Ors.

Nov. 12, 1910.

.

proved. I cannot help thinking that there again there is nothing collusive in a husband being put in possession of these particulars which should be laid before the Court.

But while I say that, that does not, of course, end the case, because I have no doubt whatever that, apart from all question of collusion, yet it would be a good ground of reduction of a decree of divorce if it could be shown that the party getting the decree had intentionally kept back from the Court the fact that there had been condonation, and had also so arranged matters, by keeping away from the witness-box by persuasion the only person who was likely to say much about it, namely, the other spouse, as to make it unlikely that anything that would excite the suspicions of the judge would appear. And undoubtedly here there is a passage in the correspondence which shows that at one time the wife wished to consult another independent agent, and that it was owing to the advice of the husband that she did not do so. Accordingly I think that what is here averred is in that sense relevant enough. On this part of the case I do not conceal from your Lordships that I have had a good deal of doubt and hesitation. I think there is only one thing to be ascertained, and that is, of course, the difficulty, and that one thing is, was there or was there not condonation? In other words, did these parties have the intercourse of spouses after the fact of adultery was known by the husband, or did they not? If I thought that that was satisfactorily proved, then I think that the rest would be easy, because I think if that is once satisfactorily proved, very little will do in the way of preventing the wife being separately represented, to lead one to hold that the whole matter was a machination. the question remains, Is it proved that there was condonation? . . . [After reviewing the evidence his Lordship proceeded]—

But

come to the conclusion that the Lord Ordinary, who has evidently given great attention to the case, is right, and that his judgment ought to stand.

LORD KINNEAR-I agree with your Lordship both as to the law and as to the facts of the case. I may add that the real difficulty of the case appears to me to lie in the question of fact only--whether the acts ascribed to the two spouses can be correctly described as collusion or not. Even if collusion is not established, I have no doubt it would be a good ground for setting aside a judgment in the husband's favour if it were proved that in order to obtain that judgment he committed a fraud on the Court by deliberately withholding the fact that would have proved condonation, and keeping his wife out of the witness-box in order that that But then I fact might not be disclosed. think it is clear in law that if a judgment pronounced after evidence is to be set aside upon the ground of fraud on the Court, it must be clearly proved in the first place that such fraud was in fact committed. The burden of proof lies entirely upon the pursuer, and I think that the weight of that burden is increased, although I do not say more, when she brings her action after the death of her husband I quite instead of during his lifetime. agree with the Lord Ordinary that it is a material point that the action is raised at a time when her husband's testimony cannot be obtained. To establish the fact of fraud it seems to me to be quite clearly necessary, in the first place, to prove the fact which she If there was in alleges of condonation.

If

fact no condonation, there was no fraud on the Court, and that question of fact is to my mind, as it is to your Lordship's mind, the real difficulty in the case. one were to consider the case only with reference to the probabilities, having regard to the undoubted facts which are proved, to determine whether it was likely or not likely that condonation had taken place, I should come, I must say, to the same conclusion as your Lordship. But that is not the duty of the Court in a question of this kind. We are not to reduce a judgment given after evidence upon the ground that facts contrary to that judgment may or may not be probable, but it must be proved that such facts really occurred. Now the conclusive point to my mind is that the only evidence which is to be set against the husband's oath-I mean the only testimony to be set against the husband's oath -is the testimony of the wife, who according to the Lord Ordinary, and, apart from the Lord Ordinary's judgment, for the reasons your Lordship has stated, is not a credible witness. I can attach no weight to the pursuer's evidence, and therefore I think she has failed to prove her case.

LORD JOHNSTON-I entirely agree with the Lord Ordinary and with your Lordships. Still I feel bound to say that in common, I think, with your Lordships I have experienced great difficulty and great

. Walker & v.

doubt in the case. I have consequently given very great attention to the evidence, and particularly to the correspondence.

I should like to reserve my opinion as to how far English authority may be referred to in the matter of collusion. I quite understand that the law of divorce in England and in Scotland has been and is quite different. But I have felt in reading the English decisions that, however different that law may be from ours, there is much that is valuable to be found in the explanations and expressions of the English judges when dealing with this subject.

