Scottish Court of Session Decisions

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Cite as: [1871] ScotLR 8_387, [1871] SLR 8_387

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SCOTTISH_SLR_Court_of_Session

Page: 387↓

Court of Session Inner House First Division.

Wednesday, March 1. 1871.

8 SLR 387

Steuart

v.

The Banff County Road Trustees.

Subject_1General Turnpike Act, 1 and 2 Will. IV. c. 43, § 118
Subject_2Occupation of Land by Road Trustees
Subject_3Damages.
Facts:

Circumstances in which it was held that an action against Road Trustees, though purporting to be for value of land, and damages for compulsory purchase and severance, was really founded upon wrong done, and was truly for reparation or damages, and that consequently it was incompetent after the lapse of the six months specified in 1 and 2 Will. IV., c. 43, § 118..

Headnote:

This was an appeal from the Sheriff-court of Banffshire, in an action at the instance of Steuart of Auchlunkart, brought originally against the trustees for the Keith Turnpike Road, and Charles Green, banker in Keith, clerk to the said trustees, and as representing them. Against the action thus laid it was pleaded that the defenders were not properly brought into Court, because the turnpike road sought to be designated being only a district road, and the defenders being only a district committee of the general body of Road Trustees, and Charles Green merely clerk to the said committee, it was not competent to sue them as a body in the person of their clerk.

The Sheriff ( Bell), altering the interlocutor of his Substitute ( Gordon), repelled this plea, relying upon § 16 of the General Road Act (1 and 2 Will. IV., c. 43), and upon the cases of Creighton v. Rankin, 1 Rob. Ap. Cases, p. 99; and Revey v. Murdoch, 3 D. 888. Since calling of the summons, however, the Banffshire Road Act of 1866 had come into operation, and accordingly the Sheriff recommended that the new trustees appointed under it should be made parties to the action. They were accordingly sisted as defenders.

The summons concluded for a certain sum as the value of a piece of land belonging to the pursuer, calculated at forty-five years' purchase, being thirty years' purchase for the land and fifteen years' purchase for damages on compulsory purchase and severance, and other injury which land was, during the pursuer's father's lifetime, illegally taken, and has since been occupied by the defenders for the purpose of their trust.” The pursuer claimed this sum as payable at Martinmas 1863, with interest since that date; but he also claimed a farther sum for compulsory occupation of the ground from 1844, when he succeeded to the estate, down to Martinmas 1863.

He pleaded—The defenders in the summons having wrongfully, without legal notice to the pursuer, and without making payment to him of the purchase price, taken and retained possession of the ground mentioned in the libel, they were, and the Banff County Road Trustees are, liable to the pursuer in compensation for the past, and a fair rate of purchase for the future.

The defenders pleaded inter alia—“The action is excluded by 1 and 2 Will. IV., c. 43, § 118.”

This plea was sustained in the Sheriff-court, and the action dismissed.

The pursuer appealed to the First Division of the Court of Session.

R. V. Campbell for him,

Page: 388↓

Solicitor-General ( A. R. Clark) and Keir for the respondents.

At advising—

Judgment:

Lord President—I think that the Sheriff is right in sustaining this plea. The fact alleged in the summons in support of the action is that the trustees took this ground in excess of their powers—took it unlawfully. That is the foundation of the action, and without that I do not see that there could be any relevant case. No doubt, the pursuer goes on to say, that having unlawfully and without legal notice taken they have retained possession of the land ever since. But that does not alter the character of the action, or take it out of the operation of the 118th section of the General Road Act of 1831. The plea (above quoted) maintained for the pursuer, explains most accurately the nature of the case, which is simply an action for compensation or damages. Now, the 118th section of 1 and 2 Will. IV., c. 43, provides that “all civil causes, petitions, complaints, and processes whatsoever, and prosecutions for expenses … and fines imposed by this Act or any local Turnpike Act, or for any damages incurred or any wrongs done or injuries suffered in any matter thereto relating, or for anything done in pursuance of any of the powers by this or any such Act given and granted, shall be commenced within six calendar months after … the damage shall have been incurred, or wrong done, or injury suffered, or fact committed, and not afterwards.” Now, when was the wrong alleged here done? It was done apparently before 1844, when the pursuer succeeded to the estate. Mr Campbell very ingeniously contended that it has been continuously committed year by year ever since; but I am afraid that such an interpretation of the facts of the case is impossible. Of course such a wrong continues always in operation and effect until redressed, but this does not prevent the date of the perpetration of the wrong being fixed at a definite point of time. I am therefore clearly of opinion that the 118th section of the Act applies, and that the action when it was raised was incompetent.

Lord Deas—I am of opinion that, looking to the framework of the summons, nothing can be given the pursuer except for wrong done. If that be so, it is plain that the action is barred by the 118th section of the General Road Act.

Lords Ardmillan and Kinloch concurred.

Solicitors: Agents for the Pursuer and Appellant— Maitland & Lyon, W.S.

Agents for the Defenders and Respondents— H. & A. Inglis, W.S.

1871