Scottish Court of Session Decisions

The Railway Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 33), section 39, enacts—“If the line of the railway crosses any turnpike road or public highway, then, except where otherwise provided by the Special Act, either such road shall be carried over the railway or the railway shall be carried over such road by means of a bridge, of the height and width and with the ascent or descent by this or the Special Act in that behalf provided; and such bridge, with the immediate approaches and all other necessary works connected therewith, shall be executed and at all times thereafter maintained at the expense of the company; provided always that with the consent of the sheriff or two or more justices as after mentioned, it shall be lawful for the company to carry the railway across any highway, other than a public carriageway, on the level.”

The Caledonian Railway (Additional Powers) Act 1872 (35 and 36 Vict. c. cxiv), which by section 2 incorporates the Railways Clauses Consolidation (Scotland) Act 1845, except where expressly varied by the Act, enacts—Sec. 4—“Subject to the provisions of this Act, the company may make and maintain in the lines and according to the levels shown on the deposited plans and sections the railways hereinafter described, and all proper stations, approaches, works, and conveniences in connection therewith respectively, and may execute the other works and operations hereinafter mentioned.… The railways and other works and operations hereinbefore referred to and authorised by this Act are … A railway in this Act called Railway No. 2, … commencing by a junction with the company's Dalmarnock branch, … and terminating on the southern side of the road or street called London Road, … all in the City of Glasgow.…”

Section 26—“In constructing Railway No. 2 the following provisions shall be binding on the company, who shall construct the works hereinafter specified in manner hereinafter directed. … (3) The road or thoroughfare numbered on the deposited plan 4 in the parish of Calton may be diverted as shown on the plans, and shall be carried over the railway by a bridge not less than 40 feet wide between the parapets, and the diverted portion of road shall not be less than 40 feet between the fences.…”

On 8th November 1904 the Corporation of the City of Glasgow brought an action against the Caledonian Railway Company, in which they sought declarator “( First) That Broomfield Road, Cumbernauld Road, and Strathclyde Street, in the City of Glasgow, are public highways, and are respectively carried over the defenders' railway or railways by means of a bridge or bridges; and ( Second) that the defenders are bound at all times to maintain at their own expense the portion or portions of the said Broomfield Road, Cumbernauld Road, and Strathclyde Street, carried over the defenders' railway or railways by means of a bridge or bridges, including in such maintenance in each case the immediate approaches of such bridge or bridges.”

The conclusions of the summons, so far as regarded Broomfield Road and Cumbernauld Road, were disposed of on March 20, 1906. [Reported ante, 43 S.L.R. 534, 8 F. 755.]

The defenders, inter alia, pleaded—“(5) Strathclyde Street not being a public highway when the defenders' railway was constructed, the provisions of the Railway Clauses Act 1845 do not apply to it. (8) In respect of the provisions of the defenders' Acts condescended on, the defenders are not bound to maintain the new portions of road substituted by them for the previously existing roads appropriated and used by them partly in the formation of the said substituted roads and partly for the purposes of the said railway.”

The facts of the case appear from the opinion ( infra) of the Lord Ordinary ( Salvesen), who, after a proof, on 23rd October 1906 assoilzied the defenders from the conclusions of the summons in so far as they related to Strathclyde Street.

Opinion.—“The only conclusion which remains undisposed of in this action is that relating to Strathclyde Street. The pleadings on both sides are singularly meagre. The pursuers aver that Strathclyde Street is a public highway of the City of Glasgow, but there is no averment that at the time when the defenders obtained the private Act of 1872, under which the bridge to which the action relates was constructed, Strathclyde Street was then a public highway. If I had been determining a question of relevancy in the first instance I should have been prepared to dismiss the conclusions of the actions so far as Strathclyde Street was concerned, because, in my opinion, section 39 of the Railways Clauses Consolidation Act does not impose an obligation on the Railway Company to maintain in all time the surface of the roadway which is carried on the bridge, if at the time when the railway bridge was made the road which it crossed was a private road. On the other hand, the defenders do not say that in 1872 Strathclyde Street was not a public highway, their only averment being that it was a private street maintained by the owners of property fronting or abutting thereon, an averment which is not in the least inconsistent, as Lord Low pointed out, with Strathclyde Street (at that date) being also a public highway. Both parties, however, concurred in asking a proof, and I think I must now decide the case with reference to the evidence that has been adduced, and not with reference to the

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pleadings in the case, which might easily have been amended had attention been called to their defective nature.

