Paterson v Magistrates of St Andrews
| Jurisdiction | Scotland |
| Judgment Date | 10 March 1880 |
| Date | 10 March 1880 |
| Docket Number | No. 125. |
| Court | Court of Session |
Ld. Curriehill I., Lord Justice-Clerk, Lord Ormidale, Lord Gifford.
BurghProperty and RightsRecreation ground held by Town-Council for behoof of InhabitantsPower of Town-Council to encroach on public ground.
ProcessJoint Minute withdrawing defencesRight to depart from Joint Minute.
Part of the Links of St Andrews was held by the Town-Council for behoof of the inhabitants as golfing Links and recreation ground. The Town-Council having authorised a road to he made on a portion of the ground so held by them, in an action raised by certain inhabitants of St Andrews against the Magistrates, concluding for declarator that they had no power so to do, held, that as it was proved that the formation of the roadway did not interfere with the primary uses of the ground on which it was formed, the Magistrates were entitled to consent thereto, but that the Magistrates would not be entitled to alienate the ground or to give up the administration and control of the same.
One of two sets of defenders, whose defences had been sustained in the Outer-House, entered into a joint minute with the pursuers in which they craved the Inner-House to allow them to withdraw their defences. The minute was moved in the Single Bills, but as it was opposed by the other set of defenders the discussion was adjourned till the whole case came up for discussion. When the case came on for hearing the defenders, who had been parties to the joint minute, tendered a new minute craving leave to withdraw the former joint minute, and insisting in their defence. The pursuers contended that the joint minute could not be withdrawn or resiled from. Held that the defenders were entitled to insist in their defence.
In 1820 the Magistrates of St Andrews, who held the Links for behoof of the town, subject to a servitude of golfing and to the use of the inhabitants for purposes of recreation, feued off a narrow strip of the Links on the south side of the golfing course running from Golf Place on the east to the Swilkin Burn on the west, and bounded by a turnpike road, which now leads from the town to the railway station, on the south, the golfing course being the northern boundary. The feus were at once built upon by most of the feuars, their houses for the most part facing the turnpike road, while their back gardens or yards ran down to the Links, and were enclosed by walls, with a door for each feu.
At the time when these feus were given off, the Links, of which the back walls of the feus were the southern boundary, were in a rough and broken up state, and no vehicle could be taken over them from Golf Place, the ground of the Links rising above the level of the road there, and being bounded by a wall.
In 1849 Sir Hugh Playfair, who was then provost of St Andrews, levelled the portion of the Links near Golf Place, and formed a terrace
sloping along at the north side of the feus. In order to prevent carts going on the Links, as access was now possible, posts and chains were put up at the east end of the feus, and also at a place near the west end where a road called Clark's Wynd crossed the Links from the turnpike road to the sea-shore. Several of these posts continued in their places of till about 1870.
Between 1870 and 1875, on three of the more easterly feus, large dwelling-houses were erected facing the Links at the northern boundary of the ground feued. In addition several smaller houses facing the Links had been built for club-makers' shops, &c., on other of the feus.
