the purposes of the railway, in virtue of the statutory powers, and subject to the statutory provisions and compensation to 19TH

The Lord Ordinary pronounced the following interlocutor:

of 19th May 1847-The Lord Ordinary having considered this note, with the answers and productions, and heard counsel for the parties thereon, passes the note, and continues the interim interdict, upon caution in common form.

"

"Note. There are various questions of great importance here raised, which, perhaps, on a further and more deliberate discussion, may be cleared of the difficulties which at present seem to attend them. But, in the meanwhile, the Lord Ordinary is certainly not sufficiently satisfied as to the powers and rights claimed by the respondents, to hold himself warranted in refusing to the complainer the protection of an interdict pending such discussion.

"1. The Lord Ordinary starts with the assumption, that if there were here no statute to rule the case, or, which comes to the same thing, if the respondents be not in a condition to bring the matter within the scope of their proper statutory powers, the complainer could not be compelled at common law to submit to the proceeding against which interdict is sought. It would appear from the authorities cited. (and the respondents themselves, both now and formerly, in their mode of treating with the various parties interested in the Links of Burntislund, have proceeded on this footing,) that the magistrates do not at common law possess the power of alienating any portion of those Links without the express consent, at all events, of the burgh heritors. That the suspender holds this character is proved by his titles, and the respondents themselves formerly treated with him expressly as having right to the privilege therewith connected.

2. Another point seems equally clear. The lands now sought to be acquired are not necessary, in any proper sense, to the construction either of the railway, or even of any works essentially connected therewith. Their acquisition is altogether an afterthought. In 1845, the railway was, at this point of it, actually completed and walled in, according to the original conception of its promoters, and so as to exhaust every operation then intended, or in any way included or comprehended within its plans and sections, and relative books of reference, (stat. 6 of note, and answer thereto.) The respondents, accordingly, in that year entered into all proper and necessary transactions for this purpose. They concluded their statutory purchases, and it is only now, at the distance of a year and a-half, that they have altered their views and become desirous for other and extraordinary purposes to acquire additional lands.

"3. In this situation the Lord Ordinary entertains very serious doubts how far the respondents can again, and de novo, bring into operation the compulsory powers of the statutes. The opinions expressed in a somewhat similar case by Lords Campbell and Brougham, (apparently with the concurrence of the Lord Chancellor,) in affirming the judgment of this Court in Maule, &c. v. Moncrieff, 14th August 1846, (5 Bell's App. Cases, 351,) are in this view most important. Such an act of parliament,' their Lordships remark, 'gives the commissioners the power only of once taking a portion of the land of another, having it valued, and taking possession of it; and that option having been once exercised, the commissioners cannot afterwards vex the proprietor of the land, and at successive times go to the full extent which the act might have authorized, if, in the first instance, the full power had been exercised;' even if the commissioners had the power ORIGINALLY of doing what they now claim to do,' still, their Lordships remark, in the just construction of the act of parliament, the option having been made to take less than the parties might have taken at first, they cannot come successively and go to the full limits to which they might have gone originally.' And if the Lord Ordinary be not misinformed, judgment has recently been given to this express effect by the ViceChancellor of England, in Tawny v. the Lynn and Ely Railway Company, his Honour observing, that otherwise a company might go on from month to month giving fresh_notices, and the person upon whom they were served would never know how to act with regard to his land;' and injunction was granted accordingly.

"4. Of course, if such be the law where the statutory company has to deal with a sole proprietor, the principle must equally apply as to each of various co-proprietors; and indeed to every case where the company is under the necessity of resorting to

a renewed enforcement of their compulsory powers against any party having an interest to oppose them. Be this however as it may, the question is assuredly one entitled to the gravest consideration. And the respondents having already obtained all that they originally contemplated or wished for in the primary execution of their statute, can have little to complain of, though they have to abide the judgment of the Court, now rendered necessary, extra ordine, only by their own shifting of ground.

