Scottish Court of Session Decisions

In this action Mm Jane Robertson or Donald, residing at Bishopston, in the parish of Banchory. Devenick and county of Kincardine, relict of the deceased James Donald, was pursuer, and James Dyce Nicol, Esq., M.P., was defender. The summons concluded that the defender should be ordained to make payment to the pursuer of the sum of £82, 10s. sterling, with the legal interest from the term of Whitsunday 1853, being the date when the defender entered upon the possession and occupation of the ground hereinafter condescended upon, for the purpose. of forming the road hereinafter mentioned: And farther, should be ordained duly and sufficiently to fence the lands of Bishopston, the property of the pursuer, in so far as this has been rendered necessary by the intersection of the said lands by the said road, and that at sight and to the satisfaction of a skilled person to be named by our said Lords: And also to make payment to the pursuer of the sum of £1 sterling per annum as the expense of herding the cattle on the said lands of Bishopston, rendered necessary by the intersection of said lands. and the defender's failure or neglect to fence the same, and that from the term of Whitsunday 1854, for the year preceding that term, and so forth yearly thereafter until the defender shall duly and sufficiently fence the said lands as aforesaid.

The pursuer's late husband was, when he died in 1852, in possession of the lade of Bishopston,

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which had been vested in his father, but he had never made up a title thereto in his own person. The lands of Bishopston are adjacent to the estate of Badentoy, belonging to the defender, and that of Auchlunies, the property of Peter Duguid, Esquire. Prior to 1853, a mad running from north to south intersected the estates of Badentoy and Auchlunies, and as the proprietors of these estates were anxious to incorporate the said road with their respective lands, to further some improvements they had in contemplation, they applied to the road trustees to have the said road shut up, and for authority to construct a new road in lace thereof through the lands of Bishopston. This application was made to the road trustees in 1853, at which time the pursuer was tenant in possession of Bishopston. A committee of the road trustees having inspected the roads, and made a report, the trustees, at a subsequent meeting held on 31st October 1853, in respect that the requisite notices by advertisement, that the road in question was intended to be shut up, had not been given, nor parties heard in terms of the established regulations, renewed the appointment of the committee, and of new remitted to them to proceed in the matter, in conformity with said regulations, and to report to a future general meeting.

In the meantime the defender had been negotiating with the pursuer and her son, James Donald, who was then a pupil, and his tutors, for their consent to the construction of the proposed road, and their consent had been obtained on the terms specified in the following letter, written by Mr Duguid on behalf of the defender:—

“ Auchlunies, 7th May 1853.—To James Donald, eldest son of, and the trustees and curators appointed by, the late James Donald, proprietor of Bishopston.—Gentlemen,—As you have consented to allow the new line of road leading from Auchlunies towards Badentoy to be made through the lands of Bishopston—that the work may be proceeded with immediately, I hereby, on the part of Mr Dyce Nicol of Badentoy, and authorised by him, promise that he will yon the amount of damages that may be found due to you by the Commutation Road Trustees, in payment of the land occupied by this road, or otherwise. If I do not hear from you to the contrary, I will understand that you are satisfied with the obligation, and the work will be commenced in the course of next week.—I am, Gentlemen, your obedt. servt.,

(Signed) Peter Duguid.”

To this letter the said James Donald and his curators appended respectively the following docquets:—

I agree to this above.

(Signed) “ James Donald.”

“ Manse of Banchory-Devenick, 11 th May 1853.—We, the above referred to tutors and curators of the above subscribing James Donald, agree to the foregoing proposal.

(Signed) William Paul.

George Donald.

William Beverley.”

The letter from Mr Duguid was enclosed in the following letter, addressed by him to the Rev. William Paul, who was one of James Donald's tutors:—

“ Auchlunies, 9 th May 1853.

My dear Sir,—I enclose letter of obligation to James Donald and the trustees under his father's settlement. This Mr Nicol requested me to grant for him, that he may finish some improvements which the old road interferes with. I hope this will be satisfactory to the trustees; and to prevent mistakes, I got James Donald to sign his name at the foot of the enclosed, approving. I hope you find yourself better of having a rest at home.—Yours very truly,

(Signed) Peter Duguid.”

