Judgment:
The Lord President—In this case there were three issues laid before the jury. The first claimed a right of public road for all purposes in a particular line through the defender's lands, entering at the west side thereof, proceeding past his mansion house, and issuing from his lands at the north; the second claimed the same road as a road for foot passengers only; and the third claimed another road for foot passengers only through the defender's lands. As regards the third issue, the jury found for the defender, and the pursuer has not complained of their verdict. Upon the other two issues the jury were substantially for the pursuer, but having found for him on the first, it become unnecessary to return any verdict on the second issue, as the first included it. A rule was granted to show cause why a new trial should not be had, and we have had the case very fully argued. I have come to the conclusion that there ought to be a new trial, and I will state the grounds of my opinion very shortly, because I think it is very inconvenient and often prejudicial, when there is to be a new trial, to go into the details of the evidence. There are, however, peculiarities in this case which I cannot avoid nothing. Although the issue puts the question whether this road has existed for forty years or for time immemorial, it turns out to be the case, and it is not disputed by the pursuer, that since the year 1841 it has not been used as a public road—that is, that for twenty-five years this pursuer and the rest of the public have not, used it. Then it is necessary to observe the precise position of the pursuer. He sues as one of the, public not as an adjoining proprietor; and
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he claims the road as a public road, and not as a road which he holds or claims a right to in virtue of a servitude belonging to his estate of Gardyne. It would probably have been sufficient for him that he and his tenants had a servitude right to use the road, but that is not the nature of his claim. In the next place, it must be kept in view that this road was in its origin apparently a road of access to the mansion-house of Middleton, and made as such. Now, in dealing with a case attended by these peculiarities, it is very necessary to make sure that the jury distinctly understood that evidence that might be sufficient to establish a use of road for time immemorial by tenants of an adjoining estate will not be sufficient to make it a public road. I think that is a consideration of great importance where the action is sued by one person only, and where the great bulk of the evidence is of use by that person himself and his tenants. Such evidence might prove a right of servitude, but not a right of public way. And this view of the case becomes far more important when one attends to another fact in the history of this road—namely, that in 1792 there was some kind of arrangement betwixt the then representative of the estate of Middleton on the one hand, and of the estate of Gardyne on the other, the sole record of which we have in a letter dated 14th April 1792, addressed to Mr Gardyne, the defender's father, by Mr Lyell, the grandfather of the then pupil proprietor of Gardyne and his mother, who sets herself out in it as “tutor and factor” for her son. This letter certainly discloses some kind of antecedent dispute betwixt the parties. What it was we have no evidence, but it was about roads; and this letter was evidently intended to terminate that dispute in this way—that, as regards certain roads, the proprietor of Middleton will, if asked, grant permission to the proprietor of Gardyne and his tenants to use them, while on the other hand the proprietors of Gardyne own that neither they nor their tenants have any title or right to do so without such permission. It is made matter of controversy whether this letter applied to the road in question. I confess I have no doubt about that. It refers to “any roads within the park dykes of Middleton.” I think the letter establishes this—that in 1792 there was an arrangement betwixt the representatives of these two estates that the proprietor of Gardyne was to be allowed, by permission, to use the road, and that those who were then attending to the interests of the young laird of Gardyne were satisfied that neither he nor his tenants had any right to use the road. Now, it would be strange if the state of possession immediately after 1792 was not in conformity with the arrangements then made; and I think that all the possession which followed is quite consistent with, and is quite accounted for by, the terms of this letter. Now this makes a very serious break in the case of the pursuer, for while he is shut up to the year 1841 at the one end of the prescriptive period, he is embarrassed at the other by this letter in 1792. Any evidence by persons other than those living at Gardyne is very limited. No doubt there is some, but I rather think the bulk of the evidence is that of the people of Gardyne. I have to observe farther in connection with these peculiarities of the case, that this is not the first tame the parties have been in Court litigating about this road. There was an action in the Sheriff Court in 1841, when there was a much better case for the pursuer than now. He had not then as now to go back for twenty-five years before the date of the action. But although that action was raised, it does not seem to have turned out very favourably for the pursuer. And it is remarkable that one of the defences turned on the letter of 1792. The defender stated “that the late Mrs Lyell of Gardyne, the petitioner's mother, who was curator and factor for her son, Thomas Lyell, applied to David Gardyne of Middleton for permission to pass occasionally by the West Avenue of Middleton, when they happened to be going to Arbroath, and Mr Gardyne granted the favour during pleasure, on which occasion the following letter was granted.” This was the letter of 14th April 1792; and the answer to that statement is rather a strange one, keeping in view that the gentleman who made it was the child on whose behalf the letter had been granted. It is this:-“Denied that the late Mrs Lyell of Gardyne applied to the late David Gardyne of Middleton for permission to pass occasionally by the west avenue of Middleton, or that she granted the letter in question, or that said letter applies to the road in question. That road is not within the ‘park dykes of Middleton.’ There are other roads within these dykes and within these parks which may form part of the avenues or policies to which the letter may apply, and to which the petitioner lays no claim. The letter, moreover, is not a probative writing. It is neither holograph, nor is it signed and tested in terms of the statute. It has never been recorded, and the petitioner never saw or heard of it till this discussion arose. It moreover bears to be granted by parties who had no title to grant it—viz., Thomas Lyell, the petitioner's grandfather, who had denuded himself of the property by contract of marriage, dated 27th October 1766, entered into betwixt his son, the late Alexander Lyell (the petitioner's father), and Mrs Margaret Renny, in favour of his son, the said Alexander Lyell, on which the latter was infeft, conform to instrument of sasine, dated 27th August, and registered in the particular register of sasines, &c., for Forfarshire, the 17th September 1767, and the petitioner's mother, who could not give away any right which belonged to the lands of Gardyne.” It would rather seem from this that the right was then supposed to be a servitude, for it was not beyond the power of the petitioner's mother to admit there was no public road. Anybody may grant that admission; but, if this letter was giving away a right which belonged to the estate of Gardyne, then the claim in this issue is altogether a mistake, and it should have been a claim for servitude and not for right of way as a public road. Upon the whole matter, and without saying more, for I am unwilling to enter on the evidence, I think this is just one of those cases which is not in a satisfactory state upon the present verdict of the jury What its ultimate fate may be, I do not anticipate. A different case may be laid before the jury by the pursuer, or by the defender, or by both, and I do not anticipate what the ultimate result may be; but I am quite satisfied, looking to the nature of this case, as affecting a heritable estate, and the condition in which the evidence is, that the evidence is not a foundation for the verdict, and that it ought to be submitted to another jury. I would therefore be for making the rule absolute for a new trial, reserving the question of expenses.
Lord Curriehill—I concur.
Lord Deas—I am entirely of the opinion expressed by your Lordship that it is not expedient to go into detail in reference to a case where there
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is to be a new trial There are two things however in this case, the fact that this road, whether it was originally made as a road to that mansion-house or not, is now the road to the mansion-house, which always involves considerations of law, as well as of evidence—and the fact of the peculiar position of this pursuer, the right which he formerly claimed to the road, and the alleged permission given to him and those connected with his estate to use this road for a long period of years, which might naturally lead a jury to think that that was evidence of a public road. These considerations, as well as others, make it somewhat a peculiar case, and not one of those ordinary cases, in which the opinion of a jury can be just at once accepted.
Lord Ardmiillan—I have nothing to add. I entirely concur with your Lordship's view of the case.
The rule for a new trial was therefore made absolute. Expenses reserved.