I was on reading the Lord Ordinary's judgment struck with what he says-"It is one thing to stay the hand of the Court in the public interest, so as to secure that the marriage tie shall not be dissolved, in proceedings conducted under conditions which tend to prevent a full disclosure of the truth. It is, I think, a different case where, as here, one of the spouses seeks to set aside a decree of divorce." Having regard to this fact I cannot yet make up my mind, although I have studied the evidence on that point, as to whether the real initial motive in the husband's mind in raising this divorce was to.obtain freedom from his wife or freedom from his marriage-contract. I cannot help regarding the divorce proceedings from the beginning with suspicion, and I am prepared to say that, had I been sitting as a Judge of first instance in the divorce proceedings themselves, and had I known then what I know now, I think I should have refused divorce. But then it is a different question whether we are to upset a divorce which has already been granted, and I agree with your Lordship in thinking that this lady has by no means substantiated her case for reduction with such evidence as we can accept as satisfactory, far less as sufficient. I think, after more than one perusal of her correspondence, that Mr M'Cann sums her up in two lines of his evidence-"She is a most peculiar person. She is very difficult to dispose of;" and I think no one can read her correspondence without seeing that she has a distorted and constantly fluctuating view of life in all its relations and circumstances. I do not think her evidence is to be regarded as representing truly what happened at any definite time, for to me her mind shifts and shifts like a kaleidoscope at every turn, however slight, and without her evidence she has no case.

I therefore entirely agree with the judgment which your Lordship proposes.

LORD SALVESEN was sitting in the Second Division.

The Court adhered to the interlocutor of Lord Cullen dated 7th December 1909, refused the reclaiming note, and decerned.

12, 1910

Saturday, November 12.

FIRST DIVISION.

[Lord Guthrie, Ordinary. FRASER (FRASER'S TRUSTEE) AND OTHERS v. THE CALEDONIAN RAILWAY COMPANY.

Superior and Vassal-Railway—Statutory Title Compensation to Superior for Loss of Casualties-Date at which Compensation Falls to be Assessed-Interest-Lands Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. c. 19), secs 80, 107–111, and 126.

In 1846 a railway company acquired certain lands by compulsory purchase under the Lands Clauses Act 1845. The proprietor having refused to grant a conveyance, the company in 1847 deposited the compensation found due and took possession. On the proprietor's death in 1874 the company obtained from his heir a conveyance in statutory form, which they recorded in 1875. In 1903 the superiors brought an action against the company for compensation for loss of casualties.

Held (1) that the execution of the statutory title in 1875 destroyed the superior's rights of superiority in the lands taken, giving to him as from that date a right to compensation therefor-a right which was not barred by the promoters having in the meantime obtained access to the land--and (2) that the pursuers were entitled to interest on such compensation from 1903, the date when their demand was made.

Dissenting Lord Johnston, who was of opinion that the recording of the statutory title did not affect the obligation on the company to pay the feudal charges, and that these (so far as not prescribed) subsisted till they had been redeemed, and that accordingly the pursuers were entitled to recover (a) such charges down to the date of their redemption, and (b) compensation for their loss, with interest on such compensation from 1903, the date when the company were called on to redeem. On 8th December 1908 Major Francis Fraser of Tornaveen, Aberdeenshire, sole surviving trustee under the antenuptial contract of marriage between the late Mr and Mrs Fraser of Tornaveen, and others, brought an action against the Caledonian Railway Company for payment of (1) the sum of £885, with interest thereon at 5 per cent. from 14th December 1875, or otherwise from 25th February 1903, and (2) the sum of £307 odd.

In 1816 the defenders, in virtue of the powers contained in the Act 8 and 9 Vict. e. clxii, entituled "An Act for making a railway from Carlisle to Edinburgh and Glasgow and the North of Scotland, to be called the Caledonian Railway," took compulsorily from N. D. Laurie of Lauriston, then proprietor of the lands of Orchardfield, in the county of Edinburgh, a por

. v. Caled. Rwy

12, 1910

tion of that estate.

