Scottish Court of Session Decisions

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Cite as: [1868] ScotLR 5_566, [1868] SLR 5_566

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SCOTTISH_SLR_Court_of_Session

Page: 566↓

Court of Session Inner House First Division.

Wednesday, June 3. 1868.

5 SLR 566

Home-Drummond, Petitioner.

(Ante, vol. iv, pp. 14, 32.)

Subject_1Summary Petition
Subject_2Defining Public Right of Way
Subject_3Public Road
Subject_4Competency — Extracted Process.
Facts:

A petition presented in the Inner-House, to have a road—found by a verdict of a jury to be a public right of way—defined, dismissed as incompetent, in respect of the action of declarator in which the right of way had been established being an extracted process.

Headnote:

Certain parties brought an action against the petitioner, concluding for declarator of public right of way through the defender's lands along a certain line of road, and a public right of way for foot passengers in other two specified directions. The case was sent to a jury, who, on 21st December 1866, returned a verdict; and thereafter, on 24th May 1867, the Court pronounced an interlocutor in which they applied the verdict, and, in respect thereof, decerned in terms of the first and third heads of the declaratory conclusion; assoilzied the defender from the second head of the conclusion; quoad ultra dismissed the action with expenses; and remitted to the auditor, &c.

Home-Drummond now presented a petition to the First Division of the Court, craving them, after due intimation, to remit to a person of skill to lay out and define the ground now found by the interlocutor of Court to be public right of way.

Judgment:

Duncan, for petitioner, cited White v. Lord Morion's Trs., 4 Macph. 53 (H. of L.)

At advising—

Lord President—I think this petition is incompetent. What is proposed to be done by this petition, which is a new process in this Court, is to carry out details which it may be assumed might have been done in the declarator, and this is proposed after the declarator has become an extracted process. I am not only unaware of such a thing having been proposed with reference to a case like this, but I am not aware of such a proposal with regard to any extracted process. It appears to me that the petition is utterly incompetent.

Lord Curriehill concurred.

Lord Deas—If this petition had been presented while the process was still depending, to have this line of road defined in conformity with the verdict, or in a way suitable to the parties entitled to use it, and least burdensome to the proprietor, I should have been slow to say that that was incompetent. But I am not aware that such a petition was ever presented when there was no depending process. Summary petitions are competent before the Sheriff. This petition may or may not be competent before the Sheriff; on that I give no opinion.

Lord Ardmillan concurred.

Solicitors: Agents for Petitioner — Jardine, Stodart, & Frasers, W.S.

1868

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