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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Kerr, Anderson, & Co. v. Lang [1878] UKHL 386_1 (26 February 1878)
URL: http://www.bailii.org/uk/cases/UKHL/1878/15SLR0386_1.html
Cite as: 15 ScotLR 386_1, [1878] UKHL 386_1
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SCOTTISH_SLR_House_of_Lords
Page: 386↓
House of Lords.
(Before
v.
(Ante, June 1, 1877, vol. xiv. p. 494, 4 Rettie 779.)
Subject_Public Burdens — Glasgow Police Act 1866 (29 and 30 Vict. cap. 273), sec. 384 — Obligation to Fence River.
Facts:
The 384th section of the Glasgow Police Act 1866 empowers the Master of Works to call upon “any proprietor or occupier of a land or heritage to fence the same, or repair any chimney-stalk, … or any rhone, sign-board, or other thing connected with or appertaining to any building thereon, which appears to be dangerous.”
Held (affirming judgment of Court of Session that a proprietor of lands which were bounded by the Clyde, a public navigable river, and through which there ran parallel to the river a public right-of-way, which was
Page: 387↓
fenced off on that side only of the path which was beneficially occupied, could not be called upon under the above-quoted section to erect a fence upon the other side of the path adjoining the river.
This was a suspension of an order of the Master of Works in Glasgow, by Messrs Kerr, Anderson, & Company, as factors for Robert Menteith, proprietor of the lands of Barrowfield, who had been enjoined at the instance of Mr Lang, Procurator-Fiscal, to fence a portion of his lands on the bank of the river Clyde, and lying between that and a public footpath or right-of-way which ran parallel to the river and through the lands. The footpath was said to be a source of danger from its proximity to the river. The 384th and other clauses of the statute as founded on are quoted in the Lord Chancellor's opinion ( infra).
The Dean of Guild made an order to enforce the requisition, and disallowed the objections taken to it. A suspension of it was then brought before the Lord Ordinary on the Bills (Rutherfurd Clark), but the note was refused. On a reclaiming-note being presented, the First Division (Lord Deas dissenting) recalled the Lord Ordinary's interlocutor and suspended the proceedings complained of (June 1, 1877, 14 Scot. Law Rep. 494, 4 Rettie 779).
Lang, the respondent, appealed to the House of Lords.
At delivering judgment—
My Lords, that being so, the respondents were called upon by an officer under the municipality of Glasgow, who is called the Master of Works, to put up a fence upon the extreme south side of the property which I have described, and immediately along the bank of the river Clyde. So far as your Lordships have that notice given by the Master of Works before you, it was in this form—it stated that the north bank of the river Clyde, in connection with lands and heritages of which the respondents were “proprietors” within the meaning of the Glasgow Police Act, which I shall have to refer to, situated at or near and extending from Rutherglen Bridge eastwards as far as their property extended, was in an insecure and dangerous condition, and was not properly fenced; and the notice required them within ten days thereafter to put up a wooden fence along the north bank of the river Clyde as far as their property extended, not less than 4 feet 6 inches high, with a double railing on the top, and fastened to the bank in accordance with instructions given by the Master of Works, and to do that to his satisfaction. My Lords, it is admitted on both sides that if there was authority to require that fence to be put up, your Lordships have nothing to say to the character of the fence. The Master of Works, subject to an appeal to the Dean of Guild, is the absolute judge of the character of the fence; he might order it to be of a greater or less height, or of a more or less substantial description.
Now, my Lords, the question arises—What was the authority of the Master of Works to require this fence to be put up? That authority is said to be found in the 384th section of the Glasgow Police Act of 1866. My Lords, that 384th section occurs in what is called the 27th division of the Act. The Act is an extremely long one; it consists of 416 clauses. The provisions are of the varied kind, and I may observe that a number of the provisions—in fact, I may say the greater part of them—are provisions which more or less interfere with the ordinary rights of private property. They are doubtless very valuable and proper provisions, otherwise Parliament would not have enacted them, but interfering as they do with the rights of property, the owners of that property are entitled of course to have these provisions very carefully examined in order to prevent any undue or arbitrary exercise of the powers given by the Act.
The 27th division of this long statute is headed in this way—“Buildings, their erection, alteration, and use.” And, my Lords, I may observe that these headings in this Act are not to be looked upon as marginal notes inserted perhaps not by Parliament but by the printer, because they are referred to in the body of the Act itself.
The 386th clause (the second clause after the one I am going to read) itself takes notice of the headings of different parts of the Act, and shows that Parliament had carefully and analytically divided the Act into these different parts. The 384th section is, as I have said, in the part which relates to “Buildings, their erection, alteration, and use.” And, my Lords, that part, extending from section 364 to section 386, has reference—in, I may say, every section of it—to buildings in some shape or form.
