consolidation (Scotland) Act 1845 (8 Vict. cap. 19), sections 120 to 123, and preamble to section 120; North British Railway Act 1913 (3 & 4 Geo. V. cap. lxxxix.), section 41; Rankine on Land-Ownership, p.113; Seafield Dock and Railway Act 1883 (46 & 47 Vict. cap. cii.), section 2; The North British Railway Company Act 1895 (57 & 58 Vict. cap. cli.), section 38; The North British Railway (General Powers) Act 1902 (2 Edw. VII. cap. cxl.), section 12; The North British Rail-solidation (Scotland) Act 1845; and third, that way (General Powers) Order Confirmation Act 1904 (4 Edw. VII. cap. cxxxiv.), section 22; Stewart v. Highland Railway Co., 1889, 16 R. 580; Macfie v. Callander and Oban Railway Co., 1897, 24 R. 1156; 1898, 25 R. (H.L.) 19; London and South-Western Railway Co. v. Blackmore, 1870, L.R., 4 H.L. 610; Lord Carington v. Wycombe Railway Co., 1868, L.R., 3 Ch. 377; Lord Beauchamp v. Great Western Railway Co., 1868, L.R., 3 Ch. 745; Rangeley v. Midland Railway Co., 1868, L.R., 3 Ch. 306; Great Western Railway Co. v. May, 1874, L.R., 7 H.L. 283; Foster v. London, Chatham, and Dover Railway Co., [1895] 1 Q.B. 711; Cooper & Wood v. North British Railway Co., 1863, 1 M. 499; Llanelly Railway and Dock Co. v. London and North-Western Railway Co., 1875, L.R., 7 H.L. 550; Maule v. Moncrieffe, 1846, 5 Bell's App. 333; Bostock v. North Staffordshire Railway Co., 1852, 5 De G. & Sm. 584; Countess of Rothes v. Kirkcaldy Waterworks Commissioners, 1882, 9 R. (H.L.) 108; Betts v. Great Eastern Railway Co., 1878, 3 Ex. D. 182; Hooper v. Bourne, 1880, 5 A.C. 1.

Counsel for the Pursuers cited the following additional authorities: The Railway Clauses Act 1863 (26 & 27 Vict. cap. 92), sections 38 and 39; Hobbs v. Midland Railway Co., 1882, 20 Ch. D. 418; Attorney-General v. Pontypridd Urban District Council, [1905] 2 Ch. 441; AttorneyGeneral v. North-Eastern Railway Co., [1906] 2 Ch. 675; Smith v. Smith, 1868, L.R., 3 Ex. 282; In re Duffy, [1897] 1 I.R. 307; Tennent v. Magistrates of Partick, 1894, 21 R. 735.

Avizandum, 21st February 1917.

the defender has no right or title to prevent the pursuers the North British Railway Co. from alienating these lands as and how they think fit, either temporarily by a lease, or permanently by an absolute sale and conveyance. The defender does not claim to be a shareholder of the railway company, and accordingly it is not necessary to consider whether the lease which the latter has agreed to grant in favour of the pursuers the Fife Coal Co. is one to which a shareholder could object as being ultra vires of the railway company. It appears from the Lord Ordinary's note that one of the grounds on which the defence was rested in the Outer House was a supposed contract entitling the defender to object to the proposed transaction, but in his speech to us the defender's senior counsel stated that he abandoned this contention, and that, founding on section 121 of the Act of 1845, he rested his defence exclusively upon his client's possession of a right of pre-emption which would or might be prejudiced by the proposed lease. It has been decided in England, in cases governed by the corresponding section of the Lands Clauses Act, that if a railway company purports to convey away lands acquired for the purposes of its undertaking, any person who has a statutory right of pre-emption may have the conveyance set aside, and may restrain the railway company from selling them until it has first offered them, as enjoined by the statute, to the persons vested with the right of pre-emption (London and South-Western Railway Co. v. Blackmore, 1870, L.R., 4 E. & I. App. 610; Hobbs v. Midland Railway Co., 1882, 20 Ch. D. 418). The pursuers' counsel, on the other hand, while primarily

[Scots Law Times, May 5, 1917.

