Scottish Court of Session Decisions

The Act 1 and 2 Will. IV. cap. 43 (General Turnpike Act 1831) provides, by sec. 80, that the trustees of any turnpike road, or any person authorised by them, may search for, dig, and carry away materials for making or repairing such road “from any common land, open uncultivated land, or waste;” and also makes it lawful for such trustees, or other persons authorised by them, “to search for, dig, and carry away any such materials in or out of the enclosed lands of any person where the same may be found, and to land or carry the same through or over the ground of any person (such materials not being required for the private use of the owner or occupier of such land, and such land or ground not being an orchard, garden, lawn, policy, nursery for trees, planted walk or avenue to any house, nor enclosed ground planted as an ornament or shelter to a house, unless where materials have been previously in use to be taken by the said trustees), making or tendering such satisfaction for stones to be used for building, and for the surface-damage done to the lands from whence such materials shall be dug and carried away … as such trustees shall judge reasonable.” This section of the General Turnpike Act is to be read as incorporated with and forming part of the Roads and Bridges Act of 1878 (41 and 42 Vict, cap. 51).

In June 1881 Miss Caroline and Sophia Georgiana Lyell, trustees of the deceased Charles Lyell of Kinnordy, presented a petition in the Sheriff Court of Forfarshire, craving the Court to interdict the Forfarshire Road Trustees and those in their employment “from lifting, removing, and taking or carting away from the beds of the rivers Prosen and Esk, or the banks thereof ex adverso of the lands of Inverquharity, in the parish of Kirriemuir, belonging to the pursuers, as trustees aforesaid, or from any other part of the pursuers' said property, boulders, stones, or other material, and to grant interim interdict, as craved; reserving always to the pursuers their right to have the defenders ordained to restore to the beds and banks of said rivers ex adverso of the pursuers' lands as aforesaid, the boulders, stones, and other material unwarrantably and illegally removed by them, as well as all claims competent to them for damages or otherwise, as also to grant decree for expenses.

The Prosen and Esk flow through the lands of Inverquharity, which are part of the lands of Kinnordy. The pursuers averred that during the month of June then current the contractor under the Road Trustees had unwarrantably and illegally lifted and removed from the beds and banks of the Prosen and Esk, ex adverso of their property, large quantities of stones and boulders, and had carted them away without the pursuer's consent or authority. The pursuers maintained, with reference to sec. 80 of the General Turnpike Act 1831, above quoted, that the beds of rivers are not “lands” within the meaning of that Act. They averred that the defenders could easily get stone suited for their purpose without taking stones from the Prosen and Esk; that the stones in the beds of these rivers were required for use on the estate; and that the removal of them in large quantities by the Road Trustees was doing damage to the banks of the rivers. They denied that there was any custom of taking stones for the Road Trustees' purposes from the beds of rivers. The Road Trustees defended the action, and maintained that the taking of the stones from beds of rivers was legal, and was warranted by sec. 80 of the General Turnpike Act. They alleged a custom of taking them, and denied that any damage was being done by their operations, or was likely to result from them.

After a proof the Sheriff-Substitute ( Robertson) pronounced this interlocutor:—“Finds it proved that the County Road Trustees have been in the practice for many years of taking stones from the banks and beds of the rivers Prosen and Southesk, as material for metalling the roads in the neighbourhood: Finds that they have done so without challenge from the proprietors of the estate of Kinnordy, through which estate these rivers flow: Finds in law, that although this may not constitute a prescriptive right, it places the Trustees in the favourable position referred to in section 80 of the General Turnpike Act: Finds that under a sound interpretation of this section the Trustees are entitled to search for and carry away such stones for road purposes without payment, under the condition that they shall be liable for surface damage done to the lands: Therefore recalls the interim interdict formerly granted; assoilzies the defenders from the whole conclusions of the petition, and decerns.”

He added this note:—“The powers given to road trustees to enter lands and take materials for

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the roads under section 80 of the General Turnpike Act are very broad; and where these powers are fairly exercised landed proprietors must submit. In the present case the Trustees claim the right to take stones from the beds or banks of two rivers. These stones are the debris of ‘spates’ and floods, and are brought down every year in large quantities—forming shingle beds or deposits which are left dry when the rivers recede and the waters abate.

