Scottish Court of Session Decisions

Both parties reclaimed; the complainer against the refusal of interim interdict, and the respondents against the passing the note.

Scott (Sol.-Gen. Millar with him) for complainere.

Monro (Young with him) for respondents.

At advising—

Lord President—The first question is that raised by the reclaiming note for the respondents, whether this note should be passed for trying the questions thereby raised, and the only matter we have to consider is whether there is really a question of law between the parties at all. Now I have not considered the merits of this suspension with the view of forming any opinion on what the ultimate judgment may be; but I cannot help seeing that there is a question of legal right and legal power raised between the parties. That question is, whether the Lord Provost and Magistrates of Glasgow, as administrators for behoof of the community, are entitled to detach a portion of the Green of Glasgow and apply it to the purposes to which it is admittedly to be applied—partly to extension of the roadway of Greenhead Street, and partly to the formation of a footpath along the south side of that road. That is a question which requires serious consideration, and that is a sufficient reason for passing the note. But another question is raised by the reclaiming note for the reclaimers, and that is, whether the Lord Ordinary has done right or wrong in refusing interim interdict? Now the Lord Ordinary has refused interim interdict on condition that the magistrates find sufficient caution for damage which the complainers may sustain, and may ultimately be awarded to them in respect of the proposed operations, and to restore the Green to the condition in which it was at the commencement of the operations, in the event of the respondents, being liable to do so. It appears to me that the Lord Ordinary, in this respect, has fallen into a mistake, for if he meant to make this a condition, his obvious course was not to refuse the interim interdict till caution was found; but the interim interdict standing refused, there is no obligation on the respondents to grant caution, and no means of enforcing the obligation against them. Therefore, in that view, the condition of caution is perfectly futile as it stands; and I think further, that this condition is inapplicable to a case like this. The loss and damage which the complainers may sustain by this piece of ground being taken off the Green of Glasgow during the dependence of this suspension and interdict, is not to bo measured by the usual standard, and therefore caution is out of the question. But the second branch of the condition is, that the magistrates shall restore the Green if they are found to be in the wrong. But what is the use of that? If the magistrates are found to be wrong, of course they will restore the ground. They are administrators for the public benefit, and it will be their duty, as well as their inclination, to give effect to the ultimate judgment. And, therefore, as to that part of the interlocutor, imposing this condition, I throw that out of view, as having no real bearing on the question. The simple question is, whether the passing of the note ought to have been accompanied by interim interdict. That is always a question for the discretion of the Court, and the considerations which generally influence the Court are well known. There are two things that suggest themselves to my mind as important. In the first place, it does not appear that there is any hurry in this matter, or any immediate necessity for the performance of these operations, nor does it appear that the immediate widening of this footpath is necessary for the safety of the lieges, or for any other important public purpose. It may as well be done after this question is disposed of as now. No hardship is imposed on any one by its being postponed, On the other hand, there is another consideration—that the performance of these operations involves a very considerable expenditure. We have been informed that the total expense of these widening operations will not be less than £2400. Now, if the operations had been carried so far that the greater part of this money bad been expended, and only a small sum remained to complete the work, this would not have gone very far in my mind; but that is not the fact, for it has been explained that not above one-fifth of the money has been expended. It is therefore, I think, most desirable, for the interests of all parties, that interim interdict should be granted, and that these proceedings should be stayed until the question of law is determined. I attach no importance to the remarks as to the motives and conduct of the parties. I take the case on the footing that the magistrates have been actuated by the best motives, and have been doing what they think most expedient for the public interest. And I am not disposed to attribute any improper motives to the complainers. We must deal with both parties as coming here in good faith for determination of the legal question. I am, therefore, of opinion that we must pass the note, and grant interdict in the meantime.

Lord Curriehill concurred.

Lord Deas also concurred. He took the facts on the statement of the magistrates, that the Green had existed for a very long period, and had been used from time immemorial by the public. How it was acquired did not at present appear. It was said this particular part was acquired in 1770, but no title was produced. Whether this piece of ground became in law incorporated in the Green, might be one of the questions to arise afterwards. What the magistrates now proposed to do was not any act of administration—as by making footpaths or carriage drives through the Green, so as to enable the public to enjoy the proper use of it. They proposed to take a substantial part of the Green and embody it in a street lying alongside. On a prima facie view it would seem that this would make the ground into part of a public street, under the administration of the Police Commissioners. In the way the argument of the respondents was put, it seemed to be said that what might be done with part of the ground might be done with all. That was a serious and important question, and it was necessary to pass the note. As to the interdict, if the complainers turned out to be right, it would not matter how beneficial the operations were to the rest of the public. Clearly, the addition of this piece of ground to the street must be an important benefit to the proprietors of houses in the street, who seem originally to have built too near the Green, and the question was, whether that error was to be made up by taking this slip of ground and adding it to the street? It might be a benefit to the public as well, and no doubt the

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