Scottish Court of Session Decisions

These were conjoined actions of declarator raised by John Hope, W.S., the first brought against William Duncan, clerk to the Edinburgh Road Trust, and the second, a supplementary action, brought against The Feoffees of Trust and Governors of George Heriot's Hospital.

The summons concluded that it ought to be found and declared “that that road or way forming a continuation of London Street eastward to Annandale Street, within the city of Edinburgh, or at least so much thereof as lies to the eastward of the westmost line of march of the pursuer's lands of Gayfield, is not a street, private or otherwise, according to the true intent and meaning of the said Edinburgh Roads and Streets Act 1862, or at least is not a private street of which the carriageway has not been made up and constructed according to the true intent and meaning of the said Edinburgh Roads and Streets Act 1862; and that the provisions of the said Act with regard to private streets, where the carriageway shall not have been made up and constructed, and in particular the provisions of the 33d section of the

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said Act, are not, and never have been, applicable to the said road or way.”

The 33d section of the Edinburgh Roads and Streets Act 1862 enacted—“In the case of such private streets as are or may be within the district, and as are not specified in said Schedule (C), where the carriageway shall not have been made up and constructed, nothing herein contained shall be held or construed to confer any right on the trustees to compel the making up, constructing, and causewaying of any such street until they have received intimation in writing from the superior that the said street is an open thoroughfare for public use, or until three-fourths of the intended houses in such street shall either have been erected or are in course of being erected, or the areas for such intended houses shall have been feued under an obligation to erect houses, or until the Sheriff on an application by the trustees or any three or more persons assessed in virtue of this Act, setting forth the circumstances of the case, shall determine that it would be for the public advantage that any such street should be made up, constructed, and causewayed; but in any of these cases it shall be lawful for the trustees, and they shall be bound, to require the owners of lands and heritages in any such street, to make up, construct, and causeway the same to the satisfaction of the surveyor or other officer of the trustees for the time being … and if such owners shall fail or neglect within three months from and after the date of such notice to make up, construct, and causeway any such street as aforesaid, it shall be lawful for the trustees, and they shall be bound to make up, construct, and causeway such street in such way as to them may seem proper or necessary, and they shall levy the expense, as the same shall be ascertained by an account under the hand of their surveyor or other officer for the time, from such owners failing or neglecting as aforesaid, and shall recover the same in like manner as the assessment hereby authorised is appointed to be recovered, or otherwise according to law.”

By the interpretation clause (sec. 3) of the Act, it was enacted, that “the word street shall include any square, court, or alley, highway, lane, thoroughfare, or public passage or place within the district defined in this Act open to be used by carts and carriages;” and that “the words private streets shall mean streets within the district which are or may be maintained by superiors, proprietors, feuars, tenants, bodies politic or corporate, or other persons, and not by the trustees or the road trustees of the county.”

The following statement of the facts of the case is taken from the Lord Ordinary's note:—“About ten years ago a road was made partly through lands belonging to Heriot's Hospital, and partly through lands belonging to the pursuer, in order to form a continuation of London Street, and to connect Broughton Street with Annandale Street. The road was made by the pursuer at his own expense, the Hospital giving the ground in so far as it passed through their property, and stipulating for a servitude over it. The purpose of making it was to open up the property of the Hospital and of the pursuer, with a view to feuing. The road was well made. It was not adapted for heavy traffic, but it was suitable for ordinary light traffic. Sometime after its formation it came to be used by the public, but without any permission on the part of the pursuer. There was, however, no attempt on his part to stop the public use until January 1876, when he put up barricades on it at the boundaries of his own properties; but, on the objection of the Hospital, these barricades, after they had existed for about six weeks, were removed, and the public use was resumed; indeed, it may be said that the public use was not interrupted, for the road had become impassable in winter, except perhaps for empty carts. The heavy traffic which had passed over the road had gradually put it into very bad order. No attempt was made to repair it in so far as it passed through the pursuer's lands; and at the time when the proceedings were taken which have resulted in these actions, it was in a very bad condition indeed. After the road was formed, the Hospital had from time to time given off feus on each side of it, and they, or their feuars, had causewayed the portion of it in the Hospital's lands. The pursuer has given off no feus. On the one side his lands are in their natural condition, and on the other, there are certain building-yards. When the action was raised, the road was in use as an access to the Hospital's feus, as well as to the subjects held by tenants of the pursuer. This was in addition to the use by the public. Considering the road to be a private street within the meaning of their Act, the Road Trustees presented a petition to the Sheriff, with the view of throwing on the pursuer the obligation of causewaying it. The pursuer denies that the road is a private street, and therefore denies the right of the Road Trustees and the jurisdiction of the Sheriff. The present action has been brought to determine the question which has thus arisen.”