Scottish Court of Session Decisions

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Cite as: [1868] SLR 5_554, [1868] ScotLR 5_554

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SCOTTISH_SLR_Court_of_Session

Page: 554↓

Court of Session Inner House First Division.

Friday, May 29. 1868.

5 SLR 554

Blackburn

v.

Meiklem.

Subject_1Property
Subject_2Servitude road
Subject_3Challenge
Subject_4Acquiescence.
Facts:

Circumstances in which held that a party was entitled to the use of a servitude-road as an access to his farm.

Headnote:

These were conjoined actions of declarator, the one at the instance of Mr Blackburn of Killearn against the Rev. James Meiklem of Dukehouse, and the other at the instance of Mr Meiklem against Mr Blackburn, relating to a servitude road claimed by Mr Meiklem.

Judgment:

The Lord Ordinary ( Barcaple) after a proof, pronounced this interlocutor:—

“Finds, as matter of fact, first, that for time immemorial, or at least for forty years prior to the year 1845, the authors of the Reverend James Meiklem, defender and pursuer, in the lands or farm of Dukehouse, possessed and enjoyed a servitude road as an access between the public turnpike road, known as the Gartness Road, and the said farm of Dukehouse, in the line second described in the conclusions of the action at the instance of the said James Meiklem, passing through a field forming part of the farm of Drummore, belonging to the pursuer and defender, Peter Blackburn, and thence by a ford across the river Endrick into the said lands of Dukehouse, and that for horses, carts, cattle, and sheep, as well as foot passengers; second, that in or soon after the said year 1845, when the public turnpike road from Glasgow to Aberfoyle was opened, the line of said servitude road was, by mutual consent of the former proprietor of said lands of Dukehouse and the said Peter Blackburn, changed to the line first described in the conclusions of the action at the in stance of the said Reverend James Meiklem, leading from a gate near Killearn Bridge, in the fence of the said Glasgow and Aberfoyle turnpike road, which communicates with the said Gartness turnpike road, and thence along or near to the bank of the river Endrick, and through the said field belonging to the said Peter Blackburn, and forming part of the said farm of Drummore, and thence by said ford across the Endrick to the said lands of Dukehouse; third, that from that time the said new line of servitude road was possessed by the said James Meiklem's authors and the said James Meiklem himself, for the use of the said lands of Dukehouse, without interruption, until the year 1866; fourth, that after the line of said servitude road was changed as aforesaid, the said Peter Blackburn ploughed up, or otherwise obliterated, the former line of road, and a quarry has been wrought across the same by the road trustees of the district, and that the said old line is not now available as a servitude road: Finds, as matter of law, that the said Reverend James Meiklem is entitled to the free use and enjoyment of said servitude road in said new line thereof, as an access to and from the said lands of Dukehouse: Therefore sustains the defences for the said James Meiklem and William Henderson, the other defender in the action at the instance of the said Peter Blackburn, and assoilzies the said James Meiklam and William Henderson from the conclusions of said action, and decerns; and, in the action at the instance of the said James Meiklem and William Henderson, repels the defences, and finds, decerns, and declares that the pursuer, the said Reverend James Meiklem, as proprietor of the said lands of Dukehouse, and the pursuer, William Henderson, as the tenant thereof, and all others residing upon or occupying the said lands, and their successors, as proprietors, tenants, or occupants of said lands respectively, have a good and undoubted right and title, at all times and on all occasions, to the free use and enjoyment of a servitude road leading from the public turnpike road known as the Gartness Road, or from the public turnpike road leading from Glasgow to Aberfoyle, through the defender's lands of Killearn to the said lands of Dukehouse, and that they are entitled to resort to said road, and to exercise and enjoy a free passage along the same, and to drive horses and carts, cattle, sheep, and bestial along it: And finds, decerns, and declares that the line of said servitude

Page: 555↓

road is the line, or nearly so, coloured blue, laid down on a sheet of the Ordnance survey produced with, and referred to in the summons, leading from a gate in the fence of the turnpike road which leads from Glasgow to Aberfoyle, near the bridge commonly known as Killearn Bridge, at a point marked B on said sheet, and thence along or near to the banks of the river or water of Endrick, through a field belonging to the defender, and forming part of the farm of Drummore, to a point marked A on said sheet, and thence across the said water of Endrick, and into the said lands of Dukehouse: And finds, decerns, and declares that the pursuers and their foresaids have undoubted right, title, and privilege to use and enjoy the said line of road as a means of access to, and exit from, the said lands of Dukehouse on the south, and particularly for the purpose of passing along the same, and driving horses and carts, cattle, sheep, and bestial along it, and that the defender, the said Peter Blackburn, is not entitled to shut up said line of road; and decerns and ordains the defender to desist and cease now, and in all time coming, from troubling, molesting, or obstructing the pursuers and their foresaids in the peaceable use, enjoyment, and possession of said line of road, and interdicts, prohibits, and discharges him accordingly, and decerns: Finds the said Peter Blackburn liable in the expenses in both actions; allows an account thereof to be given in,” &c.

Mr Blackburn reclaimed.

Blackburn and Maitland for reclaimer.

Gifford. Thomson, and Guthrie for respondent.

The Court unanimously adhered.

Lord Deas said that though the public did use the road that was not conclusive. In many cases a proprietor might allow his neighbours or the public to use a road through his property to which they had no right. If a road so used was either made or kept up by the proprietor for his own purposes, it would be very difficult for the neighbours or the public to maintain that they had a right to continue the use of it simply because they had been allowed to go that way without challenge for forty years. The very absence of challenge would be a great difficulty in the way of establishing a right to the road. If a proprietor challenged the use of the road, and the use was persisted in, that was an assertion of the right on the one hand and a denial on the other, which, in the end, might be favourable to the right to the road being made out. The only difficulty was whether this was not a case of that kind—whether this was not a road that the proprietor of Killearn kept open for his own purposes. But it rather appeared that that element was not in the case. His Lordship then went briefly over the evidence in the case, and observed that he concurred with the Lord Ordinary.

The other judges concurred.

Solicitors: Agent for Blackburn— Colin Mackenzie, W.S.

Agent for Meiklem— D. J. Macbrair, S.S.C.

1868