Scottish Court of Session Decisions

On 4th July 1844 the royal assent was given to an Act (7 and 8 Vict. cap. lxvi) for incorporating a railway company to be called the North British Railway Company, and to authorise that company to make a railway from the city of Edinburgh to the town of Berwick-upon-Tweed, with a branch to the town of Haddington, and to acquire certain lands for that purpose. By an Act passed in 1845(8 and 9 Vict. cap. lxxxii) the company was authorised to acquire certain additional lands and to deviate the line of the railway. Under the powers of the said Acts the company constructed the authorised lines and, inter alia, acquired for that purpose from the Marquis of Abercorn certain portions of the farm of Duddingston Mains, tenanted by Mr William Hope, lying to the south of Portobello. Through the farm there ran a road leading past the farm-steading from a public road known as Milton Road to the High Street of Portobello, and in terms of an agreement under which Lord Abercorn withdrew his opposition to the bill this road was carried over the railway by a bridge. It was established during the case that Mr Hope had made the road, which was known as Hope's Road or Lane, shortly after his coming into possession of the farm in 1823.

In 1865 the company acquired further lands in the vicinity of this road, and the bridge was thereafter lengthened. In 1872 the company, by an agreement scheduled to the North British Railway Act 1872, agreed to purchase from the Duke of Abercorn 35·165 acres of land lying to the north of the railway, including the solum of part of Hope's Road, and to make certain substitute roads whenever the portion of the land occupied by Hope's Road came to be used. In terms of this agreement these lands were conveyed to the Company by disposition dated 9th and recorded 15th November 1875. In the same year the Duke of Abercorn disponed to the Benhar Coal Company, Limited, the remaining portions of the farm lying to the north and the whole of it lying to the south of the railway, and that company, after some litigation, in 1887 consented to the closing of Hope's Road and renounced its right to the roads proposed to be substituted.

The northern part of Hope's Road, extending up to the northern boundary of the Railway Company's property acquired under the Act of 1872, was taken over by the Police Commissioners of Portobello in 1883, and the southern portion from Milton Road up to the approach to the railway bridge was, at the request of the then proprietor of Duddingston Mains, Sir James Miller of Manderston, Bart., and his tenant Mr Simpson, taken over by the County Council of Mid-Lothian and added to the list of high ways in 1887.

In 1896 the Burgh of Portobello was amalgamated with the City of Edinburgh, and in 1900 the boundaries of that City were extended by the Edinburgh Corporation Act 1900, so as to include the whole area within which Hope's Road was situated. By that Act the Edinburgh Municipal and Police Acts were made applicable to the City as extended.

In 1898 the Lord Provost, Magistrates, and Town Council of Edinburgh acquired from Sir James Miller 55.244 acres of land bounded on the north by the railway and on the east by Hope's Road, for the purposes of a public park. The direct access to this land from the central district of Portobello was by Hope's Road, but on 10th September 1902 the Railway Company intimated that the bridge carrying the road over the line was to be removed. Gates were subsequently erected at the points where the road passed over or was adjacent to the line of railway and the land belonging to the company. The public was prevented from using that part of the road, and the demolition of the bridge was thereafter commenced.

The Lord Provost, Magistrates, and Town Council of Edinburgh raised an action for declarator of public right-of-way over the road, and that the road was a street of the City of Edinburgh, and for interdict, &c., against the Railway Company. In it they pleaded, inter alia:—“(1) The pursuers are entitled to decree in terms of the declaratory conclusions of the summons, in respect that ( a) the said road was a public carriageway or highway at and prior to 4th July 1844, and has continued to be such down to the present time; ( b) the said road is a street of the City and Royal Burgh of Edinburgh within the meaning of the Edinburgh Police Acts 1879 to 1901.”

A proof was taken, and the evidence showed very considerable use of the road by the public during recent years.