The proposed road was thereafter constructed, but no steps were taken by the defender to prosecute the application which he had made to the Road Trustees. Accordingly, in August or September 1864, the pursuer erected a dyke across the road, and the defender thereupon caused the dyke to be removed, and applied for an interdict against the pursuer further interfering with the road. He also, on 22d September 1864, presented an application to the Road Trustees, in which, referring to the former proceedings in 1853, he prayed that the road shoul be included in the schedule of commutation roads. The pursuer appeared and objected to this being done, and the Road Trustees, at a meeting on 1st May 1865, resolved that, aa questions in regard to the road were in dependence in Court, it “would not be judicious to put the road, in the meantime, on the parish list.” At another meeting, on 3d October 1865, a letter was read from Mr Nicol withdrawing his application, and the application was held as withdrawn.

The defender, on record, made the following statement:—

“Stat. 10. The defender is now, and has all along been, perfectly ready and willing to fulfil the obligation undertaken for him by Duguid, specified in the before-mentioned letter of 7th May 1853, and to pay to James Donald, junior, and the trustees of his father, or to such other person as shall produce a title thereto, the amount of damages which may be found due by the Commutation Road Trustees in payment for the land occupied by the said road or otherwise. No claim, it is believed, has ever been made against the Commutation Road Trustees, or any sum found due by them.”

He stated, inter alia, the following pleas:—“1. The pursuer's averments are neither relevant nor sufficient to sup ort the conclusions of the action. 2. The pursuer has no title to insist in this action. 3. The pursuer has no title, either as proprietrix or tenant, to demand compensation or damages in respect of the construction of the road in question, because she has not now, and never had, any title to, or possession of, the ground occupied thereby. 4. The obligations undertaken by the defender in the letter of 7th May 1853, not having been undertaken to the pursuer, she can insist in no claim in respect thereof. 5. The defender's obligations being to pay the amount of damages that might be found due by the Commutation Road Trustees, he is entitled to be assoilzied, in respect that no damages have as yet been found due by the said trustees; and he has not failed to implement his obligations.”

The record was closed on 23d May 1865, and on 17th June 1865 an interlocutor was pronounced by Lord Barcaple, in the action of interdict in regard to which the defender was allowed to lodge in this action a condescendence of res noviter. This condescendence consisted of a narrative of the interlocutor in the interdict case, the fact that it had become final, and the defender's withdrawal of his application to the Road Trustees.

In the interdict case Lord Barcaple had repelled the reasons of suspension, and refused the interdict with expenses, observing in his note:—

“This application for interdict is brought upon the ground that the road through the property of the respondent, which she was proceeding to shut up brevi manu, is a public road. There is a strong presumption against any party having a right at their own hand to shut up what is de facto a made road actually used by the public. But the Lord Ordinary has come to the conclusion that, in the very peculiar and anomalous circumstances of this case, neither the public nor the complainer have a title on which they can claim, even in a possessory question, a right to pass through the respondent's property. It is not either a servitude or a public right of way that is contended for by the complainer. The alleged right took its origin in the construction of the road for the first time in 1853, and in an agreement in regard to it with the respondent's author. The nature of that transaction, and the terms of the agreement founded on, clearly import that the road was to be a commutation or statute-labour road, and was to come in place of another commutation road which the complainer wished to have shut up. It was only by authority of the Statute-Labour Road Trustees that the new road could have become a commutation road, and the old one be shut up. By the agreement founded on, which is set forth in Reason 5, and is dated in May 1853, the complainer undertook to pay the respondent's author ‘the amount of damages that may be found due to you by the Commutation Road Trustees.' This seems to refer to the duty laid upon the trustees, as Statute-Labour Road Trustees, by the Act 1669, c. 16, to estimate the damage done to heritors by such a change. Before this agreement was entered into, the complainer and Mr Duguid, an adjoining heritor, had petitioned the Statute-Labour Trustees to shut up the old mad, and place the new one on the district road funds, and a committee had been appointed on 30th April 1853 to inspect the roads, and report. On 31st October following, the committee reported in favour of the application. But the meeting of trustees, in respect that the requisite notices had not been given that it was intended to shut up the road, nor parties heard, remitted of new to the committee, and nothing further had been done in the matter. It is clear that the respondent's author permitted the road in question to be made through his lands upon the distinct understanding of all parties that it to be made a public road, placed upon the commutation funds, and under the charge of the Statute-Labour Road Trustees. There is no ground for holding that he would have consented to its construction upon my other footing. The not having been the trustees, neither the respondent nor the public have any claim upon them to keep it in repair, and in the present position of matters the trustees could not legally spend any of their funds upon it. They are under no legal liability in regard to it, and for anything that appears they may decline ever to have anything to do with it. The complainer founds upon his agreement with the respondent's author, and upon & consent to the construction of the road, as depriving the respondent of the title to object. It is admitted that no compensation has been paid either to the respondent's author or to herself, and, what is of more importance, the understanding on which the road was made has entirely miscarried, and it is sought to be kept open on an anomalous footing unknown to the law, and quite different from that which was in view when the respondent's author allowed it to be made. When the complainer made the road at his own expense, as he wma to have done, and prevailed upon the former proprietor of the respondent's land to allow him to do so, he necessarily took upon himself the risks attending such an irregular and anomalous course of proceeding, and in particular the risk of getting the trustees to adopt the road. If the trustees had even now come forward to adopt the road, and glace it upon the funds, the respondent might have been unable to prevent them doing so, and possibly a question might have arisen as to whether the compensation was due to her or her author. But in taking this step, the trustees must have acted strictly according to law, and, in particular, the must have fixed the amount of compensation due to the proprietor—(Justices of Clackmannan v. Magistrates of Stirling, 5th December 1772, M. 7619.) In the existing state of things, when the trustees have not adopted the road, and are not asserting any rights, or undertaking liabilities in regard to it, the Lord Ordinary is of opinion that the respondent as proprietor is entitled to refuse passage through her lands, and that she cannot be prevented doing so by the mere de facto existence of the road, unless the necessary steps shall be taken for making it a public road of a kind recognised by the law. If the respondent is entitled to shut up the road, she may of course allow it to be used on payment to her of compensation, or on any other condition which she chooses to impose. But the Lord Ordinary does not adopt the view which was pressed for her, that she has acquired right, as disponee of the lands, to the obligation undertaken by the complainer to her author to pay the compensation for the road. It is unnecessary to dispose of that point in this case, and he need only say that he does not proceed upon it in the present judgment.”

