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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Christie and Others v. Burgh of Leven [1912] ScotLR 541 (08 March 1912)
URL: http://www.bailii.org/scot/cases/ScotCS/1912/49SLR0541.html
Cite as: [1912] ScotLR 541, [1912] SLR 541
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SCOTTISH_SLR_Court_of_Session
Page: 541↓
Court of Session Inner House First Division.
v.
Burgh — Boundary — High Water-Mark — Fluctuating or Fixed — Extension of Boundary.
Burgh — Road — Private Improvement Expenses — Valuation Roll — Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), secs. 133, 137, 365.
Facts:
A burgh served notices on an owner of property intimating their intention to have the carriageway of the road in front of his property properly completed, and calling upon him to have the footway formed. The owner appealed to the Court of Session on the ground that the road and his property fronting it were outwith the burgh boundary. Held that the appeal was incompetent, the assumption upon
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which the right to appeal rested being that the appellant was within the burgh. The boundary of a burgh as fixed by the Sheriff was the line of high water-mark. Opinion per curiam that the boundary was a fluctuating one, and that, the sea having receded, the burgh included the land recovered.
Smart & Company v. Town Board of Suva, [1893] AC 301, and Leith Docks Commissioners v. Magistrates of Leith, 1911 S.C. 1139, 48 S.L.R. 919, followed.
Opinion per curiam that to validate notices given by the town council of a burgh under the Burgh Police (Scotland) Act 1892 to frontagers as to the levelling and paving of streets and the formation of footways opposite their properties, it was not necessary that these properties should appear in the burgh valuation roll.
The Burgh (Police) Scotland Act 1892 (55 and 56 Vict. cap. 55) enacts—Section 133—“Where any private street in which houses or permanent buildings have been erected on one-fourth of the ground fronting the same, or part of such street has not, together with the footways thereof, been sufficiently levelled, paved, or causewayed [or macadamised] and flagged to the satisfaction of the [council] commissioners, it shall be lawful for the [council] commissioners to cause any such street or part thereof, and the footways, to be freed from obstructions and to be properly levelled, paved, or causewayed [or macadamised] … to the satisfaction of the [council] commissioners.” Section 137—“The whole of the costs, charges, and expenses incurred by the commissioners in respect of private streets … shall be paid and reimbursed to them by the owners of the lands or premises fronting or abutting on each street, as the same shall be ascertained and fixed by the commissioners or their surveyor, and the whole of such costs, charges, and expenses shall be recoverable as private improvement expenses.” Section 339—“Any person liable to pay … the expense of any work ordered … by the commissioners under this Act, and any person whose property may be affected, or who thinks himself aggrieved by any order or resolution or deliverance or act of the commissioners made or done under any of the provisions herein contained, may, unless otherwise in this Act specially provided, appeal either to the Sheriff or to the Court of Session.…” Section 365—“Where by the provisions of this Act the owner … of any premises is directed … to do any work in relation to the same and the work through the failure or delay of such owner … to execute it shall be done by the commissioners, or where expenses are incurred by the commissioners for or in respect of any premises in order to carry out the provisions of this Act, the commissioners shall charge such owner … of the premises with [the expenses thereby incurred by them] the said expenses over and above any assessments or rates to which such owner … may be liable under this Act, and such expenses shall for the purposes of this Act be called ‘private improvement expenses,’ and may be recovered in the same manner as any assessment under this Act.”
The Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), section 104 (2) ( d) and schedule, repeals the words in italics and inserts those in brackets, and, section 16, enacts—“The owner of any lands or premises fronting on any private street shall, when required by the town council, form a footway before his property of the breadth sanctioned by the Dean of Guild Court or town council at the time when the street was sanctioned, or, if no such breadth has been specified, of such breadth as the town council shall direct, … and shall well and sufficiently construct and (if required) pave such footway … all with such material and in such manner and form as the town council may direct.…”
Robert Maitland Christie, Esq., of Durie, Leven, and John Somerville, merchant, Leven, and others, appellants, appealed to the First Division of the Court of Session against certain orders, resolutions, and notices served on them by the Provost, Magistrates, and Councillors of the burgh of Leven, respondents, under the Burgh Police (Scotland) Acts 1892 to 1903. Christie was proprietor of a small piece of ground on the north side of Promenade Road, Leven, and of nearly the whole ground on the south side thereof. The other appellants were feuars of parts of the estate of Durie whose feus fronted Promenade Road. The whole of the buildings on their feus were situated on the north side of the road, and there were no buildings on the south side. The respondents had, in pursuance of certain resolutions of the Works Committee of Leven Town Council, approved at a meeting of the Town Council held on 2nd October 1911, served on 17th November 1911 on the appellants as owners in the sense of the Burgh Police (Scotland) Acts 1892 to 1903, of premises situated at and fronting or abutting on the private street known as Promenade Road, Leven, a notice intimating that the respondents had resolved, in terms of the Burgh Police (Scotland) Acts 1892 to 1903, and in particular section 133 of the Burgh Police (Scotland) Act 1892 as amended by the Burgh Police (Scotland) Act 1903, to cause the carriageway of Promenade Road within the burgh of Leven to be freed from obstruction and to be properly levelled, macadamised, flagged, channelled, and completed with fences, &c., all in terms of certain plans, sections, and specifications therein mentioned. The respondents had also served similar notices of the same date upon the appellants by virtue of the Burgh Police (Scotland) Act
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1903, and particularly section 16 thereof, requiring them to cause the footways before their properties on the north and south sides of the street to be formed in the manner therein specified. The note of appeal set forth, inter alia—“7. By interlocutor, dated 15th January 1867, the then Sheriff of Fife and Kinross found the boundaries of the burgh of Leven on the south side to be as follows:—‘Commencing at the south-east corner of Leven Bridge thence by the line of high watermark as far eastward as Scoonie Burn, thence by the west side or margin of Scoonie Burn up to the south fence or boundary of the Leven and East of Fife Railway.’ 8. The sea has gradually receded opposite the town of Leven, owing in great part to the erection of the new docks at Methil, in connection with which walls have been thrown out seawards, thus altering the flow of the currents eastwards ex adverso of the burgh of Leven. The sea, however, still occasionally washes up upon what is now known as Promenade Road when spring tides coincide with easterlyand south-easterly winds. The greater portion of the road, which is now called Promenade Road, is situated below the high watermark as it existed in 1867. In particular, the solum of the said road ex adverso of the properties of the appellants Robert Gerrett [and others] is to seaward of the line of high water-mark in 1867 and outside the burgh of Leven. Practically the whole of the property on the south of said road belonging to the appellant Robert Maitland Christie is to seaward of said high watermark and outside said burgh.… 10… . Admitted that the buildings erected on the feus lying on the north side of Promenade Road have been entered in the valuation roll as being within the burgh of Leven, and that assessments have been paid in respect thereof.… Explained that the solum of the ground on which the buildings were erected was above high water-mark in 1867… . Explained that the appellant Robert Maitland Christie has never paid any burgh assessments in respect of his property lying to the south side of Promenade Road. Said property is entered in the valuation roll as ‘landward,’ i.e., outside the burgh, and is not assessable or assessed by the respondents. Said property was so entered at the time of the resolution and notices appealed against. The appellant Robert Maitland Christie is assessable and assessed in respect thereof by the county authorities.”
