Scottish Court of Session Decisions

This Special Case arose out of an agreement entered into in 1855 between the Trustees of the Great North Road, which passes through the county of Fife, and the Forth Iron Company, who were the lessees of the minerals in the estate of Cowdenbeath in that county. By this agreement permission had been granted to the Company to construct a railway on the level, crossing the Great North Road at right angles, for the purpose of conveying minerals from their workings on the west side to their principal depôt on the east side of the road.

The annual payment agreed to be made by the Company to the Road Trustees for the use of this crossing was £20.

By an agreement, between the same parties dated 6th September and 25th October 1867, and 15th April 1868, it was further provided, inter alia—“The parties, considering that on 18th April 1855 permission was given to the said Company to construct a level-crossing on the Great North Road for the purpose of conveying their minerals across said turnpike road by means of horse traction, and that the attention of the Road Trustees has been drawn to the fact that loaded waggons from the pits of the said Company can be taken across the turnpike road solely by the impetus acquired in coming down the incline from the pits, whereby danger may arise to the public, therefore it is agreed as follows:— First, That the permission to use the level-crossing is personal to the said Company, is limited to their mineral traffic from their said pits, and traffic to said pits in connection with said mineral traffic, and shall continue to be used only so long as the said Trustees think that the public safety is not thereby endangered, or the public put to greater inconvenience than the said Trustees consider right, and that the use of the rails across the said turnpike road shall be discontinued, and the rails removed, at the expense of the said Company, whenever the said Trustees may desire this to be done.”

In 1870 the Cowdenbeath Coal Company succeeded the Forth Iron Company as the lessees of the said minerals, and down to 1879 they regularly made use of the crossing in question and paid the Road Trustees annually the sum of £20 for the use thereof in terms of the original agreement.

On the 17th December 1878, the Commissioners of Supply of Fife adopted the Roads and Bridges (Scotland) Act 1878, and at Whitsunday 1879 the tolls in Fife were abolished and the management of the highways was, under the said Act, taken over by the County Road Trustees of Fife.

Section 32 of the Roads and Bridges (Scotland) Act 1878, provides:—“From and after the commencement of this Act, the whole turnpike roads, statute labour roads, highways, and bridges within each county respectively shall form one general trust, with such separate district management as shall be prescribed by the trustees as hereinbefore provided; and all the roads, bridges, lands, buildings, works, rights, interests, moneys, property, and effects, rights of action, claims and demands, powers, immunities, and privileges whatever, except as hereinafter provided, vested in or belonging to the trustees of any such turnpike roads, statute labour roads, highways, and bridges within the county, shall be by virtue of this Act transferred to and vested in the county road trustees appointed under this Act, who, subject to the qualifications hereinafter expressed, shall be liable in all the debts, liabilities, claims,

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and demands in which the trustees of such turnpike roads, statute labour roads, highways, and bridges are or were liable under any general or local Act then in force, except in so far as such debts, liabilities, claims, and demands may under the provisions of this Act be discharged, reduced, or extinguished.”

The Cowdenbeath Coal Company continued to use the crossing for the purposes of their mineral traffic, but from and after Whitsunday 1879 they refused to pay the £20 specified in said agreement, contending that there was now no warrant for the exaction, none being given by the statute.

The County Road Trustees, on the other hand, maintained that the Cowdenbeath Company were bound to pay, not only the annual road assessment (which the company regularly paid), but also the stipulated £20, so long as they made use of the level-crossing. They further maintained (and the company disputed) that they were entitled to require the removal of the crossing without reason assigned, or otherwise, on a declaration by them that the public safety was endangered or the public put to greater inconvenience than they (the Trustees) considered right.

The present Special Case was accordingly presented for the opinion and judgment of the Court, the first parties being the County Road Trustees of Fife, and the second parties the Cowdenbeath Coal Company.

The following were the questions stated:— “(1) Are the Cowdenbeath Coal Company bound to pay to the County Road Trustees of Fife the annual sum of £20, stipulated for in the agreement between the Great North Road Trustees and the Forth Iron Company, in addition to the annual road rate or assessment leviable from them under the Roads and Bridges (Scotland) Act 1878, in respect of ownership or occupancy of lands and heritages in connection with which said crossing exists and is used, so long as the level-crossing, to which said agreement refers, continues to exist? (2) Are the Cowdenbeath Coal Company entitled to demand that said crossing shall be allowed to exist and be used until the County Road Trustees shall declare that in their opinion the public safety is thereby endangered, or that the public is thereby put to greater inconvenience than they consider to be right? Or (3) Are the County Road Trustees of Fife entitled, without reason assigned, to require and compel the removal, at the expense of the Cowdenbeath Coal Company, of the rails and other material forming said crossing? (4) Assuming the said agreement no longer to subsist, or to have been brought to an end, would the County Road Trustees be entitled to stipulate, as a condition of granting permission for the construction or continuance and use of the crossing referred to, that an annual sum should be paid to them therefor, and other conditions and regulations as to the construction, use, and removal thereof should be undertaken by the party asking and obtaining such permission? (5) Are the County Road Trustees bound to treat all the parties who use level-crossings alike in the matter of annual payments where the circumstances are similar in all material respects?”

Argued for the Road Trustees—That the use of this crossing not being of the nature of a public use, the annual stipulated payment was not of the nature of a “toll or other exaction” within the meaning of the Roads and Bridges Act, sec. 33 of which abolishes all tolls or exactions except such as may be levied in terms of sec. 34; an exaction was something paid by the public qua public. (2) It was clearly provided by the terms of the agreement that the arrangement could be terminated by the Trustees at their pleasure. It could also be voided at law as a lease without any definite ish.

Authority— Dunlop v. Steel Co. of Scotland, November 27, 1879, 7 R. 283.

Argued for the Cowdenbeath Coal Company—This was just a species of toll or exaction such as the Roads and Bridges Act was intended to abolish, and no warrant could be found in the Act for its continuance. The agreement could only be cancelled if the public safety or convenience required it, and it was not suggested that the public suffered any inconvenience or danger from the continuance of the crossing.

Authority—1 and 2 Will IV. c. 43.