Upon 1st July 1903 the Lord Ordinary ( Kincairney) found “(1) That it has not been proved that the portion of Hope's Lane belonging to or passing over the property of the Railway Company was a public carriageway or highway at and prior to 4th July 1844, or that it is so at the date of this action; (2) that it has not been established that there exists any public right-of-way over the said portion of the said road; (3) that the said portion of the said road is not a street of the City of Edinburgh within the meaning of the Edinburgh Municipal and Police Acts 1879 to 1901,” and assoilzied the defenders.

Opinion.—“This action has been raised by the Magistrates of Edinburgh against the North British Railway Company, and it relates to a road or path called Hope's Lane, which leads from a point in Milton Road, past the farm steading of Duddingston Mains, and northward to the High Street of Portobello. It is carried over the North British Railway by a bridge, which the railway company intend to remove, or have commenced to remove, with the effect of destroying Hope's Lane as a continuous path between Milton Road and Portobello, and this operation is challenged by the Magistrates of Edinburgh.…

“In these circumstances this action has been raised by the magistrates. It has four declaratory conclusions:—(1) that Hope's Lane was at 4th July 1844, and had been for

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many years prior to that date, and has been since and is now, a public road, carriageway, or highway; (2) that on 10th September 1902 it was and now is a street of the burgh of Edinburgh, and that the defenders have no right to make any encroachment thereon which should interrupt, obstruct, limit, narrow, or interfere with the street

The pursuer's counsel argued only in support of the first and second conclusions, and not in support of the third and fourth. Further, he conceded that he could not successfully maintain the public right to the road before the railway was constructed. The questions therefore seem to be (1) whether the road had become a ‘road, carriageway, or highway’ since 1844, or otherwise since the construction of the railway; and (2) whether it is now a street in virtue of the provisions of the Edinburgh Muncipal and Police Act 1879. These questions are distinct. They are novel and difficult. The affirmance of either would be sufficient for the pursuers' declaratory conclusions. But their affirmance would be idle unless they warranted a judgment decerning the defenders to restore the bridge and to maintain the bridge and the road.

The first conclusion is not expressed in the ordinary style of a declarator of right-of-way, and I am in doubt whether the action can be regarded as a declarator of right-of-way. If the first conclusion be not a declarator of right-of-way, I think it would be impossible to affirm it, because there can be no doubt, and I think it was admitted, that it cannot be affirmed that this road was in 1844 a public highway, and continued to be so. But I think that the action may be treated as a declarator of right-of-way. If so, the question takes this form—have the pursuers established a public right-of-way by possession of the public since 1844?

The defenders maintained in the first place that such a right-of-way could not be established, whatever the proof of use may have been. They argued that a right-of-way could not be acquired over land belonging to a railway company if it interfered with the statutory use of the railway, and I concur in that argument. The defenders referred in particular to the case of Mulliner v. The Midland Railway Company, 1879, L.R. 11 Ch D 611, where it was decided that a railway company could not confer a right-of-way through a railway arch. I think the same principle was decided in Oswald v. The Ayr Harbour Trustees, 24th January 1883, 10 R. 472, aff. 10 R. (H.L.) 85. In the case of The Grand Junction Canal Company v. Petty, 1888, 21 QBD 273, it was held that a public right-of-way along the towing path of a canal might be established, but only because it appeared that the exercise of the right would not interfere injuriously with the statutory use of the canal. Reference also was made to the case of The Kinross County Council v. Archibald, 20th January 1900, 7 S.L.T. No. 308, to which, although it was only an Outer House case decided by myself, I refer because it contains a citation of the principal authorities on the question.

Now, in this case it is true that the land acquired in 1872 to the north of the railway and between it and Portobello has not hitherto been put to much use—still it appears from the evidence of the witness Boath that the Railway Company are about to put it to the use for which it was originally acquired, that is for marshalling trains and for additional sidings; that they require it for these purposes, and that the use of it for these public purposes would be very seriously interfered with if it were held that there was a public right-of-way through the middle of it. I think the principle must apply that the Railway Company could not dedicate that land to the public use and so withdraw it from its statutory use; and I think it follows that if that be so a right-of-way over it could not be acquired. The question has not arisen frequently, but the principle seems fairly clear.