Argued for the appellants—The lands in question appeared in the county roll and were assessed by the county authorities, and the resolutions and notices of the Town Council were therefore incompetent—Valuation of Lands (Scotland) Act 1854 (17 and 18 Vict. cap. 91), secs. 1, 7, 37, and 38; Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), secs. 4 (16), 9, 137, 340, 365, and 366, as altered by the Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33); Local Government (Scotland) Act 1894 (57 and 58 Vict. cap. 58), sec. 45 (1). Further, the area subject to the Town Council being in a police burgh could not be increased by accretion, because it was defined by a statutory process which was similar in effect to a bounding charter. The lands of the appellants were outwith the boundary fixed by that process in 1867, viz., high water-mark, and high water-mark was not a fluctuating boundary. In all the Scotch cases dealing with property this had been recognised, and the present case being administrative was really a fortiori of these— Smart v. Magistrates of Dundee, 1797, 3 Pat. 606, 8 Brown's Cas. in Parl. 119; Lord Advocate v. Wemyss, July 31, 1899, 2 F. (H.L.) 1, 36 S.L.R. 977; Kerr v. Dickson, November 28, 1840, 3 D. 154, and July 18, 1842, 1 Bell's App. 499; Berry v. Holden, December 10, 1840, 3 D. 205; Todd v. Dunlop, June 8, 1841, 2 Rob. App. 333; Hunter v. Lord Advocate, June 25, 1869, 7 Macph. 899, per L.P. Inglis at p. 906 (if he had had as a boundary, &c.), 6 S.L.R. 593; Blyth's Trustees v. Shaw Stewart, November 13, 1883, 11 R. 99, 21 S.L.R. 83; Magistrates of Montrose v. Commercial Bank of Scotland, Limited, June 11, 1886, 13 R. 947, per the Lord Ordinary (Kinnear) at p. 950, 23 S.L.R. 682. The case of Smart & Company v. Town Board of Suva, [1893] AC 301, was not authoritative, and was contrary to the Scotch decisions. If the burgh wished to extend its boundaries a competent method of doing so was provided under the Boundaries of Burghs Extension (Scotland) Act 1857 (20 and 21 Vict. cap. 70)— Dunoon Commissioners v. Hunter's Trustees, February 16, 1895, 22 R. 379, 32 S.L.R. 285. Further, all parties were not called. The County Council should have been made a party to the case— North British Railway Company v. North-Eastern Railway Company, December 17, 1896, 24 R. (H.L.) 19, 34 S.L.R. 179; Leith Docks Commissioners v. Magistrates of Leith, 1911 S.C. 1139, 48 S.L.R. 919.
Argued for the respondents—Under the Burgh Police (Scotland) Act 1892 the private improvement assessment was put on the owner irrespective of the valuation, and the valuation roll was not the criterion of its imposition. It might include subjects which would not be in the valuation roll at all, e.g., servitudes or a narrow strip of land. Section 137 of the Burgh Police (Scotland) Act 1892, as altered by the schedule of the Burgh Police (Scotland) Act 1903, expressly put this assessment on the frontage of the road to be improved. It was fixed by the Commissioners, and no assessor had anything to do with it. It was competent to assess owners for these expenses, who were not subject to the general rate—Muirhead on Municipal and Police Government in Burghs in Scotland, p. 6. Further, it was clearly settled that the boundary of a burgh could change, and it did not matter whether the boundary was high or low water-mark. Though there might be some difference where it was a question of property, there was none in the case of administrative areas— Forth Bridge Railway Company and Others v. The Assessor of Railways and Canals in Scotland, 1890, 1 Poor Law Magazine, 147;
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Leith Docks Commissioners v. Magistrates of Leith ( cit. sup.); Smart & Company v. Town Board of Suva ( cit. sup.)—where the circumstances were almost exactly the same as in the present case— Fisherrow Harbour Commissioners v. Musselburgh Real Estate Company, Limited, January 23, 1903, 5 F. 387, 40 S.L.R. 296; Campbell v. Brown, November 18, 1813, F.C.; Young v. North British Railway Company, August 1, 1887, 14 R. (H.L.) 53, 24 S.L.R. 763. If appellants wished to make the County Council a party to the proceedings they should have brought a declarator. At advising—
The principal objection is that, taking Mr Christie as the leading opponent, he says that he has no lands at this place within the burgh. The meaning of that is that the burgh was defined, when it was delimited by the Sheriff, as bounded on the south by the high water-mark. The sea has receded, and Mr Christie says that the ground in respect of which the notices have been served is not in the burgh at all, because it is outside the high water-mark as it was when the burgh was delimited.
The point was not taken in argument, but I am of opinion, and I understand all your Lordships agree, that we might dispose of these appeals upon the very simple ground that they are incompetent, and that for this reason. The whole scheme of appealing against these orders made by a burgh is upon the hypothesis that the people aggrieved are within the burgh. Where the objection of the aggrieved person is that he is not within the burgh at all, it is not the proper subject of an appeal. If he is outside the burgh he might just as well be at Wick as within a few feet of the burgh, and the present question would be properly raised by simply taking no notice of the order at all. The Town Council would then do the thing themselves and would proceed to recover the cost, either by an ordinary action to which there would be a defence, or by taking advantage of the summary process by which assessments are recovered, and which is by statute made applicable to such a debt, and thereupon the aggrieved persons would suspend. Technically, therefore, I am of opinion that these appeals might be dismissed because they are incompetent. But the whole matter has been argued before your Lordships, and I think it would be a great pity to dismiss the matter here, and therefore while that will be the formal judgment, I proceed to give my opinion upon the merits of the case as they were argued.
