Bell v Magistrates of Prestwick
| Jurisdiction | Scotland |
| Judgment Date | 13 December 1929 |
| Docket Number | No. 21. |
| Date | 13 December 1929 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Sheriff of Ayrshire.
Roads and StreetsHighwayPrivate streetWhether road a "private street" or "existing turnpike road"Roads and Bridges (Scotland) Act, 1878 (41 and 42 Vict. cap. 51), sec. 3Burgh Police (Scotland) Act, 1903 (3 Edw. VII. cap. 33), secs. 103 (5) (6) and 104 (2) (d).
Sec. 104 (2) (d) of the Burgh Police (Scotland) Act, 1903, empowers the town council of a burgh to take necessary steps for the proper formation of "private streets." "Private street" is defined by sec. 103 (6) as "any street other than a public street"; and "public street," by sec. 103 (5), as including "any highway within the meaning of the Roads and Bridges (Scotland) Act, 1878, vested in the town council." Sec. 3 of the latter Act defines "highway" as including "existing turnpike roads."
Certain frontagers of Sandfield Road, Prestwick, objected to a resolution of the town council which dealt with Sandfield Road as a "private street." They maintained that Sandfield Road was an "existing turnpike road" within the meaning of the Act of 1878, and therefore not a "private street" within the meaning of the Act of 1903.
At a proof the following facts were established:In 1767 road trustees, empowered to select the route for a road from Ayr to Kilmarnock to be administered by them as a turnpike road, chose as their route the line of an existing road, part of which afterwards became known an Sandfield Road. During the subsequent constructional work necessary to improve the selected route, other neighbouring roads were available for use as alterative to its uncompleted portions. The constructional work proceeded and may never have been entirely completed, but by 1779 the selected route had become generally available and was in use as a turnpike road. There was, however, no direct evidence that the portion representing Sandfield Road actually formed a part of the road so brought into use.
In 1789 the road trustees effected a deviation from that section of the proposed 1767 route which included Sandfield Road, and there after the deviation became the line of their Ayr-Kilmarnock road, and Sandfield Road no longer formed part of it. Sandfield Road remained however in public use as an access to the houses abutting on it, and the trustees never divested themselves of any rights they had in it. No public money was spent on it after 1789; nor was it included in the list of highways made up under sec. 41 of the Act of 1878. After 1814 other portions of the section deviated from ceased to exist as road and were built over.
Held (diss. the Lord President) that on these facts it was reasonable to draw the inference that, in or immediately before 1789, Sandfield Road formed part of a turnpike road; that it retained its statutory character as a turnpike road so long as it continued in use as a road and no steps were taken by the trustees in whom it was vested to close it; that it was therefore an "existing turnpike road" within the meaning of the Act of 1878, and, accordingly, not a "private street" within the meaning of the Act of 1903.
William D. Bell and others appealed to the Sheriff Court at Ayr, under section 339 of the Burgh Police (Scotland) Act, 1892, as amended by section 104(2) (s) of the Burgh Police (Scotland) Act, 1903, against a resolution of the Town Council of the Burgh of Prestwick, in virtue of the powers conferred by section 133 of the Act of 1892, as amended by section 104 (2) (d) of the Act of 1903, authorising the proper formation of Sandfield Road, Prestwick, as being a "private street" within the meaning of the Acts of 1892 and 1903.1 The pursuers, as frontagers liable to contribute to the expense thereof, objected on the ground that Sandfield Road was not a "private street," in respect that it was a "highway" or "existing turnpike road" within the meaning of the Roads and Bridges (Scotland) Act, 1878, when that Act was passed.
The Sheriff-substitute (Haldane), by interlocutor dated 2nd May 1929, sustained the appeal and recalled the resolution. At the defenders' request he stated a case for appeal to the Court of Session.
