Scottish Court of Session Decisions

The Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), enacts—Section 103—“(5) ‘Public street’ shall, in the principal Act and this Act, mean ( a) any street which has been or shall at any time hereafter be taken over as a public street under any general or local Police Act by the town council or commissioners; ( b) any highway within the meanings of the Roads and Bridges (Scotland) Act 1878 vested in the town council; ( c) any road or street which has in any other way become, or shall at any time hereafter become, vested in or maintainable by the town council; and ( d) any street entered as a public street in the register of streets made up under this Act. (6) ‘Private street’ shall, in the principal Act and in this Act, mean any street other than a public street.” Section 104—“(2) In addition to the scheduled amendments the principal Act shall be amended or extended in the following particulars—… ( d) For section one hundred and thirty-three shall be substituted the following section—‘Where any private street or part of such street has not, together with the footways thereof, been sufficiently levelled, paved, causewayed or macadamised and flagged to the satisfaction of the council, it shall be lawful for the council to cause any such street or part thereof and the footways, to be freed from obstructions and to be properly levelled, paved, causewayed or macadamised, and flagged and channelled in such way and with such materials as to them shall seem most expedient, and completed with fences, posts, crossings, kerbstones, and gutters and street gratings or gullies and drains for carrying off the surface water and thereafter to be maintained, all to the satisfaction of the council.’ ( e) For section one-hundred and thirty four shall be substituted the following section—“If any private street or part thereof, together with the footways thereof, shall at any time be made, paved, causewayed or macadamised and flagged and otherwise completed as aforesaid, and put in good order and condition to the satisfaction of the council, then, and on application of any one or more of the owners of premises fronting or abutting upon such street or part thereof, or of the superior or owner of the ground on which such street or part thereof has been formed, it shall be lawful for the council to declare, and if such street or part thereof has been paved and put in good order and condition as hereinbefore mentioned, and if the owners of one-half or more of the frontage of such street or part concur in the application, the council shall declare the same to be vested in the council, and it shall be thenceforward vested in and maintained by the council.’”

This was a Stated Case on appeal under the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), section 339, as amended by the Burgh Police (Scotland) Act 1903, section 104, sub-section 2 (8), between the Town Council of Alloa, appellants, and James Wilson and others, respondents.

The Case stated:—“In this cause the respondents and John Ure are the whole proprietors of the properties fronting the

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road or street known as West Kellie Place, Alloa. On 12th June 1911 the appellants passed a resolution that this street should be ‘made,’ and that the statutory notices for the formation of the street should be issued. On 8th August following a notice was accordingly issued to the respondents and to John Ure, proceeding on the Burgh Police (Scotland) Acts 1892 to 1903, and in particular on section 133 of the said Burgh Police (Scotland) Act 1892, as amended by the said Burgh Police (Scotland) Act 1903, calling upon them to cause the carriageway in West Kellie Place, extending from Ludgate to Ochil Street, in the burgh of Alloa, to be freed from obstructions, and to be properly levelled, paved, causewayed or macadamised, &c., all in terms of certain plans, sections, and specifications specified in the said notice, and deposited in the Chambers of the Burgh Surveyor of Alloa.

“The respondents appealed to the Sheriff-Substitute against this resolution upon the ground that West Kellie Place is a public street within the meaning of the Burgh Police (Scotland) Acts 1892 and 1903, and not a private street within the meaning of these Acts, and that the respondents are therefore not liable to pay any part of the costs, charges, or expenses incurred by the appellants in respect of the said works. The Sheriff-Substitute took evidence upon the statements and answers made by the parties, and on 9th February 1912 issued an interlocutor finding that West Kellie Place was a public street, and quashing the resolution appealed against. The appellants thereafter appealed to the Sheriff, but I, on 16th March 1912, refused the appeal, holding that the said road had become a public street of the burgh of Alloa in terms of the Burgh Police (Scotland) Act 1903, section 103 (5), and that accordingly the resolution of the appellants complained of was illegal and incompetent.

West Kellie Place extends between Ludgate and Ochil Street, which are and have for many years been public streets within the burgh of Alloa. Both sides of West Kellie Place have been completely feued under feu-charters, commencing in 1871 and ending in 1886, and have been completely built with dwelling-houses for more than twenty years. The whole ground was feued from one superior—the Earl of Mar and Kellie.

There is only one feu on the south side of the street, and it runs the full length of the street. It was the first of the feus to be given off, and it was subsequently divided, and is now owned by two proprietors. It is described in the feu-charter as bounded on the north-west and north by a piece of ground laid off to form a street, which is the street now in question. The feus on the north side of the street are described as bounded on the south by the road or street called West Kellie Place. The ground on the north side is feued upon, inter alia, the condition that the feuar and his foresaids ‘shall be bound forthwith to construct in a substantial and workmanlike manner, at his or their own expense, a road or street on the south of said piece of ground to the extent of one-half of the width thereof, with a suitable footpath, kerb, and run-channel, all to the satisfaction of the superior.’ The road or street formed has never been bottomed, causewayed, or macadamised. The charters applicable to the south side do not contain such a clause.

The said road was made and intended only for the owners' use, and accordingly, subsequent to the laying off of the street, a barricade was erected by the authors of the respondents across the roadway, extending between the footpaths on either side at a place about equidistant from either end of the street, with the view of preventing its being used by the public for through heavy vehicular traffic. Said barricade remained in that position for several years until it was removed as after mentioned in 1892.

The road has never been formally taken over by the appellants as a public street under the provisions of the Burgh Police (Scotland) Act 1892, section 134, or of the Burgh Police' (Scotland) Act 1903, section 104, sub-section (2) ( e).

