Scottish Court of Session Decisions

This was an action at the instance of the Lord Provost, Magistrates, and Town Council of Perth, against the Earl of Kinnoull and the Caledonian Railway Company, to compel the defenders to maintain and repair certain roads at Perth. The circumstances which led to the raising of the action were as follows:—

In 1459 the pursuers' predecessors, as representing the community of the burgh of Perth, made over to Robert Kinglassie, an ancestor of the defender Lord Kinnoull, lands called Gildherbar or Calsey Lands, of which they were the superiors. This grant was made upon certain conditions, specified in indentures entered into between the parties, and dated 8th May 1459. These indentures set forth that the honourable men, council, and community of Perth had set in fee and heritage to the said Robert Kinglassie their Gildherbar, with the pertinents, the boundaries of which were therein described,—the south boundary being the King's Calsey. There was reserved of the Gildherbar lands 4 ells in breadth, measuring from the north side of the said King's Calsey, and extending in length so far as the Gildherbar lay, so that the Gait and the King's Calsey might be made together for carts' load and common passage. The said Robert Kinglassie was also, as a condition of the grant to him, taken bound to uphold for ever, for passage for man and horse, the Calsey stretching from the Charterhouse gate to the burn of Craigie, now called St Leonard's Causeway, sufficiently as should effeir, with stone and sand; as also to uphold the Cow Calsey, now called Kinnoull Calsey, passing to Stirling, stretching to the strip and bridge lying at the calsey, for men, horse, and common passage; and to uphold in like manner the calsey passing to Methven, as it stretches from the east corner of St Paul's Chapel until it comes to the burn above Whitefriars, now called the Long Causeway. The indentures further stipulated and provided that these calseys should be upholden perpetually of the same breadth “as they now ar breader,” on the said Robert Kinglassie's cost. These various stipulations and conditions were fortified by a clause of irritancy, to the effect that if the said Robert Kinglassie, his heirs or successors, should fail in all or any of the points foresaid, it should be lawful to the said aldermen, council, and community to have regress to the said Gildherbar, with the pertinents, at their own hands without any process of law,—the said Robert Kinglassie or his heirs getting previous warning to repair the calseys, as mentioned in said indentures; and that not being done, it was provided that the said aldermen, council, and community were to have recourse to the Gildherbar, with the pertinents. It was also stipulated that the said Robert Kinglassie and his heirs should give yearly to St John the Baptist's light a pound of wax on the feast of his nativity. The said aldermen, council, and community also granted absolute warrandice to the said Robert and his heirs, he and they “keepand all conditionis foirspoken.” Robert Kinglassie thus acquired right to the lands of Gildherbar, which have now come to belong to the defender Lord Kinnoull; and the conditions contained in the foresaid indentures, upon which the lands were granted, have been regularly inserted in all the subsequent titles. Owing to change of circumstances, the causeways mentioned in the indentures gradually became totally changed in their character; and owing to railways being brought into Perth at that point, were also very materially altered, both in position and length; new roads being substituted for a great portion of the old causeways, and the new roads being five or six hundred yards longer than the old causeways. The predecessors of the defender, the