maintaining that the defender has no right of pre-emption, did not admit that their clients could succeed only by negativing any such right. They argued that by section 41 of the North British Railway Act 1913 the railway company had express power conferred upon it to lease the lands referred to in the summons (which was all that it proposed to do), and that, as one of the purposes of the proposed lease was to lay down lines and sidings connecting the public railway with a pit to be sunk on the ground in question, it sufficiently appeared that the lease would further the purposes of the railway company's undertaking. I do not think it possible to express any opinion upon this contention, without having much fuller information than is to be found in the pleadings in regard to the character and particularly the duration of the contemplated lease. A lease for a long or an indefinite period may amount to an alienation. The pursuers have brought the defender into Court with a negative declarator intended to shut his mouth in all time coming, and it therefore behoves them to make it perfectly clear that in no possible circumstances can the defender have any right of objection. Having regard to the manner in which the pursuers have chosen to present their case, I do not think that they can obtain any measure of success in this action except by establishing an absolute right on the part of the railway company in a question with the defender to alienate the subjects as and how it pleases, either temporarily or permanently, and this they can do only by negativing any right of preemption on his part. With some hesitation I have come to think that the present action may be utilised for the purpose of deciding this question. The point is one of some general interest and importance, because clauses similar to section 41 have of recent years begun to appear in private railway Acts. Another question which was alluded to at the debate, although not argued, was whether the "undertaking," the requirements of which must be kept in view in considering whether the lands are superfluous, is that of the North British Railway Co. as it now stands, or that of a smaller railway company (now amalgamated with it) which originally acquired the subjects by compulsory purchase, or that of a still earlier dock and railway company. The defender has no pleas bearing on this question, and the case was argued by both sides on the footing that the only "undertaking" to be considered is that of the present North British Railway Co.

Co. V.

1917.

that the Lord Ordinary was mistaken in his 1ST DIV.
statement to the effect that this point had been The North
conceded by the defender's counsel, and the latter British
insisted upon it in their argument before us. Railway
While I doubt whether there is any substance Birrell.
in the objection, it was the duty of the pursuers March 16,
in framing their record to give an intelligible
description under reference to the titles and
plans of the precise position of the ground in
relation to the North British Railway.
As they
have not taken the trouble to do this, they
cannot expect a judgment to be given in their
favour de plano, but they are entitled to a proof
in the absence of any demand by the defender
for further specification. On the other hand,
without awaiting the result of a proof on this
point, the defender maintains that, even if he is
wrong on the facts, he is right in his law, because
section 41 of the 1913 Act does not have the
effect attributed to it by the pursuers, and does
not prejudice his right of pre-emption. I am of
opinion that this contention is well founded,
and that the action ought to be dismissed as
irrelevant.

The argument of the pursuers' counsel as to
the construction of section 41 of the 1913 Act is
very simple and intelligible. The section enacts
that the North British Railway Co. "shall not be
required to sell or dispose of any lands acquired
by the company adjoining or near to its railways
or stations and which are not immediately re-
quired" for the purposes of its undertaking, "but
may retain, hold, or use, or may lease or otherwise
dispose of the same in consideration of such rent
or on other such terms as the company
may think fit." Counsel pointed to the power
to lease which is quite general and is not limited
to leases of ordinary duration. They further
pointed to the power to "dispose of " the subjects
which is not merely perfectly general, but which,
according to the argument, is framed so as to
exclude any right of pre-emption, because the
"terms" are to be such as the company may
think fit, and not such as an arbiter, acting in
pursuance of section 123 of the Act of 1845, may
determine. In construing the section, however,
it is necessary to keep in view the whole of it,
including the part which defines its application.
The first point to notice is that the section
applies only to ground in the vicinity of railways
or stations, a kind of property which is unlikely
to become superfluous in the legal sense, even if
the ground has for many years stood vacant or
has been temporarily used for non-railway
purposes. Accordingly, one would expect that
As I have already indicated, the first question a section conferring "further powers" with
which has to be disposed of is one of fact, viz. respect to ground so situated, would be framed
Whether (there being no station in the vicinity) so as to include all such ground not actually used
the land referred to in the summons adjoins or for railway purposes, irrespective of whether any
is near to the North British Railway. The pur- particular parcel ought to be described on the
suers have a bare averment to that effect at the one hand as superfluous," or as "not required
end of Condescendence 3, and the defender's for the purposes of the undertaking," according
denial is equally general. It was explained to the phraseology of the Lands Clauses Acts, or,

The North

Railway

1917.

