Scottish Court of Session Decisions

John George Wallace-James, Bachelor of Medicine, residing at Tyne House, Haddington, brought an action of suspension and interdict against Messrs Montgomerie & Company, 142 St Vincent Street, Glasgow, and the Provost, Magistrates, and Town Council of Haddington, for any interest they might have. The conclusions of the action were “to interdict prohibit, and discharge the respondents, the said Messrs Montgomerie & Company, Limited, and all others authorised by or acting for them, from taking possession of or encroaching on the piece of ground on the west side of the river Tyne, lying between the bowling-green and public washing-house, both belonging to the royal burgh of Haddington, on the west, and the river Tyne on the east, and extending from the Vennel leading from the East Port of Haddington to the Water of Tyne on the north, and the ford across the said river to the south of Nungate Bridge on the south, and in particular from ploughing up the surface of the said piece of ground, excavating therein, or removing soil, sand or materials therefrom, and from in any way interfering with the said piece of ground;

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and farther, to ordain the respondents, the said Messrs Montgomerie & Company, Limited, to restore the surface of the said piece of ground to the same condition in which it was prior to the operations complained of”

The pursuer averred that he was a burgess of the burgh of Haddington, and resided there; that the piece of land in question formed part of the common good of the burgh; that it had been from time immemorial appropriated to the use and enjoyment of the burgesses or inhabitants of Haddington for the purposes of recreation, and of drying and bleaching clothes; that Montgomerie & Company had taken possession of and ploughed up the land, and that the Town Council of Haddington refused to move in the matter.

Montgomerie & Company lodged defences, in which they stated that the land in question belonged to them. The Town Council of Haddington lodged a minute to the effect “that the said Council had, at a meeting of said Council, held at Haddington on the 14th of July 1898, resolved that, under reservation of all the Town Council's rights of title to the ground in question, and to the ownership thereof, the operations complained of are not disadvantageous to the public interest, and that in the meantime the said Council propose to take no further steps in these proceedings.”

The pursuer pleaded—“(1) The said piece of ground being part of the common good of the royal burgh of Haddington, appropriated from time immemorial to the use and enjoyment of the burgesses and inhabitants of the said burgh, as set forth in the pleadings for the complainer, and the respondents having illegally and unwarrantably taken possession of the said piece of ground on the pretence that it is their property, and interfered therewith so as to destroy and prevent the said use and enjoyment thereof formerly had by the burgesses and inhabitants, the complainer, as a burgess of the said burgh, is entitled to obtain interdict as craved. (2) The said piece of ground, being the property and in the possession of the burgesses and inhabitants of the royal burgh of Haddington, and the respondents, the said Messrs Montgomerie & Company, Limited, having illegally and without any right or title entered upon possession thereof on the pretence that it belonged to them, and encroached on and interfered therewith, interdict should be granted as craved with expenses.”

The defenders pleaded, inter alia—“(1) No title to sue. (5) The present note of suspension and interdict being an incompetent, or at least an inappropriate form of action for trying the questions raised by the complainer's record as amended, the note should be refused with expenses.”

On 18th July 1889 the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“Repels the first and fifth pleas-in-law for the respondents, and allows the parties a proof of their respective averments, and to each a conjunct probation: Appoints the same to proceed on a day to be afterwards fixed.”

Opinion.—“The complainer sues this action as a burgess of the burgh of Haddington. It relates to a piece of ground about which the complainer avers that it belongs to the burgh, is about an acre in extent, and ‘has been from time immemorial reserved and appropriated to the use and enjoyment of the burgesses and inhabitants for the purposes of recreation, walking, and exercise, for the bleaching and drying of clothes, and for the general use and enjoyment of the burgesses and inhabitants.’

The complainer avers that the respondents Montgomerie & Company, Limited, were proceeding to take possession of this piece of land, and to excavate and remove the soil, sand, and other materials therefrom, and that they asserted right to keep the land as their own property. It is further alleged that the Magistrates of Haddington were taking no steps to prevent the illegal proceedings of the respondents, and it appears from a minute lodged by the Magistrates that at a meeting of the Council held immediately after this action was brought, it was ‘resolved that, under reservation of all the Town Council's rights of title to the ground in question, and to the ownership thereof, the operations complained of are not disadvantageous to the public interest, and that in the meantime the said Council propose to take no further steps in these proceedings.’ The respondents, Montgomerie & Company, Limited, aver that the land belongs to them; and besides, that their actings had been wholly beneficial to the burgh.

The complainer had raised this action against Montgomerie & Company, and also against the Magistrates for their interest, and prays that the respondents Montgomerie & Company should be interdicted from interfering with the piece of land, and should be ordained to restore it to its condition before their interference.

Lord Stormonth Darling in the Bill Chamber, by interlocutor dated 26th July 1898, sustained the respondents' plea that the complainer had no title to sue, and refused the note. When he pronounced that interlocutor the words above quoted were not contained in the statement of facts. Had they been I am disposed to think, from expressions in his opinion, that his Lordship might have passed the note. The complainer reclaimed, and was allowed to add these words, or words precisely equivalent, and the Court, on 23rd November 1898, on considering the amended pleadings, recalled the interlocutor, and remitted to the Lord Ordinary on the Bills to pass the note. The Lord Ordinary on the Bills accordingly passed the note. A record has since been made up, in which the respondents have renewed their plea, which disputes the complainer's title to sue.

The interlocutor in the Inner House does not amount to a judgment sustaining the complainer's title, but it points in that direction, and after hearing the cause debated

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in the procedure roll, I have formed the opinion that it should be sustained, and that the complainer should be allowed a proof.

