Scottish Court of Session Decisions

The pursuer in this action was Mrs Jane Ro—bertson or Donald, residing at Bishopston, in the parish of Banchory-Devenick, and county of Kincardine, relict of the deceased James Donald; and the defender was James Dyce Nicol, Esq. of Badentoy, M.P. The summons concluded that the defender should be ordained to make payment to the pursuer of £82, 10s., with interest from Whitsunday 1853, the time at which the defender entered upon possession of certain ground then occupied by the pursuer, for the purpose of forming a new road through the lands of Bishopston, to be used in place of another road proposed to be shut up; that the defender should be ordained duly to fence the lands of Bishopston so far as necessary by their intersection by the new road; and that he should pay £1 a-year as the expense of herding cattle on Bishopston, rendered necessary by the intersection of the lands and the defender's failure to fence them, from Whitsunday 1854 yearly until the lands were sufficiently fenced.

It appeared that the deceased Mr Donald had possessed the lands of Bishopston, adjacent to Badentoy, the property of the defender, and to Auchlunies, the property of Mr Duguid. The defender and Mr Duguid desired to have a road which ran through their estates shut up, and a new road opened through the lands of Bishopston, and they obtained the consent of Mrs Donald and her son and his tutors to this proposal, on the footing that the defender was to pay them the amount of damages that might be found due by the Commutation Road Trustees. The proposed road was

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constructed, but the defender did not prosecute his application to the Road Trustees to have the old road shut up and the new road opened. The pursuer accordingly built a wall across the road. The defender caused it to be removed, and applied for an interdict. After various procedure in the interdict and in this action, the Court, on 12th December 1866, recalled an interlocutor of the Lord Ordinary, in which his Lordship had assoilzied the defender on the ground that the road in question had never been adopted by the road trustees, and that the pursuer had resumed possession of the ground on which the road was formed; held that the action was well brought by the pursuer for the purpose of compelling the defender to go on to get the amount of compensation ascertained; and superseded the case till January to give the defender an opportunity of stating what he proposed to do in the way of obtaining the judgment of the Commutation Road Trustees on the amount of compensation or damages to be paid to the pursuer in respect of the land occupied by the road in question, or otherwise in respect of the said road having been made through the lands of Bishopston. In January last a minute was lodged for the defender, in consequence of which the cause was again superseded until May, before which time a meeting of the Road Trustees would be held. At a meeting of the Trustees on 30th April, a petition was presented by the defender, which, after setting forth the proceedings instituted in the Court of Session between the petitioner and Mrs Donald, and narrating the steps taken by the Trustees at their meetings on 30th April 1853, 4th October 1864, 1st May 1865, and 3d October 1865, craved that the trustees, after such procedure and inquiry as to them might seem right, would take steps for determining the amount of compensation or damages to be paid to Mrs Donald in respect of the land occupied by the new line of road between the Badentoy and Auchlunies roads, and passing partly through the lands of Bishopston belonging to her, or otherwise in respect of the said new road having been made through these lands, and thereafter to sanction and adopt the said new line of road, and to include the same in the schedule of the parish of Banchory-Devenick, through which it passes, and to provide for its repair as a portion of the recognised commutation roads; as also to grant authority to shut up the tracks or old road between the said Badentoy and Auchlunies roads. The petition was remitted to a committee. Arbiters were appointed on behalf of the Trustees and the pursuer. At a subsequent meeting of the Trustees on 1st October, the committee gave in a report, including the following revised notes by the arbiters, Mr J. F. Beattie and Mr A. Smith:—

“We have considered the representations to our proposed notes of findings, submitted of the 10th ultimo, and now find—(1) That Mrs Donald is entitled to compensation for loss of land by the road made through her lands of Bishopston, including space for a connecting road from the same to her houses, and value for manures, crops, &c., on the ground, so occupied, in the sum of £24, 10s.; (2) That Mrs Donald is entitled to compensation for the severance and opening up of the fields, &c., in the sum of £25, 10s.; in all £50, due and payable at Michaelmas, the 30th September next, to cover all claims against the Road Trustees.

James F. Beattie. Alexander Smith.

Aberdeen, 6 th August 1867.”

Note.—In respect that the road was made in 1853, we are of opinion that Mrs Donald is entitled to compensation for the occupation of the land and other damages incurred from 1853 to Michaelmas 1867, in the farther sum of £50, 12s.

J. F. B., A. S.”

“ Aberdeen, 30 th September 1867.—We adhere to the findings contained in our revised notes of date the 6th of August last, and find farther, that Mrs Donald is entitled to be paid by the Commutation Road Trustees her agent's account of expenses under the submission, as per account taxed by us of this date, to the sum of £11, 18s. 4d., and that Mr Brown is entitled to a fee of £7, 7s., as clerk under the submission, and to be allowed the amount of his outlays besides.

James F. Beattie. Alexander Smith.”

The committee of the Road Trustees thought they had no power to deal with the matter of the arrears; but they recommended that the new road should be adopted, and that a remit should be made to the district trustees with instructions that on Mr Nicol exhibiting to them receipts for the £50 above mentioned and the expenses of the arbitration, and on their receiving from the surveyor a report that the road was in sufficient repair for the public accommodation, into which condition the petitioner should be bound to bring it if necessary, the district trustees should adopt and recognise the road as a commutation road. They recommended that the old road should be shut up and should belong to the defender so far as passing through his lands. These recommendations were adopted by the Road Trustees.

The case came again before the Court, the pursuer claiming interest on the £50 from 1853, and an annual sum for herding.