"Now, if a public street-both causeway and pavement-be vested in the Board, the rights and duties of the proprietor of the lands adjoining over the surface at common law must cease, and his rights and duties in regard to the causeway and pavement must be those conferred and imposed by the Police Act. The provisions of the statute in regard to the maintenance of streets and courts are contained in sections 310 to 327 inclusive. Section 310 provides for the maintenance of public streets by the Board, and I read it as referring to pavements as well as causeways. The obligation imposed on the Board is said to be subject to the obligations hereinafter imposed on the proprietors of lands and heritages.' Sections 315 and 316 regard the causeways of the streets and the release of proprietors of adjoining lands from liability for the future maintenance or renewal of the causeway. Had this accident happened through defect of the causeway it is quite clear that the defender would not have been liable. The pavements are treated somewhat differently, and they are dealt with in the 317th and following sections, and chiefly in sections 317 and 326, and it appears to me that the obligations of the defender must be found in these two sections.

"Section 317 is clumsily expressed, but so far as it relates to the pavements of streets, it provides as follows-The Master of Works may by notice given in manner after provided require a proprietor of land adjoining any public street to form, and from time to time to alter, repair, or renew to his entire satisfaction, foot-pavements in such streets opposite to such land except where the foot-pavements have been taken over by the Board.

"The provision here is that notice is to be given to form pavements, and also that notice is to be given to alter, repair, or renew them, and the defender contends that his obligation to repair arises only when he has received a notice from the Master of Works requiring him to do so. The exception at the end of the clause means only that when the pavements are taken over by the Board the proprietors shall not be subject to any such notice or requirement.

"Section 321 states the particulars which are to be given in the notices, and section 322 provides for the disposal of objections to the notice by the proprietor. Section 325 provides for the execution of the work by warrant of the Dean of Guild at the expense of the proprietors if they shall fail to execute them when required.

"Section 326 provides that foot-pavements may, after certain procedure, be assumed by the Board, and thereafter all such foot-pavements shall be maintained by the Board as part of the public streets of the city.'

"It has not been contended by the defender that section 326 applies to Shamrock Street. If it had applied, the pavement would have been precisely in the position of a completed causeway, and the proprietors would have been no longer liable to be called on to repair it. If section 326 had applied to Shamrock Street, there could have been no case against the defender. But the only difference between a pavement to which section 317 applies and a pavement to which section 326 applies, is that in the former case the proprietors are liable to execute or pay for such work as the Master of Works requires, and in the latter case they are not liable to pay anything, but the whole expense of repair is thrown on the rates. But section 317 imposes no duty on the proprietor except what the notice of the Master of Works imposes, and if, as I think, the proprietor was under no antecedent duty, I do not see from what his duty to repair the pavement can be deduced. Prima facie, a mere adjoining owner would not have right to renew or alter the pavement at his own hand, and I do not see that he has the right or the duty to exercise his discretion in repairing it.

It was contended that the mere fixing of a loose pavement was so small a matter that it could not be supposed that the intervention of the Master of Works would be required. But the statute takes no distinction between small and great repairs, but puts all repairs under the charge and supervision of the Master of Works.

"I am therefore of opinion that the contention of the defender is well founded, and that in the absence of any notice by the Master of Works the defender had no duty to repair this pavement, and has therefore incurred no liability on account of its defective condition.

"The pursuer states that before the accident the police reported to the house factors that the portion of pavement was out of repair, but it was not contended that this intimation was equivalent to a statutory notice. It is also said that at the same time the Master of Works was informed of the condition of the pavement, but if so he did not choose to exercise his statutory powers or to intervene.

"I was referred to the case of Hamill v. The Caledonian Railway Company, 4 Scottish Law Review, 69, decided in the Sheriff Court at Glasgow, and to observations of the Sheriffs who decided it, which were represented as being to the effect that the obligation to repair in such a case was imposed on the adjoining proprietor, and that the magistrates were relieved of liability. The observations were really obiter dicta. It was not necessary to decide the point. The question was not raised, and the Court decided against the

v. Hutton

1,

magistrates and in favour of the railway company, on the ground that they were not adjoining proprietors.

"I have not in this case to consider whether the magistrates would be liable or not, and it would not be right to indicate any view on that subject.