"5. But, independently of these considerations, the Lord Ordinary is by no means clear that the respondents, even if this had been a first application under their statutory powers, would have been entitled, for the purposes to which it is contemplated to apply them, compulsorily to acquire the lands here in dispute. It is conceded by them, that these purposes are not purposes connected with the ordinary construction of the railway, but that the railway and its relative works, (in the ordinary and proper sense of the terms) being already constructed, the purposes now contemplated are what the statutes designate as extraordinary. It is accordingly upon section 37 of their special act, and section 38 of the Railway Clauses Act, that their demand would seem strictly to rest. But, 1st, both of these clauses, as their rubrics expressly set forth, have reference to land to be taken for additional stations,' &c.; and though, in the usual case, it may not be very legitimate to argue from the rubric, in a purely legal question of statutory construction, yet here-where the Court has to deal with a private statute, in which it may be presumed that the private parties would express nothing in the rubric but what, according to their own understood intent, the relative clause was framed for the purpose of effecting-some relaxation may perhaps be allowed in the application of this rule; and besides, the identity of rubric in the two statutes (which is here an observation of some importance) goes to tie more closely together the whole purport and substance of the relative enactments. This leads, 2d, to the further and not less important remark, that any power given by the enactment contained in the Lands' Clauses Act is expressly limited to contracting with any party willing to sell' for the purchase of land 'in addition to the lands authorized to be compulsorily taken.' From all which there would seem to be not unreasonable ground for inferring that, so far as regards the taking of lands not absolutely required for the construction of the railway and its proper connected works, but for extraordinary purposes' merely, the respondents have no power to proceed by compulsory purchase and sale at all.

"6. The respondents seemed to rest a good deal on their sup posed power to take lands for whatever purpose, provided only that they did not, in so doing, exceed, on either side of the line of railway, the statutory limits of deviation. But it is too clear to admit of argument, that they can take no benefit from the power to deviate conferred on them by the statute (Railway Clauses Act, § 35). That is a power sui generis, and must be used for its own proper purpose, and for none else. But the respondents have already constructed their line, and, in so doing, have not exercised, and have not required to exercise, the power of deviation. They stand, therefore, now, as to all their other rights, just as if no power to deviate had been inserted in the statute. In Sir Thomas Moncrieff's case, already referred to, it was expressly ruled, that where an act gives a power of deviating to a fixed distance from a particular position, if a position has once been adopted, the power to deviate cannot afterwards be resorted to, so as in fact to CREATE AN EXTENSION OF THE WORKS' (ut supra, 333.) Indeed, to have determined otherwise, would have been to sanction this most extraordinary of all results, that a power given for one purpose, and for that purpose only, may be diverted to any other purpose, however essentially different, and one even which would fall under a category absolutely incompatible.

"7. It is a totally different consideration, whether, apart from the clause of deviation, the circumstance that all the lands (which stand comprehended within the limits of deviation) are specifically numbered and scheduled in the parliamentary plans and books of reference as ground contingently liable to be taken from the proprietors, may not (on a separate principle altogether) entitle the respondents, though not originally intending to have taken those lands for any other purpose than that of deviation, still to take them by force of their being so numbered and scheduled, as being necessary for the general purposes of the act. So stated, the proposition is assuredly not one in regard to which the respondents are entitled to favour. But as, in strictness of law

the respondents, even had there been no clause of deviation, would, under the general power to make their railway, have been entitled to take any lands numbered and scheduled as above, so far as they could shew them to be necessary for constructing the proper statutory works, the Lord Ordinary is not prepared to deny them this power in the present case, simply because, with a view to deviation, the numbering and scheduling of lands may have been carried farther than it otherwise would. But this just revives the question in a shape which has already been adverted to: Are the respondents, though authorized by the statute, compulsorily to take lands for the purpose of making and maintaining the railway, with proper works and conveniences belonging thereto,' entitled, AFTER having constructed their railway, with all its relative works and conveniences as originally contemplated at the point here in dispute, and AFTER having once actually carried their compulsory powers into full and completed operation, so far as this end was concerned,--again, and ex intervallo, to open up what had thus been supposed to be settled; and this, too, not for any ordinary purposes of their act, but for purposes which the act itself declares to be extraordi nary? The Lord Ordinary is, for the reasons he has already given, unable at present so to decide in the respondents' favour.

"8. The Lord Ordinary views much in the same light the argument founded by the respondents on section 16 of the Railway Clauses Act. It is very true that by that enactment railway companies are authorized to erect and construct such houses, warehouses, offices, and other buildings, yards, stations, &c., and other works and conveniences, as they may think proper.' But it must also be kept in mind, that this clause forms one of the class applicable to the CONSTRUCTION of the railway, and the works connected therewith,' and so does not directly or necessarily bear upon the question of supplementary and additional works, &c. for 'extraordinary purposes,' which rather seem to be left for regulation under the 38th section. Accordingly, in græmio of section 16 itself, the power is in express words given for the purpose of constructing the railway, or the accommodation works connected therewith, hereinafter mentioned ;' these accommodation works (as the Lord Ordinary understands) being works not so much for the accommodation of the railway, as for the accommodation of lands adjoining the railway,' as set forth under a distinct head, in section 60 et seq. of sta

tute.

