Millar's Trustees, Company v Leith Police Commissioners
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1873 |
| Date | 19 July 1873 |
| Docket Number | No. 153 |
| Court | Court of Session (Inner House - Second Division) |
Lord Jerviswoode.
R.
Road—Statute 25 and 26 Vict. c. 101 (General Police and Improvements (Scotland) Act, 1862), secs. 3, 150, 396, 397—Private Street.—
THIS was an action of declarator at the instance of the trustees under; the marriage-contract between Christian Hoyer Millar, merchant, Montrose and Miss Marion Marshall Watson, and James Hay, manager of the Edinburgh Roperie and Sail-cloth Company, against William Henderson Couper, town-clerk of Leith, clerk to and as representing the Provost, Magistrates, and Council of the burgh of Leith, commissioners acting within the burgh under the General Police and Improvement (Scotland) Act, 1862,
The summons concluded for declarator ‘that AH and Whole that piece of ground lying within the lines of Pattison Street, Leith, which had been intended to form a continuation of that street towards Poplar Lane, extending in length from a line drawn at right angles across Pattison Street at the eastern gable of the tenement of houses on the north side of that street onward to Poplar Lane, pertains heritably to the pursuers, but jointly and in common with the successors of John Hutton, merchant in Leith; and the defender ought and should be decerned and ordained to cede possession of a portion of the said piece of ground extending from the foresaid line a distance of eighty-five feet or thereby onward towards Poplar lane, taken possession of by the said commissioners, and formed or attempted to be formed into a continuation of Pattison Street, and to restore the same to the condition in which it was previous to its having been taken possession of as aforesaid: And, further, the defender ought and should be decerned and ordained, by decree foresaid, to make payment to the pursuers of the sum of £200, or such other sum as may be found to be the loss and damage occasioned to them by the taking possession of and forming or attempting to form the foresaid portion of ground into a street as aforesaid, with the legal interest thereof from the date of citation till payment.’
The pursuers were proprietors of certain subjects in and near Pattison Street, Leith, and, inter alia (along with the successors of John Hutton, merchant, Leith, who were not parties to this action), were infeft as joint proprietors of ‘All and Whole that piece of ground lying within the lines of Pattison Street, and which had been intended to form a continuation of that street towards Poplar Lane, extending in length from a line drawn at right angles across Pattison Street at the eastern gable of the tenement of houses on the north side of that street onward to Poplar Lane.’
It was provided in their titles that the joint proprietors should have ‘full right and liberty, to use the said pieces, of ground either as a private enclosure or as a private road communicating, to their own properties, to which no one else should have right, or to throw it open as a public thoroughfare communicating between Poplar Lane and Elbe Street, their using it in one way by no means precluding them from afterwards using it in any other way they may choose, and their having thrown it open as a public thoroughfare not even precluding them from resuming close and privates possession thereof,” but declaring that any one of their number should have at any time right to insist upon the said piece of ground being thrown open as a public thoroughfare and continuation of Pattison Street in the manner originally intended.’
The General Police and Improvement (Scotland) Act, 1862, was adopted in whole by the Provost, Magistrates, and Council of the burgh of Leith in October 1862.
On 13th April 1872 the Commissioners advertised the following notice in the ‘Daily Scotsman,’‘Leith Herald,’ and ‘Leith Burghs, Pilot’ newspapers:—’Burgh of Leith.—’Whereas Hope Street, North Leith, and Pattison Street, being private streets as defined in “General Police and Improvement (Scotland) Act, 1862,” formed or laid put at or before the adoption of the said Act by the Magistrates and Council of the said burgh, are not, together with the footways thereof, sufficiently levelled, paved, or causewayed, and flagged to the satisfaction of the Commissioners for the purposes of the said Act acting in and for the said burgh, notice is hereby given that it is the intention of the said. Commissioners to cause said streets and the footways thereof to be freed from obstructions, and to be properly levelled) paved, or causewayed, and flagged, and channelled, according to plans thereof, to which reference is hereby made, and which may be seen within the Town-Hall, Charlotte Street, Leith. (Signed) W. H. COUPER, Clerk of the Commissioners.—Town-Clerk's Office, Leith, 11th April 1872.’
On 13th May 1872 the clerk laid before a meeting of the Commissioners a copy of each of the newspapers in which the foresaid notice had been advertised, and certified that no person had appeared to object or be heard thereanent. The meeting therefore resolved to proceed with the intended works, and ordered the execution thereof. The works were accordingly forthwith begun, and on or about 5th August 1872 the burgh surveyor reported that the same had been completed. Notice was thereafter sent to the pursuers of the assessment imposed upon them, to defray the expense of paving.
The pursuers were not aware of these operations until the beginning of July 1872. On 5th July a letter was addressed by the agents of Millar's trustees to Mr Couper—’5th July 1872. Sir,—We beg leave to call your attention to certain operations now being parried on at; Pattison Street. This street was never opened further than a distance of about 128 feet from Elbe Street, and a little further on there existed, until removed a day or two ago, a stone wall which -cut off the formed part of the street from the private property beyond. At one time there was a gate upon this wall, but it was removed a good many years ago. When we were down at the place yesterday we saw the remains of the wall, and part of one of the gate posts, and we found workmen engaged apparently in lowering the level of this private property and adding it to the public street. On behalf of our clients, the marriage-contract trustees of Mr and Mrs Millar, joint owners of this property, we shall be obliged by your informing us upon what authority their private property is being encroached on, and we beg leave to intimate that we shall hold, the Commissioners responsible for the consequences.—We are,’ &c., ‘ADAM, KIRK, and ROBERTSON,’ To which the following reply was returned:—’10th July 1872. Dear Sirs,—I submitted your; letter as to Pattison Street to the Paving Committee of Police yesterday, and am directed to inform you that having made inquiry they find that the wall mentioned by you was not interfered with by them or...
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