The King (Westropp) v County of Clare and Scariff Rural District Council

• Jurisdiction: Ireland
• Judgment Date: 22 June 1904
• Date: 22 June 1904
• Court: Court of Appeal (Ireland)

The King (Westropp)

and

County Council of Clare and Scariff Rural District Council (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1904.

Local government — Roads — Repair of — Liability of County Council — Refusal to keep in repair — Remedy, indictment or mandamus — Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37), ss. 81, 82.

A County Council made a contract with a road contractor to maintain a road for five years. During the period, the road contractor became incapable of work, and, as the work was not performed satisfactorily, certain sums were retained by the county surveyor from time to time out of the amount payable. A new contract was made with another contractor to put the road in a proper state of repair within one month, and to keep it in good order. But before this the road had fallen into a very bad state, having been totally neglected, and the amount provided by the new contract was wholly insufficient to remedy this.

A ratepayer, whose lands adjoined the road, complained on several occasions of its condition, and demanded from the County and District Councils that they should put it into, and maintain it in, proper repair. This demand not having been complied with, he applied to the King's Bench for a writ of mandamus, to command the District and County Councils to put the road in proper repair:—

Held, by the Court of Appeal (affirming the decision of the King's Bench Division), (1) that the duty was imposed by sect. 82 of the Local Government Act, 1898, on the District and County Councils to maintain the roads in proper repair; (2) that that duty was not discharged to the ratepayers by entering into a contract to repair and keep in repair, but that they were bound to see the work done; (3) that the action of the District and County Councils amounted to a refusal on their part to perform their duty; (4) that mandamus was the appropriate remedy.

Motion to make absolute a conditional order for a mandamus dated the 24th February, 1904, directed to the County Council of Clare and the Scariff Rural District Council, commanding them, and each of them, to put into good condition and repair the road between the three roads in Lecarrow, situate in the Scariff rural district, and county of Clare, and, if necessary for that purpose,

that the Scariff Rural District Council should formulate a proposal, pursuant to the Local Government (Procedure in Councils) Order, 1899, and that the Clare County Council should assess and levy a rate upon the owners of all rateable property within the Scariff rural district, and that they and each of them, according to their respective powers, should take all other steps (if any) necessary for that purpose.

The prosecutor was the owner of the demesne of Coolreagh, where he resided, and was the landlord of considerable property in the vicinity, in the hands of tenants. He alleged that the road between the three roads in Coolreaghmore and the three roads in Lecarrow was about three miles in length, and ran through his demesne for about 350 perches, with the demesne on both sides, and the demesne bounded it on one side for a further distance of 50 perches. The only means of access to his demesne and house was by this road, and it was also necessary for him to pass along it in order to reach his tenanted lands. He had known the road well for the past twenty-four years, during all of which time it had been a public highway, and was well acquainted with the cost and mode of keeping roads in repair, both from his experience as a Grand Juror of the county of Clare, on which he had served constantly for the past thirteen years, and otherwise. The road was for many years, previous to 1893, contracted for by one Cornelius M'Guinness, who received an annual salary of £23 15s., for which he was bound to supply, first, 90 cubic yards of road metal, and subsequently 110 yards, and for that he maintained the road in fairly good condition. In the year 1898 the contract for the road was taken for five years by a man named Minogue, at a salary of £13 17s. yearly, for which he was bound to supply 120 yards of road material yearly. About three years ago Minogue was placed in the County Clare Lunatic Asylum, and since that time the road had deteriorated. During the four years ending in July, 1898, a sum of £95 was expended upon the maintenance of the road, but during the four years commencing the 1st April, 1899, when the road was taken over by the County Council from the Grand Jury, and ending the 31st March, 1903, only £31 3s. 3d. had been so expended, while a sum of £14 4s. 9d. had been retained from the contractor, Minogue, during that period. On the 31st March, 1903, the county surveyor, in pursuance of sect. 54 of the Grand Jury (Ireland) Act, 1836, as adopted by the Local Government (Adaptation of Irish Enactments) Order, 1899, took up the road to be worked by him out of the moneys retained from the contractor. The retained moneys were not, however, expended on the road. In consequence of these years of neglect, and the non-expenditure of the retained moneys, the condition of the road became, and now was, bad and dangerous. Bushes were allowed to grow out until two vehicles could not pass each other safely; the water-channels became choked; and the water ran in streams down the middle of the roadway, until, in many places, the naked rock protruded, affording no foothold for horses, to their great danger. Moreover, from this cause and the want of sufficient road-metal, the road had been worn hollow along nearly all the three miles of its extent, the centre being lower than the sides, and in some cases the clay protruded through what remained of the surface, and in many places there was no surface above the foundation stones. The metal supplied had been of an inferior quality, and, through neglect to pick the crust, loose stones lay about the patches dangerously. Upon the expiration of Minogue's contract, a contract was entered into with James Doyle for the wholly inadequate price of £13 7s. for the maintenance of 950 perches of the road, for which he was bound to supply 150 cubic yards of stone yearly, with the result that an expenditure of £120 was now necessary to put the surface into reasonably good order. Core Bridge, on the road, was also out of repair and dangerous; and the railings had been allowed to rust away. The prosecutor suffered great injury from the neglected and dangerous state of the road, and his horses were unable to bring their usual loads over it, which entailed more frequent journeys and consequent loss of time and expense. He made numerous complaints to the County Surveyor; and on the 15th October, 1903, he served notices on the Clare County Council, and on the Scariff Rural District Council, calling upon them to place and keep the road in good condition and repair, and threatening proceedings in the event of their failure to do so within the period of one month.

After the service of this notice some trifling repairs were done by the contractor, beginning about the 13th November, 1903, and a good deal of road-metal had been spread as on all roads at that season; but the road was still in the same condition, save that the bushes complained of had been cut.

Thomas John Westropp, civil engineer, who inspected the road at the request of the prosecutor, gave a detailed description of its condition.

The case made by the County Council through their county surveyor was that the former contractor for the road in question became unwell whilst his contract was in force, and had continued unwell until the present time. The road in question was being maintained by his relatives in his interest; but not to the satisfaction of the county surveyor, and consequently he withheld from those who were so working on the road the sum of £24 4s. 9d. Of that sum, £13 17s. was “struck off” by the county surveyor; but the balance was expended by him subsequently upon the road. As a result of a conference with the prosecutor, in the spring of 1903, the county surveyor agreed to employ as sub-contractor for the road a brother of Minogue, the former contractor. Having got Minogue's address from the Constabulary at Scariff, he wrote to him, giving him full directions as to what he was to do; but the letter was returned, marked “refused.” He then decided to repair the road by direct labour, but was informed by the Local Government auditor in the month of June, 1903, that there was no money available for that purpose, and that, as a new contractor had been appointed, the road should be repaired by him. The new contractor did nothing with the road in the months of July, August, or September, 1903; but he was advised that there was a difficulty in the way of proceeding against him and his sureties, as the...