Scottish Court of Session Decisions

This was an action at the instance of John Wilson Bruce, Accountant in Glasgow, and Mrs Ada Maud Davis or Bruce, against the Corporation of the City of Glasgow, whereby the pursuers sought declarator—(1) and (2) that the pursuers were proprietors of certain subjects situated in Glasgow; (3) that in virtue of their titles the pursuers were vested in the full property in the lane separating their respective properties, each to the extent of one-half thereof; (4) that the said lane was a private lane, and that the defenders had no right to interfere therewith; and (5) that the pursuers were entitled to erect a gate across said lane; and further for interdict against the defenders from removing said gate, or from using the lane for the passage of carts, or in any other way interfering with the defenders in their right of property in the lane.

The defence was that the lane in question was a public street.

The following narrative of the facts as ascertained after a proof is quoted from the opinion of the Lord Ordinary ( Kyllachy):—“The pursuers are proprietors of two corner properties forming respectively the western and eastern ends of two private streets in the Hillhead district of Glasgow, known the one as Hamilton Park Quadrant, and the other as Lacrosse Terrace. Between the two properties runs a lane upon which the pursuers' respective gables and back premises abut, and which belongs in property one half of it to each of the pursuers. This lane was originally formed under an obligation in the titles, and so far as the titles go is subject only to a servitude of access in favour of certain neighbouring properties in Hamilton Park Quadrant. After leaving the pursuers' properties the lane was, originally or at a later date, continued southwards, having off it a branch to the east (called ‘the spur’) made for the service of Lacrosse Terrace and Belmont Crescent, and at the southern end it now opens into the thoroughfare known as the Great Western Road. From the Great Western Road northwards to the pursuers' properties, and indeed up to the line of their back walls, it has at one time or another been causewayed with rubble by or at the expense of the different proprietors. But between the pursuers' gables it is not causewayed at all. It bears generally the name of Belmont Lane. But how far that name applies to the portion between the pursuers' properties it is not necessary to determine. The important fact is that up to the recent operations of the defenders it was closed from the earliest period (certainly from about 1881) by a double wooden gate, which stretched between the front walls of the pursuers' properties, and closed all access between the lane and Hamilton Park Quadrant and Lacrosse Terrace. The lane was in short a cul de sac, having nothing of the character of a thoroughfare, and having per se, and apart from statutory procedure, none of the characteristics of a public street.

In these circumstances the pursuers' complaint is this. They say (1) that, as they have now discovered, the defenders or their officials in the year 1894, without statutory authority, without intimation to the pursuers, and without reference to private rights, placed Belmont Lane, or at least the part of it southward of the pursuers' properties, on the register of public streets in the city of Glasgow: (2) that acting on the assumption that this had been legally done, and also on the assumption that the lane so declared public included the space between the pursuers' properties and particularly the pursuers' gables, the same authorities in October 1901 removed, brevi manu and without notice, the double gate which had stood, as I have said, since 1881, and also removed a line of iron railing which ran northwards from the centre of the double gate and formed part of a continuous iron fence which separated the roadway of Lacrosse Terrace from the roadway of Hamilton Park Quadrant: that on the pursuers replacing the double gate and railing the defenders again removed them, and indeed did so more than once. In short the pursuers say that in order apparently to oblige certain people who desired to turn Lacrosse Terrace and Hamilton Park Quadrant into a public thoroughfare, and in order also to give the municipal dust carts a short cut from the thoroughfare so opened to the Great Western Road, the Corporation officials simply removed all erections on the pursuers' properties which interfered with that object, and repeated the operation after the gate and railing were restored, thus necessitating the present action.

The defenders' answer to all this consisted, so far as the Lord Ordinary understood it, in an attempt to show that the whole lane, and in particular the part of it between the pursuers' gables, to which part it may be noted the dispute is practically confined, is simply one of the public streets of Glasgow. Their case seemed to be (1) that the street had been taken over or agreed to be taken over as a public street by the Hillhead Commissioners, and was therefore a public street by virtue of the Annexation Act of 1891 (sect. 35, sub-sect. 2); (2) that it had been at least to some extent and for some time maintained by the Police and Statute Labour Committee of Glasgow, and was therefore a public street under the interpretation clause (sect. 4) of the Glasgow Police Act of 1866; (3) that in any view it had been placed in 1894—rightly

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or wrongly—on the register of public streets, and was therefore fixed with that character in virtue of section 282 of the said Act of 1866; and (4) that although the procedure for this last purpose had been irregular the pursuers were barred by acquiescence from objecting to the irregularity.”