The complainer's averments come to this, that the respondents appropriated a piece of ground which belongs to the Magistrates, and has been devoted immemorially to public uses and the public right, which the Magistrates have resolved not to vindicate, being of opinion that the interests of the burgh and its inhabitants are not prejudicially affected. But I take it that a burgess is not bound by that opinion, but is entitled to vindicate what he alleges to be a public right—that is to say, a right in that section of the public consisting of burgesses in Haddington, in which right he is participant. What he avers is that the respondents were appropriating the land, and depriving the public of the use of it. Had the Magistrates themselves been treating the land in such a way as would deprive the public of the use of it, a burgess would have a title to interdict them, as illustrated in many cases, such as Sanderson v. Lees, Nov. 25, 1859, 22 D. 24; Graham v. Magistrates of Kirkcaldy, 6 R. 1066, and 9 R. (H.L.) 91; and Murray v. Magistrates of Forfar, June 20, 1893, 20 R. 908, and others. Crawford v. Magistrates of Paisley, March 10, 1870, 8 Macph. 693, in reference to the town steeple, was decided on a similar principle although the circumstances were different.

In these cases the action was directed against the magistrates, and here it is said the action should have been directed against the Magistrates, and not against the other defenders. But it is not clear how that could have been, because it does not appear that the Magistrates did anything themselves or authorised what the respondents did. They only abstained from interfering. If a burgess would have a right to prevent illegal interference by the magistrates, it appears to me that multo magis, he would have a title to prevent illegal interference by a third party.

The respondents, it is true, defend themselves by asserting a right of property, but it seems impossible to hold that that mere assertion of such a right can destroy the complainer's title. The respondents plead that they cannot be required to defend their title of property against an individual burgess, because, they say, a judgment in their favour would not be res judicata if their title were challenged by any other burgess. It is not necessary that I should express an opinion on that point. But the argument does not remove the difficulty of holding that a complainer's title can be destroyed by the respondents' assertion of right.

It is said that the case resolves into a question of property, and not a question as to the use of property, and I think that, when the case was first brought in the Bill Chamber that may perhaps have been so, but it is not so on this record. A question as to right of property may be incidentally involved, but the main question is as to interference with public use.

In another class of cases a member of the public, or of a section of the public, has been held entitled to sue an alleged wrongdoer directly without calling the magistrates, who had, or might have had, right as such, to interfere for the protection of the interests of the public, such, e.g., as Stewart v. Greenock Harbour Trustees, June 1, 1864, 2 Macph. 1155; Adamson v. Edinburgh Street Tramway Company, March 5, 1872, 10 Macph. 533; and Ogston v. Aberdeen District Tramway Company, December 14, 1896, 24 R. (H.L.) 8. It appears to me that these cases apply. It is said that they regarded the interests of the public and were popular actions, like an action of declarator of right-of-way, and that no hardship or injustice was involved, because, it was said, a judgment would bind the public, whereas in this case a judgment in favour of the respondents would bind no one but the complainer. I do not need to determine any of the debateable points involved in this argument. I do not see sufficient grounds for holding that, even assuming that difference between these cases, the application of them to this question of title is thereby affected. I do not say that the complainer stated a good title when the action was brought in the Bill Chamber, but think that any defect in his title was cured by the amendment made in the Inner House.”

Montgomerie & Company reclaimed, and argued—It should be noted that the pursuer is not suing as one of a minority in the Town Council but as an individual burgess and on an independent title. Again, this was not an actio popularis, as in cases of right-of-way and the other cases cited by the Lord Ordinary. Therefore the judgment in the action would not be res judicata against the Town Council if they should afterwards choose to take up the matter. The defenders were therefore not bound to defend an action at the instance of the pursuer, as success in it would not establish their title. The pursuer was not without a remedy. He could bring an action against the Town Council to have them decerned either to move in the matter or to grant him the use of their name for an action. So, a bankrupt could not sue, but could compel the trustee to give him the use of his name— Henderson v. Robb, January 18, 1889, 16 R. 341; and in like manner a beneficiary could obtain the use of the trustee's name— Sprot v. Paul, July 5, 1828, 6 S. 1083; Spence v. Gibson, December 13, 1832, 11 S. 212. So far as there was authority on the point of the title to sue an action like this by an individual, apart from cases of right-of-way, it was in the reclaimers' favour— Home v. Young, December 18, 1846, 9 D. 286; Cameron v. Ainslie, January 21, 1848, 10 D. 446; Mackay's Practice, i. 280, where an unreported case is quoted. Interdict was here incompetent, because what it was proposed to interdict had already been done.

Argued for the respondents—It was decided that an individual burgess had a

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right of action against the magistrates to prevent them alienating lands forming part of the common good, and against the individual in whose favour they proposed to alienate— Sanderson v. Lees, November 25, 1859, 22 D. 24; Graham v. Magistrates of Kirkcaldy, June 9, 1879, 6 R. 1066, and July 26, 1882, 9 R. (H.L.) 91; Murray v. Magistrates of Forfar, June 20, 1893, 20 R. 908. This was practically the same form of action. Sanderson v. Lees was particularly in point, as the action there was directed both against the magistrates and the party to whom they proposed to alienate. If this form of action was not competent, a burgess, had no remedy if the majority of the Town Council chose to alienate all the common good. An action to compel the magistrates to give the pursuer the use of their name had never been tried and would be incompetent.

At advising—