The points were twofold. First, it was said this is a bad notice altogether, because there are no lands of the appellants ex adverso of this street which are in the burgh valuation roll. At first sight I was inclined to think that argument was a formidable one, but on further consideration I do not think it is. This is not an assessment; it is quite obvious why you can only recover assessments upon lands in the valuation roll and not upon any others, because, of course, the assessment is levied at a certain rate per pound, and unless your lands are fairly valued, then in a question with your neighbours you may have to pay more than your fair share, and accordingly in the Burgh Police Act there is provision made for levying assessments according to the valuation roll But this is not an assessment at all; this is, first of all, a command to do a certain thing, and then the sanction of not doing it is that the Town Council proceed to do it themselves, and then having done it recover from you the cost. No doubt it is called private assessment, but it is not assessment in the proper sense of the word, because you have to pay the cost irrespective of what your valuation is. It does not matter what your valuation is; what you have to pay is the cost of the road and the pavement ex adverso of your frontage. That is simply a sum of money and nothing else, and although that cannot be charged against you unless you are a proprietor of lands and heritages within the burgh, I do not think it is necessary that your lands and heritages should be in the valuation roll. That disposes of the first point.
The second point is one which I have indicated, namely, that Mr Christie says, “I am not in the burgh at all,” and we have had a very careful and learned argument upon the question of sea boundaries, in which the learned counsel tried to show that there is a very great difference between a high water-mark boundary and a low water-mark boundary. The low watermark, he admitted, followed the sea—the high water-mark, he maintained, did not. We are dealing here with a line which was fixed to delimit an administrative area. The Sheriff undoubtedly fixed the high water-mark, and therefore the whole question, I think, is this, whether a delimitation by high water-mark means a fluctuating boundary or a stationary boundary? I think that has been fixed by a decision of the other Division in the case of Leith Docks Commissioners v. Magistrates of Leith ( 1911 S.C. 1139). That, I think, is a direct authority that there may be an administrative boundary which is a fluctuating boundary. If you once reach that, it does not seem to me to matter whether the fluctuating boundary is high or low water-mark, because both these boundaries do in certain cases fluctuate in fact. That
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But there is another point on which I desire to reserve my opinion, and that is as to the effect of the terms of section 133 of the Act of 1892 under which this demand by the Town Council is made, and section 141 of the same Act. The latter section provides that in a case of this sort—I am taking the case of Mr Christie alone—where there are no buildings, &c., ex adverso of his part of the road, the Town Council are not entitled to charge him with the whole expense if they cause the foot-pavement to be constructed ex adverso of his piece of ground, and therefore I think it is right to reserve my opinion upon the bearing of these two sections one upon another, and whether the limitation of section 141 does not apply here.
Another point was stated—that the requisition was served at such a time of the year as to make it impossible for the work to be done. It was explained that the reason for that was that an earlier notice proved abortive, and therefore there was delay, but, as I understood, counsel at the Bar stated that if there was any difficulty in regard to that there would be no unreasonable insistence by the Police Commissioners on the work being done, but that they would give reasonable time to allow the work to be carried out.
With regard to the point upon the boundary, your Lordships opinion is as to the legal effect of a boundary fixed by high water-mark, leaving, of course, open any question of fact that there may be between the parties as to how much is included within the high water-mark, and the correct line along which that mark should run, because although a plan was presented to us with a ine laid down upon it I am not sure whether that line was agreed upon between the parties. Any question of fact as to where the exact line should be is reserved and is open to the parties at a future stage.
On the point which my brother Lord Johnston has suggested with regard to footways a distinction is drawn between the footway to the north and that to the south. The requisition is for the footway to be formed in a permanent manner on the north side, and that for the reason that there are houses abutting. On the south there are no houses abutting, and therefore, as the notice runs, the footway is only to be formed in a temporary
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The Court dismissed the appeal as incompetent.
Counsel for Appellants— Sandeman, K.C.—J. A. Christie. Agents— Mylne & Campbell, W.S.
Counsel for Respondents— D.-F. Dickson, K.C.—D. P. Fleming. Agents— Lewis & Somerville, W.S.