1ST DIV. on the other hand, as land which "would in all probability become necessary within a reasonable British time"-to quote the words of Lord Watson in Co. v. Macfie v. Callander and Oban Railway Co. (1898, Birrell. 25 R. (H.L.) 20). This anticipation is fulMarch 16, filled by the language of the section which departs from that of the Lands Clauses Acts, by the introduction of a new phrase "lands not immediately required for the purposes of the undertaking." In short, the object of the section is to relieve the railway company from the delicate and anxious duty of having periodically to decide (under the penalty of forfeiture in case of error) whether any, and if so, which of the company's lands in the vicinity of its railways or stations must be regarded and treated as superfluous. To limit its application to lands which can be proved to be superfluous to the satisfaction of the solicitor of an intending lessee, would deprive the section of most of its utility. These substantial considerations outweigh any inference from the peculiar structure of the operative part of the section, which might suggest that, as the release from the obligation to sell can apply only to lands which are, in fact, superfluous, the grant of further powers which follows thereon must be limited in the same way. The construction which I adopt as the right one also commends itself to the pursuers, as they aver (Condescendence 3) that the ground proposed to be leased is likely to be required for the purposes of the undertaking of the North British Railway Co."

for railway purposes, than was possible at a
time when its hands were tied by the fear of a
challenge founded upon section 120 of the Act
of 1845. It is true that the power of disposal
conferred in the concluding words of the section
is expressed in very general language, but it
might equally well be argued that the generality
of the word
""
"use
authorises the company to
utilise the land for purposes inconsistent with
its statutory constitution. The language of the
section seems to me to savour more of manage-
ment than of a drastic re-writing of the law of
ultra vires. Counsel for the pursuers suggested
that unless the power of disposal is construed in
an absolutely unlimited sense, the words con-
ferring the power are rendered meaningless,
because in that view they add nothing to the
previously conferred power to use and lease.
That is not so. Without itself making use of
the land, and without giving a lease (which
implies an exclusive right of possession), a railway
company might find it convenient to authorise a
trader to make use of the ground for a certain
time, and that upon "terms" which might or
might not include the payment of a "rent."

I have somewhat laboured the case of land which, though not immediately required for the purposes of the railway, will certainly come to be so required in the future, in order to demonstrate that the operative words of section 41 do not necessarily bear the absolutely unrestricted meaning attributed to them by the pursuers. The next question is whether the same words must necessarily be construed as authorising the railway company to alienate its superfluous lands without regard to the rights of pre-emption created by section 121 of the Act of 1845. I cannot think so. The "further powers" are conferred with reference to lands which are not immediately required for the purposes of the railway. These powers seem to me to have no application to land which is being alienated absolutely and permanently for no other reason

If I am right in supposing that section 41 of the Act of 1913 applies to all lands not immediately required for the purposes of the railway, including land which will certainly be so required in a few years, it is difficult to come to the conclusion that the section authorises the company to sell such land out and out if it should happen at any time to be in need of ready money. Hitherto it has been a fundamental rule of railway law that land which is certainly or probably required for the purposes of the under-except that it is not and never will be required taking cannot be alienated. As the Lord President (Robertson) said in the case of Macfie (24 R. 1169), already referred to, "directors can only sell land not required for the company's purposes." I cannot believe that this salutary rule has been incidentally repealed as regards the North British Railway Co. by a section the primary purpose of which was to encourage the company to retain and not to alienate such of its property as might possibly be useful with a view to future developments. For this purpose it was necessary to abolish a forfeiture which Parliament probably regarded as somewhat unfair and out of place in the case of ground adjoining or near to a railway or station. It was at the same time very natural to enact that the railway company should in future have a much freer hand in regard to the management of such of its lands as were not immediately required

for any such purpose. Even if the clause were ambiguous as regards the lands to which it applies, it ought not, unless any other construction is inadmissible, to be interpreted so as to take away a valuable patrimonial right of preemption from persons who received no notice that any such legislation was in prospect. It is no doubt true that persons in this position lost the benefit arising from a possible forfeiture in consequence of what is in substance a repeal of section 120 of the Act of 1845, but although section 41 of the 1913 Act does not expressly refer to the forfeiture of superfluous lands, it necessarily and unambiguously excludes it by repealing the duty for the breach of which forfeiture had previously been the penalty. On the other hand, as I have tried to prove, the operative words of section 41 are satisfied and fulfil a useful function, if we construe them as

Railway

1917.