The pursuer's properties were erected about 1877, and they were then outwith the boundaries of the city of Glasgow. They were subsequently included in the burgh of Hillhead, and being so included they were embraced within the city and royal burgh of Glasgow by the City of Glasgow Act 1891 (54 and 55 Vict. c. cxxx.).

Sections 282 and 286 of the Glasgow Police Act 1866 (29 and 30 Vict. c. cclxxiii.) are quoted in the rubric.

By section 4 (the interpretation clause) of that Act “public street” is defined to mean “any road, street, lane, vennel, wynd, bridge, quay, passage, square, or other place within the city used either by carts or foot-passengers which has been maintained by the Police and Statute Labour Committee, or which is by this Act, or shall hereafter in pursuance thereof, be declared to be a public street.”

On 10th April 1903 the Lord Ordinary ( Kyllachy) pronounced an interlocutor in the following terms—“Finds, decerns. and declares in terms of the declaratory conclusions of the summons: Interdicts, prohibits, and discharges in terms of the conclusion for interdict: Finds the defenders liable in damages to the extent of ten pounds (£10), for which sum decerns: Finds the pursuers entitled to expenses, and remits,” &c.

Opinion.—The Lord Ordinary has considered this case with all the attention in his power, and he has done so particularly because he has been to the last unwilling to believe that proceedings apparently so high-handed and unjustifiable as those of which the pursuers complain should have been taken by officials of the Corporation of Glasgow. Down to the close of the proof and of the hearing the Lord Ordinary was under the expectation that some undisclosed defence was to be developed. But in the end he was forced to the conclusion—a conclusion which subsequent consideration has confirmed—that there is really no defence to the action, and that the pursuers are entitled to judgment.

The facts generally are these—[ After the narrative quoted above his Lordship proceeded]—The Lord Ordinary has not found it possible to give effect to any of those contentions. There is no evidence that the lane was taken over or agreed to be taken over as a public street by the Hillhead Commissioners. The evidence is entirely the other way, and on record and in the earlier discussion the defenders maintained no such proposition. As to the interpretation clause, the Lord Ordinary does not quite see how the interpretation clause can help the argument except when applied to some enacting clause. Neither does he see where the defenders get their proof of maintenance, at all events as regards the part of the lane in controversy. But besides, he thinks it quite plain that it is the second and not the first alternative of the definition in the interpretation clause which applies to a street of this description, originally private and maintained as such, but said to have become public by virtue of the statutory enactments. Again, as to section 282, there are, it seems to the Lord Ordinary, two answers. In the first place, that section assumes as a condition compliance with the provisions of section 286, and these provisions were not observed. And in the next place, the registration was not complete and effectual because the lane or part of the lane in question was not defined, as required by section 282, by having its position marked on the appropriate sheet of the Ordnance Survey Map then in force. Lastly, the suggestion of acquiescence is, the Lord Ordinary thinks, absolutely excluded by the terms of the correspondence. That correspondence shows that when in 1892 or 1893, the idea of turning the lane into a public street was first mooted the pursuer Mr Bruce and his predecessor in title Mr Crawford at once protested, and intimated that they would oppose, and desired to be heard. It also shows that this intimation was in the end met, and properly met, by the counter intimation—made no doubt in view of the threatened opposition—that it was proposed to apply to the Dean of Guild Court under section 286. Of course if this had been done all parties would have been called and heard. But in fact, for a reason explained in the proof, but which it is unnecessary to consider, no application was made. No procedure took place, the matter being apparently allowed to drop. And nothing more—so far as the pursuers were concerned—occurred until in 1901 the interference with their property took place which gave rise to the present action.

On the whole, the Lord Ordinary sees no reason why the pursuers should not have decree in terms of their summons, the damages sued for being assessed at £10, which sum the Lord Ordinary thinks will cover the direct results of the defenders' operations. The pursuers will also have their expenses.”

The defenders reclaimed. They relied on the statutory enactments referred to in the Lord Ordinary's opinion, and argued—The evidence established the fact that Belmont Lane was a public street, and in any event the entry in the register of public streets was final until reduced. The cases relied on by the pursuers did not apply.

Argued for the respondents—The evidence did not support the defenders' contention, the statutory procedure not having been observed— Kinning Park Police Commissioners v. Thomson & Co., February 22, 1877, 4 R. 528, 14 S.L.R. 372; Wallace v. Police Commissioners of Dundee, March 9, 1875, 2 R. 565, 12 S.L.R. 361; Magistrates of Edinburgh v. Paterson, December 3, 1880, 8 R. 197, 18 S.L.R. 156.

At advising—