Scottish Court of Session Decisions

Prior to the passing of the Roads and Bridges Act 1878, the Sutherland roads were administered under the Sutherland Road Act 1843 (6 and 7 Vict. cap. 81). Among the roads under the management of the trustees appointed by that Act was a road numbered 41 in Schedule E of that Act, which is headed “Roads to be repaired, improved, and maintained under this Act.” The description of that road, No. 41 in the schedule, was as follows:—“The Lairg and Loch Inver road, leading from Ferry near Lairg, by the Gruids, Rose Hall, to the Bridge of Caslie, through the county of Ross, to Altna-galagaeh, thence by Inchnadamph to Loch Inver.” … The preamble of that Act, after reciting the Act 1 and 2 Geo. IV. cap. 23, set forth that a certain portion of the road from Shin Bridge to Assynt, both in the county of Sutherland, situated in a projecting part of the county of Ross, had been made and maintained by the trustees acting under the recited Act; and that it was expedient that the same should be improved, repaired, and maintained by the trustees under the said Act of 1843, and that the powers of the Act should be extended to that portion of the said county of Ross which so projected into the county of Sutherland as aforesaid. Section 27 of the Act of 1843 enacts — “That this Act shall be put in execution for the purpose of more effectually repairing, improving, and maintaining the several roads already made within the said county of Sutherland, … and also for repairing, improving, and maintaining the aforesaid portion of road in the said county of Ross, and the bridges thereon (all which roads are specified in the Schedule E hereunto annexed)” …

Under the powers of the Act 1843 the Road Trustees maintained the portion of the said road No. 41 passing through the projecting piece of the county of Ross. It formed part of the road system of Sutherland, and did not connect with or form part of the road system of Ross.

The Roads and Bridges Act 1878 was adopted in the county of Sutherland at a meeting of the Sutherland Road Trustees on 30th April 1879, and came into operation on the 1st of

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August 1879. By section 32 it is provided that “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, and demands in which the trustees of 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 counties of Ross and Cromarty are, in so far as road purposes are concerned, treated as one county under “The Ross and Cromarty Roads Act 1866” (29 Vict. c. 28). These counties had no turnpike roads from and after 1st January 1867, and had not adopted the Act of 1878— their roads being still managed under the local Act of 1866. It was taken as certain by the parties to this Special Case that the counties of Ross and Cromarty would not take over the portion of the said road No. 41 which passed through the County of Ross. The portion of road in question was about 12 miles long.

The County Road Trustees of the county of Sutherland considering it necessary for the maintenance of the road system of Sutherland, that the portion of the said road passing through the county of Ross should be kept in repair by the county of Sutherland, expended a part of the funds under their control with that object. The road in question was placed on the list of roads made up by the Board at their first meeting, in terms of section 41 of the Act of 1878, it having been before the commencement of the said Act maintained out of public funds levied by means of assessment. George Lawson, tenant of the farm of Achinduich in the county of Sutherland, and a ratepayer in that county, however, intimated to them that he considered that they were not entitled to apply any of their funds to the maintenance of the portion of the road in question, inasmuch as it was not situate within the county of Sutherland.

Accordingly this Special Case for the opinion of the Court on the following question of law was presented by the County Road Trustees of Sutherland, and Lawson, of the first and second parts respectively:—“Are the parties of the first part entitled to apply the funds at their disposal raised by assessment to the maintenance of that portion of the road formerly known as No. 41 in Schedule E of the Sutherland Road Act of 1843, which is locally situate within the county of Ross?”

Argued for first parties—It was fitting that they should conform to the only reasonable construction of the 32d section of the Roads and Bridges Act, and so become liable to keep up the piece of road in dispute which they kept up before the adoption of that Act, in virtue of the Act of 1843, which was the “local Act then in force.” Further, they had authority to do so under the 37th section, which provided that where a portion of a turnpike road was situated within a county in which the Act had not been adopted, the obligation to maintain it was to be left as it stood before. The county of Ross had not adopted the Act.

The second party answered. The 32nd section gave no warrant for the first parties' contention. It applied to the whole roads, &c. “within each county respectively.” The first parties, then, had no concern with a road which was de facto in another county. The 37th section did not apply. It was an enactment with reference only to turnpike roads, of which this was not one.

At advising—