enlarging the company's powers of management or C. his lawful child, where they respectively 1st Div. with reference to lands the ultimate destination are laying claim to that relationship. It has not The North of which is uncertain, in respect that the company been extended further. But to allow such a British is neither applying them to the purposes of its form of action in these cases is a manifest neces- co undertaking nor selling them as superfluous. sity. Upon the relationship immediate duties Birrell. The view of the Lord Ordinary is that a repeal and rights and prospective claims depend, and March 16, of section 120 of the Act of 1845 necessarily, or some of these are such that in the interest of at least prima facie and naturally, implies a society, and even of morality, they call for repeal of section 121. This is a very simple immediate determination, while some of them ground of judgment, though, if I remember right, are such that they emerge only on death and little or nothing was said in support of it at the affect succession, when to postpone the deterdebate. If the words "any such superfluous mination of the question of status on which lands" near the beginning of section 121 ought they depend might inflict injury on the preto be limited to such lands only as possess every deceasing party and lead to possible injustice one of the qualities mentioned in section 120, by loss of evidence, etc. The adoption of the including liability to forfeiture, if "remaining form of declarator of putting to silence is not unsold "at a certain date, then the Lord Ordinary only a well-recognised practice in these cases, is clearly right. On the other hand, it seems to but is a convenient and effective method for me more natural to construe these words in the disposing of a particular class of questions which same way as they fall to be construed when call for immediate solution. occurring in section 120, viz. as referring back to the preamble, which mentions lands acquired by the promoters of the undertaking under the provisions of any Act, but not "required for the purposes thereof." The distinction between lands required for the purposes of the undertaking (which lands the railway company cannot alienate) and superfluous lands (which it can alienate if it elects to do so and takes the legal method) is, in my opinion, fundamental and perpetual.

I have already explained my reasons for thinking that the present action must be dealt with on the footing that it fails, unless the pursuers can succeed in negativing any right of pre-emption on the part of the defender, however remote may be the date at which that right might become operative. I have also stated the judgment which I advise your Lordships to

pronounce.

Lord Johnston. This summons, as laid, is, I think, incompetent; but if not, the statement on which it is based is of more than doubtful sufficiency, and therefore of more than doubtful relevancy. It is just one of those cases in which it is very difficult to separate competency and relevancy, and in which, in judging of the competency, one cannot altogether confine attention to the summons, but must take the summons in relation to its condescendence. The result, however, in my opinion, leaves the question one of competency.

The form of the summons is a negative declarator, and the draughtsman appears to have had in mind to adapt the form of action for putting to silence in a novel and, I think, unprecedented manner, for which no authority was cited. So far as I am aware, the action of putting to silence has never in practice been allowed except in relation to questions of status; thus A. may bring an action during his lifetime to have it declared that B. is not his lawful wife,

I do not think that it is any exception to the
above general rule that a negative declaratory
conclusion is occasionally adopted as an intro-
duction to a conclusion for interdict where
the interdict is not a summary Bill Chamber
process, but sought in the ordinary Court in
the form of declarator and interdict. Declarator
is there used to clear the way to interdict,
where the question of right is too uncertain
to justify the complainer taking the risk of
damages for wrongous interdict, if he proceeds
summarily in the Bill Chamber. The declarator
is then not a separate action or bare declarator,
but an ancillary conclusion in an action of
interdict. We are dealing here with a bare
negative declarator unaccompanied by any
operative conclusion.

Here the pursuers seek to borrow the form of
declarator of putting to silence, and to apply it
in order to expiscate their own right and title
to utilise a piece of land in a particular way, by
having it declared merely that the defender has
no right to prevent them. They do not seek to
have it declared what their right in relation to
the land is, in positive terms apposite to their
claim to deal with it, but simply to have it
declared negatively that the defender has no
right or title to object, or prevent them dealing
with it, the particulars of their proposed mode
of dealing with it being set out in a very general
way indeed.
A more inconvenient mode of
raising a question could not well be devised, and
I do not wonder that it is unprecedented.

The pursuers are the North British Railway
Co. and the Fife Coal Co. The former are said
to be the owners of a certain block of land, and
this the latter are said to intend to lease, but
they have at present no contractual relations
with the former, and no right in the land what-
ever. The conclusion in more detail is that
declarator should go forth that the defender has
no right to object to or prevent the pursuers
the North British Railway Co. letting to the