Grahame's Curator Bonis v. St Cyrus District Committee of County Council of Kincardine [1900] ScotLR 37_479 (23 February 1900)

Grahame's Curator Bonis v. St Cyrus District Committee of County Council of Kincardine [1900] ScotLR 37_479 (23 February 1900)

The shingle bank and river banks in question are 'enclosed land' within the meaning of the statute; all materials there are required for the private use of the proprietors for maintenance of the banks and fishing stations; therefore, the road authority is not entitled to remove any such materials.

Citation
[1900] ScotLR 37_479
Parties
Pursuer: James Barclay Grahame, curator bonis to Francis Barclay Grahame, Esquire of Morphie, and the trustees of the deceased Barron Grahame, Esquire of Morphie; Defender: St Cyrus District Committee of County Council of Kincardine and two carters in their employment
Jurisdiction
Scotland
Judgment Date
23 February 1900
Procedural Posture
Civil / Appeal From Sheriff Court to Court of Session Inner House Second Division
Outcome
Appeal dismissed; interlocutor recalled and perpetual interdict granted in terms of the first conclusion; expenses awarded to pursuers.
Legal Topics
Statutory Interpretation, Public Authority Powers, Interdict/injunction, Land Classification, Road Maintenance
Property Law Administrative Law Statutory Interpretation Public Authority Powers Interdict/injunction Land Classification Road Maintenance

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Parties

James Barclay Grahame, curator bonis to Francis Barclay Grahame, Esquire of Morphie, and the trustees of the deceased Barron Grahame, Esquire of Morphie

Pursuer

St Cyrus District Committee of County Council of Kincardine and two carters in their employment

Defender

Procedural Posture

Civil / Appeal From Sheriff Court to Court of Session Inner House Second Division

Legal Issues

  1. 1 Whether the shingle bank and river banks constitute 'land' or 'enclosed land' under section 80 of 1 and 2 Will. IV. cap. 43
  2. 2 Whether the road authority is entitled to remove stones from such land for road repair purposes
  3. 3 Whether the materials are required for the private use of the landowner, thus excluding the authority's right

Ratio Decidendi

The shingle bank and river banks in question are 'enclosed land' within the meaning of the statute; all materials there are required for the private use of the proprietors for maintenance of the banks and fishing stations; therefore, the road authority is not entitled to remove any such materials.

Court Disposition

Appeal dismissed; interlocutor recalled and perpetual interdict granted in terms of the first conclusion; expenses awarded to pursuers.

Orders

  • Interdict and prohibit the defenders and all acting for them from removing any boulders, stones, gravel, or other material from the bed, channels, and banks of the River North Esk ex adverso of the lands of Morphie and Stone of Morphie, and within the area of the salmon-fishings belonging to the pursuers.
  • Award expenses to the pursuers in this and the Inferior Court.