Scottish Court of Session Decisions

The late Admiral Smollett of Bonhill was proprietor of an heritable right of ferry across the river Leven at Bonhill. In 1834, under the authority of the Justices of the Peace and Commissioners of Supply of the county of Dumbarton, as Conservators of Ferries, he erected a bridge in substitution of the ferry-boat, and he and his successors by the same authority levied for passage of the river by the bridge the dues, under certain modifications, which he had previously levied for passage by the ferry-boat.

The late Sir James Colquhoun of Luss, Bart., was proprietor of an heritable right of ferry across the Leven at Balloch. He also in 1842, under the same authority, erected a bridge, and he and his successors levied (under certain modifications) the same dues as those levied previously for passage by the ferry-boat.

On 3d January 1883 the Roads and Bridges (Scotland) Act 1878 came into operation in Dumbartonshire, and the County Road Trustees appointed in terms of section 12 a County Road Board, and divided the county into districts with district committees. In addition to Bridge Revenues, the County Road Trustees had three funds under their charge—(1) The Road Debt Assessment levied over the whole county from proprietors alone, in terms of sections 71 and 74 of the Act. (2) The fund applicable to general expenses. This fund was contributed by the districts into which the county was divided, out of the respective district assessments for maintenance and management of highways, in proportion to valuation, and was applied in payment of the general expenses incurred by the trustees and County Road Board in supervising the district committees, and in transacting the business of the trust so far as that was not delegated to the district committees. (3) The fund for district expenditure for maintenance and management of highways. This fund was provided by assessment on owners and occupiers of heritages in each district.” The County Road Trustees appointed a county road clerk and treasurer and a county collector, in terms of section 28 of the Act, with fixed salaries, and each district committee appointed a district clerk and treasurer, and with consent of the trustees, a district collector and surveyor, also with fixed salaries, in terms of section 29 of the Act. Section 30 provides “that the salaries and allowances of the several officers and servants appointed and employed by the trustees and the board, and all other necessary general expenditure in the execution of the Act, shall be paid out of the several funds and revenues at the disposal of the trustees, in such manner, at such times, and in such proportions as the trustees shall from time to time fix and determine.”

In reference to the bridges and rights of ferry the Act by section 93 made the following provision:—“Upon the expiration of six months after the commencement of this Act [ i.e. six months after 3d January 1883] in the county of Dumbarton, the bridges and rights of ferry over the river Leven, at the ferries of Balloch and Bonhill respectively, and the pontages or duties leviable thereat, shall vest in the County Road Trustees of that county, and those bridges shall be maintained and managed by them, and the right of the proprietors of the said bridges and ferries to levy such pontages or duties shall thereafter cease; and the said County Road Trustees shall, at the said date of vesting, pay to such proprietors respectively the values of the said bridges, rights of ferry, pontages, and duties as at the date of the commencement of this Act in the said county, with interest at the rate of five per centum per annum from and after the said date of commencement until payment, under deduction of the net proceeds of such pontages or duties during the said period of six months, of which the said proprietors shall keep an account; and such values shall, failing agreement, be determined, in the option of the said proprietors respectively, by arbitration or by jury trial, conducted in either case in manner provided by the Lands Clauses Consolidation (Scotland) Act 1845, and that Act, so far as the same regulates procedure with respect to arbitrations or jury trials, is incorporated with this Act….The values so ascertained and determined shall be provided for by the said County Road Trustees as follows, that is to say—One-half thereof in the same manner as is by this Act provided with respect to road debts; and the other half by means of the pontages or duties levied at the said bridges as specified in the existing tables of charges, but subject to the modifications thereof allowed prior to the commencement of this Act in the said county, and those pontages and duties shall be levied by the said trustees until the moneys which they shall have borrowed in terms of the provision hereinafter contained so far as required for the purpose of paying such last-mentioned half to the said proprietors with interest thereon, together with one-half of the expense of maintaining the said bridges, and the whole expense of collecting the said pontages and duties shall have been paid and discharged out of such pontages or duties, whereupon the said bridges shall become highways and be free of toll. The said County Road Trustees may borrow the whole or any part of the money required for paying the said values and interest to the said proprietors on the security of the said pontages or duties, and of the assessments by this Act authorised, or any of them.”