"9. As to the enactments in the Lands' Clauses Act, section 93 et seq., with respect to such lands as shall be of the nature of commonty,' upon which the respondents appear mainly to have shaped their proceedings, the Lord Ordinary has some doubt whether they properly apply to the PURCHASE of lands at all.' No reference, at all events, is made to them in the portion of the act which is specially devoted to that subject, section 6 et seq. And the language of section 93, &c., which throughout allude to 'compensation to be paid for the EXTINCTION of such rights,' would rather seem to point at certain subordinate 'rights of property or servitude, or other rights in or over such lands' as might fall to be purchased under the previous set of clauses. Indeed, in any other view, it would not seem to be either just or reasonable to allow the votes of one or two holders of perhaps a trifling servitude, to swamp the interests of the radical proprietor, though it might be proper enough to allow the majority to bind the minority, in any minor question, as to the extinction' of some common interest, which all within this subordinate class might happen equally to hold 'in or over the lands' affected by it. Be this, however, as it may, there are two most important considerations which leave great difficulty in the Lord Ordinary's mind. 1. Even the enactments here referred to appear to have no application, except to cases where the Railway Company is entitled to enforce a compulsory sale; for the ultimate resort, in case of failure to agree,' is distinctly declared to be as in other cases of disputed compensation' (section 96). And, 2. Although this also were to be got over, how are the vague and general advertisements which have been given in the present case, to be reconciled with section 17 et seq., which in express terms ordain, that when the promoters of the undertaking shall require to purchase any of the lands, which by this or the special act, &c., they are authorized to purchase or take, they shall give notice thereof to ALL the parties interested in such lands,' &c., and every such notice shall state the particulars of the lands so required?' &c. &c.

"On the whole, the Lord Ordinary, after giving to the matter his most careful and anxious attention, is not prepared to hold the case of the respondents (to say the least) so absolutely

clear as to entitle them to an instant judgment, either refusing the note or recalling the interdict. The case, if not against them, appears to him worthy of the most deliberate consideration. And whether this is to be secured by ultimately passing the note for discussion in common form, or by farther deliberation in the Inner-House upon reclaimer; the safer course at present for the Lord Ordinary, as an individual Judge, would seem to be that which he has adopted in the prefixed deliverance."

The respondents reclaimed. At advising,

Lord Justice-General.-In this process of suspension and interdict raised between the Magistrates and Council of Burntisland and the Edinburgh and Northern Railway Company and Mr Cunningham of Lamberlaws, the Lord Ordinary, on the grounds detailed in his note, has passed the note of suspension, and continued the interdiet; and we are now to determine whether his judgment ought to be adhered to or altered.

We must keep in view that the Railway Company have, under their act, already completed their railway, so far as it extends through the territory under the management of the Magistrates of Burntisland, and that a portion of the Links over which the inhabitants and burgesses (including the present suspender,) held certain rights, but which have been settled for, or compensated, has been included in the line of the railway so made.

But for extraordinary purposes, viz., the erection of buildings for the making and holding machinery requisite for the railway, the directors of the company, for their acquiring a certain quantity of land, have adopted the proceedings detailed in the note of suspension and answers, and, in the prosecution of which, they have been opposed by this application for interdict. The question is, were the respondents, when so stopped, in the execution of their legal rights?

1. The special Railway Act seems to contemplate that the company had the power of taking or acquiring land for extraordinary purposes, as the 37th section enacts, "That the quantity of land to be taken by the company for extraordinary purposes, shall not exceed 100 acres." No direct provision for taking land for such purposes is made in the act, but these enacting words are free of all doubt, as recognizing a specific quantity of land only is to be taken for extraordinary purposes, and it does not seem at all clear that these purposes can be limited to additional stations, as the rubric of the clause indicates. But the matter is fully cleared up by referring to the Railway Clauses Consolidation Act, § 38. Read the words of this enactment, and it will be seen that, as it must be made a part of the special act, there is no room for doubt.

While it seems clear that neither the special Act nor the Railway Clauses, nor Lands' Consolidation Clauses Acts contain provisions for compelling the sale of lands required for extraordinary purposes, (and no such powers are contended for by the respondents,) the question is, "how are the respondents entitled to proceed under the above statutes? for, at common law, they manifestly have no right to adopt the course they have pursued to acquire or take the requisite land for their extraordinary purposes for the use of the railway.

Can there be any ground to doubt, however, that a voluntary sale or purchase may be completed of the land adjoining to or near the railway, even although it be held by an individual or a corporation, subject to servitudes or subordinate rights in favour of certain individuals, such as are claimed over the Links of Burntisland?

