Scottish Court of Session Decisions

Lord President—This proceeding is purely statutory, the petition to the Dean of Guild being presented under the statute, for the purpose of compelling the proprietor of a certain mill-lade to fence it. The statutory provisions are quite plain when all the clauses of the statute referring to this matter are brought together; but these clauses are scattered over the statute, and thus there is at first sight some ambiguity.

In the first place, it may be useful to look at the grounds upon which the appellant founds his contention. He says that the only thing which makes a fence necessary is the fact that the mill-lade is in close proximity to the highway. This highway was formerly a statute labour road; and the road trustees were bound to fence it, and did fence it; and now, when the road is a street of the City of Glasgow, and in the hands of the Police Commissioners of that City, the appellant contends that they also are bound to see that the street is properly fenced. Now these statements as to the former position of this road, and the conduct of the road trustees, are utterly irrelevant. So long as the road was in the country, neither the road trustees nor any one else had power to make the proprietor fence his mill-lade; and so the road trustees put a fence along the road. But when the subject came within the bounds of the Police Commissioners, the nature of the whole area was changed; and among the changes thereby affected there was this, that the proprietor of the adjoining land or heritage became bound to fence his property. So the duty of the upholders of the road to fence it has come to an end; and if this milllade requires to be fenced, the proprietor must do it.

Now that being so, what are the provisions of the statute? The 384th section provides that the Master of Works may, by notice given in manner hereinafter provided, require any proprietor or occupier of a land or heritage to fence the same to his entire satisfaction. The form of the notice and the mode of service are given in sections 392, 393, and 394; and it is not disputed that in these matters the statutory provisions have been complied with. But section 386 carries us back to the provisions in an earlier part of the statute; for it provides that the proceedings under this head of the statute shall be the same as those provided under the head of “Streets and Courts: their Formation, Improvement, and Maintenance.” Now, turning back to that part of the statute, we find in section 321 the following provision:—“The Master of Works shall, in every notice given by him to any proprietor of a land or heritage, in pursuance of the provisions therein-before contained, describe the work required to be executed, and shall specify the period allowed for the execution of such work.” Then section 322 provides that if the proprietor finds himself aggrieved by the requisition contained in the notice, he “shall, within six days thereafter, deliver to the clerk written objections, signed by himself, and the following procedure shall take place,”—if the probable cost of the work is below £5, the Procurator-Fiscal shall cite the proprietor to appear before the magistrate to try and decide the question raised; and in all other cases he shall apply to the Dean of Guild for warrant to cite him to appear before the Dean of Guild. Now in this case the defender did not avail himself of the opportunity to put in written objections within six days. That being so, the Procurator-Fiscal should have applied to the Dean of Guild for warrant to cite him. Then in section 323 there are certain penalties imposed for failure to comply with notice, or to state objections; and in section 325 it is provided that if the proprietor fails to comply with the notice, it shall be lawful for the Procurator-Fiscal to enforce the same by at any time applying to the Dean of Guild for a warrant to execute the work; and the Dean of Guild shall thereafter ascertain and fix the cost, and decern therefor against the proprietor to whom the notice was sent. The jurisdiction of the Dean of Guild is here clearly defined, and there is no ambiguity as to the course which he is empowered to pursue. Further, the prayer of the petition is in confirmity with this clause of the Act, for it asks the Dean of Guild “to grant warrant to cite the said Robert Bruce, defender, to appear before you to be heard on this petition and application; and thereafter, upon resuming consideration thereof, to grant warrant to execute the said work, as specified in the said notice; and thereafter to ascertain and fix the cost thereof, and decern against the said defender for the same;” and it bears to be in terms of the 321st. 325th, and 384th sections of the Act. Now if the Dean of Guild had proceeded strictly in conformity with the provisions of the 325th section, none of the objections stated by the appellant would have entitled us to interfere. Unfortunately, however, the Dean of Guild, both by the interlocutor of 25th May and that of 26th September, ordains the respondent to erect a fence. Now he had no right to do that, for the proprietor had lost his right to erect the fence himself through not complying with the notice, and the Dean of Guild ought to have employed some one else to erect the fence, then ascertained the cost, and decerned therefor against the defender; and so the Dean of Guild is to a certain extent not in accordance with the requirements of the statute.

As to the merits of the case, the Dean of Guild has satisfied himself of the fact that the fence is necessary, and that is all that is required by the statute.

So I am of opinion that we should recal the interlocutor appealed against, and remit to the Dean

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