Magistrates of Leven v London and North-Eastern Railway Company [No. 53.]
| Jurisdiction | Scotland |
| Judgment Date | 02 March 1926 |
| Date | 02 March 1926 |
| Court | Court of Session |
Lord President (Clyde), Lord Sands, Lord Blackburn, Lord Ashmore.
RailwayAccommodation worksRoads and StreetsPrivate street MaintenanceRoad carried over railway by accommodation bridgeObligation of railway company to maintainCounty area annexed to burgh Whether railway company could be called upon to construct footwayRailways Clauses Consolidation (Scotland) Act, 1845 (8 and 9 Vict. cap. 33), sec. 39Burgh Police (Scotland) Act, 1903 (3 Edw. VII. cap. 33), sec. 16.
A railway company, in virtue of the obligations imposed by sec. 39 of the Railways Clauses Consolidation (Scotland) Act, 1845, constructed and maintained a bridge and approaches by which a road was carried across their railway. The area in which the bridge was situated was subsequently annexed to a burgh, and the burgh authorities, founding on sec. 16 of the Burgh Police (Scotland) Act, 1903, called upon the railway company, as frontagers to a private street, to construct a paved footway along one side of the road.
Held that, assuming that the company were frontagers to a private street, sec. 16 of the Burgh Police Act had no application, in respect that the company's obligations with regard to the bridge and its approaches were limited and defined by sec. 39 of the Railways Clauses Act, and that sec. 16 of the Burgh Police Act had not, either expressly or by implication, altered or extended these obligations.
Glasgow Corporation v. Caledonian Railway Co.ELR, 1909 S. C. (H. L.) 5, [1909] A. C. 138, followed.
On 28th July 1924 the Town Council of the Burgh of Leven served a notice under section 16 of the Burgh Police (Scotland) Act, 1903, upon the London and North-Eastern Railway Company requiring them to cause a footway to be made and paved in the manner stated in the notice before premises belonging to the Company situated at, and forming the east side of, Scoonie Road, Leven. The portion of Scoonie Road to which the notice referred was carried by a bridge and its approaches over the Company's railway line. The bridge and approaches were originally outwith the burgh of Leven, but, since an extension of the burgh boundaries in 1922, they had been within the burgh. They were constructed by the Company's authors on land acquired under the East of Fife Railway Act, 1855, which incorporated the Railways Clauses Consolidation (Scotland) Act, 1845, and had been maintained by the Company and their authors under the statutory obligations thereby imposed.*
The Railway Company appealed against the order contained in the notice to the Sheriff-substitute of Fife and Kinross at Cupar (Stuart), who, after a proof in which he found the facts stated above, held that the roadway carried by the bridge and approaches was a private street within the meaning of section 16 of the Burgh Police (Scotland) Act, 1903, but that the Company's obligation to maintain the bridge and its approaches was fixed by section 39 of the Railways Clauses Consolidation (Scotland) Act, 1845, and could not be extended by the application of municipal powers subsequently enacted. He accordingly recalled and quashed the notice.
The Town Council appealed to the Sheriff (Fleming), who adhered to the interlocutor of the Sheriff-substitute, and, at the request of the appellants, stated a case for appeal.
The case narrated the facts set forth above.
The question of law for the opinion of the Court was:Was I entitled to hold that section 16 of the Burgh Police (Scotland) Act, 1903, does not apply to the respondents, in respect that their obligation to maintain the bridge and its approaches is limited and defined by section 39 of the Railways Clauses Consolidation (Scotland) Act, 1845?
The case was heard before the First Division on 2nd March 1926.
Argued for the appellants;(1) The case must be taken on the footing that the respondents were the owners of lands or premises fronting on a private street. That was the basis of the only question of law before the Court. In any event, the respondents could not destroy the character of this road as a private street, and so place it outwith the jurisdiction of the appellants.1 (2) The question of law should be answered in the negative. The respondents were the owners of lands or premises fronting on a private street within the burgh, and as such they came under the obligations imposed by section 16 of the 1903 Act. The provisions of section 39 of the 1845 Act were not inconsistent with this. That section dealt with the maintenance of the structure of the bridge, and had no reference to the question of surface improvements. In any event, section 16 had imposed new obligations. The cases of
Sharpness New Docks and Gloucester and Birmingham Navigation Co. v. Attorney-GeneralELR1 and Attorney-General v. Great Northern Railway Co.2 were distinguishable, on the ground that...
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