“The section of the Act makes a distinction between entering on open uncultivated lands and entering on enclosed lands. In the former case the Trustees can search for and remove material for the roads without any restriction or exemption, whereas in the latter case the Trustees are hedged in by certain restrictions created in favour of the landowners. It is rather a nice point to say whether these shingle beds or banks are ‘open uncultivated land’ or enclosed lands in the sense of the statute. They lie between the water and cultivated fields, but can be approached from the fords across the river by a cart at several points. On the other hand, chains are stretched across the river to prevent cattle straying, which may be called enclosing the banks in a certain way. The case was argued on the assumption that these beds are ‘enclosed lands’ in the sense of the statute, and that the prohibitions and restrictions referred to in the Act apply, and must be observed by the Trustees. But even on this assumption, which is by no means clear, the Sheriff-Substitute has come to be of opinion that the Trustees cannot be interdicted.

The Trustees are forbidden to take materials from enclosed lands if these materials are required by the proprietor for his own private use. They are forbidden to take materials from orchards, gardens, private policies, or the like. They are forbidden to take materials from enclosed ground planted as a shelter or ornament to any house. They are forbidden to take materials from enclosed lands without first giving fourteen days' notice to the proprietor. But while the statute creates all these prohibitions in favour of the proprietor—see the bracketed paragraph, section 80—it also creates an exception to these prohibitions. The last clause of the bracketed paragraph is as follows:—‘Unless where materials have been previously in use to be taken by the said trustees.’ As the Sheriff-Substitute understands this, the prohibitions fly off in such a case.

It is very important then to turn to the proof as to the use and wont of the Trustees in previously taking these stones, because the statutory prohibitions will not affect them if for many years they have been in the practice of taking these stones. Fortunately the proof is quite clear on this point. The present road surveyor, as well as the late surveyor, have taken stones from these rivers for seven years. And the overseer on the estate, who has been there for thirty years, says that the Trustees have taken stones from the banks of the river ever since he can remember. A number of other witnesses speak to the same fact. The Trustees, until the action was raised, were never challenged for doing this. Now, according to the case of Graham, v. Renfrewshire Road Trustees, 13 D. 1012, this unchallenged use of the subject is legal use. Lord Cockburn says—‘I think it is clearly legal possession if the quarry was wrought year after year without opposition or challenge either from proprietor or occupier.’ Are the trustees then not exempted from the prohibitions? The Sheriff-Substitute thinks they are; and if so, the fact that the proprietor required these stones for his own private use cannot be pled against them.

But even here, assuming that the Sheriff-Substitute has construed the section wrongly, and assuming that the Trustees were forbidden to take these stones if the proprietor required them, even in this case, and on these assumptions, it is very doubtful from the proof if the proprietor really required the stones for his private use. This leads to the consideration, what is ‘private use’ in the sense of the statute? On this point the case of Teats v. Taylor, 9th January 1863, is very instructive. The Lord President in this case clearly lays down that it will not do for a proprietor merely to say, ‘The materials are required for my private use.’ Nor will it be enough for him to say, ‘A use may arrive for these materials.’ The proprietor must prove that he is actually making use of the materials, and that it is no imaginary or future use he refers to. In the present case the proof on that head is very weak. It is not proved at all clearly that prior to the interdict the proprietors of the Kinnordy estate were or had been in the practice of using these river stones. The factor Mr C. Lyell, who ought to be the best witness on this point, says,—‘One of my reasons for interdicting the Trustees was, that I doubted their legal right to take the stones; and secondly, I did not know when I might require stones to repair the embankments of the river, which are often injured.’ The overseer says,—‘We intended this year to repair the embankment with stones taken from the river.’ This witness also says in his evidence, ‘All the stones in the river are required for estate purposes.’ This sort of evidence is too vague, and will not satisfy the Court as to ‘private use.’ In the case of Teats, above quoted, the proprietor was proved to have metalled roads of his own with the chips or stones which the Road Trustees claimed a right to take; but the Judges even in that case declined to interdict them. The Sheriff-Substitute thinks that in refusing this interdict he is as nearly as possible following the lines laid down by the Court of Session in cases of a similar nature. He has not, however, been able to discover any case where the precise point raised, namely, the right to take material from river beds, has been decided before.”