The proprietors of the ferries and bridges having failed to come to an agreement with the trustees in reference to the values thereof, these were submitted to arbitration, with the result that (the arbiters having differed in opinion) the oversman found that the sum payable to Mr Smollett and Sir J. Colquhoun in respect of their rights were £27,926 and £5775 respectively, which with £3078, 1s. 7d. interest amounted to £36,785, 1s. 7d. He further found the trustees liable in expenses to these gentlemen, and to the clerk to the proceedings, &c., in a sum of £2411, 4s. 8d., the whole sum amounting to £39,190, 6s. 3d. In order to pay this sum the trustees borrowed sums amounting to £39,000, whereof £18,000 (being the sum estimated as sufficient to meet the half of the

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values directed by the 93d section of the Act to be paid out of the pontages levied at said bridges, after deduction of the nett proceeds of pontages received) was secured on the pontages or duties leviable at said bridges, and also on the County Road Debt Assessment, and £21,000 was secured on the County Road Debt Assessment alone. The trustees regarded the expenses paid by them in connection with these loans as part of the debt, and they proposed to charge the expenses of the loan of £21,000, amounting to £141, 18s. 2d., against the Road Debt Assessment, and the expenses of the loan of £18,000, amounting to £124, 17s. 10d., against Bridge Revenues.

In the County Valuation Roll of 1883–84 the bridges were, as they had been when private property, entered as “lands and heritages” at an annual value. On appeal by the trustees the Commissioners of Supply, and subsequently the Court of Session, confirmed these entries. In connection with these appeals the trustees incurred and paid expenses amounting to £37, 1s. 4d.

When the bridges came into the possession of the trustees they let them by public auction to tacksmen.

The pontages and duties were let by the trustees under the condition that if local rates were exigible they would pay the occupiers’ proportion thereof. The county rates were payable wholly by owners. The parish rates and road maintenance rates were payable one-half by owners and the other half by occupiers. Rates for road debt were payable wholly by owners. The trustees had paid from 1883 to 1885, as owners, £330, 14s. 10d., as occupiers, £303, 16s. 1d.

In the course of the arbitrations the trustees were advised, from inspections then made, that Balloch Bridge was not in safe condition for heavy traffic. They therefore had it inspected by two civil engineers, who reported that in their opinion it would be more expedient to erect a new bridge than to repair the existing structure, and they took precautions for regulating the traffic over the bridge, stationing a watchman to superintend the traffic, and taking additional precautions. The wages of the men so employed and extra expenses were defrayed by the trustees, one-half from the assessment for maintenance of highways, and the other half from the pontage revenues of Balloch Bridge, and the engineers' fees were defrayed in like manner.