Along with his condescendence of res noviter, the defender stated the following additional plea:— “8. The understanding on which the made having entirely miscarried, and the pursuer having taken possession of the ground on which the said road was constructed, the defender is not bound to pay for the value of the said ground.”

And the pursuer, in answer, added a plea in the following terms:—“5. The pursuer being and willing to allow the defender and the public the full use of the road in question, and having only shut it up in the meantime in exercise of her right so to do until payment of the compensation due to her in respect of the formation of said road has been made, the defender is bound to pay said compensation, and is not entitled, and cannot now withdraw from the obligation granted by him, or on his behalf, in the letter of 7th May 1853.”

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 10 th March 1866.—The Lord Ordinary having heard counsel for the parties, and considered the closed record, productions, and whole process—Finds that the road in question never having adopted by the Commutation Road Trustees, and the pursuer having resumed possession of the said road and the ground on which it was formed, she cannot now insist in the conclusions of this action: Sustains the eighth plea in law for the defender; assoilzies him from the conclusions of the action, and decerns: Finds the pursuer 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.—This is an unfortunate litigation; but the Lord Ordinary can only deal with the case in the aspect which it now presents.

The original defect in the pursuer's title has been cured by production of an assignation by her stepson, from whom she acquired the property.

The conclusions of the action are founded on the written obligation quoted in article sixth of the condescendence, and are for the value of the land on which the road was formed, and severance-damage, and to fence the road. But the pursuer shut up the road and excluded the defender and the public from it. She successfully resisted an application by the defender to have her interdicted from doing so, on the ground that it never was a public road. And she has permanently built a wall across it. The defender's obligation was to pay the amount of damages that might be found due by the Commutation Road Trustees, of course implying that this was to become a commutation road, as to which the trustees are by statute hound to fix the amount of compensation due to the proprietor. But as the trustees have never adopted it, and the pursuer has resumed the ground, things are not in a position in which she can ask either the value of the ground or to have the road fenced. It appears to the Lord Ordinary that she has acted in a manner inconsistent with her present claim. If she has now any claim against the defender, it must be of a different kind.

E. F. M.”

The pursuer reclaimed.

Solicitor-General and Trayner, for her, argued:—The Lord Ordinary has proceeded on an entire misapprehension of the pursuer's actings. Her sole object in building the dyke across the road and in opposing the interdict was to compel the defender to implement his obligations. She never meant to put an end to the agreement.

Clark and Adam supported the Lord Ordinary's interlocutor, and farther argued:—The pursuer has no title to enforce the agreement. If any one hat1 a right to do so, it was the late James Donald's trustees or James Donald, junior, or his curators. The assignation granted by James Donald to the pursuer, pendente processu, was of no avail.

At advising,