Scottish Court of Session Decisions

The Police and Improvement Act 1850 (13 and 14 Vict. cap. 33), sec. 212, provides:—“That the owners of all houses … which are adjoining or fronting any street … 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 … 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; and in case such owners shall refuse or neglect or delay so to do, any magistrate before whom such complaint may be brought, may fine … such owners … and on recovery shall thereout defray the expenses incurred in making such footway.”

The Police and Improvement Act 1862 (25 and 26 Vict. cap. 101), sec. 14, provides:—“The owners of all lands or premises fronting or abutting on any street shall at their own expense, when required by the commissioners, cause footways before their property respectively on the side of such streets 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, and shall thereafter from time to time, as occasion may require, repair and uphold said footways.” ….

This was an action at the instance of the Police Commissioners of Old Aberdeen, and George Stables, their clerk, as representing them, against the Misses Leslie of Powis, Old Aberdeen, to recover a sum of £26, 19s. 7 1 2d. which the pursuers had expended in paving operations, and for which they sought to make the defenders responsible.

On 7th August 1882 the following notice was served upon the defenders by the pursuers:—“I am instructed by the Commissioners of Police to request you to have, within 14 days from this date, the foot-pavement fronting or abutting your lands or premises at Powis Lodge, College Bounds, adjusted and properly laid in conformity with specifications which are in my hands for your inspection, and to be made to the satisfaction of their Inspector of Works, who will give the necessary levels for laying the same, failing which the Commissioners will themselves execute the work and charge you with the expense, in accordance with the 149th clause of the General Police and Improvement (Scotland) Act 1862.—Yours truly, George Stables jun., Clerk to the Commissioners.”

The defenders took no step to execute the work

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required by the pursuers, who accordingly proceeded to carry out the operations referred to in the notice, and thereafter rendered an account to the defenders, the items of which were—“To redressing and laying old kerbstone, Supplying and laying new do., Laying concrete pavement, he-dressing and laying old granite pavement, Supplying and laying new do. Re-dressing and laying old Caithness slabs, Supplying and laying new do., Do. do. wooden boxes.”

The defenders refused payment, and the present action was raised in the Debts Recovery Court.

The pursuer averred that the burgh of Old Aberdeen in 1862 adopted the General Police and improvement (Scotland) Act 1862, excepting only sec. 2 of part iii. and sec. 6 of part vi. thereof, and Commissioners for the purposes of the Act were duly appointed and acted for the said burgh. They admitted the statement in defence that in 1860 the burgh adopted the Police and Improvement Act of 1850.

The defenders averred that the burgh of Old Aberdeen about 1860 adopted the Police and Improvement (Scotland) Act 1850, as amended by sec. 64 of the Nuisance Removal (Scotland) Act of 1856 (19 and 20 Vict. cap. 103); and they stated that the road known as “College Bounds,” where it fronted their property, was the most important and most frequented thoroughfare in Old Aberdeen; further, that the section of the General Police and Improvement Act of 1862 mentioned in the requisition was inapplicable, and that the notice was unwarranted, and without statutory authority; that the Commissioners in 1860, when adopting the Police and Improvement Act of 1850, took over the said street, including the footpath in question, as sufficiently formed and constructed, and that it was suitably paved at the time, and continued to be so until the date of the pursuers' operations.

The defenders further alleged that the works detailed in the pursuers' specification amounted not merely to a repair but to a reconstruction of the footpath, and also that the operations charged for were not in conformity with the notice or with section 149 of the Act referred to. With reference to the charge for a kerbstone, they denied that a kerbstone formed any part of a footpath.

The pursuers pleaded—“(1) The Commissioners of Police being authorised by said Act to require the defenders to execute the work in question, and failing the defenders doing so, to cause the same to be executed at defenders' expense, and having done so, the pursuer, as representing said Commissioners, is entitled to recover the cost thereof from defenders. (3) The defenders having neglected at the proper time to exercise the right of appeal given them by the statute, are not entitled now to refuse payment.”

The defenders pleaded—“(1) The intimation of 7th August 1882 being unwarrantable and without statutory authority, the pursuer is not entitled to charge the defenders for any work done in terms thereof. (3) The former pavement having been sufficient, and, separatim, having been in terms of the statute, and recognised as such by the Commissioners of Police, the defenders are not liable for the expense needlessly and unwarrantably incurred by the Commissioners in replacing it.”

The Sheriff-Substitute ( Dove Wilson) allowed the parties a proof.

“ Note.—There are facts which seem important which are in dispute; in particular, the points (1) whether the footway in question was in existence prior to 1860 (when the first Police Act was adopted); (2) whether it was then well and sufficiently formed; and (3) whether between 1860 and 1862 (when the second Police Act was adopted) it was up to the requirements of the Commissioners of Police for the time being, are all unsettled on the record, and are all of more or less importance.’