The question about the bridge is a little different. I think it proved that the bridge has become dangerous, and the Railway Company must either take it down or repair it, I cannot find any obligation on them to the public to repair it, and I am not aware that any obligation of that kind arises in servitudes of right-of-way. Even although a public right-of-way should be held established, it would not follow that the Railway Company could be called on by the Magistrates, as representing the public and vindicating a public right, to repair or restore the bridge.

On these grounds I hold that the pursuers cannot establish the right-of-way which they allege, supposing that what they allege is a right-of-way.

Supposing the specialty absent, that the right-of-way asserted is over land belonging to a railway company and over a railway bridge, the question whether a right-of-way would have been established over the road depends on the proof which has been led, and is not without difficulty. The road begins as a private farm road. I think there is no room for a presumed grant, if that be ever a consideration in questions of right-of-way; and I take it that it must be held to have been a farm road in 1844. In all the transactions in reference to the road in 1844 or 1845 and in 1872 there can be no doubt that the road was treated as a private road. There is no trace of the suggestion that it was regarded as a public road. Further, it bears the name of Hope's Lane, which favours the view that it was Mr Hope's private road. There was a gate and a notice that it was private at one end, but I think it not proved that the gate was ever locked, and it was removed altogether about 1875 or thereby. But certainly for a great many years back everybody who chose used this road, and a good number did who were not going to Duddingston Mains. There has been for more than thirty years no hindrance to the public use. That was natural, because it was a road running from the heart of a town straight into the country,

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and to whatever places the country roads might lead to. It seems certain that the defenders never endeavoured to hinder anyone from using it. I do not find any clear evidence of anyone being turned or checked from 1870 downwards. It may be that before that Mr Hope made some endeavours to keep the road to himself. But they were never energetic, and I think Mr Hope admits that about the seventies his interest in the matter abated. The proof is very simple with very little detail. I would not have much doubt that general use without check might be held proved for thirty or thirty-five years, and that it might be regarded as use ‘as of right.’ But I doubt whether the full forty years could be counted. But it is not necessary for me to express a final opinion on the point as I am against the pursuers on the ground previously explained.’

For these reasons I am of opinion that the pursuers have not established that Hope's Lane was in 1844, or has continued to be, or is now, a public road or highway; and further, that they have not proved that there is a public right-of-way along that road, and therefore that the defenders are entitled to be assoilzied from the first declaratory conclusion of the summons.

The object of the second conclusion, as explained at the debate, is to establish that Hope's Lane is a street within the meaning of the Edinburgh Police Act 1879, that the provisions of that Act in regard to streets apply to it, and that in respect of these provisions it is under the sole charge and control of the Magistrates. This conclusion, it may be observed, is not framed as alternative to the first conclusion, but as consistent with it. But it may be doubted whether it would be consistent with a conclusion expressed in the usual words of style of a declarator of right-of-way. That difficulty has been avoided by the unusual manner in which the first conclusion is expressed.

The question whether Hope's Lane is a street within the meaning of the Act of 1879 depends in the first place on the Corporation Act which came into operation on 1st November 1900, by which Hope's Lane was brought for the first time within the municipal boundaries. The only section of that Act quoted on record is the 23rd, which declares that all the roads within the districts annexed, which are vested in the authorities specified, are to be vested in the Corporation. That section may apply to the north part of Hope's Lane between Argyle Crescent and the High Street of Portobello, and also possibly to the south part between Milton Road and the south approach to the railway bridge, which was put in the list of the county roads; but it cannot apply to the intermediate part, which is the only part really in question in this action, because it was not vested in any of these authorities. Hope's Lane, therefore, as a whole, in particular that part of Hope's Lane, is not expressly transferred as a road to or expressly vested in the Corporation. But by section 21 it is enacted in general terms that the provisions of the Edinburgh Police Acts shall apply to the extended boundaries of the burgh in the same way as they apply to the pre-existing boundaries; and I am therefore of opinion that any provisions of the Act of 1879 which would have applied to Hope's Lane had it been within the old boundaries, apply to it as being within the extended boundaries.

