Scottish Court of Session Decisions

The Great Western Road was a turnpike road formed, of the breadth of 60 feet, with footpaths, on ground acquired under compulsory powers granted to the trustees in charge of it by the Act 6 and 7 Will. IV. c. 138, and the General Turnpike Roads Act (1 and 2 Will. IV. c. 43), and the road continued to be maintained and upheld by these trustees until the passing of the Roads and Bridges Act of 1878.

After the passing of the Act of 1878 the road (excepting in so far as within the then existing boundary of the burgh of Glasgow and the then adjoining burgh of Hillhead) was vested in and managed by the Road Trustees for the county of the Lower Ward of Lanark, acting under the said Roads and Bridges Act, until it was transferred to the County Council of Lanarkshire under and in virtue of the Local Government (Scotland) Act 1889.

By the City of Glasgow Act 1891 (54 and 55 Vict. cap. 130) the portion of said Great Western Road extending westwards beyond the burgh of Hillhead was transferred from the County Council to and vested in the Police Commissioners of Glasgow.

Until the City of Glasgow Act 1891 the footpaths in the Great Western Road were, along with the road itself, owned, maintained, and upheld by the Road Trustees and the County Council respectively, and not by the persons whose property abutted on the road.

By section 27 of the Glasgow Police Act 1891 it is enacted that “subject to the provisions of this Act … the lands … and all other property … vested in, held by, or due or belonging to any councils, commissioners, or authorities within the district added, shall, from and after the commencement of this Act, be, by virtue of this Act, transferred to and vested in, be held by, due to and belong to the Corporation, the Police Commissioners … and the powers, duties, and liabilities of such councils, commissioners, or authorities shall be transferred and attach to the respective transferees, and shall form part of the powers, rights, debts, liabilities, and obligations of the city, and be enjoyed, exercised, paid, discharged, and performed by the respective transferees.”

By section 35, sub-section (1), of the said Act it is enacted—“All public roads, highways, streets, footpaths, lanes, or courts in the district added, where vested in the several county councils, district committees, councils, commissioners, or authorities within the district added, or any of them, shall be and are hereby transferred to and vested in the Police Commissioners, and the same shall be subject to the provisions of the Police Acts.”

The law regarding the formation, improvement, and maintenance of streets in Glasgow is contained in sections 281 to 327 inclusive of the Glasgow Police Act 1866 (29 and 30 Vict. cap. 273).

By section 317 of the Glasgow Police Act it is enacted that the Master of Works may by notice require the proprietors of a land or heritage adjoining a turnpike road within the city or a public street, to form, so far as not already done, or from time to time to alter, repair, or renew to his entire satisfaction foot-pavements in such road or street opposite such lands or heritage. Section 321 lays down the particulars which are to be stated in the notice, and section 322 enacts that if any proprietor considers himself aggrieved by the requisition he may within six days deliver to the clerk written objections, and thereafter the questions competently raised on such objections with respect to the necessity or reasonableness of the work required to be executed are to be decided by a magistrate where in the opinion of the Master of Works the cost of the work will not exceed £5, in other cases by the Dean of Guild on application of the Procurator-Fiscal of that Court.

On 7th February 1893 the Master of Works, acting under the Glasgow Police Acts 1866 to 1892, gave notice to the proprietors of the houses Numbers 1 to 15 Windsor Terrace (Kelvinside), Glasgow, “that the footpath in Great Western Road, Glasgow, in connection

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with the land or heritage, or lands and heritages, situated at or near Numbers 1 to 15 Windsor Terrace, West (Kelvinside), Glasgow, of which the before-mentioned parties were and are the ‘proprietors’ within the meaning of the said Acts, was then not paved and out of repair, and requiring them, the said proprietors, within ten days thereafter, ‘to pave said footpath with granolithic paving to a uniform level,’ to the satisfaction of the Master of Works.”

The said proprietors delivered to the clerk written objections, in which they maintained that under the City of Glasgow Act 1891 the Police Commissioners having taken over the liabilities of the Road Trustees or County Council, who maintained the footpaths before the passing of the Act, were alone liable for its maintenance. They averred that the footpath was well formed with blaes, and that a granolithic pavement was unnecessary, and further stated—“The respondents own houses behind said pro indiviso pleasure-ground erected a considerable distance back from the said Great Western Road. There are between them and the said road a pavement and carriageway as well as said pleasure-ground, and the total expense of the formation and maintenance of these falls wholly on the respondents. Said carriageway enters from a cross road and not from the Great Western Road, and the greater part of the footpath ex adverso of the respondents' ground is seldom used by the respondents at all, even as members of the public. With the exception of a small portion about 10 feet in length, on which a flight of steps leading to and from said carriageway abuts, the respondents’ ground is shut off from the footpath by a railing without gates or means of access thereto. A considerable portion of said pleasure-ground stretches beyond and to the west of the respondents’ houses.”

As the cost of the work required to be executed exceeded in the opinion of the Master of Works a probable sum of £5, the matter came before the Dean of Guild for decision.

On 27th April 1893 the Dean of Guild ( Guthrie Smith) pronounced the following interlocutor:—“Finds that the defenders never were, prior to the passing of the City of Glasgow Act 1891, under any obligation to make and maintain the footpath on said Great Western Road so far as opposite to their houses in Windsor Terrace, West, and that there is nothing in said Act of 1891 that can be held as imposing upon them any such obligation: Finds, on the contrary, that the said Great Western Road, including footpaths, being the property of the Glasgow Police Commissioners, falls, to be formed, kept, and maintained by them in all time hereafter, as coming in room of and taking upon themselves the whole obligations of the County Council of Lanark in reference thereto: Therefore sustains the defenders' objections to the notices served on them by the Master of Works, and finds that they are not bound to comply there with.”

The Procurator-Fiscal appealed to the Court of Session, and argued—Under the Act of 1866 the proprietors abutting on the roads or streets in Glasgow were bound to maintain the foot-pavement. The terms of section 27 of the Act of 1891 did not impose any liability on the trustees in a question with the citizens of Glasgow. The duty of maintaining these footpaths was on the respondents— Lang v. Bruce, February 5, 1873, 11 Macph. 377; Lanarkshire Road Trustees v. Kelvinside Estate Trustees, November 12, 1886, 14 R. (H. of L.) 18. The case of Johnstone v. Magistrates of Glasgow, February 6, 1885, 12 R. 596, did not apply.

Argued for the respondents—By section 27 of the Act of 1891 all the liabilities of the old Road Trustees were transferred to the Police Commissioners. One of these liabilities was the upkeep of the footpaths at the side of the Great Western Road. There was always a presumption against creating a fresh liability on private persons by the mere transference of a property from one authority to another. The case of Lang v. Morton, February 2, 1893, 20 R. 345, recognised the continuation in the Magistrates of Glasgow of the obligations of the Road Trustees.

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