Scottish Court of Session Decisions

The first of these actions was one at the instance of William Duncan, clerk to the City of Edinburgh Road Trust, and, as such, authorised to sue under the Edinburgh Roads and Streets Act, 1862, against George Cousin, Henry Graham Lawson, and the trustees of the late Andrew Jameson, concluding for payment from the several parties of the sums of £100, 11s. 4d., £45, 18s., and £45, 18s., being the proportions respectively allocated on the defenders of the expense of making up and constructing the carriage-way of Bruntsfield Terrace.

Section 33 of the Edinburgh Roads and Streets Act, 1862, provides that “In the case of such private streets as are or may be within the district, and as are not specified in schedule (C) (annexed to the Act), where the carriage-way shall not have been made up and constructed, nothing

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herein contained shall be held or construed to confer any right on the trustees to compel the making up, constructing, and causewaying of any such street, until they have received intimation in writing from the superior that the said street is an open thoroughfare for public use, or until threefourths of the intended houses in such street shall either have been erected or are in course of being erected, or the areas for such intended houses shall have been feued under an obligation to erect houses, or until the Sheriff, on an application by the trustees or any three or more persons assessed in virtue of this Act, setting forth the circumstances of the case, shall determine that it would be for the public advantage that any such street should be made up, constructed, and causewayed, but in any of these cases it shall be lawful for the trustees, and they shall be bound to require the owners of lands and heritages in any such streets to make up, construct, and causeway the same to the satisfaction of the surveyor or other officer of the trustees for the time being, by leaving within the dwelling houses or other premises of such owners respectively a copy of a notice to that effect, which shall be deemed sufficient intimation to such owners; and if such owners shall fail or neglect within three months from and after the date of such notice to make up, construct, and causeway any such street as aforesaid, it shall be lawful for the trustees, and they shall be bound to make up, construct, and causeway such street in such way as to them may seem proper or necessary, and they shall levy the expense as the same shall be ascertained by an account under the hand of their surveyor, or other officer for the time, from such owners failing or neglecting as aforesaid, and shall recover the same in like manner as the assessment hereby authorised is appointed to be recovered, or otherwise according to law.”

Section 34 provides that “the expenses which may be incurred by the trustees under the provisions of this Act, in making up, constructing, and causewaying the carriage-way of any private street within the district, or in executing repairs on the same, shall be assessed by the trustees on the owners of lands and heritages according and in proportion to the lineal frontage of the same, subject to this provision, that the proportion leviable, according to frontage, from the owners of such lands and heritages as consist of buildings, shall be assessed on them, as among themselves, according and in proportion to the annual rent or value of such buildings, and the trustees shall recover the amount of such expenses from such owners in the same manner as the assessment under this Act is authorised to be recovered, or otherwise according to law: Provided always that where such owners may not be the persons liable in the maintenance of the street, they shall be entitled to be relieved by the persons liable in the same from payment of such assessed expenses.”

Bruntsfield Terrace is a private street within the City of Edinburgh District of Roads. In April 1866 the carriage-way of the street was not made up and constructed. The ground on the south side of the street had all been feued out, and villas had been erected by the feuars. viz., Mr Cousin. Mr Lawson, Mr Jameson, and Mrs Cameron. It was not disputed that these were the whole houses intended to be erected on the south side. The exact state of the titles to the property on the north side of the street will be afterwards adverted to, but it is sufficient to say that the street is bounded on the north by Bruntsfield Links, the property of the Corporation of Edinburgh, but held by them subject to public use. It was never intended that houses were to be erected on the north side of Bruntsfield Terrace, and indeed it was matter of notoriety that none such could be built in the existing state of rights.

In April 1866 a requisition was presented to the Road Trust, calling on them to require the owners of land and heritages in Bruntsfield Terrace to make up and construct the carriage-way in terms of sect. 33 of the Act, in respect that at least threefourths of the houses in the street had been erected. Thereupon, on 5th June 1866, the Road Trustees caused the statutory notice to be left with Mr Cousin, Mr Lawson, Mr Jameson, and Mrs Cameron, as the only owners of lands and heritages in Bruntsfield Terrace.

The owners having failed to construct the carriage-way within three months, the trustees constructed the same at the expense of £239, 12s. 4d., which they proceeded to allocate between the feuars on the south side. Mrs Cameron paid the sum allocated on her. The others offered to pay one-half of their respective assessments, but maintained that the owner or owners of the ground on the north side were liable for one-half of the expense of making up the carriage-way.

The ground occupied by the feus of the defenders and Mrs Cameron. and the street, formerly belonged to Sir John Stuart Forbes, whose property was separated from Bruntsfield Links by an old wall. It rather appeared that the wall belonged to Sir John Stuart Forbes. When the street was made it consisted of a carriage-way with a footpath on both sides. The feuars, whose feus are declared in their feu-contracts with Sir J. S. Forbes to be bounded on the north by Brunstfield Terrace, are taken bound to maintain the footpath next their feus. In November 1865 the defenders obtained leave from the Town-Council, for any interest they (the Town-Council) had, to take down the old wall. This was accordingly done, and the site thrown into the footpath on the north side of the street.

