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SCOTTISH_HoL_JURY_COURT

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(1814) 2 Dow 534

REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS.

During the Session, 1813–14.

53 Geo. III.

SCOTLAND.

APPEAL FROM THE COURT OF SESSION.

No. 40

Goldie Appellant

v.

Oswald and Others Respondent

April 1, June 1, 1814.

ROAD ACTS. — POWERS OF TRUSTEES.

Action against the trustees, under a road act, for having, in the occupation of the Pursuer's grounds, deviated from the line prescribed by the act, and entered upon his lands without taking the proper previous steps, in terms of the act, to give him notice, and settle the compensation. The House of Lords held that the line taken was authorized by the act, but remitted to the Court below to review its judgment with reference to the question, whether the proper previous steps had been taken in terms of the act; and, if not, to consider what damages had been sustained in consequence.

Dicente Lord Eldon, that the trustees, under these road and canal acts, ought to be kept strictly within their powers, that they ought not to deviate in the smallest degree from the line prescribed by the act; that though an injunction would not be granted where there was laches in applying for it, the trustees, if they deviated, would be liable in damages; and that if they entered on a person's lands without taking the previous steps incumbent on them under the act, they would be liable, upon trespass, in damages and costs. ( Vide Shand v. Henderson, ante; also Agar v. Regent's Canal Company.)

Ayrshire Road Act. passed 1805.

Countess of Loudon v. Ayrshire Road Trustees, Fac. Coll. May, 1793.

Grounds of complaint.

This cause commenced by an action of declarator, molestation, and damages, brought by the Appellant against the Ayrshire road trustees, under an act passed in 1805, for having illegally entered upon his lands, and made a road over it in a line not authorized by the act. A bill of suspension

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had been previously presented and refused, and therefore an action of reduction of the interlocutors and certificate of refusal was brought, lest these proceedings in the Bill Chamber should be founded upon as a res judicata, which, it was contended, they could not be, because such a plea can only be established by a decree in foro, which could not be pronounced in the Bill Chamber. That plea did not appear to have been seriously insisted upon; but some objection was made to the competency of these actions, (which had been conjoined,) on the ground that the act had appointed a particular jurisdiction for the decisions of all questions arising in the execution of it. To this it was answered, that the conduct complained of was not in execution of the act; that the trustees had exceeded their powers; and that in case of the smallest excess of power, the ordinary jurisdiction was the proper one.

The particular grounds of complaint were—1st, That the trustees had deviated from the line of road prescribed in the act. 2d, That they had entered on the ground, and commenced their operations, without previous notice to the proprietor, and without ascertaining and settling the damages according to the terms and provisions of the act.

May 30, 1807.

The Lord Ordinary pronounced an interlocutor, finding among other things, “that the line of road adopted by the trustees, where it passed through the Pursuer's lands, and which appeared from the plan to be a very small deviation from the line marked Old Road, was throughout warranted and authorized by the description in the act,

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sustains the defences, &c. and finds the Pursuer liable in expenses.” To this interlocutor the Court, after some farther procedure, adhered; and thereupon the Pursuer appealed.

May 17, 1809.

June 1, 1814. Observations in judgment.

Trustees, under road act, not authorized to deviate from the line prescribed by the act.

Shand v. Henderson, ante; Agar v. Regent's Canal Company.

No injunction will be granted where a man stands looking on without interposing in time, but trustees will still be liable in damages.

Lord Eldon (Chancellor.) The interlocutor said, that this was a very small deviation from the line marked Old Road.” If the old road was the line settled by the act, then, whether the deviation was great or small, they had been in the habit, in this country, of saying, “No, you have no right to “deviate at all;” and it would be dangerous to leave it to the discretion of Courts to say what was a large or what a small deviation with respect to these road and canal acts. Then as to the notice and tender—suppose the fact were clear that none such had been made or given—if a man stood by for some time without interposing, it was too much to say, applying to the equitable jurisdiction at least, that an injunction should issue after the operations had proceeded; but still the liability for damages would not be affected, though the quantum might. It appeared impossible here to say that the trustees had no right to carry the road over Goldie's land. One however could not help entering into Goldie's feelings, the value of whose property would be very much depreciated; but still their Lordships had nothing to do with that, and could not prevent the trustees from doing what, under the act, they were authorized to do.

Goldie had delayed longer than they would have liked in England in case of an application for an

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injunction. But there was another point to be considered which the Court below did not appear to have attended to. The trustees ought not to have begun their operations upon this ground till the terms upon which they were to have it had been settled with the proprietor ; and if the parties could not agree, a jury ought to have been called in to settle them. Without these previous steps the trustees were not authorized to enter upon the land. He had always considered it of great consequence with respect to these turnpike and canal acts, that if his Majesty's subjects were to be exposed to their operation, the parties obtaining them should take care to take the steps incumbent on them. Here, if they entered without authority, an action of trespass might be brought, and some damages must be given, and the whole of the costs. Goldie then had been in some respects wrong, and in some respects right, and yet he was saddled with the whole of these expenses.

If trustees entered on the land without taking the steps necessary under the act to give them authority, they were trespassers, and liable in damages and costs.

What he should then propose would be to declare that the line of the road was warranted by the act, and with this declaration to remit to the Court below to review the judgment, having regard to the provisions of the act as to the entry on the ground, and to consider whether these provisions had, in this respect, been observed, and, if not, what damage had been sustained by the Appellant in consequence of their not having been attended to.

He hoped, however, the parties would have the good sense to come to some arrangement which would render farther proceedings unnecessary. But

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as matters stood, he did not see any other way of getting at the dry justice of the case.

Judgment.

Cause remitted with a declaration as above.

Solicitors: Agent for Appellant, Richardson.

Agent for Respondents, Mundell.

1814