Scottish Court of Session Decisions

This case was tried before Lord Barcaple and a jury in July last. The issue sent to the jury was whether for forty years the road called the “Broad or Braid Lone,” near the village of Causewayhead, in the parish of Logie, extending from one point of the Ochil turnpike road to another, has been used as a public road. The jury returned a special verdict. They found (1) that the road described in the issue was, for time immemorial prior to the year 1806, used as a public road for all purposes; (2) that since the year 1806 the said road has not been used for horses, carts, or cattle; and (3) that since 1806 it has continued to be used as a public road for foot passengers only.

The pursuers moved the Court to apply this verdict, and to decern in terms thereof; and the defenders moved the Court to enter up the verdict as a verdict for them, subject to a footpath or right of road for foot passengers only. Both parties asked to be found entitled to expenses.

The Court held that the verdict was an answer to the issue, but that under it the pursuers had only established their case to a limited extent The verdict was therefore applied by finding and declaring that the road has been for forty years used as a public road for foot passengers only, and quoad ultra the defenders were assoilzied; and in respect they had, both in correspondence and throughout the litigation, admitted the pursuers' right to a foot road, they were found entitled to expenses, subject to slight modification.

The following interlocutor was pronounced—

“ Edinburgh, 19th December 1865.—The Lords having heard counsel for the parties on their respective motions set forth in Nos. 104 and 105 of process: Find that the verdict returned by the jury at the trial of the cause on the 28th and 29th July 1865 is to be held as a verdict for the pursuers, in so far as regards a public footpath or road for foot-passengers; and is to be held as a verdict for the defenders in so far as regards a road for horses, carts, or cattle:

Page: 82↓

Apply the verdict accordingly; and in respect thereof find that there is a public footpath or road for foot-passengers along the road or way in question, and that the pursuers and all others are entitled to the free use of such footpath or road for foot-passengers, and to that extent and effect decern in favour of the pursuers. Quoad ultra, assoilzie the defenders from the conclusions of the action, and decern: Find the pursuers liable to the defenders in expenses of process, subject to modification: Allow an account thereof to be given in, and remit to the auditor to tax the same and to report.