Scottish Court of Session Decisions

Section 317 of the Glasgow Police Act 1866 enacts—“The Master of Works may by notice given in manner hereinafter provided require … any proprietor of a land or heritage adjoining any turnpike road within the city or any public street, so far as not already done, to form in a suitable manner with openings at convenient distances foxfire-plugs, and from time to time to alter, repair, or renew to his entire satisfaction foot pavements … in such road or street opposite to such land or heritage … except where the foot pavements have been taken over by” the magistrates and council.

Section 366 of the Glasgow Police Act 1866 and sections 20 and 21 of the Glasgow Building Regulation Act 1900 are quoted supra p. 108.

This case dealt with a question similar to that which was decided in the immediately preceding report of M'Dougall v. Nisbet. But the circumstances in which the case arose were different and involved one or two new points.

On 1st November 1900 Thomas M'Dougall obtained a warrant from the Dean of Guild to erect buildings on part of his ground fronting Springburn Road, Glasgow. The plans showed that the buildings were to be 30 feet from the centre of the road in accordance with section 366 of the Glasgow Police Act 1866. Before the lining was granted the boundary of Mr M'Dougall's property was a low wall 20 feet from the centre of the road, so that there was a space of 10 feet between the wall and the proposed buildings. The plan gave no indication that the wall was to be retained, and in fact before the buildings were erected the wall was cleared away and the 10 feet of ground was left unenclosed and open to foot-passengers.

Previous to October 1902 R. B. Wilson & Company became the proprietors of No. 1176 Springburn Road, and John Howie the proprietor of Nos. 1180 to 1216 Springburn Road, all portions of the buildings erected under the lining granted to M'Dougall in 1900.

On 7th October 1902 George Neilson, Procurator-Fiscal of the Glasgow Dean of Guild Court, presented a petition to the Dean of Guild Court stating that notices had been served by the Master of Works, in terms of the Glasgow Police Act 1866, sec. 317, on R. B. Wilson & Company and John Howie, representing Thomas M'Dougall, as proprietors of lands and heritages in Springburn Road, requiring them within ten days thereafter to form a foot-pavement by putting in at a width of 10 feet from their building lines a whin kerb and paving the footpath with Caithness pavement to the satisfaction of the Master of Works, that the defenders had lodged written objections to the requisition, and that the cost of the work would in the opinion of the Master of Works exceed £5. The petitioner therefore prayed the Dean of Guild Court to decide the question raised as to the reasonableness of the work and the liability of the defenders for the cost.

The defenders in their objections stated that the 10 feet next their building lines was private property and not part of the street, that the road authority were not entitled to cause it to be formed into a footpath till they had acquired it under section 299 of the Glasgow Police Act 1866, that beyond the 10 feet of ground there existed a footpath 7 feet wide which was an inseparable part of the public street and which the road authority were bound to maintain. The defenders, however, stated that they and Mr M'Dougall were willing to allow the 10 feet strip of ground next

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the building line of Springburn Road to be devoted to public use without payment therefor, and to permit the present footpath of 7 feet to be thrown into the carriageway if the road authority formed the 10 feet strip into a foot-pavement and maintained it as a part of the street.

On 25th February 1903 the Dean of Guild ante omnia remitted to the Master of Works to fix the width of Springburn Road, in terms of section 20 of the Glasgow Buildings Regulation Act 1900.

On 27th March the Master of Works reported that “having due regard to (1) the history and character of Springburn Road, which was a turnpike road as also a public street of the city; (2) the provisions of the Glasgow Police Act 1866, section 366, and the Glasgow Building Regulations Act 1900, section 20; and (3) the width of the street between tenements or permanent buildings where such have been already erected,” he fixed the width of Springburn Road at the part in question at 60 feet, and marked the centre of the street on a plan.

On an appeal by the defender against this determination of the Master of Works the Dean of Guild, on 20th February 1904, refused the appeal, sustained the determination of the Master of Works, and fixed the width of Springburn Road in terms thereof.

