(1828) 3 W&S 251
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1828.
2 d Division.
Subject_Prescription — Road — Presumption. —
The uninterrupted use and enjoyment of a foot-path by adjacent feuars, &c. as far back as the memory of man could extend, through the property of a party infeft under titles which did not mention any such path prior to 1789, having been proved; and the proprietor having proved a series of interruptions from and after 1789, but which were resisted, and the use of the foot-path continued; and the Judge having directed the jury, 1. That, from the evidence of uninterrupted possession prior to 1789, they were entitled in law to presume forty years' possession; and, 2. That the interruptions by the proprietor were not sufficient to defeat the right acquired by such possession;—Held, (affirming the judgment of the Court of Session), That the direction was correct.
The estate of Westthorn, belonging to Harvie, was described in his titles as “bounded by the river Clyde on the east, south, and south-west; on the west by the paling,” &c. The city of Glasgow lies on the bank of the river, a few miles lower down, and the village of Carmyle a short distance above. Harvie having erected stone walls, surmounted with iron railings, across his property, and running into the bed of the river, so as to prevent all passage by its banks, Rodgers and Others, feuars, residenters, and proprietors in the neighbourhood, raised against him an action of declarator, stating, that the slip of ground extending along the north bank of the Clyde from the Green of Glasgow to Carmyle (of course including Harvie's property midway, touching the river), had remained free and unclosed past the memory of man; that through its whole extent a path runs along the bank, and for time immemorial had been resorted to and used and enjoyed by them, and other inhabitants of the neighbourhood, and their predecessors, without challenge, molestation, or interruption; and concluding that it should be found and declared, that the pursuers, inhabitants of and feuars and proprietors of the neighbourhood, have, by themselves, their
After considerable discussion before the Lord Ordinary, the pursuers averred and offered to prove, that for more than a century, at least for forty years and upwards, prior to the 1st of March 1822, or thereabouts, there existed a distinct and definite foot-road, leading from the Green of Glasgow along the banks of the river Clyde to the village of Carmyle, and separated from the adjoining lands by ditches and other fences; and that this road had, for the period above-mentioned, been constantly used and enjoyed without interruption or restraint by the public at large, and more particularly by the inhabitants of Glasgow and the neighbourhood. Harvie denied that the inhabitants of the, neighbourhood, or the public at large, had enjoyed or exercised the right of foot-way claimed; and alleged that the nature of the ground was incompatible with such uses, and that if any person encroached on the property they were turned off. This issue was then sent to the Jury Court:—
“Whether, for forty years and upwards prior to the months of March, April, and May 1822, there existed a public foot-path or foot-road along the right bank of the river Clyde, from the city of Glasgow, from the place called the Green, to the village of Carmyle, situated on the said bank of the said river?”
The jury, in respect of the matters proven before them, found for the pursuer. Harvie then obtained a rule to shew cause in the Jury Court to have the verdict set aside, and a new trial granted, founding his application inter alia upon the direction of the presiding Judge at the trial, as a misdirection in point of law. But the Court
The bill of exceptions having been presented to the Court of Session, their Lordships, on the 10th July 1827, “having heard Counsel for the parties, disallowed the exception, declared the verdict final and conclusive in terms of the statute, and found expenses due.” *
Appellant.—A proof of usage of right of way, uninterrupted for forty years, is equivalent to a proof of immemorial usage, whether the public or an individual claims: The only difference
_________________ Footnote _________________ * 5. Shaw and Dunlop, No. 454.
_________________ Footnote _________________
* 5. Shaw and Dunlop, No. 454.
Respondent.—A right of way is inter regalia, and the soil over which it extends is the property of the Crown. The question which has arisen, is not whether the solum had once been the property of the appellant, nor whether a servitude had been created by occupancy in favour of the public; but whether, for forty years, or time immemorial, a public foot-path has existed? Now the respondents proved occupation for a period beyond the time ordinarily falling within the memory of man; and there was no evidence that at any period, however remote, there had been no way. In these circumstances, the direction of the Judge was quite correct. It must be taken as a whole, and not in parts. Before the exception can stand, the appellant must make out, not only that there was a direction calculated to mislead, but that it actually did mislead the jury. If it was right in its result, or if it was such as did not fetter the jury, but left them to form their verdict according to their own view of the evidence, it is sufficient. Besides, the Judge's observations on the evidence, or the effect of the evidence, are not the proper subject of a complaint by bill of exceptions. They may be founded on as a reason for a new trial: But that was applied for, and refused. The only ground for bill of exceptions is, that the Judge has conclusively and erroneously ruled a point of pure law influential in the case. But here the direction truly was the expression of an opinion as to the effect of the evidence. The direction, however, was quite correct. The question in the issue was, whether a public foot-path, in a specified direction, had existed for forty years and upwards? The point correlative to this was, whether there were such interruptions as destroyed, for any space of time, the existence of this public path? But the evidence shewed that the general occupancy of the path never was suspended, and therefore the jury were rightly directed to find in the affirmative of the issue. Still the fact, whether such an interruption had been given to the general occupancy, was left to the Jury to decide upon; and they did so. The law applicable to immemorial possession is quite fixed. If once proved, then you presume retro till the contrary can be shewn; consequently you presume the possession of forty years, or rather much more. Thus the public had a prescriptive right at the date of the first interruption; and unless that interruption was acquiesced in, and
The House of Lords ordered and adjudged, “that the appeal be dismissed, and the interlocutor complained of affirmed, with L.100 costs.”
