Scottish Court of Session Decisions

This was an appeal in a petition for interdict at the instance of William Lucas, clerk to and as representing the Police Commissioners of the burgh of Kinning Park, constituted under the General Police and Improvement (Scotland) Act 1862, and representing them also in their capacity of local authority under the Public Health Act 1867, against William Thomson & Company, engineers, Kinning Park, near Glasgow, who represented the whole feuars in Smith Street, Kinning Park.

The petition set forth that prior to the erection of the district into a burgh in 1871 Smith Street had for many years been laid off and used as a street, and it had since been used for cart and other traffic, and that the Commissioners had caused it to be paved, causewayed, and flagged. The respondents, however, had, by placing posts and a chain across one end of the street, caused an obstruction which prevented free ingress and egress, especially of cart traffic, and was prejudicial to the rights of the Commissioners and dangerous to the lieges. These obstructions had been removed by the Commissioners, but had again been erected, and interdict was therefore craved. The defence was that Smith Street was a private street, the property of and formed for the convenience of the proprietors on either side, and that the ports and chain had been put up with the consent of the superior and of all the feuars interested.

A proof was taken, and it appeared that the street had been paved, &c., to the satisfaction of the Commissioners by the owners of the premises fronting the street, and that thereafter the respondents called upon the Commissioners to declare the street to be a public street, but they declined to do so.

The Sheriff-Substitute ( Cowan) granted perpetual interdict as craved, but on appeal the Sheriff recalled the interlocutor, and issued the following judgment, the findings of fact in which were not disputed by the appellants:—

“ Edinburgh, 11 th October 1876.—The Sheriff having considered this process, sustains the appeal for the respondents: Recals the interlocutor appealed against: Finds in fact that Smith Street is a street within the burgh of Kinning Park, originally laid out at the expense of Alexander and William Smith, who obtained right to the ground through which it runs by the disposition, No. 17 of process, dated 15th and 17th November

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1866: Finds that the line of the said street was laid off in the year 1870, but until the year 1875 the street was not properly formed, but was, on the contrary, a roughly-made course, with obstructions on it to free passage: Finds that until the year 1874 no houses were erected along the said street, there being merely wooden sheds, and it was only in that year that stone buildings were begun to be erected: Finds that the respondents are the owners of premises feued to them at the said street: Finds that the Commissioners for the burgh of Kinning Park did, in the exercise of statutory powers, in the month of September 1875, issue an order to the owners of the lands or premises fronting or abutting on Smith Street to cause said street and footways thereof to be freed from obstruction, and to be properly levelled, causewayed, flagged, and channelled, conform to plans and specifications prepared by their surveyor: Finds that in consequence of this order the feuars in Smith Street did remove all obstructions on the said street, and did flag and pave the same, and that these operations were completed in the month of October 1875: Finds that a few days after the said operations were completed posts were put up and chains drawn by means of said posts across the street, so as effectually to prevent all traffic on the street by carts and carriages, and that this was done by the respondents and the other feuars: Finds that said posts and chains were allowed to remain up for about four months, and were then taken down by order of the Commissioners, and that after being down for two weeks they were a second time erected, and were a second time removed by the Commissioners shortly before the presenting of the petition for interdict: Finds that until the month of October 1875 there was no impediment by means of chains across the street to the passage of carts and other vehicles along the said street, but that the same was open and was used by the public, in so far as the unformed condition of the street prior to September 1875 permitted: Finds that the said street connects the Paisley Road, which forms the highway between Glasgow and Paisley, and Park Street, which is a private street within the burgh of Kinning Park: Finds that the expense of cleaning and lighting of Smith Street is borne by the Commissioners of Kinning Park, but that the expense of watching and of keeping the street in repair is borne by the feuars on each side of the street: Finds that the said street is the property of the superiors Alexander and William Smith and their feuars, and is a private street within the meaning of the General Police and Improvement (Scotland) Act 1862: Finds that the Commissioners of Kinning Park have declined to declare the said street to be a public street within the meaning of the said statute, section 154: Therefore finds in law that they are not entitled to interdict against the respondents as craved: Dismisses the petition: Finds the respondents entitled to expenses: Allows an account thereof to be given in, and remits the same to the Auditor to tax and report.

