Scottish Court of Session Decisions

If, then, what the trustees have done is not to repair the street, but to make up, construct, and causeway the street—that is to say, to make the street for the first time—it is quite plain that they have proceeded under the wrong section of the statute. That, of course, is a matter of fact, and to be determined upon the evidence. But it is not necessary to go very far into the evidence in order to clear up this matter, because Mr Proudfoot, the surveyor to this Road Trust, is examined as a witness, and when he is asked what is the character of this street as being a public or private street, he says—“It was a private street until recently, when it came to be constructed,” referring to the operations of the trustees. “I say that because it was not maintained by the public authorities. With the exception of putting down a little material now and then to prevent danger of accident, they did nothing to it at all.” He says further on—“I have seen it often,” meaning this portion of Dove Lane. “It was an open piece of roadway, without any proper metal, a channel, or anything to give it the character of an average made road. The Road Trust never took it over at any time, or undertook the maintenance of it. I never saw anything put upon it, with the exception of some stones and rubbish, which I thought came principally from the gardens adjoining on the north side of the lane. Once or twice I have observed barrowfuls of the clearings of walks. In consequence of a letter from the town-clerk, dated 20th December 1878, enclosing one from Macrae, Flett, & Rennie, I examined Dove Lane, and reported to Mr Skinner in a letter dated 25th January 1878.” That ought to be 25th December 1878, for that is the date of the letter. “The statements in that letter are correct.” Now, that letter is before us, and it states—“This road extends from the east entrance of Abbotsford Park, Morningside Road, to Tipperlin Road, adjoining the entrance to Viewfield House. The east portion of the road in front of Albert Terrace is maintained by the town. The west portion, extending from the west end of Albert Terrace to Tipperlin Road, is still unmade, and is not maintained by the town. This road is in bad order, and is in much the same condition as the Tipperlin Road adjoining, neither of these roads having yet been properly constructed, and they have not been taken over as public roads.” Further on, in cross-examination, he is asked—“Is it correct to describe this road from end to end as simply a beaten track, and brown earth with grass growing over it?”—and he replies—“That would be about the character of it from the time I knew it until the Magistrates paved it.”

Now, there is a good deal of evidence to the same effect; but it seems to me to be quite unnecessary to go further when we have this clear statement by the road surveyor of the pursuers. The result of his statement is this, that the west portion of Dove Lane, with which we are dealing, was never a made or constructed road or street at all; it was just a public right-of-way over the surface of the ground, to which nothing had ever been done that could be called construction or making up. And what is it that was done by the Magistrates when they Came, under their notice under the 30th section, to deal with this lane? They causewayed it from end to end, and at a very considerable expense, as might be gathered from the amount sued for in this action. The amount expended upon this lane, which is 80 yards long, is £272, 15s. 5d. Plainly, that is not the expense of a mere repair of a road of this kind, but the expense of making it; and accordingly the account of the contractor shows very clearly that the operation which he performed under the employment of the pursuers was the laying down and making of a street, with hollow channels, and all the usual accompaniments of a causewayed street. The kind of causeway is described as ordinary mashed rubble stones, and that is not so expensive or so valuable as causeway of a different description; still it is a distinct causewaying of the street.

I am therefore very clearly of opinion that the pursuers here have proceeded under the wrong section of the statute, and the consequence is that their whole proceedings are invalid, and they cannot be allowed to recover this money.

But this ground of objection to the assessment is not that upon which the Lord Ordinary has proceeded, and it would be quite wrong not to notice his grounds of judgment also. And I have no hesitation in agreeing with the Lord Ordinary's grounds of judgment, and think that they are sufficient also for the determination of this case against the pursuers. I am quite satisfied that this was not a private street within the meaning of the Act of Parliament. A private street is defined in the interpretation clause of the statute to 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.” Now, there are two requisites here to distinguish private streets from other streets. The one is that they are or may be maintained by private persons, being either superiors, proprietors, or something of that kind; and secondly, that they are not maintained by the trustees under this statute, or by the road

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