VICE CHANCELLOR'S COURT, Jan. 19.
(Before Vice-Chancellor Sir W. P. WOOD.)

THE LONDON, BRIGHTON, AND SOUTH-COAST RAILWAY COMPANY v. THE LONDON AND SOUTH-WESTERN RAILWAY COMPANY, AND THE PORTSMOUTH RAILWAY COMPANY. 

     Mr. Rolt, Mr. Willcock, and Mr. J. H. Taylor moved on behalf of the plaintiffs for an injunction to restrain the defendants from using the joint-station at Landport, Portsea, of the plaintiffs and the South-Western Railway Company, for the booking or the transit of passengers or goods destined for or coming from the Portsmouth Railway, or any part thereof, except only so far as relates to the transmission, upon the lines of railway laid down in the station, of traffic conveyed on the public service to or from the line belonging to the Crown leading to the dockyard or other naval or military establishments at Portsea or Portsmouth.

     By the Brighton and Chichester (Portsmouth Extension) and London and South-Western Railways Act, 1847: it was enacted that the Brighton and Chichester Company might sell, and the South-Western Company and the London, Brighton, and South-Coast Company might purchase, such part as should be agreed upon of the Portsmouth extension of the Brighton and Chichester Railway Company, as was Westward of the Junction near Havant. This portion was to form and be worked as a joint line by the London and South-Western and the London, Brighton, and South Coast Railway Companies, subject to the control of a joint committee of the two companies, it being enacted (section 13) that, subject to such control and management and the provisions of any and every Act of Parliament for the time being, relating to the joint line or to the two companies, each of the two companies might at all times thereafter use the joint line for the purposes of conveying passengers, animals, and things upon the same, and for all such purposes as should be necessary for the traffic or business thereon of the same respective companies. Articles of contract, in pursuance of the Act of 1847, were made on the 9th of October, 1848, between the three companies, for the purpose of arranging the terms upon which the joint line was to be worked and effecting the conveyance to the South-Western and Brighton and South-Coast Companies. Further terms of agreement between the two companies were arranged in August, 1852. By the Portsmouth Railway Act, 1853, the Portsmouth Railway Company was incorporated, with power to make a line from Havant to Godalming, to which place a branch of the South-Western Railway from Guildford extended, the line of the Portsmouth Company, when completed, joining the South-Coast line at a short distance from Havant and the ‟joint line.” In January, 1858, another agreement was entered into between the Brighton and South Coast and the South-Western Companies as supplemental to the existing agreements of 1848 and 1852. By the Portsmouth Railway Amendment Act, 1858, sec. 35, that company and all other companies lawfully using the Portsmouth Railway were authorized to pass over and use the joint line, and that portion of the Brighton and South-Coast situated between its junction with the Portsmouth and its junction with the ‟joint line.” Such powers of passage and of user to be exercised on such terms and conditions as failing an agreement between the companies should be settled in certain specified modes, with a proviso that, except as thereinafter provided, nothing in the Act should confer on the company, or on any such other company or person, any powers of user of the joint station at Landport (Portsea) for any purpose other than the transmission upon the lines laid down in the station of traffic conveyed on the public service. It was also provided (sec. 36) that the company and owners for the time being of the joint station at Landport might agree for the use by the Portsmouth Railway Company, or such other company, &c., of this joint station for the general traffic of the company, &c., on terms as might be mutually agreed upon between them, provided that if no such agreement should be come to, then the Portsmouth Company should, before the year from passing the Act, purchase so much of the lands authorized to be purchased at Portsea as should be necessary for the construction of an independent station, and construct such station, &c. as might be required for the accommodation of the traffic.

     The Portsmouth Railway Company had required the plaintiffs (the Brighton and South-Coast Company) to come to an arrangement for the use by them of the South-Coast line between the two points of junction, and of the plaintiffs’ station at Havant. The companies not having been able to agree upon the terms of user, the matter had been referred under the powers of the Act to arbitration. The bill proceeded to allege that the South-Western Railway Company had entered into some agreement with the Portsmouth Railway Company for working their line, and for the conveyance of the traffic thereon, but that such agreement had been entered into without the concurrence or sanction of the plaintiffs. In December last the plaintiffs received notice of the arrangements proposed by the South-Western Railway Company for working the traffic of the Portsmouth Railway, and using the plaintiffs’ line between the two points of junction. The plaintiffs thereupon objected to the use of the joint station at Landport for the Portsmouth Railway traffic. Upon the South-Western Company insisting upon their right, in virtue of their joint ownership of the joint line and station, to use them for all purposes of their company, not excepting the accommodation of traffic which might have passed from, or which might be about to pass to, the Portsmouth Railway, the plaintiffs had filed their bill and now moved for an injunction in the terms above stated.

