County Council of Lanark v Caledonian Railway Company
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1906 |
| Date | 20 July 1906 |
| Docket Number | No. 176. |
| Court | Court of Session |
Lord Pearson, Lord Low, Lord Justice-Clerk, Lord Kyllachy, Lord Stormonth-Darling.
Road—Turnpike Road—Closing of road—Railway—Substitution of new road for old road under statutory powers—Railways Clauses Consolidation (Scotland) Act, 1845 (8 and 9 Vict. cap. 33), secs. 46 and 49—Turnpike Roads (Scotland) Act, 1831 (1 and 2 Will. IV. cap. 43), sec. 70—Roads and Bridges (Scotland) Act, 1878 (41 and 42 Vict. cap. 5l), secs. 42 and 43.—
The Railways Clauses Consolidation (Scotland) Act, 1845, sec. 46, enacts that where ‘in the exercise of the powers by this or the special Act granted, it is found necessary to cross, cut through, raise, sink, or use any part of any road … so as to render it impassable for or dangerous to passengers or carriages,’ the Company before commencing operations shall ‘cause a sufficient road to be made instead of the road to be interfered with,’ and shall maintain ‘such substituted road’ in as convenient a state for traffic, or as nearly as may be, as the road interfered with. Sec. 49 enacts that if the road interfered with can be restored ‘compatibly with the formation and use of the railway’ it shall be restored; but ‘if such road cannot be restored compatibly with the formation and use of the railway, the Company shall cause the new or substituted road, or some other sufficient substituted road, to be put into a permanently substantial condition, equally convenient as the former road, or as near thereto as circumstances will allow.’
The Turnpike Roads (Scotland) Act, 1831, sec. 70, enacts procedure for the closing of roads which had become disused, and the Roads and Bridges (Scotland) Act, 1878, substitutes certain other procedure.
A railway company in the exercise of statutory powers permanently interfered with a turnpike road and provided a substituted road. The operations resulted in part of the old road becoming a cul-de-sac in which no one had an interest except the adjoining proprietors, the owners of the solum. The adjoining proprietors agreed to build upon it.
The County Council applied for interdict to prevent this, on the ground that this part of the old road remained a highway vested in them, as the procedure prescribed in the General Road Acts for stopping a highway had not been adopted.
Held (rev. judgment of Lord Pearson) that the provisions of the General Road Acts as to the closing of a highway had no application, and interdict refused.
Campbell v. WalkerUNK, 1 Macph. 825, distinguished.
Immediately to the east of the Cambuslang Station of the Caledonian Railway Company, and on the north side of the line, was a quadrangular piece of vacant ground (measuring about 78 feet from north to south, and about 88 feet from east to west), which had come to be known as ‘The Square.’ Although called ‘The Square’ this piece of ground had houses abutting on it only on its southern side, along which there extended a row of houses, including the ‘Railway Tavern,’ all belonging, at the date of the proceedings now reported, to William Eadie, spirit merchant. On the west side The Square was separated from the Cambuslang Station by a stone wall; on the north it was bounded by Main Street; on the east by West Coats Road. Until the building operations after mentioned The Square was not walled or fenced in any way on its north and east sides, and its area was entirely unbuilt upon.
Prior to the construction of the railway and the station—about the year 1846—the turnpike road from Hamilton to Glasgow crossed the ground afterwards known as The Square from east to west, but in consequence of the operations of the Railway Company a portion of this road ceased to be a thoroughfare, and a substituted road (afterwards part of Main Street) was provided by the Company, but the portion of the old road for which the new road was substituted was never closed under the Turnpike Roads (Scotland) Act, 1831,1 or under the Roads and Bridges (Scotland) Act, 1878.2
The Railway Company having agreed to dispone their rights in The Square to Eadie, and Eadie having commenced building operations on The Square, and having, for that purpose, erected hoardings round it, the County Council of Lanarkshire, as the County Road Trustees, in December 1905 presented a note of suspension and interdict against Eadie, praying, primo, to have him interdicted from building on that portion of The Square over which the old turnpike road crossed. There was also a prayer, secundo, to have Eadie interdicted from obstructing a right of way which was alleged to cross The Square in a different direction from that of the old turnpike road, but the question regarding this alleged right of way, the existence of which was negatived by the Lord Ordinary, is not now reported.