“The first question which I have to solve is the meaning of the words ‘public highway,’ used in section 39. There is no definition of ‘public highway’ in the statute, nor is there any case which decides what kind of road will answer the description. Both parties are agreed that it must be a carriageway, because it has been held that the section does not apply to a footpath— Dartford, L.R., 1898, App. Cas. 210. The pursuers maintained that if such a carriageway is de facto open to the public it answers the description of being a public highway, while the defenders contend that not merely must it be open to the public, but that it must be a road over which the public have a right to pass. I prefer the defenders' definition. A public right to use a carriage road belonging to private proprietors may be acquired by prescriptive use, by express grant, or by dedication, but I am unable to see how a private road can be described as a public highway which, although de facto used by the public with consent of the proprietors, may at any time be closed to the public. I proceed, accordingly, to consider whether in 1872—which is admitted to be the crucial date—Strathclyde Street was a public highway in the sense which I have indicated.

There is really no substantial controversy between the parties as to the facts although they differ widely as to the inferences to be drawn. Prior to 1854 a carriage road existed substantially on the line of Strathclyde Street as it now exists. It led from Dalmarnock Road to a street which is now called Swanston Street, which also communicates with another part of Dalmarnock Road. Both roads were entirely on the private property of the Dalmarnock Trustees. At that time Swanston Street was known as ‘the coal road,’ having apparently been originally formed in order to give access to a coal pit then being worked on the Dalmarnock estate not very far from the Clyde. There was a line of rails on the road, used by the hutchers which conveyed the coal from the pit. Opposite Guthrie's farm there was a gate which went right across the road, and which was always closed on Sundays, but was open the rest of the week. There seems also to have been a gate at the other end. Strathclyde Street was then known as ‘the field road,’ and apparently passed through agricultural land. It may originally have been a farm road, although its origin has not been ascertained in this process. In the earliest Ordnance Survey it is described as an occupation road; and in 1858, when the defenders obtained their first Act of Parliament to construct a railway across it, it is again so described in the book of reference. In the disposition by Mr Wilson of Dalmarnock in favour of the Caledoniau Railway Company, dated 24th November 1868, it is spoken of as a private road which ‘may be altered, shut up, or otherwise used by the proprietors of the subjects under description at pleasure, as soon as, and at any time after, the tack of the adjoining ground and offices in favour of Mr James Buchanan comes to an end, by expiry of the time therein stipulated or in consequence of a sale of the ground or otherwise.’ I cannot doubt, therefore, that prior to 1868 Strathclyde Street was a private road belonging to the proprietors of Dalmarnock estate. It is also in favour of this contention that the original railway crossed what is now Strathclyde Street on the level, although this, of course, is by no means conclusive. In 1854, however, the owners of Dalmarnock estate commenced to feu the ground fronting Strathclyde Street. The earliest feu-contract was one in favour of Muir, Brown, & Company, who took a feu of six acres for the erection of a factory, The northern boundary of this feu is described in the feu-contract as ‘the centre line of a contemplated street of 50 feet wide, and about to be formed of its proper breadth (so far in the meantime as bounding the ground thereby disponed) along which it extends 248 feet or thereby.’ It appears from the same feu-contract that the road was at that time only 15 feet wide. It is quite obvious from this contract that the proprietors of the estate intended and expected that the ground fronting the proposed street would be taken off for industrial purposes. This expectation was not immediately realised. The next feu that was given off was one in April 1863, and the northern boundary of this feu is ‘the centre of a proposed street of 50 feet in breadth.’ Access is given to the ground ‘by the road presently in use,’ leading in both directions from the conclusion of Hamilton turnpike road to or near the ground hereby disponed. In 1864 Muir, Brown, & Company took a further feu of two acres of ground with a northern boundary in the same terms. In 1865, 1868, and 1870 further feus were granted, in the last of which the boundary is given as ‘the centre line of street to be formed, 50 feet in breadth from building line to building line.’ From the parole evidence it appears that by 1872 all these feus had been covered with buildings used for manufacturing purposes, and that the road in question was in daily use by some hundreds of workmen who were there employed. No doubt also it was used by members of the general public, whom there could be no reason to exclude, having in view the character of the district and the number of people who resorted to it for business purposes. Further, in 1870 the road was taken over under the Glasgow Police Act of 1866 as a private street, and the usual assessment notices were from that time onwards issued to the proprietors on both sides. It then became subject to the jurisdiction of the Magistrates of Glasgow for the purposes of the Act of 1866, so far as that Act applies to private streets (I was referred especially to sections 303 to 308, 311, 318, 344, and 347), and for all practical purposes this was a highway used by the public just like any of the other streets in the City of Glasgow. Further, it may be conceded that it was very unlikely indeed that it would ever be

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closed to public traffic in view of the desire of the proprietors to promote more extensive feuing and the character and use of the buildings which had already been created.