In 1847 the defenders,

in virtue of another of their Acts, viz., the Caledonian Railway (Edinburgh Station and Branches) Act 1817" (10 and 11 Vict. c. ccxxxvii), compulsorily acquired from him an additional portion of that estate. Both of these Acts incorporated the Lands Clauses Consolidation (Scotland) Act 1845, Mr Laurie having refused to grant a conveyance of the ground taken, the compensation payable therefor was duly consigned in bank. At the time the defenders acquired the ground they made up no title thereto, nor did they pay to the then superior of the lands any compensation for loss of casualties. After Mr Laurie's death his heir-at-law granted a conveyance of both portions of ground to the defenders. The conveyance, which was dated 25th and 28th October 1875, and which was in the form prescribed by section 80 of the Lands Clauses Consolidation (Scotland) Act 1845, was duly recorded in the Register of Sasines on 14th December 1875. The superiors made no formal demand upon the defenders for compensation for loss of casualties till 25th February 1903. In 1907

the compensation payable to the superiors therefor was valued by an arbiter nominated by both parties as at three different dates, viz., 1846-47, when possession was taken, 1875 when the statutory title was recorded, and 1903, when the demand for compensation was first made. On the assumption that the claim fell to be valued as in 1816 the compensation was assessed at £381, and on the assumption that the valuation should be made as at either of the other alternative dates the sum pay. able was fixed at £885. The defenders were found liable in the expenses of the arbitration, these being afterwards taxed at £307 odd, the sum second concluded for. The pursuers in the present action were the representatives of the superiors in 1875 and

1903.

They averred-“(Cond. 4) . . . Up to the date of their obtaining and registering said conveyance the defenders had no title to said portions of ground, but on their registering said conveyance they obtained a good and undoubted right and complete and valid feudal title thereto in all time coming in terms of said section 80. On their registering said conveyance the defenders took or otherwise destroyed the superiority of said portions of ground which until said date continued unaffected in the persons of the superiors thereof. The defenders, however, did not pay compensation to the superiors for their said estate of superiority. Under the titles on which Mr Laurie held, inter alia, said portion of ground the feu-duty was nominal, the proportion effeiring to said portions being only tenpence, and the entry of singular successors was untaxed. With reference to the statement in answer, it is admitted that said payment was made to the superiors of Orchardfield. Explained that said payment was made under error in law, in respect that at the date when said payment was made the relationship of superior and vassal did not exist between

the parties in consequence of the extinction of the estate of superiority. (Ans. 4) The said conveyance is referred to. Admitted that the defenders did not pay compensation to the superiors for their said estate of superiority. Quoad ultra denied. Explained that on 3rd October 1877 the defenders paid to the superiors the sum of £500 in settlement of a composition then claimed in consequence of the death of Mr Laurie in 1874."

The defenders further averred "Explained that the sum payable as compensation falls in terms of the statutes to be ascertained and valued as at the date of the acquisition of the said portions of land, viz., 31st August 1846, or alternatively as at the date of the pursuer's first demand for compensation, viz., 25th February 1903. Explained further that the said award was made under reservation of and without prejudice to the parties' rights and pleas in respect of the interest recoverable upon the sums fixed in the said alternative findings. In the event of it being held that the sum payable as compensation falls to be ascertained as at 1846 or as at 1875 the defenders aver and maintain that no interest is due on said sum, or at least that, in respect of the pursuers' delay in making their claim, interest should be restricted to 3 per cent. In any event, the defenders are entitled to credit for the sum of £500 paid in 1877 as aforesaid either in extinction pro tanto of the capital sum found payable, or alternatively in reduction of such interest, if any, as may be found payable on said sum."

The pursuers pleaded, inter alia-"(1) The defenders having by completing a statutory title thereto on 14th December 1875 taken or otherwise destroyed the superiority of the two portions of ground, parts of the lands of Orchardfield taken compulsorily by them as aforesaid, are bound to pay full compensation therefor, and the pursuers as being in right of said compensation are entitled to decree for the amount thereof fixed by arbitration with interest at 5 per cent. from the date of said acquisition. (2) Alternatively the pursuers are entitled to decree for the amount of said compensation, with interest at 5 per cent. as from 25th February 1903, when the defenders were formally called on to pay compensation for the loss of casualties. (3) The payment of £500 having been made under error in law cannot in any event be pleaded as a set-off to the pursuer's claim."

(7)

The defenders, inter alia, pleaded—“(6) The compensation payable by the defenders falling to be valued and assessed as at the dates of the acquisition of the said lands, the action should be dismissed. In any event, the said sum of £500 paid on 3rd October 1877 falls to be deducted from the sum assessed as payable by the defenders in respect of said claim for compensation."

