Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HIGHWAY - JURISDICTION.
Subject_3 Omission of the requisites in Act 1669, c. 16, previous to an order of the Justices of the Peace, for the change of the road, fatal to the proceedings.

Justices of Peace of Clackmannanshire
v.
The Magistrates of Stirling and Thomas Campbell

Date: 4 December 1772

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[Faculty Collection, VI. 101; Dictionary, 7619.]

Hailes. I have no doubt of the upright and public spirit of the Justices; but their public spirit must be limited by law. There is nothing more apt to check public spirit than statutes, yet this can only be remedied by more statutes. I think that the present road, properly widened and repaired, may be just as good as the rest of the roads of the country. I also doubt how far the Justices can turn about a road more than 200 yards because it thereby becomes shorter to some of the inhabitants of the country. This is no reason, for that it must always happen from the nature of the thing.

Gardenston. The Act, 1669, ought to be liberally interpreted. If the old road cannot well be continued, there is a discretionary power of alteration. I doubt, however, of the application of the maxim to this case. The suspender offers ground sufficient to make the old road wide and safe: the new road cuts his property unmercifully in pieces.

President. I do not dispute the powers of the Justices, but here they have been too precipitate. The law requires that, first of all, the damage should be ascertained, instead of leaving this to be adjusted after the damage is done.

Justice-Clerk. Public utility is not apparent in this case: As the Justices may turn about the road a fortiori, they may widen it. They have turned the road without attempting to widen it.

Coalston. The powers of Justices of the Peace are liberal, but not arbitrary. The only objection not obviated is a new one, that the road may be washed away. This also may be obviated by going so much farther back into Mr Campbell's ground, without ruining his inclosures and intersecting his little property.

On the 4th December 1772, “In respect that the decreet does not proceed upon sufficient evidence of the necessity of changing the road, and that the damages were not previously ascertained, the Lords suspended the letters, reserving to the Justices again to take the matter under their consideration and to proceed according to the Act 1669.”

Act. H. Dundas. Alt. A. Lockhart. Reporter, Coalston.