Now, all that has hitherto been done is, that a proposal for a voluntary conveyance of the requisite portion of the Links for extraordinary purposes having been, so far as the corporation is concerned, assented to by the magistrates, the company, in order to settle with those who, like the suspender, claim sabordinate rights over the Links, have, with the concurrence of the magistrates, given notice of a meeting for the adoption of measures to secure the voluntary consent of all concerned.

Now, although I am not satisfied, nor disposed to hold that the 93d and following sections of the Lands' Clausos Consolidation Act are applicable to this state of matters, but think that they, in fact, are truly referable to the previous provision in that statute as to compulsory sales authorized in regard to lands requisite for completing the railway; yet still, I see no illegality in the course proposed by the notices and advertisements complained of, with the view of obtaining the voluntary consent of all parties to the sale of the land in question.

It is quite possible that Mr Cunningham and others may resist the proposed arrangement, and if it shall be attempted to carry it into full effect irrespective of the rights claimed by hing he may then be entitled to resist it, and to present a suspension and interdict. But it does not follow that he is at present entitled to prevent what are only preliminary steps to obtain, not by any compulsory clauses of the statutes, but by a voluntary or consensual agreement, the acquisition of that which the legislature has sanctioned for the extraordinary purposes of the railway, which has been completed under its authority.

5- Lørd Mackenzie.—I do not differ from your Lordship in the conclusion at which you have arrived, as I do not consider it necessary to interfere by interdict just now.

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This is a case of an attempted purchase of lands by a railway company for additional accommodation. The statute pro. vides, that the promoters of the undertaking" may agree with the owners of any lands by the special act authorized to be taken," &c., "and with all parties having any right or interest in such lands," &c., "for the purchase of any such lands." And it is added in another section, that it shall be lawful for all the above parties to sell the lands so authorized to be purchased for extraordinary purposes. It is lawful, then, to acquire, by voluntary sale, such lands as those in question. The Railway Company seem to found their claim to buy from the magistrates on two different statutory powers: 1. On powers given to the magistrates as a corporation, not having power at common law to alienate such property as that in question, but receiving it in virtue of the provision of the Lands' Clauses Consolidation Act: And, 2. On clauses authorizing dealings for the purchase of lands in cases of commonty. Now, if the Railway Company are right in either view, the thing may go on. Under the first view the thing may be accomplished, though it would be difficult to carry the alleged powers of sale the length to which they are said to extend by the Railway Company. No doubt "corporations" and "trustees or feoffees holding rights in trust" are under the operation of the 7th section of the Lands' Clauses Act. But, then, can I hold that magistrates dealing with a railway company can alienate the burgh property with out check or control? Can they alienate the burgh property at any price, or can they alienate it however inexpedient that course may be, provided they so alienate it to a railway company for extraordinary purposes? If that is held to be the law, then that is enough. I should scruple, however, to hold that. I doubt if they can exercise the powers above mentioned without control. Can they give over the burgh property for any price, or on any condition, provided only that they deal with a railway company? I am glad that we are able to avoid the decision of that question. It is one thing, however, for the magistrates to have, by these statutes, the power of alienation, and it is another thing to hold that they can alienate without any control. But, in this case, the magistrates have not alienated at all. All that has been done is to call a meeting. They may yet be prevented from selling the lands in question, if it is very improper for them to make such a sale. Suppose, for instance, that they had come under an obligation to the suspender, or some one else, whereby they had bound themselves not to alienate, then I suppose they could not alienate these lands. All that has been done here, however, is to call a meeting, that the question as to the proposed sale may be considered. As to the second ground on which the respondents maintain that they are entitled to acquire the land, that is attended with more difficulty. The words in the Lands' Clauses Act, 92d section, are broad," such lands as are of the nature of commonty." But are the rights belonging to a corporation in trust, which they cannot dispose of at common law, or except under statutory powers, "commonty." It would be difficult to hold that trust-property was a commonty, and that property held in trust fell under that designation. But whether it be so or not, I do not see, on the whole, why a meeting should not be allowed to be held to consider the whole matter. Are the steps taken by the Railway Company not applicable to the case of the proceedings to be taken in order to effect a voluntary agreement for the acquisition of the lands? It is said by the Railway Company that these steps are so applicable, and that nothing else is contemplated.

I am not satisfied, in short, that any thing wrong has yet been done.

Lord Fullerton.-Your Lordships, I understand, are of opinion that nothing has yet been done in this case which requires us

to interfere by granting the interdict applied for. I concur in thinking the interdict should be refused.

