M'Laren v. City of Glasgow Union Railway Co.

Subject_1 Sale Subject_2 Sale to a Railway Company under the Lands Clauses Consolidation (Scotland) Act 1845 Subject_3 Servitude of Implied Grant of Access Subject_4 Where Purchaser owns Adjoining Property.

Opinion ( per the Lord Justice-Clerk Moncreiff) that the rule of law, that in every sale of land all incidental rights essential to the enjoyment of the subject of sale are included, resolves itself into a question of presumed intention, and that there are two cases where the presumption that they are included is strong—(1) where the right claimed is one of constant necessity to the reasonable enjoyment of the property, e.g ., air, light, water; and (2) where the right claimed is such that no reasonable man would have bought the property without it.

Where a railway company gave notice, in terms of their Act of Parliament and the Lands Clauses Consolidation Act 1845, to a proprietor that they were to take a certain portion of his land for the purposes of the railway, and he, under the 90th section of the last-recited Act, required them to take the whole, and it was afterwards agreed that a portion larger than was asked but less than the whole, should be taken— Observed ( per Lord Justice-Clerk (Moncreiff) and Lord Gifford) that that must be held to be a compulsory sale.

Dear Sir, —Referring to our meeting this morning as to Mr M'Laren's claim, I am now authorised to offer you the sum of four thousand five hundred pounds (£4500) for the back ground, extending to 301 square yards, regarding which we have been in treaty, including compulsory sale and all claims at the instance of Mr M'Laren, or any parties on his behoof, for injury to business, cost of removal, and other consequences of compulsory removal from occupancy of the premises.

I need hardly mention that in the event of this offer not being accepted, it shall not be founded on or referred to in any future proceedings. A. B. M'Grigor.”