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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hempseed and Others v. Colville [1866] ScotLR 2_52 (2 June 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0052.html
Cite as: [1866] ScotLR 2_52, [1866] SLR 2_52
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SCOTTISH_SLR_Court_of_Session
Page: 52↓
Court of Session Outer House.
(Before
v.
Facts:
Where two streets of a village ran parallel to each other, and a heritor proposed to shut up a portion in the middle of the lower, and connect either extremity with the upper, by means of two new roads at right angles to the lower street — Held (per Lord Barcaple and acquiesced in) that the proposed alterations were not such as were contemplated by the Act 1661, c. 41, and warrant of the Justices authorising the alterations reduced as incompetently pronounced.
This was an action of reduction at the instance of certain feuars in the village of Torryburn, of a warrant obtained by the defender from the Justices of the Peace for the county of Fife, under the statute 1661, c. 41, empowering “heritors, at the sight of the Justices, to cast about the highways to their convenience.”
The village of Torryburn is situated near the seashore, on the highway between Dunfermline and Culross. At the east end of the village, the public road diverges into two branches, both of which run parallel to each other through the village, and meet again at its western extremity. The upper is called the High Street, and the lower the Low Street. They are also connected by a cross lane, called the Brewery Lane, or Brewery Wynd. The defender's house of Craigflower is situated at the south side of the village. He had recently purchased several feus in the village, and the operations he proposed will be seen from the following sketch:—
High Street.
Low Street.
The defender proposed to open two new streets, represented by the dotted lines, and to inclose within his own grounds the intervening space south of High Street, thereby shutting up the Brewery Lane, and the portion of Low Street between the two dotted lines.
The Justices, after hearing parties, authorised the alterations to be made, and thereupon this action was raised, the pursuers maintaining that, being a feuar, the defender was not a heritor in the sense of the Act; that the roads being streets of a village, were not such as were contemplated by the statute; and that the operation contemplated was not a proper casting about.
The
Edinburgh, 20 th March 1866.—The Lord Ordinary, having heard counsel for the parties, and considered the closed record, productions, and whole process, Finds that the alterations on the roads in question complained of by the pursuers were not of such a kind as the Justices of Peace could competently authorise to be made, under the Act 1661, c. 41, and that said roads were incompetently shut up; repels the defences, reduces, decerns, and declares, in terms of the reductive conclusions of the libel: Finds it unnecessary to dispose of the declaratory conclusions, and decerns, interdicts, and prohibits in terms of the other conclusions: Finds the defender liable in expenses; allows an account thereof to be given in, and when lodged, remits the same to the auditor to tax and report. E. F. Maitland.
Note.—It appears to the Lord Ordinary that the alterations in question are not of such a kind as is contemplated by the Act 1661, when it empowers heritors, at the sight of the Justices, “to cast about the highways to their convenience.” The ground of this objection will best appear from the plan of process.
The roads which have been shut up were not portions of one distinct line, or of two distinct lines of highway. They were streets or public accesses in or immediately adjoining to the village of Torryburn, affording the means of passing from one part of the village to another, and also constituting two separate entrances to the village from the east, one by Brewery Wynd, and the other by Low Street. They converged at a point which they approached from three opposite quarters, High Street, west end of Low Street, and the road on the south of the church. From their relative position they constituted three several routes by which persons might pass through or from or to the village, from High Street to west end of Low Street, from west end of Low Street to the road on south of the church, and from that road to High Street. The defender has substituted for these various accesses two new roads made by him, and the use of a portion of the existing High Street, considerably longer than either of them.
The Lord Ordinary greatly doubts if roads of this kind, in or connected with a village, are within the provision of the statute. But apart from that, he is of opinion that it is incompetent for an heritor to substitute one new line of road in exchange for several accesses previously existing, and that the incompetency is not cured by showing that the new line may serve the purpose of all the routes which have been closed. In one sense the defender has closed only two roads, or rather one road diverging into two branches, and he has made two new roads. But neither of these new roads is by itself a casting about, as they do not either of them return to the highway which has been made the subject of the proceedings under the statute. In order to make out a case of casting about at all, it is necessary to connect both roads and the part of the High Street which lies between them into one line. The Lord Ordinary thinks that this is not casting about a highway in the sense of the statute, but that it is simply offering a new line of road in exchange for several accesses in different directions, the relative position of which did not admit of the defender, with any benefit to himself, casting them severally about.
The Lord Ordinary thinks it is a good separate objection to the competency of the proceeding, that the new line is composed in part of the High Street, a previously existing public highway. To the extent to which this is done, the public and the inhabitants of the village have only one road where they had two before. The Lord Ordinary
Page: 53↓
The pursuers stated other objections, especially that the defender is only a feuar, holding small feus on the line of the roads in question, and that the solum of the roads belongs not to him but to the superior. The Lord Ordinary has not thought it necessary to go into these questions. E. F. M.
Counsel for Pursuers— Fraser and Guthrie Smith. Agent— David Crawford, S.S.C.
Counsel for Defender — Clark and Balfour. Agents— Gibson-Craig, Dalziel, & Brodies, W.S.