All this, however, is not inconsistent with the road in question remaining a private road in the sense that it was one over which the public had acquired no legal rights. It was decided in the case of The Kinning Park Commissioners, 4 R. 528, that a private street within burgh may yet remain the property of the owners, and may be closed to the public, although it has been used by the public for many years, short of the prescriptive period. I have already indicated that I am unable to see how a public right can be acquired except by express grant, by dedication, or by prescriptive use. It is not alleged that there was ever any express grant in favour of the public, and it is plain that in 1872 the road had not existed long enough to have enabled the public to acquire a right of way over it. Nor do I find any evidence of dedication to the public. It was argued by the pursuers that dedication to a body of feuars was equivalent to dedication to the public. In the present case for practical purposes it may have been so, but in law I do not think it was. That was indeed expressly decided in the Kinning Park case, where the street which was closed had been dedicated to the feuars on both sides for purposes of access to their feus, and I fail to see how it can affect the legal question whether the body of feuars is a small or a large one. The right to use the road conferred by the titles is confined to the feuars and tenants on the estate; and although such a contingency was highly improbable, I can see no reason why they should not in 1872 have combined to exclude the public, or even agreed to shut up the road entirely. The road in other words was as Mr Colledge describes it, an estate or feuing road, from which the public were not excluded simply because at that time no interest had emerged which would make that desirable. I accordingly reach the conclusion that Strathclyde Street was not in 1872 a public highway within the meaning of the section founded on.

It was further contended that the defenders were barred from maintaining that the road was not a public highway by the book of reference which they lodged relative to the Act of 1872, and more especially the book of reference lodged relative to the Act of 1888, under which they obtained further powers. In the book of reference of 1872 the road in question is described as being occupied, inter alios, by the public. That seems to have been accurate enough in point of fact; but if the Railway Company had believed that the road was under public administration. the public body administering it would have been entered as occupiers, and not the public on whom no notice was or fell to be served. So far as it goes the entry in 1872 seems to me in favour of the defenders. In 1888, however, which was six years before the road was taken over as a public street, the defenders in their book of reference described the road as being occupied by the public and the Magistrates and Town Council of Glasgow. In a sense that may have been accurate too, because the Magistrates under the Act of 1866 had certain powers already referred to with regard to the administration of the road as a private street; and they also appear to have been owners of gas and waterpipes in the road. In 1888, however, there was no question as to the maintenance of the road, which was being done entirely at the expense of the frontagers, including the Railway Company. And even if I were satisfied that there was an error in the book of reference, I do not see how that can affect the Railway Company's legal rights or throw upon them a burden of which, as owners, they had been relieved once and for all when Strathclyde Street was taken over as a public street by the City of Glasgow.

One other argument for the pursuers remains to be dealt with. They pointed out that the bridge in question remains the property of the defenders, notwithstanding that the street which it now in part supports has been taken over by the City. They contended that the obligation to maintain the bridge therefore remains with the Railway Company; and that it was impracticable to distinguish between the structure of the bridge and the surface of the roadway, which they considered was merely a part of the bridge itself. I confess that I do not see the supposed difficulty. In many parts of the City of Glasgow the solum of the streets belongs to the proprietors on each side, and may be, and in many cases no doubt is, occupied as cellars; yet no practical difficulty arises in ascertaining the liabilities of the respective proprietors in maintaining the roadway. But the very distinction which the pursuers regard as impossible has already been successfully drawn by the House of Lords. In the case of the Glasgow and South-Western Railway, 22 R. (H.L.) p. 29, it was held that although the Glasgow Magistrates as Public Water Commissioners had authority to lay a line of water pipes in a road which at two places was carried on girder bridges belonging to the Railway Company, it was ultra vires of the Commissioners to carry pipes through the stone abutments of the bridges, and sling them from the girders. Lord Watson said—‘From beginning to end of the clause there is no power given to go beyond the soil and pavement of the bridge’; and he distinguishes between such an operation and one involving serious interference with the structure of the bridge. In short, the maintenance of the surface of the roadway is an entirely separate obligation from the maintenance of the bridge which supports it.