     In support of the motion it was contended that the South-Western Company was acting illegally, and in violation of section 13 of the Act of 1847, which must be confined strictly to the two companies, and could not enable the traffic of a third company to be introduced over the joint line, whether such traffic had originally travelled over the South-Western line proper, or was merely traffic of the Portsmouth Railway. The South-Western Company, by working the Portsmouth Railway, must be taken as representing that Company, which was expressly prohibited by the Act of 1858 from using the joint station at Landport, except by agreement.

     Sir R. Bethell, Mr. Giffard, Q.C., and Mr. Baggallay,  for the South-Western Railway Company, contended that there was nothing in the Acts to prohibit them from using the joint station for all purposes, including the working by them of the Portsmouth Railway, and the conveyance of traffic over that line, whether between Portsmouth and London, or between Portsmouth and Godalming only. It was impossible to prevent passengers from taking the direct line now open by way of Godalming (saving some 25 miles) instead of the circuit by Basingstoke, and so long as passengers or traffic were conveyed over any portion of the South-Western line, the joint line being clearly a portion of their line, the traffic became South-Western traffic, and as such entitled to the use of the joint station, section 13 of the Act of 1857 containing no restriction as to any source from which the traffic might be derived. 

     Mr. C. T. Simpson for the Portsmouth Railway Company. 

     Mr. Willcock replied. 

     The Vice-Chancellor said that the question in this case depended entirely upon the construction of the Act of 1847, by which the South-Western and the South Coast Companies were authorised to purchase, and a third company was authorised to sell, a portion of line for the purpose of being used by the two companies as a joint line. This Act was in no way modified by the Portsmouth Railway Amendment Act of 1858. What, then, was the effect of the Act of 1847 as to the uses of the joint station by the two companies? The Act was remarkable, and differed from the usual form adopted in such cases. It was enacted (section 14) that all proceedings, &c., with respect to loss, &c., on the joint line should be brought against the two companies jointly; that the joint and several funds of the two companies should be liable in payment and satisfaction of all liabilities incurred by the joint committee, whose appointment was directed by the Act for the management of the joint line. Some of the provisions as to the joint committee might in case of a dispute between the companies be very difficult to carry out, but it was observable that either of the two companies might appoint its own booking clerks who were not to be removable by the joint committee. Section 13 (already set out in the statement of the case) enabled each of the two companies to use the joint line. It had appeared to him from the first that there was considerable difficulty in the plaintiffs' case as to boná fide traffic booked by the South-Western Company at Portsmouth, to proceed first by the joint line to Havant, then over the Portsmouth Railway to Godalming and again by the South-Western line from Godalming to Waterloo. This would be clearly traffic and business of the South-Western Railway. Passengers were not bound to go round by the circuitous round of Basingstoke, when they might take the more direct line by Godalming and Petersfield. There was nothing, therefore, to lead him to the conclusion that boná fide traffic travelling over the South-Western line from London to Godalming, or vice versâ, and ultimately over the joint line from Havant was not South-Western traffic. There might be a difficulty as to traffic starting from Petersfield, or any point on the Portsmouth Railway, as it could not be said to have ever been on any part of the South-Western line proper. It was said by the South-Western Company that they were joint tenants of the joint line, and that it was not the less a portion of their line proper because they had the joint use of it with the plaintiffs. He was not upon the present occasion bound to say more than that it was a point for discussion which might have to be decided hereafter. There might be a question as to whether the joint line was not to be taken as independent of either of the two companies, and as belonging rather to a third species of company created as to this joint portion by the Act of 1&47. It was a difficulty in the way of the contest of the plaintiffs that they were compelled to admit that anything which had traversed any part of the South-Western proper became part of their traffic. Then, again, the case had been suggested by Mr. Baggallay, of the Portsmouth Railway joining the South-Western shortly before the junction with the South Coast line. There appeared to be some balance of doubt as to what was intended, but not sufficient to induce the Court to interfere by injunction. He could not conceive any reason for calling upon the Legislature to restrict the use of the joint line. Each company would endeavour to get as much traffic as possible upon it for their joint benefit. Care, no doubt, would be taken as much as possible as to the user of the joint station, and to prevent any competing line from coming direct from London. Section 35 of the Act of 1858 appeared to have no bearing whatever on the rights of the two companies as between themselves. It in no way affected or restricted their rights to the entire user of the joint station. No third company was to have the right of entering that Station. Section 36 provided, rather singularly, that unless the Portsmouth Company came to any arrangement with the two companies for the use of the joint station they must within one year buy land and make an independent station. The South-Western Company did not admit that the Portsmouth Railway Company were using the joint station, for that would be a direct contravention of the Act of 1858; but they said, ‟We are using our own station on our own line, as we are fully entitled to do under the Act of 1847.” He could not tell how far it might appear afterwards that the course taken by the South-Western Company was in reality that of the Portsmouth Company. At all events, it could not be taken as now established against them; nor did the bill allege more than that some agreement had been come to. Upon the question of costs it was to be observed that the question was reduced to a dry point of law. The plaintiffs stood upon their strict legal right, and the Court had said that it would always assist companies in such a contest to assert their right. No order would be made upon the present motion, and the costs would be costs in the cause.