"With regard to the liability of magistrates to keep the streets of a burgh in repair, reference was made to the following cases-Innes v. Magistrates of Edinburgh, 1798, M. 13,189; Threshie v. Magistrates of Annan, December 11, 1845, 8 D. 276; Dargie v. Magistrates of Forfar, March 10, 1855, 17 D. 730; Stephen v. Magistrates of Thurso, March 3, 1876, 3 R. 535; Harris v. Magistrates of Leith, March 11, 1881, 8 R. 613."

The pursuer reclaimed to the Second Division, who appointed the case to be argued before the Judges of that Division, with the assistance of three Judges of the First Division.

The defender admitted that the title to the property in question included the solum of the pavement, and the argument proceeded on that assumption.

Argued for the pursuer--(1) At common law a heritable proprietor in possession of property and drawing the rents, was bound to maintain the property, part of which is the pavement. A proprietor was bound to keep his property in good repair, and would be liable if accident results from its unsafe condition - M'Ewan v. Lowden, October 26, 1881, 19 S. L.R. 22. (2) At common law a heritable creditor in exclusive possession of property under his heritable security, and drawing the rents thereof under a deeree of maills and duties, has placed himself in the position of a proprietor, and is liable if he keeps the property in an unsafe condition and an accident results-Hay v. Littlejohn, February 16, 1666, M. 13,974; Duff's Conveyancing, 274. If it was held that a creditor in possession was not liable, then no one would be liable, for the owner unless in fault was not liable-Campbell v. Kennedy, November 25, 1861, 3 Macph. 121-and in this case, not being in possession, the owner could not be in fault. The judicial factor was of course liable as representing_the heritable ereditors-Mack v. Allan, February 17, 1832, 10 S. 349. (3) The Glasgow Police Act 1866 did not remove the common law liability imposed on the proprietor or heritable creditor in possession, as regards the pavement which was part of their property. Until the city took over the pavement under section 326 of the Act, the common law liability to maintain the pavement in a safe condition rested on the proprietors or creditors in possession, with a liability over and above upon the Board of Works through the Master of Works to require the proprietor, &c., to repair the foot pavements. "Street" under section 289 of the Act did not include the pavements. The Lord Ordinary's interlocutor should be recalled and a proof allowed.

Argued for the defender—(1) At common law the obligations to keep the pavement

of a burgh in order was upon the magistrates and not upon the proprietor of the solum. The magistrates as custodiers of the public streets were bound to keep up the streets and pavements in the interests of the public, and were liable for injury suffered by any member of the public on account of their not doing so-Innes v. Magistrates of Edinburgh, February 6, 1798, M. 13,189; Dargie v. Magistrates of Forfar, March 10, 1855, 17 D. 730. The parties who had the actual management and supervision of the streets were, at common law, the parties liable for accidents arising from neglect. (2) The effect of an action of maills and duties is merely to give the heritable creditor right to uplift the rents and place him in the position of the proprietor as regards the tenants. But the effect as regards the management of the property was nil; it did not in that respect put the heritable creditor in the place of the proprietor-Bell's Lectures on Conveyancing (3rd ed.) ii. 1168; Henderson v. Wallace, January 7, 1875, 2 R. 272. (3) Under secs. 279 and 289 of the Glasgow Police Act 1866, all public streets, including therein the pavement, vested in the Police Commissioners, and the sole right of control of the pavements was placed in the hands of the Board of Works. A proprietor of a pavement not taken over by the Board under 317 was liable to repair the pavement only when called on by the Master of Works. On all these three grounds the defender was entitled to be assoilzied.

At advising

She

LORD PRESIDENT This is an action of damages for personal injuries from a fall on the pavement in Shamrock Street, Glasgow. The pursuer alleges that the fall was caused by the pavement being in a condition dangerous to foot-passengers. says that the defender is liable because the pavement in question forms part of a property in relation to which the defender had, at the time of the accident, the duties and liabilities of proprietor. That relation was that the defender, being a bondholder, had in virtue of his bond entered into possession, to the exclusion of the owner, and was exercising all the rights of proprietor. Proceeding as he does at common law, the pursuer alleges that the ordinary liabilities of a proprietor are incumbent on a person so acting, not of course by reason of the bond, but by reason of the exercise of rights under the bond. The liability alleged is for damages owing to the defender having neglected to keep the footway in safe condition for foot-passengers who admittedly had a right to go over it.

So viewed, I consider the case of the pursuer to be well laid, and the question seriously in dispute is whether the Glasgow Police Act of 1868 has not relieved the proprietors of all ground now forming part of the pavement of any public street in Glasgow of liability for its dangerous condition as a footway. This depends on the terms of the statute. It may be freely conceded to the defender that it would have been a natural enough thing for the

statute to have done what he says it doesthat it would be much simpler to have the municipality liable for all pavements, rather than only for some, especially where the alternative obligants may be a number of proprietors. On the other hand, it is of course clear that unless the statute effects a transfer of liability, the common law liability remains.

