was held to be legitimately claimable.

That was a case in which

the owner of the land, having his land adjoining what was, before the passing of the Act for making the railway, a public road, with a gate that let him out into the public road, was by the making of the railway deprived of that road, and his gate was a gate up in the air, so to say. It was of no use to him-and therefore he was materially damaged. These were all cases of special and peculiar injury. It was the same in a case which was before me, and I think Lord Truro also, of a tunnel that was being made close adjoining a public-house where deposits of wine and beer were kept -the proprietors of the house were damaged by the making of this tunnel. That was a personal and private injury to the land, and consequently, to the owner of the land.

Upon the merits of this case, therefore, I confess that I entertain no doubts whatever. I should have had more hesitation in moving your Lordships to decide at once against the decision of the Court. of Session without hearing the reply, were it not that it is clear to my mind that in the case now under your Lordships' consideration, the learned Judges, though apparently unanimous, were not really so; and that they acted in the way in which they did act because a former case, namely, Cowan's case, bound them, very legitimately, to decide in conformity with what had been decided before: Lord CUNINGHAME saying that the only reason that he decided in the way that he did was, that his views, which had been very clearly expressed against the doctrine in Cowan's case, had been overruled, and that he felt himself bound to defer to the decision which was pronounced in that case. The learned Judges seem, I think, to have very much distrusted the accuracy of the former decision, but they held themselves bound by it. I must say that in the doubts which were expressed by Lord CUNINGHAME I entirely concur; I feel no hesitation in saying that the view then taken was inconsistent with all the string of authorities, to which there is no exception whatever in this country, and which are founded upon principles as applicable to the law of Scotland as to the law of England.

My Lords, that would dispose of the case, were it not that two or three points having the character of points of form, have been raised, with which it becomes necessary to deal-though there is nothing in them which precludes your Lordships from doing justice to the merits of the case. There have been three points raised. In the first place, it is said that this question is not open to your Lordships at all; for that by the Act of Parliament (1) the decision of the sheriff is made absolute and final, subject to no review whatever. The language of the 139th section of the Lands Clauses Consolidation [Act] is “such judgment shall in no case be subject (1) The Lands Clauses Consolidation Act, 8 & 9 Vict. c. 19.

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to review by suspension, or advocation, or by reduction upon any CALEDONIAN ground whatever." It is impossible that the Legislature could have meant literally that nothing should ever enable you to question a judgment of this sort by the sheriff. Suppose the sheriff's judgment had been, that for the value of the land they (1) assessed 100l., and because the Railway Company had damaged a house they assessed 1,000l. more. That would be absurd. What jurisdiction had they to assess any value for the house? It would be clear that in that case they would be doing something ultra vires, and I never can believe that that clause can be meant to apply to cases where, on the face of the proceeding, the jury are doing something that they have no authority whatsoever to do. In the first place it may be observed that if this section is construed quite literally, it only applies to cases where there has been originally a proceeding before the sheriff substitute, and that proceeding has been taken by appeal before the sheriff. Those are the only cases in which the "judgment shall in no case be subject to review by suspension, or advocation, or by reduction on any ground whatever." I should, however, be loth to take so narrow a ground as that, because I think, even in the case which I have supposed, if the directions of that clause had been strictly complied with, and there had been a proceeding first before the sheriff substitute, taken then before the sheriff, and the sheriff had made his judgment, if it appeared upon the face of it that he was adjudicating upon something which he was not authorized to adjudicate upon, this section never could be said to have the effect of ousting the jurisdiction of some Court or other to set that matter right.

Then, the next objection is this: that this error assuming it to be an error, was acquiesced in. Now, my Lords, it is a very well known rule of all Courts, that persons do not give jurisdiction as it were-do not enable tribunals to pronounce judgments, only because such persons do not properly object in matters in which it is the duty of the Court itself to see whether it has or has not jurisdiction. I do not look into all that passed before the sheriff, for that is not properly before us; but, upon looking at the proceedings which are before us, it is very doubtful in what mode this Company could have taken an objection to the proceedings. For it is to be observed that the first claim is made in November, 1845, by the respondent, Mr. Ogilvy, in which he seeks compensation under five different heads: First, the value of his land; secondly, compensation for severance; thirdly, compensation for the injury done to what he calls the amenity of the property as a residence. That is a legitimate subject of compensation—residential injury is always considered in these cases; fourthly, very material injury done by (1) I.e. the jury.

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CALEDONIAN this level crossing; and, fifthly, injury done by works having the COMPANY effect of debarring him from working a quarry. Under these five