The case set forth:
"Proof was led by both parties, and the following facts were admitted or proved:(1) The condition and use of Sandfield Road are such that it is appropriate that it should be re-made in the manner specified in the resolution appealed against. (2) Sandfield Road is not included in any list of highways prepared in pursuance of section 41 of the Roads and Bridges (Scotland) Act, 1878. (3) In the year 1767 an Act of Parliament of 7 Geo. III. (hereinafter referred to as "the Act) was passed, entitled An Act for repairing and widening several roads leading from the Town of Ayr, and other roads therein mentioned in the County of Ayr, and a body of trustees (hereinafter referred to as the road trustees)
was created by the Act for carrying out the purposes of the Act.2 (4) The road trustees had powers under the Act, inter alia, to select and decide the route and formation of the respective roads which they were authorised to administer for the purposes of the Act; to take over by resolution existing public roads for the purpose of the Act; to acquire rights in lands for the purpose of widening existing roads so adopted, or of straightening them by the removal of crooks, or of making stretches of new road to connect existing roads so adopted or otherwise; and to apply status labour and public funds to the maintenance and repair of any existing roads so adopted immediately on their adoption. (5) The expenses of the road trustees in carrying out the purposes of the Act were primarily to be met by the erection of toll bars or turnpikes on the road administered by them, and by the levying of tools and dues for the use of the roads. (6) One of the roads which the road trustees were to administer was a road from Ayr to Kilmarnock. (7) By resolution, dated 28th October 1767 (hereinafter referred to as the 1767 resolution), the road trustees decided that a certain route of roadway (hereinafter referred to as the 1767 road) specified by description embodied in the resolution and also by reference to plan (which plan, however, was not produced at the proof) should be the route of the Ayr to Kilmarnock road which they would administer for the purposes of the Act. (8) The site of the road now known, and herein described, as Sandfield Road, corresponds with a high degree of accuracy with the description of a part of the route of the 1767 road as contained in the 1767
resolution. (9) That part of the 1767 road formed part" judge=" although a comparatively small part, of a section of it which was intended by the road trustees to be in the main an adaptation of an already existing road. (10) There is not now, and there never has been, any other road in the vicinity the position and direction of which corresponds with any degree of accuracy with the description of the 1767 road contained in the 1767 resolution; but there may have been, and it is probable that there were, in existence at that period (i.e., circa17671789) other roads in the vicinity which could be used, either temporarily or permanently, as part of a road for general purposes between Ayr and Kilmarnock, and which could be so used in lieu of parts of the 1767 road (including the part so corresponding with the site of Sandfield Road) while constructional work was being carried out on the 1767 road or other wise. (11) After making the 1767 resolution, the road trustees in the course of the same year (1767) caused the 1767 road to be marked out upon the ground throughout its entire length. (12) As late as the year 1773 there were some portions of the constructional work involved in the scheme of the 1767 road which had not been completed, and it is not impossible that some portions of that work may not have been completed until an even later date or even that they may never have been completed at all in the form originally contemplated; but by the year 1771 much, and probably all but small parts, of the work had actually been carried out, and considerable sums of public money had been expended on it by the road trustees, and the road as a whole was already in use as the Ayr to Kilmarnock road, and was administered by the road trustees as having made themselves responsible for it under the Act, and tolls had been established on it by them and were being exacted; although this did not, in view of the methods followed by the road trustees and the fact that such portions of the 1767 road had not been completed, necessarily imply that every part of the roadway so in use conformed to the route of the 1767 road or to be route contemplated by the road trustees as the ultimate route of the Ayr to Kilmarnock road under the Act; and there is no direct evidence that the particular portion of the 1767 road corresponding to the site of Sandfield Road was actually brought into use as part of the Ayr to Kilmarnock road for which the road trustees had made themselves responsible. (13) The breadth and formation of Sandfield Road are consistent with it having been constructed or maintained by the road trustees between 1767 and 1789 as part of the 1767 road, the description of which corresponds with the site of Sandfield Road, in accordance with the nature of the work which the road trustees contemplated as appropriate for the adaptation of this portion of the roadway to the purposes of the Act. (14) There is no evidence as to when the road now known as Sandfield Road first came into existence as a road, and the earliest direct evidence in regard to its existence relates to the year 1781, but in that year it was in existence as a road, and then and for some years thereafter it was commonly known and described as part of the Ayr to Kilmarnock road under the said Act (whether or not it was then in actual use as an Ayr to Kilmarnock road), although there is no direct evidence as to the reasons why it had...
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