The defenders averred “that there are lands and heritages on the north side of Bruntsfield Terrace in which the defenders have no right of property, and the owners or owner of which have not been assessed along with the defenders for the expense of making up and constructing said carriage-way. The expense of making up the whole breadth of the carriage-way has been assessed as on the owners of the south side thereof alone, in contravention of the terms and intention of the statute libelled.”

The Lord Ordinary ( Jeviswoode) pronounced the following interlocutor:—“Finds that the defenders are proprietors, under their titles set forth on the record, of lands and heritages which are situated exclusively on the south side of the street called Bruntsfield Terrace, and are not proprietors either of the site of the wall which as set forth in article 6 of the condescendence for the pursuer, formerly existed, and which ran immediately along the north side of a footpath constructed on the north side of the carriage-way of the said street (and which site now forms part of the said footpath); or of the lands situated immediately to the north of the site of said wall, which lands form part of Bruntsfield Links, the property of the Corporation of Edinburgh: And, with reference to the foregoing findings, finds, in point of law, that the

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defenders are not liable in payment to the pursuer of more than their respective portions of one-half of the expense incurred by the City of Edinburgh Road Trust in making up and constructing the carriage-way of the said street, and allocated on the defenders, as set forth in the 7th article of said condescendence, or otherwise, in payment to the pursuer, as stated in answer 7 for the defenders, of more than ‘such other sums as, under a computation, including all the lands and heritages in Bruntsfield Terrace, may be found to be assessable on them, in terms of the Edinburgh Roads and Streets Act, 1862;’ therefore, and in respect that the defenders appear to have been all along ready and willing to pay such half, or such other sums as may be found to be assessable on them as aforesaid, dismisses the action, and decerns; finds the pursuer liable to the defenders in expenses.”

The pursuer reclaimed.

The case was heard in February 1872, the Lord President absent.

Solicitor-General and Shand, for the reclaimer, argued, that as Bruntsfield Terrace had always been intended to consist of a row of houses on the south side only, and as no houses could be built on the north side as long as the public rights in Bruntsfield Links subsisted, the only “owners of lands and heritages in the street,” in the sense of the statute, were the feuars on the south side. The expense of constructing the carriage-way was to be borne by those whose lands and heritages fronted the street. The only intelligible and equitable meaning of the word “frontage” was frontage available for building purposes. Even assuming the feudal title of the strip of ground occupied by the footpath on the north side and the site of the old wall to be in the representatives of Sir John Stuart Forbes, it really could not be contended that the bare possession of a narrow strip which never could be made available for building or any other purposes made them frontagers in the sense of rendering them liable for a share of the expense of constructing the carriage-way.

Millar, Q.C., and Jameson, for the defenders, argued, that it was obvious that a street must have two sides. The land on the north side of Bruntsfield Terrace must be owned by some person or persons. There was nothing whatever in the Act limiting the definition “lands and heritages” to land built upon, or to land of a certain breadth. The assessment was to be laid on according to the lineal frontage. This gave a simple rule, capable of being at once applied, whereas if the element of breadth were once introduced, it would be impossible to say who was or was not a frontager. An illustration of how entirely the liability depended on mere frontage, and not upon the value of the subjects, was found in the fact that the defender Cousin, who had a corner feu facing two streets, had to pay his share of constructing both streets according to his frontage to each street. It was contended for the pursuer that Sir John S. Forbes or his representatives could take no benefit from their ownership of the strip on the north side. But this was not the case. The Corporation might get an Act of Parliament to enable them to build on Bruntsfield Links, and then Sir John's representatives would have a valuable subject to dispose of, viz., the right of frontage towards Bruntsfield Terrace. If it should be held that Sir John's representatives were not owners of any ground on the north side of Bruntsfield Terrace, then it undoubtedly followed that the Corporation, as owners of Bruntsfield Links, were the owners of lands and heritages on the north side of the street, and therefore liable for a share of the assessment. If the intervention of the strip belonging to Sir John's representatives exempted the Corporation from liability, then they must be themselves liable. In short, Sir John's representatives could not be allowed, by the device of keeping a narrow strip in their hands, at once to exempt the Corporation from liability, and also maintain their own exemption, so as to throw the whole burden on the feuars on the south side.

The Court, on 29th February 1872, before further answer, allowed the pursuer, if so advised, to call the representatives of the late Sir John Stuart Forbes as parties to the action.

The pursuer accordingly raised an action against Lord Clinton, as representing Sir John Stuart Forbes, concluding that the action should be conjoined with the former action, and, in the event of the pursuer failing to obtain decree in the former action, concluding against Lord Clinton for £96, 3s. 8d., being one-half of the sums sought to be recovered from the defenders in the former action.

Defences were lodged for Lord Clinton.

He pleaded that he was not liable, in respect (1) that the expense of the street was incurred by the Road Trustees without notice to him or his predecessors; (2) that he was not within the meaning of the statute an owner of lands and heritages within the street, having frontage to the street.