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Earl of Kinnoull, however, maintained and kept in repair the said three calseys, throughout their successive changes, down to the year 1865. In that year Lord Kinnoull, the father of the defender, gave notice to the pursuers of his intention to repudiate the obligation by a letter of date March 20, 1865, from his agent, Mr George Condie, writer in Perth, in the following terms:—“With reference to your late letters regarding the maintenance by Lord Kinnoull of certain calseys here, I am, by Lord Kinnoull's instructions, to communicate to you that, as the arrangement for the employment of a man upon these calseys will come to an end at Whitsunday first, it is not his Lordship's intention to renew it.” In consequence of the position thus taken up by Lord Kinnoull, the pursuers, in August 1866, raised an action against his son, the defender, who had succeeded to the estate in February 1866. This action sought to have the defender found liable to maintain and repair the Long Calsey, which is a continuation of the High Street of Perth. Then, in the month of September 1868, the pursuers brought another action against Lord Kinnoull in the Sheriff-court, asking that the defender should be decerned to put all the three causeways, viz., the Long Calsey, St Leonard's Calsey, and Kinnoull Calsey, in repair. These actions were conjoined, and a record was made up and closed in the conjoined actions. The Sheriff allowed a proof of certain averments in the record, and thereupon the defender the Earl of Kinnoull appealed the case to the First Division of the Court of Session, by whom it was remitted to the Lord Ordinary, who, on the 16th July 1870, pronounced an interlocutor allowing, before answer, the parties a proof of their averments; which proof was taken before his Lordship on the 18th and 19th of October 1870. The Lord Ordinary thereafter pronounced an interlocutor in the following terms:—“26 th December 1870.—The Lord Ordinary having heard parties' procurators, and considered the closed record in the conjoined actions, proof adduced, and whole process—sustains the appeal: Finds that the first and second of the common causeways mentioned in the titles and in the conclusions of the summons are situated within the extended police boundaries of the town of Perth; and that the third of the said causeways, with the exception of the portion to the west of Dovecotland, is also situated within the said police boundaries: Finds that the pursuers have failed to instruct that they have now any right or title to insist in the conclusions of the present actions, in so far as regards those portions of the said causeways which are situated within the said police boundaries: Therefore dismisses the actions, and decerns, reserving to the pursuers to establish in any competent process their claim to enforce against the defender the obligation in the indenture and other titles founded on by them to repair the portion of the causeway third above mentioned, and commonly called the Long Causeway, which is situated beyond the said police boundary, and between it and the burn crossing the high road near Cornhill; and to the defender his defences, as accords: Finds the defender entitled to expenses, of which appoints an account to be given in, and remits the same, when lodged, to the Auditor to tax and report.” The pursuers reclaimed against this interlocutor to the First Division of the Court, by whom the case was partially heard; then consideration of the cause was superceded, in order that farther information might be obtained; and it was suggested by the Court that some settlement might be arranged between the parties.

The Magistrates of Perth, however, in 1871, brought an action of declarator in the Court of Session against the Earl of Kinnoull, and also against the Caledonian Railway Company.

The object of this action, and the relation it bears to the Sheriff-court actions, will be seen from the Lord Ordinary's note, and the opinion of the Lord President.

The Lord Ordinary ( Mure) pronounced this interlocutor:—

“11 th January 1872.—The Lord Ordinary, having heard parties' procurators, and considered the Closed Record and productions, reports the case to the First Division of the Court; and, with this view, appoints the pursuers to print and box this interlocutor and subjoined note.

Note.—This action has been instituted to obviate some of the objections taken by the defender Lord Kinnoull to an action which was raised against him some time ago by the pursuers, as Magistrates of the burgh of Perth, and is at present depending before the First Division of the Court.

That action was a petitory one, directed against Lord Kinnoull alone, and was originally brought before the Sheriff-court of Perthshire, in the name of the Lord Provost and Magistrates of Perth, as representing the community, in order to enforce an obligation contained in the titles under which parts of the Kinnoull estates were held of the town of Perth; and in respect of which it was alleged that Lord Kinnoull was bound to maintain the roads or common causeways described in those titles. The action was, however, met by the objection that the pursuers, as Magistrates of Perth, had no title to enforce the obligation; because, by the Police Statutes applicable to the town, the whole duty of maintaining the streets within the Police boundaries, including the causeways in question, which at one time lay upon the Magistrates, had been transferred to and imposed upon the Police Commissioners; and it rested with them, and not with the Magistrates of the burgh, to take proceedings against parties who might be bound to repair any portion of the streets, to the relief of the assessments levied for that purpose by the Commissioners. And it was further maintained on the part of the defender that, even if the obligation to uphold the old lines of causeway still existed, and was enforcible against him, he could in no view be liable to maintain those portions of the existing lines of causeway which consisted of new or substituted roads carried over the railways intersecting the town; and that, as regards those portions of the roadway, proceedings ought to have been taken against the Railway Companies, and not against the defender.