The question depends, therefore, on the Act of 1879, and the only clauses of that Act to which it is necessary to refer seem to be the 5th, which is the interpretation clause, and sections 112 and 151. The pursuers' argument is that section 5 determines that Hope's Lane is to be regarded as a street, while section 112 confers the sole control of all streets to the Magistrates, and section 151 prohibits the interference of anyone else. Now, the words of sections 112 and 151 appear to me to be so wide, absolute, and imperative in regard to the powers of the Magistrates over streets, that I am unable to see how their absolute control over Hope's Lane, if it be a street, can be disputed. It seems to be no matter whether Hope's Lane were regarded as a public street or a private street. I suppose if it be a street it would be said to be a private street, but the control of the Magistrates over it would not be thereby affected, and no question which is raised in this case depends on the distinction between a public and a private street.

The question therefore is, is Hope's Lane a street within the meaning of the Act 1879? The pursuers maintain that the words in section 5, interpreting the word ‘street,’ necessitate the conclusion that Hope's Lane is a street. The date to which the conclusion of the summons applies is 10th September 1902, which is the date when the Railway Company intimated their intention to destroy the bridge, but the true date when the statute began to affect the road is 1st November 1900.

It is, I think, important to have in view at the outset what was the position of the part of the road which passes over the railway property at that date. If, as I must assume, the views which I have expressed in dealing with the first conclusion were well founded, the position of the road at that time was this. It was a road passing over property belonging to a Railway Company and acquired by the Railway Company for statutory purposes. There is a small part in reference to which the question has been raised whether what the Railway Company acquired was a right to the solum or only a right of passage across the solum. That question only relates to a small portion of the road, and I am not able to see that it affects the present question. I therefore deal with the road as unaffected by that specialty, and take the question as if it were about the whole portion of the road passing over or on the defenders' property.

The road then was the property of the pursuers, and it was ex hypothesi unaffected by any public right-of-way. The owners of the 35 acres north of the railway by their disposition expressly authorised the Railway

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Company to close the road, and if they had done so at the date of the disposition I cannot see that anyone would have had any right or title to object. But as it happened, not having any immediate use to which to put the land, they did not shut the road, but allowed it, by inadvertence or mistake, to remain as it was; but still it was a road passing over railway property which the Railway Company had then right to close when they pleased, which was always liable to be used for railway purposes, and which, as I understand, the Railway Company now think should be applied to railway purposes—a point which I think they have sufficiently proved.

That being the position of the road at 1st November 1900, and also at 10th September 1902, what the pursuers maintain is that the effect of the inclusion of the road within the extended boundaries is that that portion of the railway property over which the road passes, dedicated, as I think it was, to railway uses, was withdrawn from the control and management of the Railway Company and placed under the sole control of the Magistrates of Edinburgh. I understand that the Railway Company intend or intended to use the ground to the north of their railway as a space for a marshalling yard and for additional sidings, and now it is said that an Edinburgh street under the charge of Edinburgh Magistrates passes through the middle of it.

That appears to be a startling and, one might say, an unlikely result of the extension of the burgh boundaries. But unlikely or not, the question whether it is so or not must depend on the words of the statute, and mainly on the interpretation clause.

The interpretation of the word ‘street’ in the interpretation clause is certainly expressed in language which is extremely comprehensive, and which would certainly include Hope's Lane in the enumeration of the varieties of roads which are specified. There can be no doubt about that. There are, so far as I have been able to see, only two phrases or expressions which can be appealed to as qualifyng the otherwise unlimited generality of the interpretation.

