Scottish Court of Session Decisions

Miss Jane Stewart and others, proprietors of buildings in Virginia Street, Chapel Street, and Rue-End Street, Greenock, brought this action, asking declarator—“That the defenders, the said Trustees of the Port and Harbours of Greenock, are bound to maintain and leave open, as an entrance from the town of Greenock to the east harbour of Greenock, and breasts and quays thereof, a street of 40 feet in breadth in continuation of Virginia Street,—the said street in continuation of Virginia Street having its north end 130 feet or thereby from the north side of Rue-End Street, and terminating at the line of the north wall of the north-most buildings in the line of Virginia Street; and that the pursuers, as proprietors of lands and houses in Greenock, and particularly of lands and houses adjoining to Virginia Street, Chapel Street, and Rue-End Street, of Greenock, and to the said street in continuation of Virginia Street, are entitled to use, possess, and enjoy the said streets, and the streets intersecting the said streets, and the said street in continuation of Virginia Street, as freely in all respects, and in the same manner as the same were used, possessed, and enjoyed by the pursuers and their predecessors and authors in the said subjects prior to the formation of the railways or lines of rails after-mentioned: That the defenders, the said Trustees of the Port and Harbours of Greenock, and the said Board of Police of Greenock, or either of them, had and have no right or title to make, construct, or maintain railways, or a line or lines of rails, along or across any part of Rue-End Street, Delingburn Street, or Virginia Street, or the said street in continuation of Virginia Street to the said harbours and quays; and that they, or either of them, have no right to run, or permit or suffer to be driven, drawn, or conveyed along any railway, or line or lines of rails laid down on the said streets, or the said street in continuation of Virginia Street, or any part thereof, any truck, waggon, or other carriage, whether drawn by horse or steam power or any locomotive engine, or to cause, or permit, or suffer any truck, waggon, or other carriage, or any locomotive engine, to be or remain on any portion of such railways, or line or lines of rails so laid down” The summons also contained conclusions of removal and interdict.

In 1863 the pursuers raised an action against the then Greenock Harbour Trustees, the predecessors of the defenders, the Trustees of the Port and Harbours of Greenock, to have it found and declared that they had no right to lay down rails upon Chapel Street, Virginia Street, and Rue-End Street, and upon the foresaid street in continuation of Virginia Street, or to run trucks or waggons on them by horse or locomotive power, and to have them ordained to remove the rails, or, in the event of their failure to do so, that the pursuers should be authorised to remove them at the expense of the said defenders in that action. In that action the Lord Ordinary, on the 12th December 1863, pronounced the following interlocutor:—“Finds that the defenders had and have no right to lay rails along or across any of the streets in Greenock, called Virginia Street, Chapel Street, and Rue-End Street respectively; and that the laying of rails by the defenders along or across any of the said streets, and the maintenance of such rails, was and is illegal; and to this effect finds and declares in terms of the conclusions of the summons, and decerns: With regard to any other of the conclusions still to be insisted in, appoints the cause to be enrolled.” The said defenders in that action reclaimed against this interlocutor, but were unsuccessful, the interlocutor having been adhered to by the First Division

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of the Court upon 7th June 1864, and the said defenders found liable in expenses since the date of the Lord Ordinary's interlocutor. Thereafter the pursuers lodged the following minute in process:—“Gifford for the pursuers stated that, in respect of the interlocutor of the Lord Ordinary, of date 12th December 1863, and of the interlocutor of the First Division of the Court, dated 7th (signed 8th) June 1864, affirming the same, the pursuers did not now insist in any of the conclusions of the summons in so far as they relate to the street of 40 feet in breadth from Virginia Street to the east harbour of Greenock, and to the lane mentioned in the conclusions; and that to that extent only they restricted the conclusions of the action.” After a further debate, the Lord Ordinary pronounced the following judgment:—“ Edinburgh, 3d December 1864.—The Lord Ordinary allows the pursuers to lodge the minute now tendered at the bar; and having heard parties' procurators, decerns and ordains the defenders, within three weeks from this date, at the sight of Mr Ronald Johnston, civil and mining engineer, Glasgow, to remove the railways or lines of rails laid down by the defenders along or across the streets in Greenock, called Virginia Street, Chapel Street, and Rue-End Street, and to restore the said streets to the same state in which they were prior to the formation of the said railways or lines of rails; and, failing the defenders doing so within the period above mentioned, authorises the pursuers to do so at the sight of the said Ronald Johnston, and at the expense of the defenders: Quoad ultra, in respect of the said minute, No. 22 of process, dismisses the action and decerns: Finds the pursuers entitled to the expenses of process so far as not already found due, subject to modification: Allows an account thereof to be lodged, and remits the same to the Auditor to tax the same and report.” The defenders in that action again reclaimed, but the judges of the First Division again refused the reclaiming note with expenses. Against that judgment the said defenders appealed to the House of Lords; but, with consent of the pursuers, and on payment of the expenses, they were allowed to withdraw the appeal.

The pursuers stated that the defenders, the Harbour Trustees had removed certain of the rails complained of, but had refused to remove that portion of the rails in Virginia Street, and in the street in continuation of Virginia Street to the harbour, which lies next the harbour; the lines of rails laid down in Delingburn Street; and the four lines of rails branching from the said line of rails in Delingburn Street, and crossing Rue-End Street.

In consequence of these rails, and the use made of them by the defenders for waggons and trucks, the pursuer alleged their property was injured, and according they instituted this action to enforce their rights.

The defenders, besides defences on the merits, pleaded—“ Res judicata so far as regards the rails on the said ground of 40 feet in width, in continuation of Virginia Street. At least the pursuers are precluded from maintaining the action, so far as regards these rails, by the proceedings in said former action.”