On appeal the Sheriff ( Guthrie Smith) recalled the judgment of the Sheriff-Substitute, found that no relevant defence had been stated to the action, and remitted to the Sheriff-Substitute to fix and decern for the sum for which decree ought to be pronounced.

Note.—The action is founded on section 149 of the General Police Act of 1862. The corresponding section of the Police Act of 1850 is section 212. In my opinion the effect of this last clause was to empower the Commissioners to have the footpaths of the burgh put into permanent form in their own way, at their own time, and at the expense of the owners of the adjacent property. As to the method to be adopted, the Commissioners were to be the judges. A footpath might be ordered to be made for the first time, or it might be re-made, of a greater width, and paved in a different way. But it is only ‘when required by the Commissioners’ that the owner was bound to do anything, the meaning obviously being that the process of re-forming the streets of the burgh should be a gradual one, dependent on the development of the traffic, the Commissioners taking the worst cases first, and so on till the whole of the burgh was properly provided with footways. The statute certainly did not contemplate that the operation in the case of any one individual was to be repeated at intervals whenever the Commissioners thought it would be for the advantage of the public to have some improvement in the original plan. That would be subjecting the owners to a very grievous burden indeed. If the reconstruction was well done under the statute, the proprietor's obligation was at an end, and the power of the Commissioners was exhausted. I observe that some years ago this view of the statute was taken by the late Sheriff Blackburn, and it is obviously right. (See Chalmers v. Dumbarton Commissioners, Oct. 15, 1874, printed in Mr Irons’ ‘Police Law,’ Appendix, p. 200.) The averment now made by way of defence is, that at the adoption of the Act in 1860 the street was properly paved and ‘recognised’ or taken over by the Commissioners as such. But it must be observed that section 212 deals, not with streets, but with the footway at the sides of streets. As regards the former, it is a condition of the Commissioners’ interference that in point of fact the street is not well and sufficiently paved at the adoption of the Act, but as regards the latter there is no such limitation; the owner is taken bound to reconstruct ‘the pavement when required by the Commissioners;’ and a power vested in the public interest in a body of public trustees cannot, in my opinion, be lost non utendo for several years after the Act came into force. Now, in the Act of 1862 we have a clause on the same subject, which is substantially a literal transcript of the clause of the

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Act of 1850. It is not repealed, or if it is, it is in the same breath re-enacted. The community of this burgh have been therefore under the same laws since the adoption of the first Act in 1860, with, however, this addition, that the Act of 1862 declares that after the footpath has been re-constructed in the manner directed, the owner ‘shall thereafter, from time to time, as occasion may require, repair and uphold such footways.’ I am, therefore, of opinion that, on the admitted facts, the order now sought to be put in force was within the powers of the Commissioners. The kerbstone is also part of the pavement, and the only matter open for inquiry is that relating to the cost of the operation and the proportion chargeable against the defenders.”

The defenders appealed to the Court of Session, and argued—The notice served upon the defenders was bad, because not in terms of the statute, for it was a requisition to “adjust and relay,” whereas the words in the statute were “to repair and uphold.” This was not a road of the class contemplated by sec. 149 at all, and it is applicable alone to roads made under it. The Commissioners could only order that class of roads to be repaired which were made before the Act of 1850, and the defenders could not now be called upon to repair what was taken over at the time as sufficient. They were not liable in these repairs under the statute — Commissioners of Kirriemuir v. Wilkie, July 7, 1876, 3 R. 993; Police Commissioners of Dundee v. Mitchell, June 2, 1876, 3 R. 762; Commissioners of Johnston v. Donald, Oct. 29, 1881, 20 Scot. Law Rep. 1, and 9 R. 613.

Argued for the respondents — The defence stated was irrelevant, and that the case should not be remitted to the Sheriff on any of the points stated by the defenders. The Act of 1862 was adopted as a whole, and the effect of that was to repeal the previous Act of 1850. If the footpath in question was still under the Act of 1850, then the notice served being under the Act of 1862 was admittedly bad. The construction of the Act claimed by the defenders was too narrow, and would, if given effect to, render the Act practically useless. The sections of the Act of 1862 must be held, as regards all footpaths within burgh, to supersede the sections of the Act of 1850. The case of the Police Commissioners of Johnstone did not apply, being under a different section of the statute— Smeaton v. Police Commissioners of St Andrews, May 17, 1865, 3 Macph. 816.

The defenders in the course of the argument amended their record. The amendment is quoted in the opinion of the Lord President.

At advising—