Scottish Court of Session Decisions

Subject_1 PART I.

JURISDICTION.

William Hall of Whitehall,
v.
Robertson of Ladykirk

Date: 11 March 1777
Case No. No. 5.

A Committee of Justice had reported that a proposed alteration on a road was within the statutable limits of 200 ells. Offered in a suspension that the distance was 215 ells. Refused as irrelevant.

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The act of Parliament 1661. Cap. 41. contains this clause:

“For the further encouragement of the said heritors, wadsetters, and liferenters, to go about the ready observance of the said act, liberty and power is granted to them, at the sight of the Sheriffs, Stewarts, Lords of Royalty, Barons, and Justices of Peace, in their respective bounds, to cast about the high ways to their conveniency, providing they do not remove them above 200 ells upon their whole ground.”

Mr. Robertson made applications to the Justices of the district of Berwickshire in which his estate is situate, proposing to alter a part of the high road.

A Committee, who were appointed to visit the place, reported, that by the proposed alteration, the road would be turned 238 ells, into a tract unfavourable to the public, on account of being overshadowed with trees on one side. Consequently at a general meeting of the Justices, (30th April 1774), Mr. Robertson's petition was refused.

The Justices of Berwickshire had sometime before issued certain regulations, one of which was, that, “notice of all private applications for turning high-ways on account of inclosing, shall be given at the parish church on Sunday between sermons, and at one or other of the said two general meetings previous to such application being made.”

By another regulation, the Quarter Sessions, on first Tuesday of March and first Tuesday of August, were always to be adjourned till the last Tuesday of each of these months.

Mr. Robertson, without complying with the regulation concerning notices, brought together a meeting of the Quarter Sessions, on the first Tuesday of August, which ought to have been adjourned without doing any business, until the last Tuesday of that month. He laid before this meeting a new petition, with a plan for turning the road as originally proposed, with a slight variation, by which it was alleged the turn was reduced to 194 ells.

The Justices appointed a Committee of their number to visit and inspect the road. This Committee met three days after. The proceedings which had followed upon the former application were not laid before them. They made a report approving of the alteration, mentioning that it would be for the benefit of the public, as the road would be carried “on a dry firm bottom, more easily made and kept in repair.”

The Quarter Sessions, which met on the last Tuesday of August, declared by minute that the proceedings in the one which had met on the first Tuesday, were irregular and contrary to the resolutions of the Trustees regarding adjournments, before mentioned. However, the next Quarter Sessions, which met upon 24th October 1779, approved, after considerable opposition, of the report of the Committee which had considered the alteration of the road proposed by Mr. Robertson to be beneficial to the public, and within the limits of 200 ells.

Mr. Hall presented a bill of suspension, which was passed. He gave in a condescendence of facts, which he offered to prove, particularly that the turn of the road would amount still to more than 215 ells.

The Lord Justice Clerk took the cause to report, and ordered memorials.

It was argued for Mr. Robertson, that the opposition to his schemes of obvious improvement was founded in malice,—and that the proposed turn did not exceed the distance allowed by act of Parliament, or at least, that any little excess was trifling; the road would be upon the whole better, and de minimis non curat prætor.

Mr. Hall argued thus: The turn certainly did amount to the length of 215 ells, of which he offered the most distinct proof. The Justices had no power by statute, or by common law, to go one inch beyond the permission of the act of Parliament in turning a public highway. A high road is publici juris, which, belonging to no individual, cannot be encroached upon, taken away, or altered in any shape, except by the specific authority of a statute,—and Justices of Peace, exceeding the statutable regulations, commit an illegal act, as much as if they were to pull down a church, over which they have no jurisdiction. When roads are impracticable, the Justices have certain powers committed to them by the act 1669. When an heritor means to inclose, they have certain powers by the act 1661; but those are limited in the most express manner. It would be illegal to turn a road 201 ells.

The Court pronounced the following interlocutor, (26th February 1775):

“The Lords having resumed the consideration of this cause, the mutual memorials given in, and condescendence and answers hinc inde, they find the condescendence not relevant, and therefore find the letters orderly proceeded, and decern, and find expenses due to the charger.”

A petition against this judgment was (11th March 1777) refused without answers.

Lord Ordinary, Justice-Clerk. For Hall, Ilay Campbell.