Campbell v Walker
| Jurisdiction | Scotland |
| Judgment Date | 29 May 1863 |
| Date | 29 May 1863 |
| Docket Number | No. 145 |
| Court | Court of Session (Inner House - Second Division) |
Ld. Ardmillan. R.
Public Road—Railway—General Turnpike Act—Interdict.—
Question,
COLIN CAMPBELL of Colgrain presented a note of suspension and interdict against Peter Walker and David Miller, praying that they should be interdicted and prohibited from ‘building a wall, and making an embankment, or from making any alterations or operations whatsoever on the road whereby the complainer and his predecessors have, and always had, access to the town of Helensburgh, and other places, from his lands of Craigendorran, which may have the effect of narrowing, obstructing, or otherwise injuriously altering or affecting the said road, and the access to and from the com plainer's lands afforded by it.’
The complainer was proprietor of a farm called Craigendorran, bounded on the south by the Firth of Clyde, and on the north by the turnpike road leading between Helensburgh and Dumbarton. The land on the north of the turnpike road, so far as that road bounded Craigendorran, was also the property of the complainer, forming part of his estate of Colgrain. The complainer'a estate was bounded on the west by the burgh of Barony of Helensburgh, the property of Sir James Colquhoun, so that the turnpike road leading from Dumbarton on the east to Helensburgh on the west, after leaving the complainer's estate of Colgrain, intersected the property of Sir James Colquhoun and his feuars. From the complainer's boundary westward, through Helensburgh, it formed the main street of the burgh, and was called Clyde Street.
The Glasgow, Dumbarton, and Helensburgh Railway Act was passed in 1855. In constructing the railway it became necessary to cut through the turnpike road from Dumbarton to Helensburgh at a point to the east of the boundary between Mr Campbell's estate and the burgh of Helensburgh. For the portion of the public road which they thus intersected the railway substituted a diverted road, which left the old road at a point to the west of the intersection, passed in a curve towards the north, and returned to the old road at a point to the east of the intersection. At the point of intersection the land on both sides of the road belonged to Mr Campbell. The western end of the diverted road was within the burgh of Helensburgh; and the land bordering the road at that point belonged to the respondent Walker, a feuar from Sir James Colquhoun.
The complainer averred;—(Art. 3.) ‘The portion of the old turnpike between the point at Craigendorran, where it is crossed by the railway, and the point opposite Mr Walker's property, where the west termination of the new or diverted road joins it, was left undisturbed, and forms the access to Mr Walker's properties, and to the complainer's lands of Craigendorran.’ (Art. 4.) ‘This access is the principal access to Craigendorran from Helensburgh; the only other is a narrow farm road which is reached by a level crossing on the railway. This access is extremely inconvenient, and unsuitable as an approach to feuing ground.’ (Art. 6.) ‘About the end of January 1859 the respondents, or one or other of them, by themselves, or their servants, or others employed by them, commenced to erect a retaining wall in a diagonal line across part of the old turnpike, and to deposit earth, or form an embankment upon part of said old turnpike, to the north of the said wall. This wall begins on the old road, nearly opposite to an avenue leading from that road to one of Mr Walker's houses, and runs eastwards over a part of the road and through a small piece of ground lying immediately to the north of the old turnpike, and between it and the embankment whereon the new diverted turnpike is formed. It is understood that this small piece of ground has now been feued by Mr Walker from Sir James Colquhoun. The eastern boundary of this small piece of ground forms, so far as it goes, the western boundary of the lands of Craigendorran, belonging to the complainer. The foresaid operations, which are now said by the Magistrates of Helensburgh to have been authorised by them, were planned and originated by Mr Walker, and the extent to which these were to be carried was left entirely to his discretion.’ (Art. 7.) ‘The effect of the erection of this wall is to diminish the breadth of the old road by about six feet, at the point where it encroaches on that road. The access to and from the complainer's lands of Craigendorran will be much impaired and injured thereby.’
Answers were lodged for the respondents, in which they averred that, by the charter erecting Helensburgh into a burgh of barony, and by statute 9th Victoria, cap. 31, the entire management of the streets within the burgh was vested in the Magistrates and Town Council; that, in consequence of the operations of the railway company, it had become necessary for the Town Council, for the public interest, ‘to take steps for the alteration and improvement of the eastern extremity of Clyde...
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