The section which at first sight supports the defender's argument is the 289th-the vesting clause-but this section bears at the outset the qualifying words "for the objects and purposes thereof" (which must mean of the street) "and of this Act," and, especially in relation to roads and streets, such words are not too readily to be assumed to effect a transfer of all the rights or liabilities of property. Their effect seems rather to be to give so much of a title to the Board as is necessary to get over legal difficulties which might otherwise arise in the way of their effectuating the powers specifically conferred upon them.

The section which most directly treats of the subject in dispute is the 326th, and I consider it to be practically decisive. It deals with pavements in public streets, which is exactly what we have to do with in this case. If any such pavement is in bad order, the Board is authorised to put it in thorough good order, the cost of this work is to be recovered from the parties liable to maintain such pavement, and once this is done, the pavement is to be maintained by the Board as part of the public streets of the city.

Now, two things are here made clearFirst, that where the pavement in a public street is bad, the liability to repair it is (apart from the procedure here contemplated) on certain parties other than the Board; second, that after the prescribed procedure, the pavement, which theretofore had been repairable by those parties, is to be maintained by the Board. The implication of the latter part of the section confirms (had that been needful) the assertion of the first part, and the result is that the Board are not liable until the prescribed procedure has been adopted, and that until the Board so becomes liable, the liability remains where it was originally.

Applying the clause to the case in hand, when the accident occurred, this street had not been renewed by the Board, and therefore the event had not occurred after which the Board is declared liable to maintain it; the duty of maintaining was therefore not on the Board, but on the "parties" referred to in the section, and no other party can be suggested as liable but the proprietor.

I am therefore of opinion that the defence on the Glasgow Police Act fails, and that the pursuer has a good case to go to trial.

LORD JUSTICE-CLERK-I entirely concur.

LORD YOUNG-This is an action of damages based on alleged culpable neglect by the defender of his duty to repair the footpavement of a street in Glasgow called Shamrock Street, in consequence of which

the pursuer, while walking on it, was tripped by a loose flagstone, fell, and was hurt. The position of the defender inferring the duty, which he is thus sued for neglecting, to the pursuer's damage, is, that he was at the time of the accident, and had been for about four days before it, judicial factor on a trust (the trustees having failed); that an item of the trust property consisted of a debt of £4500 secured by a bond and disposition in security over a tenement in Shamrock Street adjoining the defective pavement, and that the creditor in the debt and holder of the security having entered on possession (many years ago), the tenement was occupied by tenants under him and his successors-trustees or judicial factors-the defender being such factor at the date of the accident.

The defender says in his defence that Shamrock Street is a public street vested by the Glasgow Police Act 1866 in the Board of Police, to whom and their subordinates is committed the duty of seeing that it is kept in proper repair, and thus safe for public traffic. He admits that, under the provisions of the Police, the Board might have required him, at any time after his appointment as judicial factor, to execute such repairs on the pavement opposite the tenement as they pointed out and specified in their notice as necessary or proper in their judgment, and that neglect to obey such requisition would have been neglect of duty on his part, involving responsibility for the consequences, including liability in a penalty under the Act. But he maintains that it was the duty of the Board of Police, and their officers appointed for the purpose of performing it in the public interest, to observe the effects of the constant tear and wear of the street, and of damage that might from time to time be done to it, whether accidentally or mischievously, and to judge when repairs were necessary or proper to be executed; what these were, and at what times (with due regard to the convenience of the public traffic) they might be executed. That it was not his duty to give his attention to the condition of the street or to employ others for that purpose, or to judge when repairs were needed, what they were, and when it was proper to execute them. He maintains that there was no common law duty upon him to repair the pavement in question, and that no statutory duty to do so existed except on a requisition by the Board or its proper officer, which admittedly was not made.

The Lord Ordinary took this view of the defender's position, and the consequent absence of any duty on his part without notice and requisition by the police officials, and in his opinion to this effect, with the reasons given for it in his note, I concur.