This Special Case was presented by the trustees as first parties, and the proprietors and occupiers of heritages in the Vale of Leven, persons using the bridges, as second parties, for the opinion of the Court on questions between them arising on the facts already stated. (1) As regards the expense incurred incident to the compensation found due under the arbitration to Mr Smollett and to Sir J. Colquhoun, the first parties considered them as incident to the compensation, and proposed to recover one-half thereof from the revenues of the bridges. The second parties maintained that no part of the said half of the expenses was payable from the revenues of the bridges, and that the whole fell to be dealt with and paid as part of the general or district expenditure under the Act out of the funds raised to meet such expenditure. (2) As regards the expenses of the loan of £39,000, the first parties, as above stated, proposed to charge the expense of the £21,000 thereof, which was secured on the County Road Assessment alone, which expense amounted to £141, 18s. 2d., against the Road Debt Assessment, and the expenses of the £18,000, secured on the pontages and duties leviable at the bridges, as well as on Road Debt Assessment, and which expenses amounted to £124, 17s. 10d., against the Bridge Revenues, while the second parties did not object as regarded the £141, 18s. 10d., but they maintained that the sum of £124, 17s. 10d. was not chargeable against Bridge Revenues, but must be dealt with as forming part of the general expenditure under the Act or charged against Road Debt Assessment or the cost of the maintenance of highways. As regards (3) the expenses connected with the letting by auction of the pontages, and (4) the expenses of the appeals to the Commissioners of Supply and to the Court of Session on the question of the Valuation Roll of 1883–84, the first parties proposed to charge them against the Bridge Revenues, while the second parties maintained that they were chargeable as the general expenditure under the Act or part of the cost of the maintenance of highways. As regards (5) the owner's proportion of the county, parish, and road rates on the bridges, (6) the expenses and fees of regulating the traffic on Balloch Bridge, and the fees of the engineers who inspected it, the parties maintained the same views as on the previous questions between them. (7) Expenses had been incurred in litigations between the trustees and members of the public regarding the right of the trustees to levy pontages and duties at the bridges, and the amounts. These expenses the trustees proposed to charge, or as much thereof as might fall on them, against Bridge Revenues, while the second parties contended that they ought to be payable from the assessment for maintenance of highways or the funds raised for the general expenditure of the trust. (8) The trustees kept a separate account for each bridge, crediting each with its own revenues, and debiting it with one-half of its cost or value paid by them and with the proportions of clerk's and treasurer's salaries above-mentioned, one-half of expense of regulating the traffic of the bridge, and the whole of the rates and taxes payable in respect of it; and also its proportion of one-half of the expenses of the arbitrations, its proportion of the whole cost of the valuation appeals, and of rouping the pontages, so that each bridge should separately become clear of debt, and be a highway and so free of tolls, whenever one-half of its own debt was paid out of its own revenues. The said proportions of expenses borne by the bridges were allocated between them in proportion to rental. The second parties contended that the bridges formed one property, and must be so dealt with by the trustees, and that they had no authority to keep separate accounts of the pontages or duties leviable at the bridges, and that the meaning of the said 93d section of the Act was that the bridges should be freed of debt and become highways contemporaneously. (9) It having become possible that Balloch Bridge might have to be rebuilt, a question had been raised as to the right of the trustees to levy pontage in respect of the new bridge when erected by them. The second parties maintained that if the existing bridge was removed the trustees would not be entitled to charge pontage dues on

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any new bridge, in respect that by the 58th section of the Act it was declared that all new roads and bridges constructed by the County Road Board should be “highways.” The trustees accordingly desired to have their right to levy such dues ascertained before incurring the heavy expense of erecting a new bridge.

