Milne & Company v Aberdeen District Committee
| Jurisdiction | Scotland |
| Judgment Date | 30 November 1899 |
| Docket Number | No. 50. |
| Date | 30 November 1899 |
| Court | Court of Session |
Lord Low, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
RoadExtraordinary ExpensesRecovery by Road AuthorityRoads and Bridges (Scotland) Act, 1878 (41 and 42 Vict. cap. 51), sec. 57Decree of SheriffFinalityReductionCertificates of SurveyorFraud.
Sec. 57 of the Roads and Bridges Act, 1878, enacts that, where by the certificate of their district surveyor it appears to the authority which is liable to repair any highway that, having regard to the average expense of repairing highways in the neighbourhood, extraordinary expenses have been incurred by such authority in repairing such highway by reason of the damage caused by excessive weight passing along the same, such authority may recover in a summary manner before the Sheriff (whose decision shall be final), from any person by whose order the excessive weight has been passed, the amount of such extraordinary expenses as may be proved to the satisfaction of the Sheriff to have been incurred by reason of the damage arising from such extraordinary weight.
In proceedings under this section by a road authority the Sheriff found that extraordinary expenses had been incurred by the petitioners in repairing certain highways, by reason of damage arising from excessive weight passed along the same by order of the respondents, to the amount of 200, for which he gave decree against the respondents.
In an action by the respondents for reduction of the decree they averred that the proceedings before the Sheriff had been founded on certificates of the district surveyor, which the road authority knew to be false and fraudulent, and to have been granted without regard to the average expense of repairing highways in the neighbourhood.
The Court (aff. judgment of Lord Low) dismissed the action as incompetent, holding(1) that the pursuers' averment of fraud was irrelevant, there being no averments of facts and circumstances to support it; (2) that the question of the validity of the certificates was one for the Sheriff to decide; and (3) that, assuming the certificates to be invalid, their invalidity could not affect the finality of the Sheriff's judgment, which had been pronounced in exact conformity with the jurisdiction conferred upon him by the statute.
Opinion by the Lord President that it was not necessary for the surveyor in granting certificates, or the Sheriff in exercising his jurisdiction under the section, to have regard solely to the expense of repairing highways in the neighbourhood.
Question by the Lord President whether the direction to have regard to such average expense applied to the Sheriff.
John Milne & Company, manure merchants and manufacturers at Dyce, in the county of Aberdeen, brought an action against the Aberdeen District Committee of the county of Aberdeen, and George Scott, district road surveyor, for reduction of two certificates granted by the defender Scott on 1st February 1897, and of a decree granted by the Sheriff of Aberdeenshire on 13th August 1898.
The pursuers averred that they conveyed a large amount of traffic over the Old Meldrum Road and the Dyce Road, and were in the habit of using traction engines with waggons. The management of these roads was vested in the Aberdeen District Committee. On 1st February 1897 the defenders, the Aberdeen District Committee, obtained a pretended certificate from their district surveyor, the said George Scott, with reference to the traffic on the Old Meldrum Road, which was in the following terms:I, George Scott, district surveyor of the Aberdeen District of Roads of the county of Aberdeen, under the Local Government (Scotland) Act, 1889, hereby certify that having regard to the average expense of repairing highways in the neighbourhood, extraordinary expenses have been incurred by the Aberdeen District Committee of said county in repairing the road or highway called the Old Meldrum Road by reason of the damage caused by excessive weight passing along the said road, by order of John Milne & Company, or by extraordinary traffic conducted thereon by order of the said John Milne & Company. The extraordinary expenses incurred in repairing the said road for the period from Whitsunday 15th May 1894 to 15th January 1897, after allowing 435, 13s. 4d. sterling as the cost of repairing said road for said period, according to the average cost of repairing roads or highways of a similar description in the neighbourhood, amount to 603, 1s. 6d. sterling, and the proportion of the said extraordinary expenses payable by the said John Milne & Company, in respect of their said traffic is 452, 6s. 1d. sterling. The length of said Old Meldrum Road is 7 miles 1 furlong and 197 yards, and the average cost of repairing roads of a similar description in the neighbourhood is at the rate of 20, 9s. 8d. per mile per annum. All which I certify to be correct.The defenders on the same date obtained a pretended certificate with reference to the traffic on the Dyce Road. [This certificate was mutatis mutandis in similar terms to that above quoted.] Thereafter, founding upon these certificates, the defenders, the District Committee, raised an action in the Sheriff Court at Aberdeen against the pursuers for recovery of 525, 18s. 10d. as the sum brought out in the certificates as payable by the pursuers. In granting the certificates the said George Scott had no regard to the average expense of repairing highways in the neighbourhood,* but only to the expense of repairing the two highways in question at a time anterior to the period when the extraordinary expenses sued for were alleged to have been incurred. (Cond. 12) The said pretended certificates were granted by the said George Scott falsely and fraudulently to enable the defenders, whose servant he is, and for whom they are responsible, to present a relevant case in terms of the Act to the Court for the recovery of the said sums from the pursuers. They were accepted, and so used and founded on by the defenders themselves in the full knowledge that they were false, fictitious, and fraudulent, and that in granting them the said George Scott had not had regard to the average expense of repairing highways in the neighbourhood, and had not stated truly the average expense of repairing such highways. The terms of the said certificates were adjusted by the said George Scott with the assistance of the defenders' district clerk, who afterwards conducted the preliminary stages of the said litigation on behalf of the present defenders.
The pursuers further averred;It was proved by the evidence laid before the Sheriff that the statements contained in the certificate were not in accordance with fact, and that the defender Scott had not had regard, in granting them, to the average expense of repairing highways in the neighbourhood. (Cond. 15) On 13th August 1898 the
Sheriff-depute pronounced the following judgment:Having considered the cause, finds that extraordinary expenses have been incurred by the petitioners in repairing the highways libelled, and during the periods libelled, by reason of damage arising from excessive weight which passed by order of the respondents over the Old Meldrum Road to the amount of 150, and over the Dyce Road to the amount of 50: Therefore decerns against the respondents for payment to the petitioners of 200: Finds the respondents liable in expenses, modified to one half,&c. (Cond. 16) In pronouncing said judgment the Sheriff acted ultra vires and outwith the statute. His judgment proceeded upon the pretended certificates of the district surveyor. The Sheriff did not take into account or have regard to the average expense of repairing highways in the neighbourhood. The expense of maintaining the roads in question is less than the average expense of repairing highways in the neighbourhood. If the defenders had complied with the requirements of the statute, they could not have brought any action against the pursuers. Of this the defenders and their surveyor were fully aware when giving and acting upon the certificates.
The pursuers pleaded;(1) The said pretended certificates being false, fictitious, and fraudulent, and separatim, the granting thereof being in the circumstances unwarranted by the statute, and illegal, the pursuers are entitled to have the same reduced as concluded for. (2) The pursuers are entitled to have the said pretended decree reduced, in respect that it was procured by fraud, et separatim, that it was ultra vires of the Sheriff, and not warranted by the said statute. (5) The Sheriff having deviated from and acted outwith the provisions of the statute in pronouncing the said pretended decree, and in particular having pronounced the same without regard to the average expense of repairing highways in the neighbourhood, all as condescended on, said decree is incompetent and illegal, and ought to be reduced.
The defenders pleaded;(2) The...
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