Lord Chancellor.—My Lords, There is a case of Harvie v. Rodgers, argued some time since at your Lordships' Bar, which now stands for judgment. It was a case as to a public right of way on the north bank of the Clyde, from the city of Glasgow to a village of the name of Carmyle. In the course of the proceedings it was directed that an issue should be prepared for the Jury Court. An issue was accordingly prepared in these terms:—
“Whether for forty years and upwards, prior to the months of March, April, or May 1822, there existed a public foot-path or foot-road along the right bank of the river Clyde, from the city of Glasgow, from the place called the Green, to the village called Carmyle, situated on the said bank of the said river?”
That issue came on for trial under the direction of the Lord Commissioner of the Jury Court, and a verdict was found for the pursuers, establishing the right of way. An application was made for a new trial, on the ground of a misdirection in point of law. The argument for a new trial was carried on at considerable length, and the Court were finally of opinion that there was no ground for a new trial. Afterwards a bill of exceptions, regularly signed, was tendered by the defender; and the question in point of law, with respect to the direction of the learned Judge, came before the Court of Session, who, after hearing arguments, were of opinion that the direction given by the Lord Commissioner at the trial was perfectly correct. It is from
It appeared by the evidence of living witnesses, who attended at the trial, that, so far back as seventy years previously to the time of the trial, (I think as far back as the year 1755), this way was used without interruption. There was no evidence whatever of any interruption of the right occurring until the year 1789, thirty-four years subsequent to the beginning of the period to which the evidence related. Not only was there no evidence during that thirty-four years of any interruption of the right, but there was distinct and positive evidence to the contrary. The exercise of the right of way had never, during that period, been at all interrupted; and there were various circumstances which were referred to in evidence for the purpose of confirming that statement, and, among others, that in the fences there were regular stiles placed, in order to facilitate the passage of persons using the way. In the year 1789, for the first time, according to the evidence, this right was attempted to be interrupted. Even with regard to this interruption there was contradictory evidence. It appeared, however, by very clear and distinct evidence, that in the year 1797 an attempt had been made to interrupt the exercise of this right; and from the year 1797 down to the period of the trial, at successive periods, the occupiers of the property, over which the right of way extended, had at different times interrupted the exercise of it; but in no instance whatever had these interruptions been finally successful. They had been always resisted; the fences which had been from time to time erected had been pulled down; and the public had enjoyed the right of way, subject to these occasional interruptions, from the year 1755 down to the period of the trial. It appeared, therefore, that, except the interruption in the year 1789, even supposing that interruption to have been satisfactorily established, (with reference to which there was contradictory evidence), there was no interruption existing at a period so far back as forty years previous to the time of the trial.
Now these are all the facts, or rather the result of the facts, stated upon the bill of exceptions, necessary for the purpose of explaining the direction of the Lord Commissioner. His Lordship's direction was in these terms:—
“If the jury believed the witnesses on the part of the pursuers, the public appeared to have been in the possession of and in the habit of using such foot-path for a long period of time,— more than forty years,”
(that there is no doubt of); “and that there was on the part of the defender no evidence to establish an interruption till within the forty years,” (with respect to that fact also there was no doubt); “that in that case, and upon the whole evidence, the truth of which the jury was to weigh and consider, the question was, Whether
Now, my Lords, what is the evidence with respect to that part of the case? I shall assume, for the purpose of argument, that the interruption in 1789 was established to be an interruption without any contradictory evidence. I do not mean interruption that was finally successful, for the interruption was resisted; but for thirty-four years previous to that time, this way had been used without any interruption at all, by the acquiescence of the proprietors of the land over which the way ran. That carries back the evidence as far as seventy years,—as far back as the memory of any witness could extend who was examined upon the trial,—as far as it is probable the recollection of any witness could apply to a case of this description; and if thirty-four years of uninterrupted exercise of the right of way were established, it was then competent for the jury to presume, and they ought in point of law to
My Lords,—In this case, as it appears to me that the direction of the Judge to the jury was correct; and as there was an application made, in the first instance, for a new trial, on the ground of misdirection in point of law; and as that motion for a new trial was overruled; as the case was afterwards brought in upon a bill of exceptions for the purpose of raising the same question; as the Court of Session was of opinion that there was no ground for the bill of exceptions, and confirmed the direction of the learned Judge; I should conceive that, under such circumstances, your Lordships will be of opinion that this appeal ought to be dismissed with costs.
Appellant's Authorities.—Hamilton, March 5. 1793, (12,824.); 2. Stair, 12. 11.; 3. Ersk. 7. 39.; Kinnaird, Feb. 26. 1662, (14,502.); Nicolson, Nov. 14. 1762, (11,291.); Duke of Roxburgh, June 5. 1713, (10,883.); 1617, c. 12.
Respondents' Authorities.—1. Bankton, 3. 4.; 1. Craig, De Feudis, 16. 10.; 2. Ersk. 6. 17.; M'Kenzie, Feb. 15. 1822, (1. Shaw's Appeal Cases, No. 23.); Duff, May 22. 1826, (2. Wilson and Shaw's Appeal Cases, No. 19.); 55. Geo. III. c. 42.; 59. Geo. III. c. 35.; 6. Geo. IV. c. 120.; Tait on Evidence, p. 491.; Montgomery, June 24. 1663, (12,722.); Ker, Feb. 12. 1714, (12,723.); Nicolson, Nov. 14. 1662, (11,291.); Beaton, July 13. 1670, (10,912.); 3. Ersk. 7. 38.; Wright, Dec. 11. 1717, (11,268.); Rugby Charity, 11. East, 376.
Solicitors: Moncreiff, Webster, and Thompson— Alexander Dobie,— Solicitors.