There was here a notice given by the Railway Company to the Magistrates, "Burgesses, Heritors, and others having rights of property, servitude, or otherwise," in the portion of the links in question, under the 93d, 94th, and 95th sections of the Lands' Clauses Consolidation Act.

The Magistrates of Burntisland had previously agreed to give up the ground. Now, what the other party, Mr Cunningham, says, is the Magistrates can't agree to sell this ground, and the sale could only be effected by compulsory powers." But the Lord Ordinary holds that the compulsory powers of the company are exhausted. Then, as the meeting was called under the 93d, 94th, and 95th clauses of the Lands' Clauses Act, we cannot refuse to hold that the meeting was called under these clauses. That being the case, we cannot waive the de.. cision of whether the meeting was called under those clauses correctly. That raises a most important question, a question which has occasioned the greatest doubts in my mind, and as to which I have at different times held sometimes one view and sometimes another. I have, however, at last come rather to adopt the argument enforced by Mr Inglis on that subject. In the first place the magistrates have power to deal with the Railway Company. At the same time there is no doubt that, "for extraordinary purposes," the Railway Company have power to acquire land by private agreement only. The Railway Company are authorized by their special act to acquire lands for extraordinary purposes. And also by the Lands' Clauses Act, § 12, it is provided that, "in case the promoters of the undertaking shall be empowered, by the special act, to purchase lands for extraordinary purposes, it shall be lawful," for all parties who "are before authorized," to sell the lands so authorized to be purchased for extraordinary purposes. Lands to be used for such purposes, however, must be acquired voluntarily. Then, as to the power of the corporation to sell, it is provided, (§ 7 Lands' Clauses Act) that "corporations and trustees or feoffees in trust for charitable or other purposes may "contract for, sell, convey, and dispose of lands to the promoters of the undertaking." As to the danger attendant on the granting of such powers to the magistrates, which Lord Mackenzie has referred to, such danger is guarded against by the provision, that the price to be given for lands so acquired shall not be less than the sum at which it is valued by valuators, and that such price shall be paid into bank for behoof of all concerned, so that there is a limit fixed to the discretion thus confided to corporations. In general, then, a corporation has power to sell the lands which it holds to a railway company, for extraordinary purposes, by private bargain. But then come the special circumstances of this case. The corporation holds the lands here in question for behoof of others. On the whole, I am of opinion that it holds the lands in trust for other parties. The rights of the burgh heritors seem neither to be of the nature of commonty or servitude. If these were held to be rights of servitude, then could the servient tenement agree to dispose of the lands? I am not sure how that may be; for it is provided that all parties hav.. ing rights of servitude shall be dealt with as to the compensation to be paid for the extinction of their rights in manner mentioned in the 93d section of the Lands' Clauses Act. It may be said, perhaps, that the agreement must be with all the parties holding such rights of servitude; that it must be with such parties themselves. The lands here seem to me, however, to be held in trust for the burgesses, and Mr Cunningham has rights in the lands similar to those held by the burgesses. How can it be maintained, indeed, that this is not held by the magistrates in trust for the burgesses? It seems to me to be just one of the cases under the statute. The magistrates are a corporation, and as such, are trustees or feoffees in trust for the burgh heritors and persons holding similar rights. In that view, it was very proper in the Railway Company to call a meeting such as that set forth in their notice of 1st April 1847. If I am not right in the view which I have taken, then Mr Cunningham has a strong interest and right to object to the meeting being held; for if it be rightly held under the 93d, 94th, and 95th sections of the Lands' Clauses Act, then he is to be bound by the decision of the majority of persons holding similar rights." But I think that the corporation are trustees entitled to deal by private and voluntary agreement with the Railway Company relative to the disposal of this land; and accordingly, upon that ground, I have come to the opinion,

46

though with great doubt, that the interlocutor of the Lord Or dinary ought to be altered.

Lord Jeffrey-One of the two principal causes of the obscurity in this case arises from the machinery by which the Railway Company are to acquire lands being contained in three different statutes. The other arises from the awkwardness with which the magistrates and the Railway Company are chargeable in the procedure which they have actually adopted. I have, however, come to the same conclusion with all your Lordships; but I am more particularly inclined to adopt the view which has been taken by Lord Fullerton. And I am of opinion, not only that there is no ground hoc statu for granting this interdict, but also that we should not hesitate to recognize the right of the magistrates and Railway Company to complete this transaction. I think we must hold that, if the meetings called were to be held, the intention with which those meetings were to be held, must be made out to be warranted by the statutes.

