Scottish Court of Session Decisions

This action was raised by the Clerk to the Commissioners of Police of the Police Burgh of Johnstone against Mrs Mary Donald, proprietrix of property having a frontage of 55 feet to South William Street in that burgh, to recover the sum of £32, 15s. 11d. as the expense effeiring to the property and incurred by the Commissioners of Police in (1) making good the roadway of South William Street, and (2) in forming the kerb or gutter for the footway of that street. The action was raised in January 1881.

The burgh of Johnstone was erected into a police burgh by the adoption by the householders in 1857 of the Police and Improvement (Scotland) Act 1850 (13 and 14 Vict. c. 33). That Act provided by sec. 213 for the recovery by the Commissioners of the expense incurred by them in paving and flagging or otherwise making good streets within a burgh in which the Act should be adopted, and which streets had not before the adoption of the Act been well and sufficiently paved and flagged. That section was as follows:—“If any street have not before the adoption of

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this Act been well and sufficiently paved and flagged or otherwise made good, the Commissioners may cause such street, or the parts thereof not so paved and flagged or otherwise made good, to be paved and flagged or otherwise made good, in such manner as they think fit; and the expenses incurred by the Commissioners in respect thereof shall be repaid to them by the occupiers of the lands abutting on such street, or such parts thereof as have not been theretofore well and sufficiently paved and flagged or otherwise made good; and such expenses shall be recoverable from such occupiers respectively as herein provided with respect to private improvement expenses; and thereafter such street shall be repaired by the Commissioners out of the assessments levied under this Act.”

In 1856 there was passed the Nuisances Removal (Scotland) Act (19 and 50 Vict., c. 103), by section 64 of which section 213 of the Police and Improvement Act 1850, above quoted, was repealed, and in lieu thereof it was enacted that “If any street have not before the adoption of the said Act been well and sufficiently paved and flagged or otherwise made good, the Commissioners may require the owners of the lands abutting on such street to cause such street, or the parts thereof not so paved and flagged or otherwise made good, to be paved or flagged or otherwise made good, in such manner as the Commissioners shall direct; and in the event of such owners not complying with such requisition within one month after notice in writing has been given to them by the Commissioners, it shall be lawful to the Commissioners to cause such street, or the parts thereof not so paved or flagged or otherwise made good, to be paved or flagged or otherwise made good, in such manner as they shall think fit; and the expenses incurred by the Commissioners in respect thereof shall be repaid to them by the owners of lands abutting on such street, or such parts thereof as have not been theretofore well and sufficiently paved or flagged or otherwise made good; and the provisions and enactments of the said Act with respect to ensuring the execution of the works thereby required to be done by owners or occupiers, shall apply to the execution of all works required to be done, and the recovery of all expenses incurred, by the Commissioners with respect to the paving, flagging, or otherwise making good such street under the provisions of this Act; and such street shall thereafter be repaired by the Commissioners out of the assessments levied under the said Act.” The section of the Police and Improvement Act 1850 which relates to the formation and paving of footways by owners of property fronting the streets of the burgh is the 212th, and that section remained unaffected by the Nuisances Removal Act of 1856. It is as follows:—“The owners of all houses and other buildings, or of gardens, yards, grounds, and other heritages on which buildings are not erected, which are adjoining to or fronting any street, square, or other public or principal place within any burgh, shall at their own expense, when required by the Commissioners, cause footways before their property respectively on the sides of the said streets, squares, or other public or principal places, to be made, and to be well and sufficiently paved with flat, hewn, or other stones, or to be constructed in such other manner and form and of such breadth as the Commissioners shall direct.”

The pursuer averred that among the streets of the burgh of Johnstone which had not been well and sufficiently paved and flagged or otherwise made good before the adoption of the Police and Improvement Act of 1850 was South William Street, which had been “open to and used by the public as a road, thoroughfare, or public passage for upwards of forty years, and at the adoption of the said Act was a ‘street’ within the meaning of sec. 213 of the said Act, and sec. 64 of the Act 19 and 20 Vict. c. 103” (Nuisances Removal Act 1856). He also averred that the defender was proprietrix of lands abutting on South William Street, and that “on 14th February 1878 John Fraser, master of works of the said burgh, wrote her, under the instructions and authority of the Commissioners, requiring her to have her proportion of the said street levelled, bottomed, and formed,” in terms of the plans and specifications referred to in his condescendence, and “intimating that in the event of her not complying with that requisition within one month after the said notice it should be lawful for the Commissioners to cause the same to be done, and thereafter to proceed for repayment of the said expense in terms of law.” He then averred that the defender having failed to execute the work it had been done by the Commissioners.

The defender averred that the street in question had been well formed in 1827, and that it was not a public street, but that assuming it to be so, it had been paved and flagged or otherwise made good before the adoption of the Act. She averred also that the Commissioners had never during the twenty years between the passing of the Act and the proceedings taken in 1878 given any notice that they were dissatisfied with the condition of the street, “as it was their duty to have done within a reasonable time after the adoption of the Act, and long before the lapse of twenty years, if they intended to maintain that sec. 213 of the said statute was applicable.” In reply to this defence the Commissioners explained that the principle on which they had proceeded was to have the roads made good in rotation in accordance with the requirements of the public, and they averred that the defenders had been benefited and not prejudiced by that course.

