Scottish Court of Session Decisions

Lord President— My Lords, I must say that when this case was first argued to us I was not inclined to attach so much importance as the Lord Ordinary does to the proceedings of the Town Council, and now I am clearly of opinion that the I interlocutor is wrong.

A person of the name of James Miller was proprietor of a piece of feuing ground which is laid down on the plan before us, and which has for two of its boundaries the river of Wick on the south, and Bridge Street and the New Bridge of Wick on the east. Miller proceeded to feu this property and to lay it out in the most convenient way, and having one of the public streets as his boundary on the east, it seems to me to be beyond dispute that he was entitled to access at every point at which his property touched. Now one part of his property being next the river on the south, he thought it would be convenient and proper to give an access between Kirk's land and Bridge Street, and accordingly his feuing plan is prepared on that principle. But to secure that there should be a thoroughfare, he laid an obligation on the parties feuing next the river, and along whose property this thoroughfare must pass, to make this thoroughfare. One part of the obligation was that a stair shall be built as set forth in the articles of roup, and the other part of the obligation was to lay and fence the pavement. Now this obligation was laid on Louttit, and the question comes to be whether the owner of this ground was entitled to lay this obligation on him, or whether the magistrates can interfere to prevent it.

As in a question between the pursuer and defender, the case is too plain for argument, and accordingly the Lord Ordinary intimates that but for the interference of the Town Council, he would have had no doubt. But it appears that the magistrates authorised Louttit to alter the parapet of the bridge so as to disable him from performing his obligation. I think the magistrates themselves could not have so altered the parapet as to interfere with Miller and his feuar having an access by that strip of ground eight feet six inches in breadth to the pavement in Bridge Street, and that is enough for the case. No doubt, if the magistrates had been of opinion that the public safety required that this obligation should not be performed, they might have come and prevented it from being done; and, there being some indication of a feeling of that kind, your Lordships thought proper to intimate to the magistrates so that they might come and let us know their opinion. They have declined to appear, and therefore I am bound to assume that they are of opinion that no public interest is involved, and therefore that there is no necessity for their appearing. I cannot believe that the magistrates of any burgh in Scotland, if they thought the public interests were being compromised, would not instantly appear. That being so, it seems to me that the case is plain, and that the defender, whatever else the magistrates may have done, is in the position of a man refusing to fulfil an obligation in his common title, and therefore judgment must be pronounced against him.

Lord Deas— I am of the same opinion. The subjects belonging to Malcolm and Louttit were exposed for sale by articles of roup which contained a condition that Louttit should be bound to construct that stair for which Malcolm now contends. Louttit purchased the feu and when the feu-disposition came to be granted it proceeded on the articles of roup. It is not disputed that Malcolm is in titalo to enforce this obligation which was laid on Louttit, nor that Louttit is bound to fulfil that obligation if he has the power to do so without consent of the Town Council. The feuing took place in 1856, and from that time to January 1863 it is not contended that this matter was in a state to cause any difficulty as to carrying that obligation into effect. If the stair had been formed in the way undertaken before January 1863, plainly it would not have interfered with the bridge at all.

But in January 1863 a vague motion was brought before the Town Council, that it was necessary to give some instructions about this matter, and the Town Council authorised an alteration to be made by a sort of addition, that is, by continuing the parapet and turning it in towards the building, so that Louttit could not fulfil his obligation without breaking through that additional bit of wall. Now the person authorised to do that was Louttit himself—with his own consent if not on his own application. The whole question comes to be, whether Louttit, by getting the Town Council to give him that authority, gets free of the obligations to make that stair as a common access? That is quite extravagant on the part of Louttit and on the part of the Town Council, so far as they support him; and the construction I am inclined to put on their nonappearance is, that they cannot show face to support what was done.

Lord Ardmillan and Lord Kinloch concurred.