To the first of these objections the Lord Ordinary, upon considering the provisions of the Police Statutes, and the evidence adduced relative to the management of the streets, came to the conclusion that effect ought to be given to the extent of holding that it lay with the Police Commissioners, and not with the pursuers qua Magistrates of the burgh, to enforce obligations of the present description, and he accordingly dismissed that action, reserving to the pursuers to establish in any competent process their right to enforce the obligation in regard to those portions of the causeway which were situated beyond the police

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boundaries. And he at the same time intimated an opinion that it was against the Railway Companies, and not against the defender, that proceedings should have been taken to enforce the repair of those portions of the causeways which passed over the bridges built by the Railway Companies, with their immediate approaches.

Against this interlocutor a reclaiming note was presented by the pursuers; and although no interlocutor appears to have been pronounced, the discussion was, as the Lord Ordinary understands, stopped by the Court, and the disposal of the case delayed, in order that parties might endeavour to affect an arrangement; or, if they failed in this, that an action of declarator might be brought to try the case, with all the parties interested in the question. No such settlement having been effected, the present action has been raised by the pursuers, not simply as Magistrates of the burgh of Perth, but as now reinvested, in respect of the Acts of Parliament and Provisional Orders founded upon in the Condescendence, with the whole duties and powers relative to the paving and management of the streets and roadways within the police boundaries of the town, which had been conferred upon the Commissioners by the Police Statutes; and they have called as defenders the Caledonian Railway Company as well as Lord Kinnoull, as now representing those Railway Companies by which the lines of the causeways were altered, and carried over the railways passing through the town.

The conclusions of the Summons are somewhat complicated; but the pursuers appear to the Lord Ordinary, in substance, to seek to have it declared—1st, That the defender Lord Kinnoull is bound to keep in repair the whole of the common causeways in question, including the new or substituted portions, except the bridges constructed by the Railway Companies, and the immediate approaches thereto; and that the Caledonian Railway Company is bound to keep in repair the said bridges and their immediate approaches; or otherwise, 2d, That the defender Lord Kinnoull is bound to keep in repair such portions as still exist of the original lines of causeway, as specified in the Summons; and that the defenders the Caledonian Railway are bound to keep in repair the substituted portions or deviations of these causeways made by the Railway Companies under Acts of Parliament, including the bridges and their immediate approaches. There are also declaratory conclusions to the effect that the defender Lord Kinnoull is bound to contribute three-fourths, or such other reasonable proportion as may be fixed by the Court, of the total expense of repairing the causeways, with the exception of the bridges and approaches; and the Summons contains petitory conclusions framed with the view to carry out the law which may be declared under the declaratory conclusions.”

The First Division heard counsel on the whole cause.

Fraser and Scott, for the pursuers, argued that, as regarded Lord Kinnoull, the obligation had never been extinguished, but was still existing. That, as it was the whole condition of the grant, the pursuers were entitled to demand implement, and the defender was bound to perform the obligation. That, if he did not do so, he had no right to keep the lands. That, as to the argument that the nature of the roads and expense of keeping them had increased enormously since the date of the grant, the answer was, that the value of the property had increased in a corresponding ratio. That, as regarded the Caledonian Railway Company, they were bound to keep up the new portions of the roads which they had substituted for the old, and the bridges with their immediate approaches.—(The Queen v. The Inhabitants of Ely, 19 L. J., 223, Magistrates Cases; North Staffordshire Railway Company v. Thomas Dale and Others, 27 L. J., 147, Magistrates Cases; Rex v. Inhabitants of Kent, 13 East., 220).

The Lord Advocate and Johnstone, for the Caledonian Railway Company, argued that all that could be asked from the Railway Company was that they should maintain the bridges and immediate approaches, and that they in fact had always done this. That, as to the substituted portions of the roads, there was no claim against the railway company to uphold them.

The Solicitor-General and Gloag, for Lord Kinnoull, argued that the obligation must be held to be extinguished, as it was now impossible to keep up the causeways in the manner specified in the indenture; to attempt to do so would be to destroy the road. That there could be no claim against Lord Kinnoull to keep up the roads of the present day under the obligation of 1459, on account of the changes in the characters of the roads, and the increase of expense, and that, besides there was hardly any part of the original causeway now in existence; and that, under the provisions of local statutes, the Magistrates were themselves bound to keep those roads in repair, being within the boundaries of the burgh.

At advising—