RAILWAY

different heads of claim, he demanded 2,7167. It was attempted to get that demand settled, not by a jury, but by arbitration. How it was that that arbitration went off we do not know, but no award was made; the matter dropped, and three years afterwards (I suppose the making of the railway was delayed a long time) a new claim is sent in, under which he simply claims 2,500l. sterling as compensation for the land taken, and for those different heads of damage. Now, if that was the only document upon which the parties were proceeding, there was nothing to distinguish what damage, ultra the value of the land, he was going for at all. But not to be too nice upon this point, let us suppose that to be coupled with the preceding claim of 2,7167., and that there was notice to the parties upon the face of the claim, that a portion of what he claimed was for this level crossing, in respect of which there was no right to compensation; what course was the Company to take? Where a party was claiming the large sum of 2,716l., and in respect of 2,400l., of that he certainly is entitled to *what he claims, if he has put the items right, it was an idle proceeding to say," I admit that you are entitled to compensation in respect of the 2,400l., but I say that you have no right to compensation in respect of the 300l." It would all be properly discussed before the sheriff, because it was his duty to have pointed out to the jury, that in respect of one of those five heads of demand they had no right to give compensation at all. If he had done that, the matter would have been settled. If, by the course which he took, he added in any respect to the costs, that might afford a very legitimate ground for warranting the sheriff (it would have been his province, or the province of any Court afterwards,) to take care to set the matter right, in point of costs, as far as could be done. When the witnesses were called it made no difference asking a few more questions. There was no additional cost to be incurred in proving the level crossing. The whole matter was before the jury. Some more questions might have been asked, and it was the duty of the sheriff to point out to the jury, and to the parties, if necessary, that he had no power of directing the jury to assess any compensation in respect of one head of claim put forward.

My Lords, there is one other point of form that was insisted. upon by Mr. Anderson, which is, that these proceedings were not so conducted as to enable the parties to raise this point. And his argument arises in this way, under one of the clauses of the Act, viz., the clause which directs the finding of the verdict by the jury, it is expressly provided that the jury shall separately assess what they give for the value of the land, and what they give for compen

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sation. That they have done. The jury find "that the sum to be CALEDONIAN paid by the complainers to the said George Ogilvy on account of damage sustained by his estate of Clove from the said Company is 3601. for land, and freestone;" that is, for land, and the soil of the stone underneath; "and for severance and level crossing of the parish road, the sum of 5601. sterling." Now, he was certainly entitled to some compensation for the severance of another bit of land at the left-hand side, and Mr. Anderson's argument is that the Railway Company ought to have pointed out to the sheriff that the jury should assess how much they gave for severance damage, and how much they gave for injury by the level crossing. I do not think that the verdict would have been bad if it had split out into every separate head; but there is nothing in the Act of Parliament which imposes the duty upon the jury, or the sheriff, or the parties to make it so. They state distinctly that that for which they give 560l. sterling is "severance and level crossing." It is a great misfortune that we are unable to say how much they gave for level crossing, and how much for severance. If they had done that, then, undoubtedly, we should have been able to reduce the verdict quoad so much as they gave for level crossing, and to award the rest; but they do not do that; therefore, I do not think it is any matter that at all destroys the verdict or disentitles them to have the question set right. It is certainly to be hoped that they will settle it among themselves without any proceedings before the sheriff or any other proceedings of any other character. But if that cannot be done, your Lordships have only to decide what is the legal right of these parties; and it appears to me to be clear that there is no matter of form standing in the way of our deciding that the sheriff first, and the Court of Session afterwards, have fallen into an error in supposing that this level crossing was a subject for compensation at all; that it is a damnum sine injuria; that so the sheriff ought to have told the jury; that the verdict, which upon the face of it is bad, is a verdict which cannot stand, but which ought to be overturned; and that consequently the interlocutor of the Court of Session ought to be reversed.

LORD ST. LEONARDS:

My Lords, I entirely concur in the motion which my noble and learned friend has proposed to your Lordships, both upon the question of what may be called form (but there is no doubt something of substance even in that), and also upon the question of merits. As regards the question of form, the most material one is that which was first agreed by Mr. Anderson, that the appellant might have had an action for suspension and interdict, and that

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CALEDONIAN in that case the question would have been decided before it had

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gone to a jury. Now really that is only analogous to what has been already overruled in this country; for in the case which has been referred to, Lord COTTENHAM, in the first instance, granted an injunction to stay the proceedings; whether it was a case in which the parties were entitled to compensation or not, I think nobody pretends now to maintain that that was a proper decision. Equity has no such jurisdiction. The Act of Parliament gives a remedy, and upon the Act of Parliament the question must be tried. It is quite clear that no equitable jurisdiction is required, for all that equity could do would be to substitute something else for the provisions of the Act of Parliament. The Act of Parliament has directed the compensation to be estimated in a particular way, and the law would give a right, if there was wrong in the proceeding, to correct the error. Whereas, all that equity could do would be to direct an action in the first instance, without any authority to do so, in order to try in the first instance that which the Act of Parliament has not *required to be tried in the first instance, and that which may never require to be tried at all. For in most cases which go to a jury the right would not be so much in dispute as the amount of the compensation, and no question would arise after the finding of the jury which would require another proceeding. Now, the opinion of Lord COTTENHAM has been clearly overruled, and I entirely agree with the authority of the cases in which that opinion has been overruled; I think the same principle applies in the present case. The injunction cannot be maintained, I think, by the provisions of the Act referred to. And as regards the general question, I think it is open to the Court of Session to correct any error into which the jury may have fallen as regards an excess of their jurisdiction, just in the same way as, by a proper process in England, a similar error could be corrected in regard to compensation found here. The law is the same only with reference to the different tribunals, both in England and in Scotland, in regard to these cases.

My Lords, we then come to what is really the question intended to be brought before your Lordships' House, although the case carries us so much further, and that is the question of merits. Now, it is singular enough that in this very case it appears, on looking at the evidence before the jury, and it is stated in the respondent's case, I think, that no witness was aware of any similar case, except the case of Cowan's Hospital. Nobody knew of a case in Scotland where there had been a successful attempt to recover damages of a like nature. Nobody disputes it in this country, and there is not one law applicable in this respect to Scotland, and another law applicable to England. The same law