By section 38 of the Railway Clauses' Consolidation Act, power is given to the Railway Company, over and above the lands to be compulsorily taken,-to acquire voluntarily other lands adjoining the railway for the purpose of making workshops &c. : to acquire land in short for extraordinary purposes, not exceeding in amount the quantity of land specified in this company's special statute. Vide section 37 Edinburgh and Northern Railway Company's Act. Then let us look to the 6th, 7th, and 12th sections of the Lands' Clauses Consolidation Act. Sections 6 and 7 provide, that persons not otherwise empowered to sell lands are thereby authorized to alienate such lands; and section 12 adds, that the empowering provisions of the preceding sections apply not only to compulsory alienations, but also to voluntary agreements for the sale of lands for extraordinary purposes, by persons who would not have had power to enter into such voluntary agreements, but for those empowering provisions. And those empowering provisions are made, by section 7, to extend expressly to Magistrates holding property in trust for the burgesses or the community. Then come the provisions contained in the 93d and following sections. These provisions are expressed in a phraseology not well adapted to Scotland, to which the act applies; and some of the terms used are neither appropriate nor indeed intelligible. These sections, the 93d &c., are enacted with regard to such "lands as shall be of the nature of commonty ;" and then the 93d section goes on to refer to persons "entitled to any rights of property" or servitude or other subordinate rights. With regard to all these rights, however, there is no provision that they shall be transferred to the Railway Company. The sections merely provide for the extinction of such rights."

I think, then, that all those clauses,-I mean from the 93d to the 98th sections of the above statute,-are applicable, and cannot be consistently otherwise applied than to subordinate rights affecting the soil of the lands; otherwise to provide merely for the extinction, and not for the acquisition, of these rights, would be preposterous or absolutely unmeaning. Now, it is truly and in substance the extinction of these subordinate rights which the company are now in cursu of effecting. The company and the magistrates, however, seem to have formed the erroneous opinion that the property of the links might also be acquired under the 93d and following sections of the statute. That was a great mistake. The course which the company ought to have pursued, was, first, to acquire the lands from the magistrates under the provisions of the 7th and 12th sections of the Lands' Clauses Act; and then, by proceeding under the 93d and following sections, to disburden them of all subordinate rights. That this was what was contemplated by the legislature appears quite indisputable, when the terms of the 98th section are considered. It is there provided, that on payment to the committee, (appointed by the holders of the subordinate rights above mentioned), of the compensation agreed upon or determined in respect of such rights, the Railway Company shall, if they see fit, "execute a disposition duly stamped" in their own favour; and thereupon, the lands in respect of which such compensation shall have been so paid," &c., "shall vest in the promoters of the undertaking, free and discharged from all such rights," &c.

The only ratio dubitandi is, that the order or notice by the company, dated 1st April 1847, merely calls the parties together in order to effect an arrangement for the extinction of their (subordinate) rights; before the property over which these rights extend had been acquired by the Railway Company. There is

also a remarkable and perplexing difference between the application of the compensation money payables in the case of the persons mentioned in the 7th section of the Lands' Clauses Act, and of persons holding such rights as those mentioned in the 93d section. In the former case, there is anxious provision made as to the application of the compensation money, in the 6th and 7th sections of the statute,-(reads 6th and 7th sections of Lands' Clauses Act). But in the case of persons holding the subordinate rights referred to in the 93d section, and in whose rights all their successors are interested, it is provided, that “sach compensation, when received, shall be apportioned by the committee among the several parties interested therein, according to their respective interests," (vide 95th section) to the loss, it may be, of all succeeding generations; and, at all events, without any provision for its being invested for permanent benefits. It is also a very remarkable peculiarity and awkwardness, at least in the structure of this statute, that while the acquisition of the ground itself can only be obtained by voluntary purchase, the extinction of the subordinate rights which affect such ground, necessarily refers back to the compulsory powers of the statute. Thus, if the committee appointed by the holders of such subordinate rights, "fail to agree as to the amount of the compensation to be paid as aforesaid, then the same shall be determined as in other cases of disputed compensation,"vide 95th section. In other words, the Railway Company, or the parties holding the rights, are entitled to go to a jury, to have the amount of compensation-money fixed. And I think that the Railway Company are entitled to take such means of effecting the extinction of the rights in question. The property of the Links is vested in the corporation; and power is by the statute given to them voluntarily to alienate that property. And the Railway Company being thus entitled to acquire the fee of the property from the magistrates, I don't see how we can avoid holding that they are entitled to effect the extinction of the subordinate rights over it, under the provisions of the 93d and following sections of the statute. In the present case, the two processes of acquiring the ground, and extinguishing the subordinate rights, have been massed up together-naturally indeed, but incautiously and erroneously. The company should first have acquired the dominium of the ground from the magistrates, and then should have held a meeting for the purpose of fixing, as a separate matter, the compensation to be awarded to the holders of subordinate rights for the extinction of such rights.

