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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The County Road Trustees of Lanark v. Local Authority of Burgh of Airdrie [1885] ScotLR 22_427 (19 February 1885) URL: http://www.bailii.org/scot/cases/ScotCS/1885/22SLR0427.html Cite as: [1885] ScotLR 22_427, [1885] SLR 22_427 |
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Page: 427↓
Held that tollhouses situated within a burgh, and which prior to the Roads and Bridges Act 1878 had belonged to trustees having the management of roads not wholly situated within one county or burgh, were by that Act vested in the local authority of the burgh.
Prior to the passing of the Roads and Bridges Act 1878, two tollhouses situated within the burgh of Airdrie, and known as the Rawyards Tollhouse on the North and South Lanarkshire turnpike road, and the Old Tollhouse on the Bathgate and Airdrie turnpike road, belonged to the respective trusts (North and South Lanarkshire Turnpike Road Trust, and Bathgate and Airdrie Road Trust) having the management of these roads.
The Roads and Bridges (Scotland) Act 1878, (41 and 42 Vict. cap. 51) sec. 32, provides—“From and after the commencement of this Act the whole turnpike roads, statute labour roads, highways and bridges, within each county respectively, shall form one general trust, with such separate district management as shall be prescribed by the trustees as hereinbefore provided; and all the roads, bridges, lands, buildings, with rights, interests, moneys, property, and effects, right of action, claims, and demands, powers, immunities, and privileges whatever, except as hereinafter provided, vested in or belonging to the trustees of any such turnpike roads, statute labour roads, highways, and bridges within the county, shall be by virtue of this Act transferred to and vested in the county road trustees appointed under this Act, who, subject to the qualifications hereinafter expressed, shall be liable in all the debts, liabilities, claims, and demands in which the trustees of such turnpike roads, statute labour roads, highways, and bridges are or were liable under any general or local Act then in force, except in so far as such debts, liabilities, claims, and demands may under the provisions of this Act be discharged, reduced, or extinguished.”
Section 37 provides:—“Where any trust existing at the commencement of this Act embraces a turnpike road which is not situated wholly within one county or burgh, the following provisions shall have effect; that is to say—(1) Where this Act shall have been adopted, or shall be in force in each of the counties in. which such road is situated, ( a) the portion of such road within each such county or any burgh therein shall be vested in and managed and maintained by the trustees, board and district committees of the county, or the local authority of the burgh, as the case might be, in which such portion is situated; ( b) the whole assets of the trust shall, except as herein otherwise provided, be valued and allocated among the trustees of the counties and local authorities of the burghs respectively in the proportion and in the manner in which the debt affecting such turnpike trust shall be valued and allocated among the trustees of such counties and the local authorities of such burghs respectively under the provisions of this Act; ( c) all lands, heritages, works, and buildings belonging to any such trust locally situated within any county or burgh shall be and are hereby transferred to the trustees of such county and local authority of such burgh, as the case may be, within which the same are so situated, and shall be applied and used or may be sold and disposed of under the powers and for the purposes of this Act.”
Section 44 provides:—“The trustees [which expression by sec. 3 means ‘County Road Trustees’] before selling any tollhouse or other building belonging to them, shall first offer the same, together with the site thereof, to the person or persons whose lands immediately adjoin thereto, at a price to be fixed by a valuator to be named by the Sheriff, and the price obtained for such tollhouse or other buildings shall be applied in the first place to the payment of road debts, if any, and the balance, if any, to the general purposes of this Act, provided always that in fixing such price the valuator shall take into consideration the terms and conditions upon which such site was originally acquired.”
The Provost and Magistrates of Airdrie, as local authority of the burgh under the Roads and Bridges Act, having in September 1884 advertised the Rawyards Tollhouse and Old Tollhouse for sale as belonging to them, the County Road Trustees of the County of Lanark raised this action against them as the local authority of the burgh, constituted and acting under the Roads and Bridges (Scotland) Act 1878, to have it declared that these toll-houses belonged to them (pursuers), and that the price of them, if sold, belonged to the pursuers, to be applied to extinguish local debt affecting turnpike and statute labour roads within the counties of Lanark and Renfrew, and the burghs therein. They also sought to have the defenders interdicted from selling, conveying, or otherwise disposing of the said toll-houses or either of them.
Page: 428↓
The pursuers averred:—The Rawyards Tollhouse was situated on what was known as the North and South Lanarkshire turnpike road, which was situated partly within the burgh and partly within the county of Lanark, and partly in other counties, but no part was vested in the burgh. It did not traverse the burgh, but for a distance of about 1533 yards it formed part of its eastern boundary. The length of the road was over 47 miles, of which upwards of 4 miles was in the county of Dumbarton, and the remainder, being over 43 miles, was in the county of Lanark. The Old Tollhouse was situated on what was known as the Bathgate and Airdrie road, which was made and maintained by the turnpike trust of that name, and of which 18 miles and upwards was in Lanarkshire, 20 miles and upwards in the county of Linlithgow, and 7 furlongs in the burgh of Airdrie. They founded on sections 32, 44, and 47 of the Roads and Bridges (Scotland) Act 1878, and further stated that they had sold several toll-houses situated in the landward part of the county, and that the County Road Trustees of the county of Renfrew had also done so, but the County Road Trustees of both counties used the proceeds of these toll-houses on behoof of the two counties and all the burghs therein, including Airdrie, both counties and burghs being liable in the several debts, all in terms of the said Act. The defenders denied that section 32 conferred any right or title on the pursuers to the tollhouses within the burgh of Airdrie which were in question. They maintained that by section 3 of the Act the term “county” in the 32d and other sections meant the landward part of the county only,—that is, the county exclusive of any burgh (such as Airdrie) situate therein, and that the tollhouses in question were vested in them. They founded on section 37, subsection (1) ( c), quoted above.