Answers were lodged by Eadie and also by the Railway Company, to whom the note of suspension and interdict was appointed to be intimated, and the note having been passed a record was made up.
The substituted road, provided in 1846 by the Railway Company, branched off the old turnpike road from Hamilton to Glasgow at a point (called A in a plan produced in the action) a short distance to the east of The Square. At this point the old road, which (coming from Hamilton) had been pursuing a somewhat north-westerly direction, deflected to a westerly direction, and the substituted road continued for some distance in a north-westerly direction, but ultimately turning to the south-west, crossed the line of the railway by a bridge a little to the west of the station, and then joined the old road at a point called B on the plan.
The line of the old road from the point A went westwards through an open piece of ground until it reached the West Coats Road, which it crossed. It then crossed The Square to the wall now separating The Square from the station. Thence it crossed the site of the station and passed through a cutting, the rails being laid on the line of the old road in so far as it was within the cutting. It then went to the south of the railway line and joined the substituted road at B.
The complainers averred:—(Stat. 4) ‘About the time when the said railway line was constructed the line of the said Glasgow and Hamilton highway between said points A and B was diverted by the formation of the present line of the road shewn on the plan produced. No proceedings, however, for shutting up the said old portion of the road between the points A and B under the Turnpike Road Act of 1831 (1 and 2 William IV. cap. 43), or the Roads and Bridges Act, 1878, ever took place, and it has continued to be used for many years for passage of members of the public. To the east of the said area of ground called “The Square,” the said old road, as far as the point B on said plan, forms the only access to premises situated on the south side thereof. It is now vested in the complainers as the successors of the
said trustees under and in virtue of the Roads and Bridges (Scotland) Act, 1878, and the Local Government (Scotland) Act, 1889. The statements in the answers, so far as not coinciding herewith, are denied. The alleged action of the respondents, the Caledonian Railway Company, in appropriating to their own purposes any part of the old road, was ultra vires of their powers under statute or at common law.
The Railway Company answered:—(Ans. 4) ‘Denied. Explained that in the year 1846 it became necessary for these respondents, in exercise of their powers under the said Clydesdale Junction Railway Act, 1845, and the Caledonian Railway (Clydesdale Junction Railway Deviation) Act, 1846,* to appropriate and use the portion of the old
public road between Hamilton and Glasgow, lying between the points A and B on the plan, for the purposes of their undertaking. At that date these respondents were proprietors of the estate of Rosebank under and in virtue of a disposition in their favour by the Reverend James Thomas Campbell and another, dated 11th and 27th November and 3d December 1846. The said estate extended to 79 acres or thereby, through which the said public road passed, and in virtue of said disposition these respondents were owners of the whole of the ground lying immediately to the north of the old public road between the letters A and B on the plan, and the whole of the ground lying to the south of the old road between these points with the exception of the small property belonging to the other respondent's authors. These respondents were also in virtue of said disposition owners of the solum of the public road so far as situated within the boundaries of the estate of Rosebank. These respondents, in the exercise of the statutory
powers conferred on them, interfered with the said road in the construction of said railway, and under their statutory powers formed on part of the said estate of Rosebank belonging to them, to the north of the old road, a new or substituted road between the points A and B, and in substitution for the portion so interfered with, and such portion of the old road between the said points was discontinued as a public road, and the solum thereof became freed of any right by the public to use the same as a public road. Since said date the said old road between A and B has never been used as a road nor entered in any of the lists of the county roads, nor have the said Trustees, nor any of their successors in title, ever exercised any act of supervision or proprietorship over it. Immediately after the formation of the new or substituted road and the discontinuance of the said portion of the old road, these respondents closed the old road and appropriated it for the purposes of their undertaking with the exception of the portion of the old road in question. For the greater part of its length the old road was stopped up and was built over, and the portion now in dispute was from that date, and down to the present time, used by both respondents as a common access to their...
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