In 1890 the question of removing the barricade and taking over the street by the burgh was considered by the appellants, who resolved that as ‘the street was apparently sufficiently made for any traffic likely in the meantime to pass over it,’ they would simply ask Mr Melvin (one of the feuars) to remove the barricade, and ‘would not at this time ask it’ (the street) ‘to be made, and as a matter of course the adjoining proprietors would be looked to to keep it in order until such time as it was properly made by them and taken over by the Commissioners.’ The correspondence was resumed in 1892. On 15th March 1892 the town clerk, by direction of the appellants, wrote to Mr Melvin requesting him to remove the barricade. On 11th April Mr Melvin replied—‘I beg to say on behalf of the other proprietors and myself that we are quite willing to take down this barricade at once, on the understanding that we are not called on to form the street in any other way than at present, so long as we keep it in proper repair.’ The appellants decided that they could not give any such undertaking, and directed the clerk to request the removal of the barricade. He accordingly did so, saying ‘the Commissioners consider that the removal of the barricade will be for the public advantage.’ No agreement, however, was come to, and as the feuars did not remove the barricade, though again called on to do so on 21st September 1892, and would not consent to its removal unconditionally, the appellants, in the month of December 1892, brevi manu, and without the consent of the respondents or their authors, removed the said barricade for the purpose of throwing the road open for through vehicular traffic by the general public of the burgh, and have kept it open for such purpose ever since without opposition

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being made by the respondents, and without protest except when the barricade was being removed.

On 3rd August 1904 the town clerk, upon the instructions of the Town Council, wrote to each of the respondents as owners of their respective subjects in West Kellie Place, asking them then to lay the foot-pavement in front of their property, and stating that the Council desired that the foot-pavement should be laid with run-channel, kerb, drains, and gulley gratings. All the respondents, upon receipt of the said request, complied therewith, and laid the foot-pavements in the manner desired by the Town Council.

On a few occasions between 1892 and the date of the foresaid notice of 8th August 1911 the feuars, or some of them, and on one occasion the appellants, have voluntarily laid ashes on the roadway so as to provide passage dryshod for the former. The surface of the road is still in fairly good condition in dry weather, but becomes soft and muddy in wet or frosty weather.

In these circumstances I held in law—(1)That in consequence of this removal of the barricade and the assumption of the control of the traffic, and of the use of the road for the public general vehicular traffic of the burgh, the Town Council became responsible for the maintenance of the said road; (2) That on the Burgh Police (Scotland) Act of 1903 coming into force on 15th May following, the said road became, in terms of section 103, sub-section (5) thereof, a public street of the said burgh of Alloa; and (3) That accordingly the resolution of the Town Council of 8th August 1911 complained of, requiring the present respondents and others to causeway said road, was illegal and incompetent.”

The questions of law were—“(1)Whether the appellants acted legally in removing, without the consent of the respondents, the barricade erected by them to preserve West Kellie Place from public through traffic, unless they intended to be responsible thereafter for the upkeep of the street? (2)Whether, if such action on the part of the appellants was illegal, they can now, after exposing the street to deterioration by public general use for nearly nineteen years, call on the respondents to make good the deterioration due to this illegal act? (3)Whether, in consequence of this action of the appellants, West Kellie Place became a public street in virtue of the provisions of the Burgh Police (Scotland) Act 1903? and (4) Whether the resolution of the appellants of 12th June 1911 complained of was legal and competent?”

Argued for appellants—In 1892, when the barrier was removed, West Kellie Place was clearly a private street—Burgh Police (Scotland) Act 1862 (25 and 26 Vict. cap. 101), sections 3 and 150. Its removal was not an illegal act, for the magistrates were entitled under the Act of 1862 (the statute then in force) to remove obstructions. Assuming, however, that its removal was ultra vires, that was not sufficient to vest the street in the Town Council or to make it maintainable by them. That being so, it was still a private street—Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sections 133 and 134; Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), sections 103 and 104 ( e); Campbell v. Leith Police Commissioners, June 21, 1866, 4 Macph. 853, per Lord Justice-Clerk Inglis at p. 856, 2 S.L.R. 150; Neilson v. Borland, King, & Shaw, February 28, 1902, 4 F. 599, 39 S.L.R. 417; Glasgow and South-Western Railway Company v. Magistrates of Ayr, 1911 S.C. 298, 48 S.L.R. 211. [The Lord President referred to Corporation of Glasgow v. Caledonian Railway Company, 1908 S.C. 244, 45 S.L.R. 190; aff. 1909 S.C. (H.L.) 5, 46 S.L.R. 30.] The appellants were not barred by the actings of their predecessors in office, for the respondents' position was no worse to-day than it was in 1892. They could then have been called upon to pave this street, and the expense of doing it now was in no way increased by what the appellants had done.

Argued for respondents— Esto that in 1892 this was a private street, the Town Council had made it a public street, for since the removal of the barrier it had been subject to general use. It had become a “thoroughfare,” and that was sufficient to make it maintainable by the Town Council and therefore a public street in the sense of the Act of 1903—Burgh Police (Scotland) Act 1903, section 103, sub-section 5 (3)— Kinning Park Police Commissioners v. Thomson & Company, February 22, 1877, 4 R. 528, at p. 530, 14 S.L.R. 372. The respondents' offer to remove the barrier was conditional upon the Town Council agreeing to maintain the street. The appellants were aware of this when they removed the barrier; and that being so they were now barred from repudiating liability for its upkeep. In such circumstances slight evidence of dedication to public purposes was sufficient— Whyte v. Dixon's Trustees, March 4, 1897, 34 S.L.R. 471, per Lord M'Laren, at p. 476.