The pursuers pleaded—“(1) In respect of the provisions of the Roads and Bridges (Scotland) Act 1878, and of the facts and circumstances condescended on with reference to the said tollhouses, the pursuers are entitled to sell and to receive the proceeds of the sale thereof, and apply the same in terms of the said Act, and particularly section 44 thereof. (2) In any view, the pursuers are entitled to have the proceeds of the said tollhouses applied in payment of the road debts affecting the counties of Lanark and Renfrew and the burghs therein situated, as the said proceeds may be allocated in terms of the Roads and Bridges (Scotland) Act, 1878, and particularly section 37 (1) ( b).”
The defenders pleaded—“(2) In respect of the provisions of the Roads and Bridges (Scotland) Act 1878, and of the tollhouses being situated within the burgh, this action is unfounded, and the defenders are entitled to absolvitor.”
The Lord Ordinary (
“ Opinion. —The question is whether the houses specified in the conclusions of the summons, both of which are situated in the burgh of Airdrie, are vested by the Roads and Bridges Act 1878 in the local authority of the burgh or in the County Road Trustees of Lanarkshire. Before the Act came into operation in Lanarkshire each of these houses belonged to a body of turnpike road trustees, and was occupied as a toll-house upon a road situated partly within the burgh and partly in the county of Lanark and partly in other counties. One of these roads is said not to have traversed the burgh, but to have formed its boundary for a distance of 1533 yards, and of the remaining portion of the road upwards of 43 miles were in the county of Lanark and upwards of 4 miles in the county of Dumbarton. Of the other road 18 miles and upwards were in Lanarkshire, 20 miles and upwards in the county of Linlithgow, and 7 furlongs in the burgh of Airdrie. In both cases, therefore, there was only an inconsiderable portion of the road situated within the burgh, although it is probable that a considerable proportion of the tolls levied at the tollhouses in question may have been paid by persons travelling to and from the burgh, or resident within it, but neither of these considerations appears to me to be material to the question. The material facts are (1st) that the turnpike roads in question were not situated wholly within one county or burgh; and (2d) that the tollhouses are locally situated within the burgh of Airdrie.
The provisions applicable to roads and buildings in this situation are contained in the 37th section of the statute, subsection 1. And it does not appear to me that there can be any question as to the construction or effect of these enactments. It is provided ( a) that the portion of such road within each county, or any burgh therein, shall be vested in and managed and maintained by the trustees of the county, or the local authority of the burgh, as the case may be: ( b) ‘The whole assets of the trust’—that is, of the former turnpike trust—‘shall, except as herein otherwise provided, be valued and allocated among the trustees of the county and local authorities of the burghs respectively, in the proportion and manner in which the debt affecting the turnpike trust’ is to be valued and allocated; ( c) ‘All lands, heritages, works, and buildings belonging to any such trust locally situated within any county or burgh shall be and are hereby transferred to the trustees of such county or local authority of such burgh, as the case may be, within which the same are so situated, and shall be applied and used, or may be sold and disposed of under the powers and for the purposes of this Act.’ The only provision as to the assets of a trust in the position described, other than that contained in paragraph b, is that contained in paragraph c, and there can be no doubt as to the meaning of that provision. The assets of the trust, excepting the lands, works, and buildings, are to be allocated in the same proportions as the debts, but the lands, works, and buildings are to be transferred absolutely to the trustees of the county or the local authority of the burgh within which they are situated, irrespective of the amount of debt which may be allocated upon these bodies, and irrespective also of the extent of the road which they will hereafter be required to manage and maintain.
It is admitted that the roads in question are partly situated within the burgh of Airdrie, and accordingly a proportion of the debt, although it is said to be an insignificant proportion, has been allocated upon the local authority. It follows that the transference of lands and buildings belonging to the trust must be governed by the enactment which I have quoted.
It is said that the 44th section of the statute
Page: 429↓
The pursuers reclaimed, and argued—Section 32 vested all the roads, bridges, land, &c., in the county road trustees under the exception of section 37, which gave to the local authority of such a burgh as Airdrie all that was necessary for the maintenance of the roads under the new system. Tollhouses, however, could not be said to be of such a nature, and it was against the spirit and meaning of the Act to include them in what was given by the 37th section. Section 44 regulating the conditions upon which disused tollhouses may be sold, was applicable in terms to county road trustees alone, and therefore the Legislature could never have contemplated transferring them to the local authority of a burgh.
The Court, without calling on counsel for the defenders, adhered to the Lord Ordinary's interlocutor.
The
Counsel for Pursuers— Mackintosh— Jameson. Agents— Bruce & Kerr, W. S.
Counsel for Defenders — R. V. Campbell. Agent— Alexander Wylie, W.S.