Opinion. "The pursuers' claim against the defenders for loss of casualties was valued by an arbiter as at three alternative dates-1846-47, when the contract of purchase by the defenders from the pursuers' predecessors was completed and possession taken; 1875, when a statutory title was given by the pursuers and recorded by the defenders; and 1903, when the pursuers first demanded compensation for loss of casualties. If compensation falls to be assessed as in 1846-47, then prescription admittedly applies, and even if it does not, the pursuers do not represent, and have no assignation from, the then proprietors. No argument was submitted to justify 1903, so that the pursuers can only succeed if 1875 be the proper date. Their right to claim in that event is admitted in answer 5.

"1. Date at which Compensation for Loss of Casualties falls to be assessed.-This question depends on when the pursuers' estate of superiority was extinguished, and must be solved by a construction of sections 80, 107, 108, 109, 110, and 126 of the Lands Clauses Consolidation (Scotland) Act 1845. The pursuers say that their estate of superiority remained unextinguished till the statutory conveyance was recorded; while the defenders allege that it was extinguished either on 31st August 1846, when notice completed the contract of purchase, or at least on 6th March 1817, when possession was taken.

"I am of opinion that the pursuers are right, and that 1875 is the proper date. Although a completed purchase took place on service of the notice, the question remained open, as between the proprietor and the Railway Company, whether this would involve destruction of the superior's right to casualties. Had these two subsequently resolved to cancel the purchase, the superior could not have objected, and his right to casualties would have remained unaffected. Equally, while under section 80 either proprietor or company could have insisted on a statutory title, it was open to them by agreement to have executed and accepted an ordinary feudal title completed by recorded sasine, which would have left the superior's position untouched. After service of notice the proprietor could have conveyed to another, and on registration would have given a feudal right preferable to that of the Railway Company, voidable only, even after possession, if the third party were in bad faith to found on his title. In these cir

12, 1910

cumstances I do not see how, unless the contrary appears in the statute, the superior's rights could be affected by any proceeding prior to the recording of the statutory title, to which he was no party, and with which he had no right to interfere. I do not think the sections founded on by the defenders justify the conclusions drawn from them. Section 126 shows that it was anticipated that compensation for casualties would be paid before entering upon the lands, because it was anticipated that a statutory title would be executed and recorded before taking possession. But if this has not been done, and the question remains open whether the casualties will ever be extinguished, it does not follow, either from the letter or the spirit of the Act, that compensation is to be ascertained as at a date anterior to the recording of the instrument, which for the first time affects the superior's rights. The cases of Magistrates of Elgin v. Highland Railway Company, 11 R. 950; Magistrates of Inverness v. Highland Railway Company, 20 R. 551; and Magistrates of Inverness v. Highland Railway Company, 46 S. L. R. 676, do not seem to me to touch the question raised in this case. These cases decide that compensation for loss of casualties is not excluded from failure to claim it before possession is allowed to be taken; but they do not deal with the question of the date at which compensation is to be assessed, whether at the date of the notice, or at the date of taking possession, or at the date of recording the statutory title, or at the date of making the claim.

"2. Interest.-Although not a conditionprecedent, it was the defenders' duty to pay compensation for extinguished casualties before taking possession of the ground, the acquisition of which by them was not intimated to the superior. The ground has been a profit-earning subject in their hands, and I see no sufficient reason why interest should not be allowed, or why the rate of interest should be less than 5 per cent.

"3. Defenders' Claim to set off £500 paid by them on 3rd October 1877.-This sum was paid to the pursuers in settlement of a composition claimed by them in consequence of the death of Nathaniel Donaldson Lawrie, of whom the ground had been acquired by notice in 1846. The pursuers plead that this sum, having been paid to them under error in law, cannot be set off by the defenders. I think I am not precluded from refusing effect to so grossly inequitable a plea. The money was claimed by the pursuers. They were not entitled to it, and they cannot found on their own mistake as to the footing on which payment fell to be made. It would be against 'good conscience' to hold otherwise-Dixons v. Monkland Coal Company, 5 W. & S. 445. On this sum, which I hold must be set off, interest will run at 5 per cent. . . ."