On 20th February the Dean of Guild also pronounced the following interlocutor:—“Finds in fact (First) That the defenders R. B. Wilson & Company and John Howie, representing Thomas M'Dougall, are proprietors within the meaning of the Glasgow Police Acts 1866 to 1900 of lands and heritages situated adjoining to and having rights of access by the street known as Springburn Road, Glasgow; (Second) that Springburn Road is a public street within the meaning of the said Acts; (Third) that the footpath in question is out of repair; (Fourth) that on 16th September 1902 notices were served on the defenders by the Master of Works, which notices intimated to the defenders that the footpath in question was out of repair, and required them to execute the following work, namely, to form the foot-pavement of said footpath in a suitable manner by putting in to a width of 10 feet from the building line of said lands and heritages a 12 by 6 ridged whin kerb, and pave the footpath with Caithness pavement to a uniform and suitable level, and to the entire satisfaction of the Master of Works; (Fifth) that the said work is necessary and reasonable: Therefore ordains the defenders to execute the said work forthwith.”

Note.—… “Mr M'Dougall's position is that the piece of ground in question is not a footpath, that it could yet be fenced in by him by his placing a wall or other structure on the position of the old wall now removed, and that accordingly he cannot be asked to form this ground into pavement or throw it into the public street without compensation.

“In terms of section 20 of the Glasgow Building Regulations Act 1900 it must now be presumed that in the lining referred to the following condition was made, viz., that one-half of the width of such street, measuring such half from the centre of such street towards such ground, shall be cleared of all structures and wholly dedicated to the public for street purposes. If that be so, the Dean of Guild thinks that the strip of ground in question has been dedicated for street purposes, and cannot now be enclosed by Mr M'Dougall.

It is said by the respondent that the width referred to in this condition is to be measured from the centre towards the ground; that the section provides how the centre and the width are to be ascertained: that the centre can in terms of the section be defined by the Master of Works only with reference to an application for lining; that as this process is not an application for lining no determination of the Master of Works can be applied here; and that there being no defined centre the section does not apply.

“The Dean of Guild does not think it is necessary to decide whether the width or the centre of the street can be defined only with reference to an application for lining, or whether the limitation applies only to the fixing by the Master of Works of the centre. The view he takes does not involve the application of any determination by the Master of Works. In its main enactment the section provides that one-half of the width of such street, measuring such half from the centre towards the building, is to be cleared and dedicated to the public, and the Dean finds in Mr M'Dougall's own plans and in his pleadings in the present proceedings sufficient data for finding the centre and the width of Springburn Road at the part in question; and Mr M'Dougall's ideas on these points fortunately coincide with the determination of the Master of Works.

“Even assuming that Mr M'Dougall's contention as to the width and centre being defined only with reference to an application for lining is a sound one, the Dean of Guild cannot help feeling that the plans submitted by Mr M'Dougall were capable of only one reading, which was that no question was to be raised about the strip of ground between the then existing wall and the building-line. The Dean has no doubt that if there had been any suggestion on the face of the plans that the ground in question was to form the subject of a claim on the part of Mr M'Dougall, the Court would in that application for lining have invoked the provisions of section 20, and had the width and centre defined with reference to that application for lining. But as the Dean has said, he does not need to consider any argument as to the machinery given by section 20 for finding the width. Mr M'Dougall has himself fixed the width and centre, and by the Act one half of the width of such street ex adverso of Mr M'Dougall's property is wholly dedicated to the public for street purposes. An attempt was made to read the word ‘street’ as roadway exclusive of footpath, but such a construction is out of the question.

“If the Dean is right in the view he takes, then little remains to be said on the merits of the present action. The ground as it

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presently stands is not in a proper state for a footpath, and there is no doubt as to the reasonableness of the requirements of the Master of Works for the repair or formation of this footpath, or as to the liability of the proprietors whose lands adjoin to and have a right of access by the street in question. The cost of the works required to be executed exceeds, in the opinion of the Master of Works, the sum of £5, and the Dean has therefore granted the order craved by the Procurator-Fiscal.”

The defenders appealed to the Court of Session.

The case was argued along with the case of M'Dougall v. Nisbet, supra, p. 108, reference being also made by the respondents to Smith v. Magistrates of Irvine, November 14, 1902, 5 F. 113, 40 S.L.R. 76, as showing that the local Glasgow Police Acts were to receive effect on the matters at issue between the parties, and were not superseded by the general Acts relating to such matters.

At advising—