I am, therefore, for recalling the interdict in the meantime. Lord Justice-General.-Hoc statu, the interdict ought to be recalled. There is a nicety noticed by Lord Jeffrey, and which occasioned me some perplexity, from the Railway Company being compelled to fall back on their compulsory powers in proceeding to effect the extinction of the subordinate rights attaching to this property. I do not see any advantage in passing this bill. On the first deviation by the Railway Company from the rule laid down in their statute, a new application can be made to the Court.

On a suggestion by the Dean of Faculty for the suspender,

Lord Justice-General.-Well then, we shall pass the bill but refuse the interdict. We can say nothing as to expenses, as the case is still in the Bill-Chamber.

The Court accordingly adhered to the interlocutor of the Lord Ordinary in so far as it passed the bill, but quoad ultra, altered the said interlocutor and recalled the interim interdict.

Lord Ordinary, Ivory.-For Suspender, Dean of Faculty (MacNeill), Cowan; Gibson Craigs, Dalziel, and Brodie, W.S., Agents. For Respondent, Penney, Inglis; Sir Charles Gordon and Co., W.S., Agents.-W. Clerk.-[J.C.]

14th July 1847.

SECOND DIVISION. (F.L.M.H.)

No. 205.-JAMES HALL of Killean, Pursuer, v. ROGER M'GILL and others, (Archibald M'Gill's Representatives,) Respondents.

Process Summary Petition-Competency-Damages-Lease -Landlord and Tenant-Tacit Relocation-A tenant was

-talen bound by his lease to observe certain rules in the cultivation of his farm and to leave the houses, fences, &c., in good repair, The lease terminated at Whitsunday 1837, as to the houses, &c and at the separation of that year's crop, as to the arable lands. At Whitsunday 1837, a singular successor acquired the estate, fof which the said tenant's furm formed a part. The tenant, by ebiucit relocation, continued to possess the said farm for two years longer; but in consequence of warning and decreet, he removed from the houses at Whitsunday 1839, and from the arable land at the separation of the crop of that year. On 7th September 1839, -ake landlord presented a summary petition to the Sheriff against the tenant chich contained an application for an inspection and report Ji as to the mismanagement and miscropping of the lands, and of the loss and damage thereby occasioned, and as to the disrepair of the houses, fences, &c., and the amount of the sums necessary to put -the same into good order, and for decree for payment of the sums - which might thus appear under the said reports to be due by the tenant-Held, 1st, that the said summary petition was competent; and, 2d, that, in the circumstances, a certain sum was due as the amount of damages for miscropping, and for the disrepair of the houses and fences."

Mr Hall purchased the estate of Killean, with entry at Whitsunday 1837, and an assignation to the rents for the crop of that year, and for all crops and years thereafter.

The deceased Archibald M'Gill was a tenant of certain lands, and likewise of a mill, forming part of the said estate. He had a tack for 19 years, and crops from his entry, which was, by the tack dated in 1827, declared to have commenced at Whitsunday 1818 as to the mill and kiln, houses and grass, and at the separation of that year's crop from the ground as to the arable lands. By the tack, M'Gill had obliged himself.