The defenders reclaimed, and arguedThe superior's claim arose in 1846, on the company's entry to the lands, and he ought to have made it then. The taking of the land put an end to the feudal relation, and

Tr. v. Caled. Rwy

12, 1910

that being so he had no title to sue-Magistrates of Elgin v. Highland Railway Company, June 20, 1884, 11 R. 950, 21 S.L.R. 640; Magistrates of Inverness v. Highland Railway Company, March 16, 1893, 20 R. 551, 30 S. L. R. 502; Magistrates of Inverness v. Highland Railway Company, March 19, 1909 S.C. 943, 46 S.L.R. 676. The only claim he had was for compensation, and he could have enforced it by preventing entry on the land (section 126). If, however, as here, he had neglected to enforce it, his claim was gone. A superior was clearly not entitled to lie bye for many years and then make a claim, for the data necessary to fix it might have entirely changed. The logical inference therefore was that it arose at or prior to the company taking possession. It was the intention of the Act to put an end to burdens affecting the land taken, subject of course to compensation. So much so was this the case that the only parties entitled to notice were the owners of the land to be taken-Clark v. School Board for London (1874), L.R., 9 Ch. App. 120; Macey v. The Metropolitan Board of Works (1864), 33 L.J. Ch. 377. The date of recording the title could not be the date of compensation, for that would infer that the superiority existed after the land had been taken, which was inconsistent with the provisions of the statute. Further, the omitted interest clauses (117, 118) fixed the compensation as at the date when the interest was destroyed, and that was when the land or interest was taken.

Argued for respondents - The question really came to this-When did the company acquire a "complete and feudal title?" It could not be the service of the notice or the entry on the land, for neither affected the superior's right to the land. His right to it was not affected till the company recorded their title and deprived him thereby of his vassal in the land. The company, moreover, were bound to complete a title-Alexander v. Bridge of Allan Water Company, February 4, 1868, 6 Macph. 324, 5 S.L. R. 227. Till the vassal's assignee claimed to enter in his own right by recording his title the superior was not affected. That being so, his right to compensation did not arise till the assignee recorded his title. If the assignee refused to pay compensation the superior could interdict him using the lands, for he was given his statutory right subject to payment of compensation. The Elgin case relied on by the reclaimers was distinguishable, for that case was decided on the hypothesis that a title had been recorded. The Lord Ordinary therefore was right.

At advising

LORD JOHNSTON-The pursuers are now the superiors of an area of ground, part of which the Caledonian Railway Company took in connection with their Princes Street Station in Edinburgh.

The Railway Company served their notice on the proprietor of the property in the year 1816, and entered into possession in i847. The proprietor refused to convey, so they deposited the amount of compen

sation awarded and awaited until his death in 1874, when they obtained from his heir a conveyance in statutory form, which was recorded in the year 1875. The pursuers made no claim for compensation in respect of their superiority until 1903.

The question at issue is whether their claim of compensation has prescribed, and if it has not, as at what date it is to be calculated and paid? This depends upon whether the superior's rights were brought to an end and resolved into a mere personal claim for money compensation in 1846/47, or in 1875, or even later in 1903.

This being the question at issue, it is to be determined on a consideration of the enactments of the Lands Clauses Consolidation (Scotland) Act of 1815, which provides for the acquisition of lands for the purposes of undertakings authorised by local and personal Acts, which incorporate it. It thus provides for purchase by agreement, for compulsory purchase and ascertainment of compensation, for payment, and for the transfer of title.

The phraseology of the Act is not entirely uniform or consistent. But a general consideration of its provisions has satisfied me that, not only where it speaks of the "owners" of any land to be acquired, but also where it speaks in various phrase of parties having any right or interest in such lands, it confines its attention to the owner in the popular sense, or in legal terms to the proprietor of the dominium utile, and to those whose rights or interests are carved out of his, to the exclusion of the encumbrancer, and still more particularly of the feudal superior, the latter of whose rights are not considered as rights or interests in such lands but as something separate. Hence no notice to take is required to be served on the superior. He cannot, I think, though opinions have been incidentally expressed to the contrary, prevent possession being taken without first compensating him; and he may remain uncompensated without the promoters of the undertaking being restricted in subsequently dealing with him by the terms of section 117, which empowers them to purchase omitted interests in lands only where the omission to acquire has arisen from mistake or inadvertency.

But under the general heading of lands subject to rent charges, &c., which prefaces section 107 and following sections, special provision is made for dealing with the interests, inter alios, of the superior, and it is clear that in the minds of the draughtsmen of the statute, who were adapting the corresponding English Act to Scotland, there was no very intelligent distinction between the feu-duties and casualties of the superior and English rent charges. The preamble to this fasciculus of clauses is general, and applies without distinction to any lands which shall (confining attention to that part of it which is directly pertinent to the present question) be charged with any feu-duty and casualty of superiority. I do not think it is necessary to canvas the meaning of the word charged." I think it is intended to cover