“ Note.—The Commissioners of Kinning Park do not seem to appreciate correctly their legal responsibility and duty. They were entitled under the 150th section of the statute to call upon the owners (as they did) on each side of the street to remove obstructions and to pave it. It was right and proper that any street, whether public or private, within the burgh should be put in such a condition as to render passage along it free from danger. But their power to insist on such precautions for the safety of persons living in this private street, or having occasion to go into it, did not give to them the powers and authority which they would have had over a public street, nor take away from the owners of the private street the right of protecting it by barricades or chains across, which the law gives them. If the Commissioners desire to have such powers, this may be obtained in the manner pointed out by the 154th section, which enacts as follows:—‘If any private street shall at any time be made, paved, or causewayed and flagged, and put in good order and condition to the satisfaction of the Commissioners, then, and on application of any one or more of the owners of premises fronting or abutting upon such street, it shall be lawful for the Commissioners to declare the same to be a street, as defined in this Act, and for ever afterwards vested in the Commissioners, and shall, with the exception of the footway, be repaired and repairable by the Commissioners under the authority and powers of this Act.’

“The street has been put ‘in good order and condition’ to the satisfaction of the Commissioners by the owners of the premises fronting the street, and the Commissioners have been called upon by the respondents to declare the street to be a public street, but they have declined to do so, because the consequence of such a declaration would be that the street must be kept in repair by the Commissioners, and not by the owners along the street. It is difficult to see the fairness or justice of this conduct on the part of the Commissioners. If the street is to be used by the whole people in the district, and cut up by a heavy traffic brought upon it by strangers, it would require very clear enactment to fix the liability for the expense on the few persons who may happen to be the owners along the street at the time.

“The Commissioners think that they can continue this burden on the shoulders of these owners, and that they (the Commissioners) have a discretionary power to relieve them of it or not according to their own will and pleasure. Now, this is an entire misconstruction of their position. The words ‘it shall be lawful,’ occurring in the 154th section, mean, with reference to a matter of this kind, that the Commissioners must do the thing if the conditions on which it is to be done exist, viz., the street being put in good order and condition. Similar words in the General Turnpike Act were thus interpreted by the Lord Justice-Clerk (Inglis) in Walkinshaw v. Orr, 28th January 1860, 22 D. 631:—‘By the 61st section it is enacted “That the trustees of all turnpike roads shall have power, and they are hereby authorised, to widen and extend all such roads, so that the same shall be in all places 20 feet in width of clear passable road.” Such words as these are capable of two constructions, according to the subject-matter and the context. They may mean either that the parties invested with the power may exercise it or not according to their discretion, when the circumstances occur in which it may be exercised, or that in those circumstances they are bound to exercise it. Now, I hold it to be a general canon in the construction of the statutes that where powers are conferred in a statute for the public benefit they must be

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exercised, and the enactment is imperative. This is a case in which the power is given clearly for the public benefit, and therefore, prima facie, it appears to me an imperative enactment.’

“This doctrine, that the words ‘it shall be lawful’ and ‘may,’ occurring in a statute, mean ‘shall’ and ‘must’ when the statute has reference to the carrying out any beneficial purpose for the public, is supported by many authorities, and among others are the following:— Rex v. Flockwood (inclosure), 2 Chil. 251; M'Dougall v. Paterson, 21 Law Journal, C.P. 27; Crake v. Powell, 21 L.J., Q.B. 183; Chapman, 19 L.J., Ex. 228; Newport Bridge, 29 L.J., M.C. 52; Dwarris on Statutes, 604–671; Smith's Constitutional Law, 438–439; Sedgwick's Constitutional Law 724, 727–729; Beckett v. Campbell, 2 Macph. 485.

“That the street in question is the private property of the feuars there can be no doubt, and if so, it does not cease to be such merely because they had not barred the passage through it between the years 1870 and 1875, when it was in an embryo condition. The doctrine of ‘dedication’ of a road to the public by allowing the public to use it for a time is unknown to the law of Scotland, except in the shape of acquisition by the public in virtue of the positive prescription. The street therefore being a private street, the owners of it are entitled to protect themselves from the burden of the traffic now sent through it, and which moreover does not belong to their district, but is brought through their street in order to evade tolls. No doubt the barring-up the street may produce inconvenience, as described by the witnesses for the petitioner, but this inconvenience may be put an end to in a moment by the Commissioners simply doing their duty, declaring the street to be a public street in terms of the requisition made upon them. Once it is made a public street there is an end to all chains and barricades. The respondents, besides the right to protect their private street by closing the ends of it in the way in which such streets in towns are usually protected, have also a direct action against the Commissioners of Kinning Park to compel them to do their duty by taking over the street and making of it a public street, and bearing the expense of it in future. It certainly is a very odd circumstance to find a burgh without one of its streets a public street, and not one of them repaired from the public rates. This condition of things is not very creditable to the Commissioners, and was certainly not anticipated by the Sheriff when this burgh was formed.”

Against this interlocutor the petitioners appealed to the Court of Session.

Authorities— Wallace v. Police Commissioners of Dundee, March 9, 1875, ante vol. xii. 361; Cargill v. Magistrates of Portobello, December 11, 1863, 2 Macph. 244.