Scottish Court of Session Decisions

The pursuer in this case was Alexander Lyell of Gardyne, in Forfarshire, and the defender was Thomas Macpherson Bruce Gardyne of Middleton, in the same county. The action related to a road near the village of Friockheim, in Forfarshire, close to Middleton House, leading from Gardyne Den northward to the Forfar turnpike road. The road in question was maintained by the pursuer to be a public road, while the defender maintained that it was private property, and part of the avenue to Middleton House. The case was tried in July 1866, when the jury returned a verdict for the pursuer. The defender applied for a new trial, which was granted by the Court. The issues were:—

It being admitted that the defender is proprietor of the lands of Middleton:—

“1. Whether, for forty years, or for time immemorial, there has existed a public road in or near the line indicated in the plan No. 6 of process, and marked thereon by the letters A B C, and leading between a statute labour road and a turnpike road, both shown on the said plan?

“2. Whether, for forty years, or for time immemorial, there has existed a public right of way for foot-passengers through the defender's lands, in or near the line indicated on The plan No. 6 of process by the letters A B C, leading between the statute labour road and the turnpike road, both shown on said plan?”

The jury, after an absence of an hour, returned a unanimous verdict for the defender.