Corporation of Glasgow v Caledonian Railway Company
| Jurisdiction | Scotland |
| Judgment Date | 29 November 1907 |
| Date | 29 November 1907 |
| Docket Number | No. 110.,No. 38. |
| Court | Court of Session |
Ld. Salvesen, Lord President, Lord M'Laren, Lord Kinnear, Lord Pearson.
RailwayRoadBridgeBridge carrying highway over railwayPublic HighwayMaintenance of RoadRailways Clauses Consolidation (Scotland) Act, 1845 (8 and 9 Vict. cap. 33), sec. 39
The Railways Clauses Consolidation (Scotland) Act, 1845, sec. 39, enacts that where a line of railway crosses any turnpike road or public highway, and the road is carried over the railway by means of a bridge, such bridge and the approaches thereto shall be executed and at all times thereafter maintained at the expense of the [railway] company.
Held (aff. judgment of Lord Salvesen) that the words public highway applied only to roads which were public de jure.
RailwayRoadBridge over RailwayCaledonian Railway (Additional Powers) Act, 1872 (35 and 36 Vict. cap. cxiv.), secs. 4, 26.
The Caledonian Railway Act, 1872, sec. 4, enacts that the Company may make and maintain certain railways, and may execute the other works and operations hereinafter mentioned. With reference to one of the railways authorised, which crossed a certain road, sec. 26 enacts:In constructing railway No. 2 the following provisions shall be binding on the Company, who shall construct the works hereinafter specified in manner hereinafter directed (3) the road shall be carried over the railway by a bridge not less than 40 feet wide.
The railway company by virtue of the powers conferred on them by secs. 4 and 26 of the foregoing special Act, constructed railway No. 2, and, where it crossed the road, carried the road over the railway by means of a bridge.
Held that since the section of the special Act providing for the construction of the bridge did not specify that the road upon it was to be maintained by the railway company, no such duty lay upon it under the provisions of that Act.
(Ante, 8 F. 755.)
On 8th November 1904 the Corporation of the City of Glasgow brought an action against the Caledonian Railway Company, in which they sought for declarator (First) that Broomfield Road, Cumbernauld Road, and Strathclyde Street, in the city of Glasgow, are public highways, and are respectively carried over the defenders' railway or railways by means of a bridge or bridges; and (Second) that the defenders are bound at all times to maintain at their own expense the portion or portions of the said Broomfield Road, Cumbernauld Road, and Strathclyde Street, carried over the defenders' railway or railways by means of a bridge or bridges, including in such maintenance in each case the immediate approaches of such bridge or bridges.
The pursuers founded on sec. 39 of the Railways Clauses Consolidation (Scotland) Act, 1845, and pleaded;(2) The said Broomfield Road, Cumbernauld Road, and Strathclyde Street, being public highways within the meaning of the statute condescended upon, the pursuers are entitled to decree in terms of the first declaratory conclusion of the summons. (3) The defenders being bound in terms of the statute condescended upon to maintain the specified portions of said streets all as condescended upon, and having declined to recognise any obligation on their part for such maintenance, and refused or unreasonably delayed to implement the same, the pursuers are entitled to decree in terms of the second declaratory conclusion of the summons, under reservation as stated.
The defenders pleaded;(3) The defenders not being bound to maintain the specified portions of said streets, all as condescended on, are entitled to absolvitor from the conclusions of the summons, with expenses. (4) The said streets having been declared public streets within the meaning of the Glasgow Police Acts, the defenders are not under obligation to maintain any portion thereof. (5) Strathclyde Street not being a public highway when the defenders' railway was constructed, the provisions of the Railways Clauses Act, 1845, do not apply to it.
On 17th March 1905 the Lord Ordinary (Low) disposed of the case so far as relating to Broomfield Road and Cumbernauld Road, and appointed the cause to be enrolled for further procedure. On 20th March 1906 his judgment was adhered to by the First Division on a reclaiming note8 F. 755.
The question as to Strathclyde Street arose in these circumstances:The Caledonian Railway Company constructed a line of railway in virtue of statutory powers conferred on them by the Caledonian Railway (Additional Powers) Act, 1872, which incorporated the provisions of the Railways Clauses Consolidation (Scotland) Act, 1845.* This line of railway, referred to in the special Act of 1872 as Railway No. 2, crossed Strathclyde Street, and at the point of crossing the bridge in question was erected by the company to carry the road over the railway.
