Scottish Court of Session Decisions

The Roads and Bridges (Scotland) Act 1878 provides by section 57—“Where by the certificate of their surveyor or district surveyor it appears to the authority which is liable to repair any highway, that, having regard to the average expense of repairing highways in the neighbourhood, extraordinary expenses have been incurred by such authority in repairing such highway by reason of the damage caused by excessive weight passing along the same, or by extraordinary

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traffic thereon, such authority may recover in a summary manner, before the Sheriff (whose decision shall be final), from any person by whose order the excessive weight has been passed, or the extraordinary traffic has been conducted, the amount of such extraordinary expenses, as may be proved to the satisfaction of the Sheriff to have been incurred by such authority by reason of the damage arising from such excessive weight or traffic as aforesaid.”

The interpretation clause of the Act (sec. 3) provides—“‘Person’ shall include corporation, incorporated company, commissioners, or trustees (not being county road trustees).”

The County Road Trustees of the county of Forfar presented this petition in the Sheriff Court of Perthshire in order to have the County Road Trustees of the county of Perth ordained to pay them the sum of £33, 8s. 1d., being the amount of extraordinary expenses, certified by the district surveyor, incurred in repairing that part of the highway from Dundee to Coupar—Angus which extends from Tullybaccart Quarry, in the county of Forfar, northwards to the march of the county of Forfar with the county of Perth at Stoneye Bridge. The action was laid on section 57 of the Roads and Bridges (Scotland) Act 1878.

The pursuers averred that the repairs had been rendered necessary by reason of the damage caused to their roads by the excessive weight of the waggons and traction-engine employed by the defenders in conveying stones from Tullybaccart Quarry into Perthshire for the repairs of the roads in the eastern district of that county.

They pleaded—“The extraordinary expenses incurred by the pursuers in repair of said highway having been incurred by reason of the excessive weight passed along said highway by the defenders, the pursuers are entitled to recover the same from the defenders, in terms of the statute.”

The defenders in answer founded on the fact they were county road trustees, and on the interpretation clause of the Act above quoted as exempting them from liability for the expenses sued for.

They pleaded—“The defenders being county road trustees, the pursuers are not entitled under the statute to recover from them the alleged extraordinary expenses, and the action should be dismissed, with costs to defenders.”

The Sheriff-Substitute ( Grahame) found that by the interpretation clause of the Act, the word “person” which is therein used to denote the party liable for such extraordinary expense, expressly excluded county road trustees, and that the pursuers were therefore not entitled to recover from the defenders payment of the extraordinary expenses now sued for, and therefore assoilzied them from the conclusions of the action.

“ Note.—Whatever may have been the intentions of the framers of The Roads and Bridges (Scotland) Act 1878, I do not think that the interpretation clause can be construed as including county road trustees among the persons whom it makes liable for the payment of such extraordinary expenses as are alleged to have been caused by the defenders’ excessive traffic over the pursuers’ road. The plain meaning of the interpretation clause is that county road trustees are thereby expressly excluded from any such liability. The exception expressed in the clause parenthetically (‘not being county road trustees’) is otherwise of no signification. If this exception is taken as applicable only to the trustees of the road on which the excessive traffic has been carried on, the exception has no meaning, for the trustees are thus only made liable to themselves for the excessive traffic which they themselves have occasioned. In the present case the pursuers may reasonably complain that there is a hardship in their not being able to recover from the defenders the expenses occasioned by their excessive traffic, but unless the excluding parentheses be held to be pro non scripto, which view I do not feel justified in taking, there seems to be no means of affording a remedy to them.”

The pursuers appealed.

They argued—There was no community of purse or interest between the two counties, and the spirit of the Act would be best complied with by making the ratepayers of one county contribute to the expenses of damage caused by their operations to the other. The exception contained in the interpretation clause was meant only to apply to the trustees of the particular county on whose road the excessive traffic was carried on.

The defenders replied—To give effect to the pursuers' contention led to the result that the Act made the trustees liable to themselves for the excessive traffic which they themselves had occasioned. The plain meaning of the interpretation clause was that county road trustees were thereby expressly excluded from liability. The Legislature was only following out what it had provided for before under the 37th section of the Turnpike Roads (Scotland) Act (1 and 2 Will. IV., cap. 43), which exempted them from toll.

At advising—