Magistrates of Alloa v Wilson
| Jurisdiction | Scotland |
| Judgment Date | 18 October 1912 |
| Date | 18 October 1912 |
| Docket Number | No. 2. |
| Court | Court of Session |
Lord President, Lord Kinnear, Lord Johnston, Lord Mackenzie.
BurghStreetPublic or private streetRemoval of barricade on private street by town-councilDuty of adjoining proprietors to pave the streetPersonal objectionBurgh Police (Scotland) Act, 1903 (3 Edw. VII. cap. 33), secs. 103 (5) and 104 (2) (d).
A barricade, which had been erected across an unpaved private street in a burgh by the adjoining proprietors to prevent it being used as a thoroughfare, was removed by the town-council without the consent of these proprietors, who had refused their consent except on condition that they should not be called upon to pave the street. Some years after the removal of the barricade the proprietors, on being called upon by the town-council to level and pave the street under sec. 104 of the Burgh Police (Scotland) Act, 1903, maintained that the street had become a public street and so was maintainable by the town-council, or in any event that the town-council were barred from calling on them to pave it.
Held (1) that the street had not become a public street by reason of the removal of the barricade; and (2) that the town-council were not barred by their actings from now calling on the proprietors to pave it, in respect that these actings had not prejudiced the proprietors in their obligation to pave the street.
This was a case stated by the Sheriff of Stirling, Dumbarton, and Clackmannan (Lees), under the provisions of the Burgh Police (Scotland) Acts, 1892 and 1903, on appeal between the Magistrates of Alloa and James Dunlop Octavus Wilson and others, the proprietors of properties fronting West Kellie Place, Alloa, a street alleged by the Magistrates to be a private street and by the respondents to be a public street.
The case set forth:
On 12th June 1911 the appellants passed a resolution that this street should be made, and that the statutory notices for the formation of the street should be issued. On 8th August following a notice was accordingly issued to the respondents, proceeding on the Burgh Police (Scotland) Acts, 1892 to 1903, and in particular on section 133 of the said Burgh Police (Scotland) Act, 1892, as amended by the said Burgh Police (Scotland) Act, 1903, calling upon them to cause the carriageway in West Kellie Place, extending from Ludgate to Ochil Street, in the burgh of Alloa, to be freed from obstructions, and to be properly levelled, paved, causewayed, or macadamised, &c., all in terms of certain plans, sections, and specifications specified in the said notice, and deposited in the chambers of the burgh surveyor of Alloa.
The respondents appealed to the Sheriff-substitute against this resolution, upon the ground that West Kellie Place is a public street within the meaning of the Burgh Police (Scotland) Acts, 1892 and 1903, and not a private street within the meaning of these Acts, and that the respondents are therefore not liable to pay any part of the costs, charges, or expenses incurred by the appellants in respect of the said works. The Sheriff-substitute took evidence upon the statements and answers made by the parties, and, on 9th February 1912, issued an interlocutor finding that West Kellie Place was a public street, and quashing the resolution appealed against. The appellants thereafter appealed to the Sheriff, but I, on 16th March 1912, refused the appeal, holding that the said road had become a public street of the burgh of Alloa in terms of the Burgh Police (Scotland) Act, 1903, section 103 (5), and that accordingly the resolution of the appellants complained of was illegal and incompetent.
West Kellie Place extends between Ludgate and Ochil Street, which are and have for many years been public streets within the burgh of Alloa. Both sides of West Kellie Place have been completely feued under feu-charters, commencing in 1871 and ending in 1886, and have been completely built with dwelling-houses for more than twenty years.
There is only one feu on the south side of the street, and it runs the full length of the street. It was the first of the feus to be given off, and it was subsequently divided, and is now owned by two proprietors. It is described in the feu-charter as bounded on the northwest and north by a piece of ground laid off to form a street, which is the street now in question. The feus on the north side of the street are described as bounded on the south by the road or street called West Kellie Place. The ground on the north side is feued upon, inter alia, the condition that the feuar and his foresaids shall be bound forthwith to construct in a substantial and workmanlike manner at his or their own expense a road or street on the south of said piece of ground to the extent of one-half of the width thereof, with a suitable footpath, kerb, and runchannel, all to the satisfaction of the superior. The road or street formed has never been bottomed, causewayed, or macadamised. The charters applicable to the south side do not contain such a clause.
The said road was made and intended only for the owners' use, and accordingly, subsequent to the laying off of the...
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