"to observe the following rules in the cultivation of the said farm, viz. :-The infield land shall, within the first four years of this lease, be divided into four parts, as nearly equal as the situation of the ground will permit, and the following rotation of crops shall be observed:-one fourth part shall be potatoes, turnips, or fallow, repeatedly ploughed, thoroughly cleaned, and well manured; one in barley or oats, sown out after the fallow; one to be red clover and rye grass, the grass not to be less than one bushel, and the clover not less than eight pounds to each Scots acre, and to be carefully preserved from cattle during the winter and spring; and the remaining fourth to be oats or barley, if the said Archibald M'Gill should prefer taking it after the lea, and so on, in the same course of succession, during the currency of the lease; and on no occasion shall there be taken more than one white crop off any part of the said infield land, but the said Archibald M'Gill shall have liberty to take two white crops off such parts of the outfield land as may have lain four years in grass, on condition that the ground is thereafter fallowed and manured, and sown out with grass seeds, and allowed to remain for at least four years in pasture; and it is hereby declared, that one-half of the arable outfield land shall always be in pasture, and that the said farm shall not be subdivided in any manner of way, but shall be kept in whole divisions or breaks, and cropped as before mentioned; and the said Archibald M'Gill binds and obliges himself, and his foresaids, to pay £5 of additional rent for cach acre managed contrary to the above regulations, and that along with the rent above stipulated, and over and above such damages as may be fixed by two persons mutually chosen for that purpose; and, further, the said Archibald M'Gill binds and obliges himself to allow the proprietor or incoming tenant to sow grass seeds along with his last crop, which he shall harrow and roll in, without any claim for damages done to his corn, or for the expense of harrowing and rolling in said grass seeds, and which the said Archibald M'Gill, and his foresaids, shall not permit any of their cattle to pasture or trespass on, after the separation of the crop from the ground; and the said Archibald M'Gill also binds and obliges himself, and his foresaids, to uphold the dwelling-houses and offices, built, or to be built on the said farm, and to leave the same in sufficient tenantable condition at their removal, as also to uphold all fences, made or to be made, repair and build marches with neighbouring tenants, and deliver the same at their outgoing in

good and sufficient order, or pay the comprised deficiency, both of houses and fences."

On 9th May 1837, Archibald M'Gill wrote to Mr Hall, stating that

"If it is not the case that you wish to take the farm into your own possession, I shall be very glad to have the farm for another year, and sow as much grass seeds as the farm requires."

To this letter Hall, on 12th May 1837, returned an answer in the following terms:

"Sir,-Mr M'Arthur has handed me your letter of the 9th instant, and in answer have to state, that it being now too late in the season to look out for a successor, you must, of course, continue in possession of your farm for the ensuing year, under the conditions contained in your present lease, and according to which, I must request you will attend to the management and cropping of the land, which I mean to insist on, in every particular, as intimated to you on Saturday last. You must, therefore, immediately sow and roll the necessary quantity of rye grass and clover seed. I beg, at the same time, to intimate, that I reserve to myself the right of claiming the stipulated additional rent and damage for the evident deviation already committed by you, which has greatly deteriorated and exhausted the land. You will, of course, understand, that this communication is only an extension of your present lease for one year from this term, and that under all the conditions incumbent on you thereby. I am," &c.

M'Gill remained in possession during the year from Whitsunday 1838 to Whitsunday 1839. In consequence of warning and decreet, he removed from the houses, &c., at Whitsunday 1839, and from the arable lands at the separation of the crop. On 18th May 1839, Hall sequestrated for his rent.

On 7th September 1839, Hall presented a petition to the Sheriff of Argyleshire, praying him

"to appoint two or more fit and properly qualified persons for each of the following purposes, to repair forthwith to the foresaid lands of Laigh Auchloiskine and schoolmaster's glebe, to inspect and report to your Lordship (first) as to the extent of mismanagement and miscropping committed by the said Archibald M'Gill, in violation and contravention of the foresaid tack, and the loss and damage arising to the petitioner therefrom, since the period of his entry to the lands and other subjects as aforesaid; (second) as to the state of the dwelling-houses, offices, dykes, fences, ditches, and marches, on and connected with the said lands, at the said Archibald M'Gill's removal therefrom, and the sums necessary to put the same in good, sufficient, and tenantable state of repair; (third) as to the state of the said mill, wheels, millstones, graith, and other apparatus belonging thereto, also the said mill-lead, and the sums necessary to put the whole of the foresaid subjects in good order and condition, all in terms of the said tack; also to appoint a copy of this petition, and of the deliverance to follow hereon, to be served upon the said Archibald M'Gill, and appoint him to lodge answers thereto, if he any has, in the hands of the clerk of Court, within such short space as your Lordship may think proper; and upon again advising this petition, with or without answers, to decern and ordain the said Archibald M'Gill to make payment to the petitioner of the several sums which may be found due, under the various reports to be lodged in process, in manner before mentioned, as the same shall be ascertained and fixed by your Lordship, or reserve separate claim and action, at the petitioner's instance, for such parts thereof, if any, as may be found incompetent to insist for in the present summary action."

The Sheriff-substitute (M'Laurin) ordered answers, and at the same time,

"in respect of the apparent urgency of the case, in regard to the mill, mill-lead, wheel, and whole apparatus, and others connected therewith, remits to Donald Turner, mill-wright, and John M'Callum, miller, both residing at Lochgilphead, to inspect and report quam primum as to the state and condition thereof, and of the deficiencies arising thereon, and to give a specification of the same."

M Gill answered, that the parties had previously ap