Laurenson v Police Commissioners of Lerwick
| Jurisdiction | Scotland |
| Judgment Date | 15 July 1898 |
| Docket Number | No. 24.,No. 186. |
| Date | 15 July 1898 |
| Court | Court of Session |
Lord President, Lord M'Laren, Lord Kinnear.
PoliceStreetFootwayMaintenance of Foot-pavementBurgh Police (Scotland) Act, 1892 (55 and 56 Vict. cap. 55), section 142.
Held that a lane paved with flag stones which had been used from time immemorial across its whole breadth as an access for animals and vehicles as well as foot-passengers, was not a footway in the sense of section 142 of the Burgh Police (Scotland) Act, 1892.
(Ante, vol. xxiv. p. 135.)
Laurence Laurenson, draper, Law Lane, Lerwick, appealed against an order of the Police Commissioners of the burgh, calling upon him, under section 142 of the Burgh Police (Scotland) Act, 1892,*to have the foot-pavement before your property in Law Laneto a width extending outwards from the boundary of your property, half the breadth of said streetput in a sufficient state of repair, and giving notice that failing his compliance with the order the Commissioners would execute the work at his expense.
The ground of the appeal was that section 142 was inapplicable in respect that Law Lane had no footpath, but was used across its whole breadth for traffic of every kind, and was a public street within the meaning of the Act which the Commissioners were bound to maintain.
Proof was allowed, of which the material results were as follows:- Law Lane was a narrow lane running from Hillhead Street to Commercial Street, the principal street in the burgh. The upper part of the lane, in which the appellant's property was situated, opened from Hillhead Street, and it was proved that this part had from time immemorial been used for traffic of every description, foot-passengers, animals, and vehicles. The lower part of the lane was available only as an access to foot-passengers owing to three flights of steps which crossed it. The lane was paved with flag stones from side to side, without distinction between carriageway and footway, and it was so narrow that carts brought into the upper part from Hillhead Street could only be turned if they were of small size. The respondents produced evidence to shew that the lane had been paved and maintained by the adjoining proprietors on requisitions by the Commissioners under their statutory powers.
Argued for the appellant;The evidence established that from time immemorial the lane had been used across its whole width as an access for traffic of all kinds, and the question was whether a lane so used was a footway in the sense of section 142. An examination of the statute shewed that the question could only be answered in the negative. It was clear that, whether public or private, the lane fell within the definition of street,1 everything being a street which was public as regarded use. But the Act only dealt with two kinds of streets, public2 and private,3 and did not contemplate a third kind consisting entirely of footways. By section 129 the Commissioners were given general administrative powers over streets and footpaths, and were bound to maintain every street which was not a private street. There was nothing in sections 141 and 142 which dealt with the construction and maintenance of foot-pavements to detract from
the generality of this provision except in regard to footways on the sides of public streets, for these sections only applied to public streets, and section 141 shewed clearly that a footway was something distinct from a street. The Commissioners, therefore, were not entitled under section 142 to throw the whole burden of maintaining the lane upon the adjoining proprietors. This construction of section 142 was confirmed by a reference to section 381,1 for the result of upholding the respondents' contention would be to render the inhabitants of this lane liable in penalties if they used the lane as they had been accustomed to use it, and would in effect be a denial to the inhabitants of Law Lane of a right of ish and entry for their necessary supplies. The argument founded on the fact that the lane had been paved and maintained by the adjoining proprietors on requisitions by the Commissioners was not sound, for these might have been attributed to the powers of the Commissioners to require streets to be put in proper repair.2
Argued for the respondents;The definition of street in the Act of 18923 included both carriageways and footways, and there was nothing in the definition excluding the idea that a street might consist entirely of a footway; such a street would be covered by the definition. The evidence shewed that this lane was not fitted for cart traffic, and had not been used to any material extent for that purpose. Besides its narrowness, which rendered it unfitted for vehicles, it was crossed by flights of steps which prevented it being used as a thoroughfare except by foot-passengers. It was also crossed at its upper end by the foot-pavement of Hillhead Street, and it was illegal to take carts across that pavement. The use of the lane as an ish and entry to stables was probably to be explained by the fact that the provisions of the old Act4 as to the...
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