At the commencement of clause 5 there is this provision, that the several words and expressions interpreted shall have the meanings assigned to them, ‘unless there be something in the subjects or context repugnant to such construction.’ It was contended for the defenders that there was repugnancy in holding that a piece of railway property acquired for purposes connected with the railway should be affirmed to be a street under the control of the Magistrates.

I was not favourably impressed with this suggestion when it was made, but on reconsideration I am disposed to accept it. It is not very easy to attach any meaning at all to the phrase ‘something repugnant in the subject.’ But the words were meant to have, and must receive, some meaning and effect, and the more vague they are the more they seem to authorise a certain latitude of interpretation of the words to which they refer. The subject is a piece of railway property dedicated to railway uses, and I am inclined to think that it is not wholly meaningless to affirm that there is repugnancy between that subject and a street under the sole control of the Magistrates. I have great difficulty in agreeing with the pursuer's contention in this matter, and I am certainly not unwilling to accept the assistance of these qualifying words, difficult of interpretation as they are, in aiding to surmount that difficulty.

The other qualifying words in the interpretation clause are the words ‘open to be used by the public.’ These words also appear extremely ill-selected. I understand them to refer to all the varieties of roads previously expressed. The pursuers contended that they are satisfied by use by the public in fact, whether it was use as of right or not, however inconsiderable the duration of that use may have been. But I am unable to adopt that view. The words are words of qualification, qualifying the generality of such words as street, or road, or thoroughfare, or highway; and if it had been intended to refer to use in fact, I think the words employed would have been ‘used by the public.’ Such words would have adequately and fully expressed use in fact. But the words are ‘open to be used by the public.’ The words ‘open to be’ are absolutely superfluous if all that was intended was to express use in point of fact. They receive no meaning unless they are held to mean something different from use in fact, and I think that the words do not exclude considerations of right; and it appears to me that a road passing across railway property is not necessarily a road open to be used by the public although it has been in fact so used.

The point is no doubt narrow and difficult, but I am disposed to hold that a road held by a railway company subject to its statutory obligations, and with right to close it, is not a road open to be used by the public, and therefore is not a street. I therefore come to the conclusion that the portion of Hope's Lane which passes over the property of the Railway Company is not of necessity a street within the meaning of the statute, and therefore that the defenders are entitled to absolvitor from the second conclusion also.

As I noticed at the outset, I understand that the first and second conclusions were the only portions of the summons to which the argument of the pursuers was directed. No grounds were stated for the third conclusion, which has reference to the Portobello Public Park. No doubt the action of the Railway Company, if they take down the bridge, will injuriously affect the access to the public park; but still it appears that, apart from Hope's Lane, the inhabitants of Portobello will still have convenient access to the park, although probably not so convenient as by Hope's Lane. But I think that no decreet

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was asked in terms of the third conclusion; and it does not appear that the pursuers have any title to maintain the fourth conclusion, which I understood was not insisted in.

On the whole matter I conclude that the defenders are entitled to absolvitor.”