As regarded the claim for the expense of making the gutter, the pursuer founded on section 212 of the Police Act of 1850, above quoted, and averred that on 15th June 1878 the defender had received a notice from the Commissioners requiring her to lay or cause to be laid down a sufficient gutter of flat stones twelve inches wide, connected with the footway and street, before her said property, which was to be done to the entire satisfaction of the pursuers or their inspector of drainage, paving, and other works.

The defenders' pleas were:—“(1) The road in question being a private road, and not being a thoroughfare or public passage, is not a street within the meaning of the statute libelled. (2) The road having been well and sufficiently paved and flagged or otherwise made good before the adoption of the Act, the sections founded on are not applicable thereto, even assuming that it is a street within the meaning of the Act. (3) The pursuers are barred by delay and want of notice from maintaining that the road in question falls

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within section 213 of the Act. (4) The road having been good and sufficient down to the date of the pursuers' operations, and having deteriorated through the act and fault of the pursuers, they are bound to make it good at their own expense; and, separatim, they are barred from charging the expense against the defender. (5) The notice of 15th June 1878 being unwarrantable and without statutory authority, the pursuers are not entitled to charge the defender for any work done in terms thereof.”

The Lord Ordinary, after a proof, at which evidence with regard to the making of the road and to its condition since it was made was led, assoilzied the defenders with expenses, adding this note, from which the import of the proof fully appears:—“In 1857 Johnstone became a burgh by the adoption of the Police Act of 1850. Its territory was defined by the Sheriff, and it includes what was at that time a road leading from the corner of Ludovic Square to Floors Mill, but to no other place.

“The site of this mill was feued in 1826 or 1827, and the road was made and maintained by the feuar. At the end of it, adjoining Ludovic Square, two other feus were given off—one in 1827, and the other in 1872. Both feus have a frontage to the road, and a back entrance from it. Since the Act was adopted the road has been lighted by the police authorities.

Though the road was originally formed as an access to the mill, there can be no doubt that it was intended to open up the feuing ground belonging to Mr Houston, and in the feu of 1827, as well as the feu of 1872, it is described as ‘South William Street,’ the name which it now bears. But at the time when the Act was passed it was not subject to any public use, as it led to no other place than the mill. Things continued in this position till the end of 1877 or beginning of 1878, when a new street was projected or made, called ‘Floors Street,’ which connected the east end of South William Street with Graham Street. It is not clear on the proof whether Floors Street was completed before the notices on which this action is founded were given. But this is not material, as will be pointed out afterwards.

On 14th February 1878 the pursuers gave notice to the owners of land abutting on South William Street requiring them to put the roadway and footpaths into a proper condition. The notice was given under the 213th section of the Act of 1850, as modified by the 64th section of the Nuisances Removal Act 1856. The owners failed to comply with the notice. In consequence the pursuers did the work themselves, and the present action has been brought to recover the proportion assessed on the defender.

The defender maintains that the road in question is not a street within the meaning of the Act of 1850, because at the date of the Act it was not subject to any public use. Both parties argued that this question was to be determined by reference to the condition and use of the road in 1857. The just construction of the Act is a matter which seems to be attended with difficulty. For, on the one hand, it is not easy to hold that the word ‘street’ as defined in the interpretation clause does not include any road unless it is a public road in the absolute sense of that term; and, on the other hand, it is difficult to extend it so far as to comprehend a road the legitimate use of which is confined to two feuars. The Lord Ordinary is not disposed to give any opinion on this point, as he thinks he can decide the case on another ground.

The case of the pursuers is that the road in question was a street when the Act was adopted. Neither on record nor in argument did they maintain as an alternative that it had become a street at a later date. Probably they could not do so, as they have not been at the pains to prove that there was any change when the notices were given, and it is likely there was none. At all events, the Lord Ordinary thinks it right to dispose of the case as it is stated on the record, and as it was argued to him.

The powers conferred on the pursuers by the 213th section of the Act of 1850 are conditional. They are given in one case only, viz., where ‘the street has not before the adoption of the Act been well and sufficiently paved and flagged or otherwise made good.’ The pursuers assert that the road had not been made good at the adoption of the Act. The defender maintains that it had.

On this question of fact the Lord Ordinary decides in favour of the defender. It is proved, he thinks, that the road was originally well made; and since 1857 it has carried without material repair all the heavy traffic which passed to and from the mills. This would have been impossible if it had not been a good road, and in the opinion of the Lord Ordinary there was no fault to be found with it when the Act was adopted. It has certainly become worse since that date, but chiefly by the operations of the pursuers, who in 1875 made a drain along it, and did not replace in a sufficient manner the materials which they had removed. Hence on the main question the Lord Ordinary thinks that the defender is entitled to absolvitor.

On 15th June 1878 the defender was required to lay down ‘a sufficient gutter of flat stones, 12 inches wide, connected with the footway, and that before her property.’ This requisition was made under the 212th section; the question is whether it was warranted. The Lord Ordinary thinks that it was not. The section authorises the pursuers to require the owners of houses adjoining any street to cause the footways to be well and sufficiently paved with flat hewn or other stones. It says nothing about the construction of a gutter beyond the footpath, and hence the Lord Ordinary thinks that the pursuers are not entitled to recover the expense of constructing the gutter.”

The pursuer reclaimed.