Scottish Court of Session Decisions

Prior to the passing of the Roads and Bridges Act 1878, two tollhouses situated within the burgh of Airdrie, and known as the Rawyards Tollhouse on the North and South Lanarkshire turnpike road, and the Old Tollhouse on the Bathgate and Airdrie turnpike road, belonged to the respective trusts (North and South Lanarkshire Turnpike Road Trust, and Bathgate and Airdrie Road Trust) having the management of these roads.

The Roads and Bridges (Scotland) Act 1878, (41 and 42 Vict. cap. 51) sec. 32, 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, with rights, interests, moneys, property, and effects, right 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, 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.”

Section 37 provides:—“Where any trust existing at the commencement of this Act embraces a turnpike road which is not situated wholly within one county or burgh, the following provisions shall have effect; that is to say—(1) Where this Act shall have been adopted, or shall be in force in each of the counties in. which such road is situated, ( a) the portion of such road within each such county or any burgh therein shall be vested in and managed and maintained by the trustees, board and district committees of the county, or the local authority of the burgh, as the case might be, in which such portion is situated; ( b) the whole assets of the trust shall, except as herein otherwise provided, be valued and allocated among the trustees of the counties and local authorities of the burghs respectively in the proportion and in the manner in which the debt affecting such turnpike trust shall be valued and allocated among the trustees of such counties and the local authorities of such burghs respectively under the provisions of this Act; ( c) all lands, heritages, works, and buildings belonging to any such trust locally situated within any county or burgh shall be and are hereby transferred to the trustees of such county and local authority of such burgh, as the case may be, within which the same are so situated, and shall be applied and used or may be sold and disposed of under the powers and for the purposes of this Act.”

Section 44 provides:—“The trustees [which expression by sec. 3 means ‘County Road Trustees’] before selling any tollhouse or other building belonging to them, shall first offer the same, together with the site thereof, to the person or persons whose lands immediately adjoin thereto, at a price to be fixed by a valuator to be named by the Sheriff, and the price obtained for such tollhouse or other buildings shall be applied in the first place to the payment of road debts, if any, and the balance, if any, to the general purposes of this Act, provided always that in fixing such price the valuator shall take into consideration the terms and conditions upon which such site was originally acquired.”

The Provost and Magistrates of Airdrie, as local authority of the burgh under the Roads and Bridges Act, having in September 1884 advertised the Rawyards Tollhouse and Old Tollhouse for sale as belonging to them, the County Road Trustees of the County of Lanark raised this action against them as the local authority of the burgh, constituted and acting under the Roads and Bridges (Scotland) Act 1878, to have it declared that these toll-houses belonged to them (pursuers), and that the price of them, if sold, belonged to the pursuers, to be applied to extinguish local debt affecting turnpike and statute labour roads within the counties of Lanark and Renfrew, and the burghs therein. They also sought to have the defenders interdicted from selling, conveying, or otherwise disposing of the said toll-houses or either of them.

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The pursuers averred:—The Rawyards Tollhouse was situated on what was known as the North and South Lanarkshire turnpike road, which was situated partly within the burgh and partly within the county of Lanark, and partly in other counties, but no part was vested in the burgh. It did not traverse the burgh, but for a distance of about 1533 yards it formed part of its eastern boundary. The length of the road was over 47 miles, of which upwards of 4 miles was in the county of Dumbarton, and the remainder, being over 43 miles, was in the county of Lanark. The Old Tollhouse was situated on what was known as the Bathgate and Airdrie road, which was made and maintained by the turnpike trust of that name, and of which 18 miles and upwards was in Lanarkshire, 20 miles and upwards in the county of Linlithgow, and 7 furlongs in the burgh of Airdrie. They founded on sections 32, 44, and 47 of the Roads and Bridges (Scotland) Act 1878, and further stated that they had sold several toll-houses situated in the landward part of the county, and that the County Road Trustees of the county of Renfrew had also done so, but the County Road Trustees of both counties used the proceeds of these toll-houses on behoof of the two counties and all the burghs therein, including Airdrie, both counties and burghs being liable in the several debts, all in terms of the said Act.

The defenders denied that section 32 conferred any right or title on the pursuers to the tollhouses within the burgh of Airdrie which were in question. They maintained that by section 3 of the Act the term “county” in the 32d and other sections meant the landward part of the county only,—that is, the county exclusive of any burgh (such as Airdrie) situate therein, and that the tollhouses in question were vested in them. They founded on section 37, subsection (1) ( c), quoted above.

The pursuers pleaded—“(1) In respect of the provisions of the Roads and Bridges (Scotland) Act 1878, and of the facts and circumstances condescended on with reference to the said tollhouses, the pursuers are entitled to sell and to receive the proceeds of the sale thereof, and apply the same in terms of the said Act, and particularly section 44 thereof. (2) In any view, the pursuers are entitled to have the proceeds of the said tollhouses applied in payment of the road debts affecting the counties of Lanark and Renfrew and the burghs therein situated, as the said proceeds may be allocated in terms of the Roads and Bridges (Scotland) Act, 1878, and particularly section 37 (1) ( b).”

The defenders pleaded—“(2) In respect of the provisions of the Roads and Bridges (Scotland) Act 1878, and of the tollhouses being situated within the burgh, this action is unfounded, and the defenders are entitled to absolvitor.”