I have not collected from the judgments just delivered by your Lordship in the chair and the Lord Justice-Clerk that you are of opinion that any duty to repair is imposed by the statute (the Glasgow Police Act 1866) on the defender, or any other who is by the definition clause of the Act to be

v. Hutton

1, 1894. regarded as a proprietor of lands and tenements adjoining a public street, in the absence of notice and requisition by the police authority. Your Lordships' opinion, as I understand it, is, that by the common law, irrespective of the Act, a duty to keep in a safe state of repair the foot-pavement of a public street is upon anyone who is infeft in the solum thereof, whether as proprietor or in security of debt, if in the latter case he has entered into possession on his security, and that the statute has not removed this common law duty or affected the common law liability for neglecting it. And if such duty exists at the common law, I should not differ from your Lordships in holding that it is not removed by an enactment in the statute that the police authority may, in case of neglect, require it to be performed. But I know of no authority for the proposition that it exists. statutory duty to repair, on notice and requisition from the public authority in charge of the street, is not imposed on the proprietors of the solum of the street or pavement, but on the proprietors of the lands and houses "adjoining," whether they are proprietors of the solum of the street or not. Indeed, the language of the statute shows clearly enough that private property in the solum of the street itself is not a thing which was contemplated, or, if of possible existence (which I doubt), regarded as a matter of any account or materiality. Nor is this surprising when the fact is considered that the streets dealt with are public streets, of which private proprietors (if such exist) of the solum could make no use whatever except as members of the public, and in common with all other members of the public.

The

As I understand the opinion of common law duty and liability which I am now examining, the property which is regarded as the foundation of that duty is property in the solum of the public street, which may not be in the proprietor of the adjoining lands and tenements, and frequently is not. When it is not, would the proprietor of the adjoining tenements, executing repairs on the requisition of the police authority or paying for them, have relief from the proprietor of the solum of the street or pavement, on the ground that he was liable at the common law, and his liability not affected by the Act? Or supposing the repairs so executed, according to the specification and under the supervision of the police authority, were inadequate, and left the pavement in an unsafe condition, would the party with sasine in the solum be liable at the common law for the consequences?

But is it a true proposition that the proprietor infeft in the solum of a public road or street vested in, and in charge of, a public body, possibly not as property, but as a public road or street, is under a duty at the common law to keep it in repair, and in the public interest to give attention to its condition? That a private owner shall be obliged at the common law to see to the state of his property, and to take care that it shall not fall into dilapidation, by which the safety of those who are legitimately on

it or in its neighbourhood shall be endangered, is a true and reasonable proposition, but that it applies to anyone who has an infeftment in the solum of a public road or street in charge of a public authority is, in my opinion, unreasonable and untrue.

I should, but for the opinions of your lordships, have thought it clear that the public streets of Glasgow, when vested in the Board of Police, were entirely removed from the possession of all private persons whatever their feudal title in the solum, assuming that any such title could, for any practical purpose, survive the statutory vesting in the Board. Such proprietors could thereafter exercise no proprietary right in the solum of the street, or take any possession or use of it other than was enjoyed by the public at large. The streets, whether foot-pavement or causeway, thus stand in marked contrast to the lands and tenements adjoining, which are not vested in the Board and remain in the possession, for use and occupation and all purposes, of the private owners exactly as before. The Police Act seems to take account of this when it puts the duty of obeying the Board's orders for repairs and alterations and paying the cost of them, not on the owners of the solum of the streets to be altered and repaired, but on the owners of the adjoining lands and tenements, who, as such, are certainly under no common-law duty in the matter.

What I have said regarding the impossibility of private possession of public streets, or any possession of them other than use by the general public, is, I think, usefully illustrated by the case before us. The defender is judicial factor on the estate of a creditor for lent money secured by a bond and disposition in security on property situated in a public street. Now, it is admitted, and clear without admission, that a creditor with heritable security incurs no liability with respect to the subject of the security unless he shall enter upon the actual possession and occupation of it. The creditor here, or those in his right, did enter upon the possession and occupation of the tenement of houses, which they let to tenants, and so incurred liability accordingly with respect to it. But did they enter upon the possession and occupation of the public street, whether pavement or causeway? I assume that the title and infeftment of the debtor, who granted the security, extended over the solum of the street which his tenement adjoined, but he was either never in possession of the street itself, or was deprived of it so soon as it was vested in the Police Board as a public street, and so could give no right to his creditor to take possession of it. Now, what did the creditor or anyone in his right do in the matter of entering upon possession of the subjects of the security which was not according to his right, whether or not his debtor's title and infeftment included the solum of the street, and whether or not the security extended to that solum? Nothing whatever, for to enter upon the possession and occupation of that solum was impossible. The proposition, then, regarding the common

law duty and liability in question in the case of a creditor who accepts a security over a house in a public street seems to be this, that he will incur that duty and liability if his security extends over the solum of the street, and otherwise not, so that he may avoid it without any diminution of or prejudice to his security if his man of business is wary enough to see that it does not, which is, of course, easily enough done. The proposition that the incurring or avoiding of a very serious responsibility and liability depends upon a conveyancing technicality of the flimsiest character I cannot assent to.