I accordingly reach the conclusion that the defenders fall to be assoilzied from the only undisposed of conclusions of the action, being those relating to Strathclyde Street.”

The pursuers reclaimed, and argued—The Lord Ordinary had erred. The Railway Company were under obligation to

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maintain this roadway, (1) because the road was a “public highway, and section 39 of the Railway Clauses Consolidation (Scotland) Act 1845 applied; and (2) because, if that contention were wrong, there was a statutory obligation under their Special Act of 1872, which authorised the building of the bridge. 1. The road was a “public highway.” The company's own Act of 1872 recognised the public interest in the road, and proceeded on the basis of its being a public highway, and they could not challenge that now. Besides, they were right in so doing. It was a “highway”— Dartford Rural Council v. Bexley Heath Railway Company, [1898] AC 210, Lord Herschell at p. 215. The real test of “public” was use by the public. Now Strathclyde Street had, prior to the Special Act, been subject to continuous public use for many years. In 1870 it had been taken over under the Glasgow Police Act of 1866, technically no doubt as a “private street,” and this change recognised the right of the public in the street by invading the rights of private ownership, by putting under municipal control cleaning, lighting, cleansing, paving, and the removal of obstructions. The use of the public at the time of the passing of the Special Act might be temporary, but it was sufficient that it existed, and it was not necessary it should have been an indefeasible right. Kinning Park Police Commissioners v. Thomson & Co., February 22, 1872, 4 R. 528, 14 S.L.R. 372, was distinguished, being under a different statute, and also in that the Dalmarnock feuars could not have closed a “private street” of Glasgow as happened in the Kinning Park case. The Magistrates of Glasgow v. Glasgow and South-Western Railway Company, May 13, 1895, 22 R. (H.L.) 29, 32 S.L.R. 733, had no bearing here. (2) The company were further under obligation to maintain the roadway of this bridge and approaches, under their Special Act. That Act authorised them to “make and maintain” the railway, and this bridge was by section 26 (3) one of the conditions. That gave rise to a contract to maintain the bridge. And the duty of maintaining the bridge applied also to its approaches— Addie's Trustees v. The Caledonian Railway Company, July 7, 1906, 43 S.L.R. 769; and also the maintenance of the roadway— Corporation of Glasgow v. Caledonian Railway Company, March 20, 1906, 8 F. 755, Lord Kinnear at p. 763, 43 S.L.R. 534; North Staffordshire Railway Company v. Dale, 8 E. & B. 836; Lancashire and Yorkshire Railway Company v. The Mayor of Bury, L.R., 14 A.C. 417.

Argued for the respondents (defenders)—The argument on the Special Act 1872, section 26, was here put forward for the first time. That clause, being inserted at the instance of the Dalmarnock Trustees for the protection of their interest as proprietors, negatived the road being a public highway, and it could not be said that the road being provided for, showed it to be a public highway, since the Act contained a complete code for both private and public roads. The real question was, what was the meaning of “public highway” in the sense of section 39 of the Railway Clauses Act? The true test of that was the power to close the road at the date the bridge was made. This could have been done here by the superior and feuars together. The road was neither a turnpike nor a statute labour road, and the pursuers did not prove public use for forty years. There was consequently no right in the public to use the road, and section 39 did not apply, as it referred to a road which the public had a right to use. A “public highway” must be public de jure, not merely de facto, to come within the section. As to the Special Act, if there was any obligation to maintain the roadway, which was denied, it was in favour of the Dalmarnock feuars, and if the creditor in the obligation changed the contract was at an end. There was in general no obligation to maintain a substituted private road. That was the duty of the former proprietor— Magistrates of Perth v. Earl of Kinnoull and Caledonian Railway Co., June 28, 1872, 10 Macph. 874, 9 S.L.R. 555. As to the obligation to maintain the roadway going with that to maintain the structure of the bridge, Lord Kinnear's dictum ( 8 F. 756) lost its force when the case of Magistrates of Glasgow v. The Glasgow and South-Western Railway Co., ut sup., was considered. Nor did Lancashire and Yorkshire Railway Co v. Borough of Bury, and North Staffordshire Railway Co. v. Dale apply, the creditor in the obligation having changed. Kinning Park Police Commissioners v. Thomson, see esp. Lord J.-C. Moncreiff at p. 530, was in point. The Lord Ordinary's judgment should be affirmed.

At advising—