Scottish Court of Session Decisions

This case related to the right of Turnpike Road Trustees to use a private road for carting materials to repair the roads under their trust.

The action originated in a petition presented in May 1869 to the Sheriff of Fife by Mr Horsburgh, Clerk to the Trustees of the Turnpike Roads in the district of Cupar, and acting on their behalf, against Mr Meldrum the proprietor of Easter Craigfoodie. The petition set forth that in virtue of the powers given by the 80th section of the General Turnpike Act (1 and 2 Will. IV., c. 43), the Road Trustees had for years past been in use to obtain materials from quarries on the estate of Wester Craigfoodie, and to convey the same by a road which leaves the Cupar and Dundee road at the west end of the village of Daisie Muir, and passes between tire houses of Easter and Wester Craigfoodie to the quarries; that in the autumn of 1868 Mr Meldrum had obstructed the road by building two walls across it. Warrant was sought to have the obstructions removed, and interdict craved against Mr Meldrum preventing the ingress and egress of the trustees.

The circumstances were as follows:—It appears that the Road Trustees had formerly worked Wester Craigfoodie quarry, but had left it about thirty years ago. In 1864 they resumed their use of the quarry and road, and continued this use till August 1868. Till 1867 Wester Craigfoodie was the property of Mr Fortune. Part of the road went through his property, and the remainder was used by him as an access to his house and steading. Mr Meldrum averred that the solum of this part of tire road was in his property, and that Mr Fortune's use was in virtue of a servitude over it in favour of Wester Craigfoodie. It also appears that certain feuars have right by their charters to take stones from the quarry. In 1867 Mr Fortune sold his estate to Mr Cheape, the proprietor of the neighbouring lands of Fingask, who soon after sold a small portion, including the house and steading of Wester Craigfoodie, to Mr Meldrum. At the same time the former renounced all right of property, servitude, or other right over the road. Soon after Mr Cheape completed a new road for the use of his own lands. In May 1868 Mr Meldrum intimated to Mr Horsburgh, as clerk to the trustees, his intention of shutting up the road. In August of that year ho proceeded to build two walls across the road, and to plant the intervening space. The subject was laid before the trustees in September 1868. Some communication followed with Meldrum, in which they made an ineffectual attempt to induce him to allow their accustomed access. Accordingly, in May 1869 they presented the petition before mentioned, in name of their clerk.

The Sheriff-Substitute ( Beatson Bell) repelled the defences, and ordered Mr Meldrum to remove the obstructions under certification. His Lordship added the following note to his judgment:—

“ Note.—The section of the Act of Parliament under which road trustees have power to enter enclosed lands (1 and 2 Will. IV., c. 43, section 80), is a very stringent one. There is no doubt, however, that the trustees, in the exercise of these powers, are subject to the control of a court of equity ( per Lord President in Yeats v. Taylor, 9th January 1863, 3 Macph. 224). It might, therefore, very well be that, upon a proper application to a competent Court, the trustees might have been restrained in their use of the respondent's avenue in consideration of the change of circumstances arising out of the transaction with Mr Cheape, provided it could be shown that another convenient access to the quarry was available. But the Sheriff-Substitute thinks that the respondent was in error in supposing that the trustees' right was put an end to in the termination of the servitude in favour of Mr Cheape; and if so, it seems clear that the respondent could not, at his own hand, and by physical obstructions, prevent the trustees from continuing their former use of the road. The act of the respondent was an attempt violently to invert the possession, and whatever remedy may be open to him, it is thought that matters must at once be restored to their former state.”

The Sheriff ( Mackenzie) adhered.

Mr Meldrum appealed to tire Court of Session.

Solicitor-General and Balfour, for him, argued, that the road was an avenue, and therefore protected by statute from the operations of the trustees. They contended that the 80th section of the General Turnpike Act gave no right to the trustees to convey materials over an avenue, even though they had previously been in use of it. The demand of the trustees was unreasonable, as they could get access to the quarry by Mr Cheape's new road.

Monro and Gillespie, for respondent, answered, that the trustees were entitled to be continued in the use of the road which they had enjoyed for some years; that by the 96th section of the Act the appellant had no right to close the road without explicit consent from them, and without judicial authority, that the road was not an avenue in the sense of the statute; and that, even if it was, the limitation to the exemption applied, “unless where materials have previously been in use to be taken by the said trustees.”

The Court did not consider it necessary to go very narrowly into the construction of the Act. The evidence showed that, up to 1867 the road could not be considered an avenue in the sense of the statute. It was an access common to two properties, whatever may have been the exact legal rights of the parties. Admittedly the proprietor of Wester Craigfoodie had a right to use it as an access to his house and steading. The privacy of the road was clearly not such as to exclude the trustees on the ground of its being an avenue in the sense of the statute. In 1868 the trustees were in lawful possession of the road, and the appellant should have obtained a judicial recognition of the

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change of circumstances before he took upon himself to close the road without consent of the trustees.

The appeal was accordingly dismissed, with expenses.