A pro

I had, I confess, thought that all highways in this country, including public streets in burghs (which are highways) are vested in public bodies on behalf of the public to the exclusion of all proprietary rights therein so long as they continue to be highways. I do not refer to the possibility of underground rights, and indeed have no occasion to notice them. prietor of adjoining land, built on or not, may think, and justly, that the road or street opposite his ground is in a dangerous condition, but he can do nothing more as of right than call the attention of the proper public authority to the matter, and possibly take legal proceedings to compel such authority, if negligent, to do its duty. Such proprietor has, I think, clearly not only no duty, but no right at his own hand to meddle with the road or street. He may, no doubt, do so in the confident belief that the public authority will make no objection to what he does, but this is not right or duty. It was argued to us that there is a distinction between pavements which have been "taken over" by the Board of Police and those which have not, and there is a distinction no doubt, but I think clearly not with respect to the question I am considering. Any public board charged with the duty of seeing that streets are kept in good repair for public traffic must be furnished with the means of executing that duty, and whether this is done by giving them the power to command the requisite work and labour without payment, or to raise money to pay for it, has no bearing that I can see on the common law duty and obligation of persons having sasine in the solum. To the public body is committed the duty of attending to the condition of the street, and seeing that such repairs as they judge to be needful are executed, whether by their own contractors or those whose work and labour they are authorised by the Act to command. The circumstances of being taken over or not does not affect the character of the streets and pavements as vested in them on behalf of the public, and devoted to public traffic, to the exclusion of every private proprietary right as I think, and certainly to the exclusion of any conceivable exercise of such right. Who may be called upon to execute or pay for the work which they specify as in their judgment proper to be executed, is matter of statutory enactment, and is independent of any rule of the common law.

The action is, as I have pointed out, laid

upon culpable neglect of duty by the defender, and must go to trial, if we sustain the relevancy, upon an issue of such culpable neglect of duty. His only duty was as a judicial factor appointed by this Court. He belongs to a profession from which we generally or frequently select persons for such appointment, and the neglect of duty attributed to him is, that, unwarrantably relying upon the watchfulness and judg ment of the Board of Police and their subordinates, and that they would duly inform him whenever the pavement in question needed repair, and they thought proper to sanction operations on it (which they alone could do), he failed, immediately on his appointment, to satisfy himself that it was in good repair, and to call the attention of the Board to the fact that it was in disrepair if he found it to be so, and to request their authority to repair it. This seems, on the statement of it, to be a practical enough and common-place enough matter, and I doubt if any sensible and experienced member of the defender's profession would on that statement impute neglect of duty to him. Should a jury, under the direction of a judge, think otherwise, and find that he did culpably neglect his duty, and so must pay damages to a sufferer from his neglect, I more than doubt whether he would not have to bear the consequences himself. I do not, at least at present, see how damages paid by a factor for actionable neglect of his duty could be sustained as a fair and proper charge in his factorial account. To sustain the relevancy of the action, and send it for trial on some other ground than neglect of duty by the defender seems to me impossible. The estate which this Court has entrusted to the management and adminis tration of the defender may be liable to make good the consequences of the misconduct or neglect of some other than himself, as for instance, the owners of that estate. But no such case is averred. It is well settled that the mere fact of ownership without violation or neglect of an owner's duty will not support an action of damages. Again, the estate in the defender's hands may be liable for some actionable neglect or wrong by persons properly employed by him in its management, say, house factors. But such a case would require to be distinctly averred. House factors may possibly be regarded as carrying on a distinct independent business, as much so as, say, cattle-drivers, so that they, and not their employets, are responsible for their misconduct or neglect in the course of their business. Nor could I countenance the notion that house-factors employed to collect rents and attend to the condition of house property, are to be held as undertaking to see to the condition of the public streets in which the houses stand, and take care that they are kept in repair, so as to be safe for public traffic. They may be, and I think are, bound to receive and pay due attention to notices and requisitions from the public authorities under the Police Act, but this is by statute, and not by the common law.