The inhabitants and occupiers of these houses were in the habit of using a strip of the Links next to their houses and premises for cart and carriage traffic in connection with the occupation of their houses. Although this strip was freely used as an access to these houses, and also for through traffic from Golf Place to the turnpike road through Clark's Wynd, it was not a made road. In 1874 the strip of ground or track used as an access to the houses facing northwards, being much cut up with cart-ruts, &c., the feuars and others interested proposed to the Town-Council to construct, at their own expense, a road seventeen feet wide, with four feet six inches of a footpath, from Golf Place to Clark's Wynd, running along the north boundary of the ground feued out in 1820, and after the road had been made to hand it over to the Town-Council. On 20th May 1874 the Town-Council, after receiving a report from the Walks Committee on the proposal made by the feuars, agreed to allow them to form the proposed road, but only on condition of their becoming bound to provide for the maintenance of the road in all time coming. No further steps were taken at this time, and the track continued to be used for cart and carriage traffic as before. In 1878, however, the committee of the Royal and Ancient Golf Club requested the Town-Council to erect a fence to separate the track or road from the golfing green, as in its then condition it threatened to interfere with the game of golf. The question as to the road was thus again before the Town-Council, and it was proposed that before anything else was done the posts which had formerly been put up at the east or Golf Place end of the track to interrupt the traffic and prevent carts and carriages going on the Links should be replaced. This proposal was opposed, and on 5th February 1879 the Town-Council, by a small majority, resolved not to re-erect the posts. Thereupon Mr John Paterson, residing at Kinburn House, St Andrews, who was also a town-councillor, with the concurrence of two other inhabitants, raised this action against the Magistrates and Town-Council of St Andrews, and the feuars and others whose houses and premises fronted the proposed road. The conclusions of the action were for declarator(first) that the said Provost, Magistrates, and Town-Council hold and are vested in the property of this portion of the Links of St Andrews which lies to the east of the Swilkin Burn, subject to the burden and obligation of preserving the said Links for the purposes of the game of golf, and for the recreation and amusement of the inhabitants of the said city; (second) that the said Magistrates and Town-Council have no right to encroach or authorise or permit any encroachment upon the said Links or any part thereof which shall have the effect of diminishing the space available for the said game of golf or for the recreation and amusement of the said inhabitants; (third) that, in particular, the said Magistrates and Town-Council have no right to construct or authorise or permit the construction by the other defenders or any of them of a road for carts and carriages along the southern boundary of the said Links, being the northern boundary of the several parcels of ground belonging to the other defenders, and feued out to the said defenders or their authors by the said Magistrates and Town-Council in and subsequent to the year 1820; and (fourth) that neither the said Magistrates and Town-Council nor the said other defenders are entitled to use or authorise or permit the use of the portion of the said Links adjoining the said northern boundary of the said parcels of ground as an access for carts and carriages to the said parcels of ground, or to the houses or premises of the said other defenders built or situated upon the same; and the defenders, and each of them, ought and should be interdicted, prohibited, and discharged, by decree foresaid, from constructing or authorising the construction of the said road, and from using or authorising the use of the said portion of the said Links for the purpose of a cart or carriage access to the said parcels of ground and buildings or premises built or situated thereon, and from in any other way abridging the extent of the said Links available for the said game of golf and for the recreation and amusement of the said inhabitants, and from interfering with the full and free use by the said inhabitants of the whole surface of said Links for the purposes foresaid in any manner of way.
In their condescendence the pursuers set forth the obligation upon the Town-Council to preserve the Links for the behoof of the inhabitants of St Andrews, and narrated the history of the 1820 feus as above described.
They then referred to the erection of the houses on the north boundary of the feus, and averred as follows:(Cond. 9)These houses, in place of being built, as provided in the titles, so as to face the road to the south, were built so as to face the Links to the north, the fronts of the houses coming close up to the southern boundary of the Links. Since the erection of the said houses the portion of the Links in question has gradually come to be used as a cart and carriage access to the said houses. (Cond. 10) The effect of the said use of the said portion of the Links has been seriously to encroach upon the area of the Links, and seriously to interfere with the said servitude and privilege of golfing as enjoyed over the said Links from time immemorial. The ground in question, which is within the ordinary golfing course, and close to one or more of the golf holes, has ceased, in consequence of the use to which it has been illegally put, to be covered with grass, and it is ploughed up with cart ruts, and, especially in wet weather, has become a source of inconvenience to golfers, and a serious detraction from the amenity of the Links.
Both sets of defenders lodged defences to the action.
The Town-Council in their defences set forth, that for some centuries prior to 1600 St Andrews Links had belonged to the Magistrates and Town-Council as representing the community of the city; that the portion of the Links to which the action related had been held by them and their predecessors in office for behoof of the inhabitants, subject to the obligation of preserving the same for golf and recreation, and that with due regard to these purposes they and their...
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