The 384th section is in these words—“The Master of Works may, by notice given in manner hereinafter provided, require any proprietor or occupier of a land or heritage to fence the same, or repair any chimney-stalk or flue, or any chimney-head, or can, or any rhone, signboard, or other thing connected with or appertaining to any building thereon, which appears to be dangerous, to his entire satisfaction.” My Lords, with regard to the words “proprietor or occupier of a land or heritage, ” your Lordships have to take
Page: 388↓
Now, my Lords, in this case I think your Lordships could have no doubt, looking at that clause which I have read, and at the other clauses which have been recently read to your Lordships, that a priori the intention of these clauses in this Act would naturally be taken to be to give to the municipal authorities of Glasgow a power which was a very valuable, and probably a necessary, power in any city of the kind—to require a separation to be made, if necessary, between what is public and what is private—between a piece of ground on which buildings or other works may be going on, and a street, the persons passing along which should be kept from intrusion upon the private land. With regard to the respondents, there can be no doubt—indeed it follows from what I have said—that so far as their occupation is concerned—above all, so far as their beneficial occupation is concerned—that occupation is entirely confined to their property of Barrowfield, north of the roadway which I have described. Their property, as regards their beneficial occupation, terminates where the roadway begins, and from the roadway across to the Clyde, including the sloping bank I have referred to, there is no beneficial occupation whatever at present, and there is not said to have been any beneficial occupation on the part of the respondents. Therefore, looking at the matter a priori, any person, I think, knowing that municipal regulations were to be made with regard to property of this kind, would naturally say that what would be desirable would be that property so circumstanced should be fenced where the beneficial occupation terminated, and that if there was to be a fence towards the south side of this property at all, it should be a fence interjected between that which was the subject of private occupation and the public road I have referred to. My Lords, in point of fact that is exactly where the fence has been put up, and no complaint has been made of that fence, and no allegation has been made that it is insufficient. There being now a perfect and sufficient fence between the part of Barrowfield which is occupied beneficially—the part of Barrowfield where any buildings are found—and the road, what your Lordships have now to consider is, upon what footing is it that a claim is made to have a second fence put up parallel with the first, further to the south, and including within it the public road in question?
My Lords, that raises the question, Was it intended by this 384th section that, there being a piece of land well and properly fenced up to the place where the beneficial occupation ceases, and there being then along that piece of land, outside of it, a public road, was it intended that that public road should be treated as “a land or heritage” within the meaning of this section, or was it intended that the existing fence at the end of the ground beneficially occupied should be wholly disregarded, and the owners called upon to make a second fence at the outside of the public road, as if the internal fence had never been placed where it is?
Now, my Lords, I cannot persuade myself that either of these things was the intention of the Act of Parliament. It appears to me that if, in the first instance, the owners of Barrowfield had been called upon to put up a fence where it has been put, it might have been very difficult to say that that was not a reasonable demand, and one which they ought to have complied with; but whether that was so or not (upon that I do not desire to offer any distinct opinion), the fence has been up there, and I am unable in that state of things to see that there can be now a right on the part of the municipality to call for another fence to be put outside that which is a public road, and in respect of which there is no beneficial occupation whatever of it by the respondents as “land or heritage” producing any profit or rent to them.
My Lords, I think that those considerations are very much strengthened by looking at the natural meaning of the words as they occur in the clause, namely, “the Master of Works may require any proprietor or occupier of a land or heritage to fence the same.” The natural meaning of those words is that the Master of Works may call for a fence in order to make a division which shall exclude the public or the owners of some other property from the property the owners of which are called upon to put up the fence. But the purpose for which this fence is called for is not a purpose of that kind at all; it is called for the purpose of fencing and keeping in the public, and not for the purpose of keeping them out and dividing them from the property. It is, as was candidly admitted, a fence the whole purpose and object of which is, that when the public are passing along this road they may be protected from falling into or straying into the waters of the river Clyde, and thus coming into danger. Now, it appears to me that that is not a purpose for which any fencing under this section was intended. It was not intended for the purpose of protecting and keeping inside those persons who had got into a heritage—it was for the purpose of excluding from the heritage those who were outside, for keeping those who were outside from going into it. Therefore, whether it be viewed in the one light or in the other—whether as regards the purpose for which the fencing was intended in this section, or as regards the land or heritage being already fenced up to the end of the beneficial occupation—in either view, I think the fence which the respondents have been called upon to make here is one the demand for which is in no way warranted by this 384th section.
That, my Lords, was, I think, in substance the view taken by the majority of the learned Judges in the Court below; but I do not wish to leave the case without making one further observation. The property of Barrowfield is a property, as I have already said, lying along the banks of the river Clyde, that great navigable and most important river upon which the city of Glasgow is
Page: 389↓
My Lords, upon the other grounds which I have endeavoured to explain, it appears to me that the decision of the majority of the Court below is correct, and I move your Lordships that the interlocutor should be affirmed and the appeal dismissed, with costs.
Interlocutor appealed from affirmed, and appeal dismissed with costs.
Counsel for Lang (Appellant)—Kay, Q.C.— Nicholson. Agents— Simson, Wakeford, & Simson, Solicitors.
Counsel for Kerr, Anderson, & Company (Respondents)—Lord Advocate (Watson)— Benjamin, Q.C. Agent— W. A. Loch, Solicitor.