The pursuers reclaimed, and argued—(1) The evidence established the necessary use by the public during recent years, and though the evidence as to the earlier years of the prescriptive period was naturally not so clear, read with the evidence as to the later it was quite sufficient. It was not necessary to prove any grant— Mann v. Brodie, May 4, 1885, 12 R. (H.L.) 52, 22 S.L.R. 730; and while the private origin of the road might throw a greater burden of proof on the pursuers, it did not foreclose the question, and grant would easily be presumed— Napier's Trustees v. Morrison, July 19, 1851, 13 D. 1404. That the subjects were held by a railway company was no bar, for a highway—which term included footway (Rankine, Land ownership, 3rd ed. p. 293; Railways Clauses Consolidation Act 1845, sec. 52)—could be acquired on land held for other purposes— Rex v. Inhabitants of Leake [1833], 5 B. and Ad. 469; Grand Junction Canal Company v. Petty [1888], 21 QBD 273; Mulliner v. Midland Railway Company [1879], 11 Ch D 611; Gonty v. Manchester, Sheffield, and Lincolnshire Railway Company [1896], 2 Q.B. 439; Foster v. London, Chatham, and Dover Railway Company [1895], 1 Q.B. 711. In some cases the right had not been successfully maintained, but that was always on the special ground that it was inconsistent with the purpose for which the land was held— Great Western Railway Company v. Talbot [1902], 2 Ch. 759; Oswald v. Ayr Harbour Trustees, January 24, 1883, 10 R. 472, 10 R. (H.L.) 85, 20 S.L.R. 873. These cases were not inconsistent with the general rule that a right-of-way could be prescribed in such circumstances— Caledonian Railway Company v. Turcan & Company, February 22, 1898, 25 R. (H.L.) 7, at p. 17, 35 S.L.R. 404; and they were of no force here, as the right claimed was not incompatible with the railway's purpose. It had allowed the road or bridge to be used for a long period as a public road, and it could not turn round now; and it was to be remembered in this connection that a private statute was to be interpreted against the private company and in favour of the public— Galloway v. Mayor of London [1866], L.R., 1 HL 34. But the land here had not been acquired under a statute by compulsory purchase, but by agreement. It was consequently held as a private individual might have held it, and while it was true that part had been used for a statutory purpose, the portion occupied by the road had not. It could not be contended that all land held by a railway was excluded from the operation of prescription— City of Glasgow Union Railway Company v. Caledonian Railway Company, July 22, 1871, 7 Macph. 1072, aff. 9 Macph., H.L. 115. The only restriction really was if the right claimed impinged on the full execution of the particular statutory power for which the land was acquired and held— Glasgow and South-Western Railway Company v. Magistrates of Glasgow, July 17, 1894, 21 R. 1033, 22 R. (H, L.) 29, 32 S.L.R. 733; Caledonian Railway Company v. Corporation of Glasgow, February 20, 1901, 3 F. 526, 38 S.L.R. 376. The difficulty about maintaining the bridge did not arise, for if necessary the right to use it implied a right to repair it— Greenwich District v. Maudslay [1870], L.R., 5 Q.B. 397; Grand Surrey Canal Company v. Hall [1840], 1 M. and G. 392. The question of tolerance did not arise, for objection to use had not been enforced—Rankine, Land ownership, 3rd ed. p. 295; Wallace v. Police Commissioners of Dundee, March 9, 1875, 2 R. 565, 12 S.L.R. 361. (2) This road was clearly a street within the definition of the Edinburgh Acts, and so could not be closed without the consent of the Magistrates. That was a result of the road coming within the burgh, and it might in some cases be a hardship, but in others it was a benefit. It was impossible that the owner should have power in a town to close a street without any consent on behalf of the public. The case of the Kinning Park Commissioners v. Thomson & Company (infra) was not applicable, for the statute in question there left the power with the proprietor.

The respondents argued—The evidence did not establish the right claimed. Being originally a private road it must be shown when the use became public and of right, and that time must be sufficiently far back to give forty years' possession. No attempt had been made to do this. But even the use in the later years was of no moment for it was over railway property held for its statutory purposes, and the right claimed was inconsistent with these purposes— Ellice's Trustees v. Caledonian Canal Commissioners, January 28, 1904, 41 S.L.R. 260. The proprietor was not bound to maintain a bridge, and so the road claimed was across a main-line of railway — Regina v. Bexley Heath Railway Company [1896], 2 Q.B. 74. The cases cited were against the appellants. (2) The road was not a street in the sense that it could not be shut up. The statute did not vest it in the Magistrates, but only gave power to regulate so long as it remained a street. There was nothing in that power inconsistent with a power in the proprietor to close the street whenever he liked. He could not be prevented from making a different use of his property if he chose— Commissioners of Kinning Park v. Thomson & Company, February 22, 1877, 4 R. 528, 14 S.L.R. 372, was an authority directly in point.

At advising—