On 22d May 1906 the Lord Ordinary (Salvesen) allowed the parties a proof of their respective averments with reference to Strathclyde Street.
On 23d October 1906 the Lord Ordinary (Salvesen) pronounced this interlocutor:Assoilzies the defenders from the conclusions of the summons in so far as they relate to Strathclyde Street, and decerns.*
The pursuers reclaimed, and argued;The words public highway in section 39 had a wide signification,1 and the true test of the question whether or not a street was a public highway within the meaning of section 39 was not whether the public were entitled to use it as a matter of right, but whether the public did use it as matter of fact. From this point of view the pursuers were plainly right, because the evidence was all to the effect that in 1872 the road was in daily use by members of the public. After the road was taken over as a private street in 1870, the Corporation had duties regarding it of lighting and cleaning, and powers of assessment, which were inconsistent with the idea of its being anything else than a public highway.2 The case of the Kinning Park Police Commissioners v. Thomson & Co.SC,3 cited by the defenders, was distinguishable on the ground that it decided a different question under different statutory provisions. Strathclyde Street was, as defined by the Glasgow Police Act, 1866,4
open and accessible to the public, who could not have been excluded from it. The fact that it was referred to in the private Act under which the bridge was built1 shewed that it was then considered to be a public highway, as, had it been a private street, the provisions of the Act would have keen inapplicable. In the Book of Reference relative to that Act, the defenders themselves described it as a road occupied by the public, and having obtained their powers on that representation, they were bound by it, and were not now entitled to take up the position that it was a private street.
But, apart from their obligation under section 39 of the Railways Clauses Act, the defenders were bound to maintain the bridge, in respect of the duty imposed on them by the private Act under which the bridge was built.2 These provisions, which must be read as a whole, gave the defenders power to construct the railway, but obliged them, if they built the railway, to build the bridge also, and, with
regard to the whole of the works thus authorised, laid on them the duty, if they constructed them, of maintaining them as well. The duty of maintenance applied not only to the bridge, but also to the roadway, the case of the Magistrates of Glasgow v. Glasgow and South-Western Railway Co.,1 referred to by the Lord Ordinary, having been decided on the construction of a different statute, and having no application to the present case. The obligation to construct the bridge included the obligation to construct and maintain the approaches to the bridge.2
Argued for the defenders;The term public highway in sec. 39 of the Railways Clauses Act meant a highway over which the public had a right to pass, and the best test of this was the power of the adjoining proprietors to close the road. At the date when the bridge was built there was no doubt that this could have been done
by the superior and the feuars in concert, for there was no suggestion that the public had acquired any rights, either by express grant or by prescription. That the road had been taken over as a private street under the Glasgow Police Act, 1866, did not constitute it a public thoroughfare.1 Nor could any inference be drawn from the fact that this street was referred to in the private Act of 1872, for all through the Railways Clauses Act provision was made for bridges over roads, whether the latter were private or public.2 The provisions of the private Act of 1872 imposed no duty on the defenders to maintain the bridge, seeing that sec. 26, which provided for its construction, said nothing as to its maintenance. In any event, the obligation to maintain did not extend to the roadway over the bridge, the English cases of the North Staffordshire Railway Co. v. DaleENR,3 and the Lancashire and Yorkshire Railway Co. v. The Mayor of Bury,4 being distinguishable. Even if such an obligation existed in 1872, it ceased to exist when the road was taken over by the pursuers as a public street in 1894, for it was an obligation in favour only of the Dalmarnock feuars, and did not transmit to their successors, with whom the defenders had entered into no undertaking. A duty to protect a private interest was different from a duty to protect a public interest, and the change of circumstances relieved the defenders from their obligations.5
At advising,
Lord President.The question in this case is whether the Caledonian Railway Company are bound to maintain the highway which goes over their bridge in Strathclyde Street. The case as argued before the Lord Ordinary seems to have turned entirely upon whether the words public highway, as used in section 39 of the Railways Clauses Act, do or do not apply to a road or street in the position of Strathclyde Street. That depends on whether the expression public highway means public de jure, or means...
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