Perth Town-Council v Earl of Kinnoul
| Jurisdiction | Scotland |
| Judgment Date | 10 November 1908 |
| Docket Number | No. 24. |
| Date | 10 November 1908 |
| Court | Court of Session |
Lord Low, Lord Ardwall, Lord Justice-Clerk, Lord Dundas.
RoadHighwayRoad maintained by statute-labourThe Burgh Police (Scotland) Act, 1903 (3 Edw. VII. cap. 33), sec. 103 (6)The Roads and Bridges (Scotland) Act, 1878 (41 and 42 Vict. cap. 51), sec. 3.
The Burgh Police Act, 1903, enacts, sec. 103, subsec. (5), that public street in the Act shall mean (2) any highway within the meaning of the Roads and Bridges Act, 1878, vested in the town-council. Subsec. (6) Private street shall mean any street other than a public street.
The Roads and Bridges Act, 1878, enacts, sec. 3:Statute-labour road shall include all roads and bridges maintained by statute-labour.
Highway shall mean and include all existing turnpike roads, all existing statute-labour roads.
A road, which was a statute-labour road in 1790, was maintained by statute-labour until the year 1829, after which date no statute-labour or money equivalent was expended upon it. In 1878 it was still used as a public road, and continued to be so in 1907.
In 1907 the town-council of a burgh called upon the proprietor of land in the burgh through which the road passed to put the road in repair as a private street.
The answer was that the road was not a private street within the meaning of sec. 103 (6) of the Burgh Police Act, 1903, as it was a statute-labour road at the date of the Roads and Bridges Act, 1878.
Held(1) that the mere fact that no statute-labour or its equivalent in money had been expended on the road for the forty-nine years preceding 1878, while it was still used as a public road, did not take the road out of the category of statute-labour roads; (2) that in 1878 it was an existing road maintained by statute-labour within the meaning of sec. 3 of the Roads and Bridges (Scotland) Act, 1878, inasmuch as statute-labour, or its equivalent in money, was the source from which it fell to be maintained; and that accordingly it was a highway within the meaning of that section, and a public street in the sense of section 103 (5) of the Burgh Police Act, 1903.
Under the Burgh Police (Scotland) Acts, and in particular section 133 of the Act of 1892,1 the commissioners of burghs are empowered to call upon the owners of property abutting on private streets to carry out certain specified operations on such streets with a view to the improvement of their condition.
The Lord Provost, Magistrates, and Council of Perth, the commissioners of the burgh of Perth, passed a resolution by which they called upon the Earl of Kinnoul to carry out certain of these operations on a portion of Gannochy Road, Perth, on which his property abutted.
The Earl of Kinnoul appealed to the Sheriff on the ground that the road was not a private but a public street.*
On 23d July 1907 the Sheriff-substitute (Sym) pronounced this interlocutor:Finds that the piece of road is not a private street within the meaning of the Burgh Police Acts, 1892 to 1903: Finds in law that the appellant is not liable to perform the operations specified therefore sustains the appeal.
In an appeal the Sheriff (Johnston) affirmed the judgment.
The Sheriff stated a case for appeal to the Court of Session, in which the following facts were, inter alia, set forth as established:(1) That the road in question forms part of what down to 1790 was the main road from Perth to Coupar-Angus, and thence down Strathmore to Forfar and Aberdeen. (2) That the road was then a statute-labour road. (3) That in 1790 a turnpike road was formed from Perth to Coupar-Angus under the Act 29 Geo. III. c. 17 (1789). That this road as it neared Perth took a different line from that of the old road, and the part of the road here in question accordingly ceased to be the main route to Coupar-Angus. (4) That this change greatly diminished the importance of the road in question, and it gradually shrank into a mere footpath beyond Gannochy farm. (5) That it is not proved that the road here in question, which was a main statute-labour road down to 1790, had ceased to be on the county lists of highways upheld by statute-labour before circa 1827, but that the said road had ceased to have statute-labour or equivalent money spent upon it by the County Road Authorities in 1829. (6) That it does not appear that there was any subsequent maintenance of the road by statute-labour
labour or other public money; that it is not mentioned in any subsequent list of highways, and in particular it was not included in the list made by the County Authorities under the Act of 1878. (7) That...
To continue reading
Request your trial
-
Brian Gregory Hamilton V. Dumfries And Galloway Council For Judicial Review
...the old road: the statutory procedure for shutting it up still required to be followed. The cases of Perth Town Council v Earl of Kinnoul 1909 S.C. 114, Bell v Magistrates of Prestwick 1930 S.C. 241 and Marquis of Bute v McKirdy & McMillan (at page 127 per Lord Moncrieff) are in the same li......
-
Marquis of Bute v McKirdy & McMillan
...BorlandUNK, King & Shaw, (1902) 4 F. 599. 7 (1863) 1 Macph. 825. 8 (1893) 20 R. 345. 9 1930 S. C. 241. 10 1 and 2 Will. IV, cap. 43. 11 1909 S. C. 114. 12 15 R. 13 4 F. 599. 14 Cuthbertson v. YoungUNK, (1851) 14 D. 300, Lord Justice-Clerk Hope at p. 305; Macpherson v. Scottish Rights of Way......
-
Melfort Pier Holidays Limited V. The Melfort Club And Others
...public expense and a public right of way which is not: see the statutory provisions referred to in Magistrates of Perth v Earl of Kinnoull 1909 SC 114, Corporation of Glasgow v Caledonian Railway Co 1908 SC 244 and 1909 SC (HL) 5, and Evans v Magistrates of Edinburgh 1916 SC (HL) 149. Ranki......
-
Bell v Magistrates of Prestwick
...20 R. 345, Lord President Robertson at p. 349, Lord Kinnear at p. 352, Lord M'Laren at p. 351;Perth Town Council v. Earl of Kinnoul, 1909 S. C. 114, Lord Low at p. 12 1 and 2 Will. IV. cap. 43. 13 Land v. MortonUNK, 20 R. 345; Campbell v. WalkerUNK, (1863) 1 Macph. 825. 15 Cf. Act 1661, 1 C......