The following were the questions submitted to the Court:—“(1) Whether £1205, 12s. 4d., being one-half of the said £2411, 4s. 8d., the expenses of the arbitrations paid by the trustees, falls to be charged against the revenues of the foresaid bridges, or whether said sum is to be dealt with and charged as part of the general expenditure under the Act, or of the cost of maintenance of highways? (2) Whether the sum of £124, 17s. 10d., being the expenses incurred and paid by the trustees in connection with the said loan of £18,000, to pay the half of the values of the bridges, directed by section 93 of the Act to be paid out of Bridge Revenues, falls to be paid from said Bridge Revenues, or whether it falls to be paid out of Road Debt Assessment, or whether it forms part of the general expenditure under the Act, or of the cost of maintenance of highways? (3) Whether the annual expense of letting the pontages and duties leviable at the bridges is chargeable against the said Bridge Revenues, or whether it forms part of the general expenditure under the Act, or part of the cost of the maintenance of highways? (4) Whether the sum of £37, 1s. 4d., being the amount of the expenses incurred and paid by the trustees in connection with the said Valuation Appeals, falls to be paid from said Bridge Revenues, or whether said sum is to be paid as part of the general expenditure under the Act, or part of the cost of the maintenance of highways? (5) Whether the owners' proportions of the county, parish, and road rates on the bridges are chargeable against Bridge Revenues, or whether they form part of the general expenditure under the Act or part of the cost of the maintenance of highways? (6) Whether proportions of the salaries of the county road clerk and treasurer, and of the district road clerks and treasurers, and of the district road surveyor, are chargeable against the Bridge Revenues, or whether they are chargeable respectively as part of the general expenditure under the Act, or part of the cost of the maintenance of highways? (7) Whether any, and if so, what portion of the expenses of regulating the traffic on, and of the said fees paid to engineers for inspecting and reporting upon Balloch Bridge, is chargeable against the Bridge Revenues, or whether it is chargeable against the funds raised for the general expenditure under the Act or the assessment for the maintenance of highways? (8) Whether expenses of litigation incurred by the trustees in reference to the bridges, or the pontages and duties leviable thereat, are chargeable to said Bridge Revenues, or whether such expenses are chargeable as part of the general expenditure under the Act, or part of the cost of the maintenance of highways? (9) Whether only one account for both bridges ought to be kept by the trustees, and the nett revenues of both be applied to payment of the whole bridge debt, so that the whole debt shall be extinguished, and both bridges become highways and free of toll at the same time, or whether a separate account must be kept for each bridge, and its nett revenues applied in payment of the proportion of debt applicable to it until such proportion be extinguished? (10) Are the trustees on their erecting a new bridge in place of that presently existing at Balloch entitled to levy the same dues and pontages as are leviable at the existing bridge?”

Argued for first parties—(1) The scheme of the 93d section was, that the costs and charges connected with the transfer of the bridges, and the rights of the proprietors, which had existed previous to the Act, should be divided into two equal parts, the one-half to be made a debt on the roads of the county, and the other half to be paid out of the pontages, which were to be continued till the other half should be paid. Now, though there was no special provision for expenses of the arbitration, yet if the section was to be construed soundly, it must be held to have authorised such expenses and costs as were necessarily incidental to the arbitration. (2) They were authorised by the section to raise the money by loan, and the expenses of that loan formed part of the debt on the pontages payable out of the Bridge Revenues. (3) The trustees had exercised their discretion in letting out the pontages as the best means of making them lucrative, and the expenses of this were just “part of the expense of collecting the said pontages and duties” in the sense of the statute. (4) The unsuccessful attempt to get the rates diminished also fell on the Bridge Revenues. (5) Their coffers were diminished by the payment of owner's proportions of rates, and they were entitled to continue the pontages till the bridge dues minus the rates paid out of them had paid off the half of the debt. (6) The expenses of the establishment were clearly debts on bridges, as were also (7) the expenses of engineers' fees, and of regulating the traffic on the bridges; and (8) the expenses of litigations with reference to pontages. (9) The bridges ought to be kept separately, and each bridge ought to be debited with one-half of its cost or value paid by them, so that each should become separately free of debt. (10) In the event of a new bridge being built at Balloch they were entitled to continue to pay pontages as before at the old one in terms of section 93, the provision of the statute as regards free tolls where a new bridge was erected being no bar to the working off of the debt by continuing the pontages of the old bridge.

Argued for second parties—On a sound construction of the 93d section there was a special appropriation of the bridges, and every expense not falling within it must be paid out of other funds in other sections of the Act. If this construction was adopted, then the matters referred to in the first eight questions formed part of the general expenditure under the Act, or part of the cost of the maintenance of highways. (9) A sound construction of the section suggested that the bridges should not be separately dealt with, but dealt with as one bridge, the pontages being levied till one-half of the debt was paid. (10) The 58th section of the Act declared that all new roads and bridges constituted by the County Road Board should be “highways,” and therefore if the old bridge were removed the old pontages must cease.