Scottish Court of Session Decisions

This was a petition and complaint presented by William Aiton, Esq. of Boddam, against the Aberdeen County Road Trustees. The statements of the petitioner were as follows:—

By the Aberdeenshire Roads Act, 1865 (28 and 29 Vict. c. 240), all tolls on turnpike roads in the county were abolished, and in lieu thereof an assessment was imposed for the maintenance and repair of the roads—one half on owners, and one half on occupiers, in their respective districts.

The county was divided by section 10 into eight districts, and for the management of the roads in each district trustees were appointed.

The provisions of the General Turnpike Act, 1 and 2 Will. IV., c. 43, were incorporated with the Act, so far as not inconsistent therewith. Section 119 of the General Turnpike Act provides—“That if the repairing or maintaining of any turnpike road shall be neglected, or such road so badly kept that travellers are injured, impeded, or obstructed in using the same, any person having paid toll-duty thereon, and finding caution to pay expenses of process, may present a petition and complaint against the trustees of such road to the Court of Session, and the said Court is hereby authorised to receive the same, and to adjudge and determine therein in a summary manner, without abiding the course of the roll, and to pronounce such orders and decrees as to the repairing or keeping of the roads, or otherwise, as the justice of the case shall seem to them to require, having due regard to the funds of the trust, and particularly to determine whether the road is in such a state of repair as to justify the levying of the toll-duties, or any proportion thereof, levied by the said trustees, and also to determine as to the expenses of such complaints and proceedings thereon; and if any such complaint shall be found to be without probable cause, the complainer shall be found liable, over and above the expenses of process, in a penalty of £20, to be paid to the trustees for the purposes of the trust; and it shall not be lawful to present any such complaint, or institute any proceedings, on any of the grounds above mentioned, before any other Court, or in any other manner than as aforesaid.”

The petitioner then set forth that one of the roads in the First or Deer District, described in the Act as “Boddam Junction, from Aberdeen Turnpike to the village of Boddam,” which was the only road leading to Boddam, a seaport village of 800 inhabitants, is in extremely bad repair, and almost impassable; that the petitioner is the proprietor of the harbour and village of Boddam, and of lands in the neighbourhood, and as such interested in the condition of the road and in the execution of the statute; that he has duly paid the assessments imposed on him, that he has made repeated complaints to the Trustees on the subject, and that in consequence of their refusal to put the road in proper condition, the present application has become necessary.

The petition and complaint was directed against Mr Newell Burnett, clerk to the general body of trustees, and Mr Patrick Irvine, clerk to the trustees for the Deer District.

The prayer of the petition was “to find that the road above specified, leading from the Aberdeen and Peterhead turnpike road to the village of Boddam, is neglected and so badly kept that travellers are injured, impeded, or obstructed in using the same; to remit to such skilled person or persons as your Lordships shall see fit to appoint, to examine the said roads, with reference to the grounds of complaint above particularised, and to report thereon, or to direct such other investigation relative to the facts of the case as your Lordships shall consider expedient or necessary, and after receiving such report, or being informed of the result of such investigation, to direct and appoint the respondents, the said trustees, to execute such repairs upon the said road as may be necessary to put the same in a proper and sufficient condition, and to maintain the same in proper condition and repair in time to come, or to give such instructions for repairing the said road, at the expense of the said trustees, as may be found necessary; farther, to find the said trustees liable to the petitioner and complainer in the expenses of process.”

The respondents stated that the road in question had been made in 1820 by the then proprietor of Boddam; it was roughly made with boulders got from the sea-shore. Badly formed originally, it could never be made a first class road without entirely re-forming it. The trustees had not neglected it, but had spent as much money on it as their finances would allow. They had already been obliged to exact the maximum assessment on the district. On 23d March last the district trustees resolved to spend £5, 11s. 4d. on the road. The petitioner, if aggrieved by this resolution should have appealed to the general body of trustees, in terms of section 31 of the statute, which provides that “All proceedings of the district trustees shall be subject to the control of the trustees, to whom any person or persons who may think themselves aggrieved by such proceedings may appeal, and the trustees shall have power to consider and finally decide such appeal; and in case the district trustees shall fail to comply with the orders of the trustees, the trustees shall have power to appoint a committee of their own number to carry the said orders into execution.” Until the petitioner had exhausted his remedies by application to both sets of trustees, he was not justified in calling them into Court as if they had neglected their statutory duty.

Kinnear, for the petitioner, cited Walkinshaw, Jan. 28, 1860, 22 D. 627; Reid v. Knox, June 14, 1861, 23 D. 1095.

Fraser, for the respondents, cited Beckett, Feb. 27, 1866, 4 Macph., H.L. 6; and founded on section 31 of the Aberdeenshire Roads Act.