Scottish Court of Session Decisions

Fraser and W. F. Hunter for pursuer.

Clark and Watson for defender.

At advising—

The Lord President, after stating that there were two questions for determination, first, whether the findings in the Lord Ordinary's interlocutor were justified by the evidence; and second, whether there was evidence that this was a public road for carts and carriages as well as for horses, cattle, sheep, and foot-passengers, observed:—As to the first question, it is a pure question of fact; and while it is obvious that in a Highland district, where the population is much scattered, the evidence of use of a public road cannot be of the same character as in a Lowland district, I have come without any difficulty to the conclusion that there is sufficient evidence to support the Lord Ordinary's findings.

But the second point raises a question of some delicacy. It is obvious that, for some considerable time, such things as carts have never been seen in this valley, and have scarcely made their appearance yet. But it is said that whenever carts did come into use in this district, that is, this glen, these carts made use of this road. I am not sure that I quite understand the pursuer's contention, but it appears to amount to this, that occasionally carts have been seen on this road, and that is said to bring the case under the principle of Forbes (20 February 1829, 7 S. 441). I can understand that if a public road had been used for all the purposes for which it was useful to the public from time immemorial, for the passage of goods and passengers in every way in which they were in use to pass, then, on the introduction of carts, the right of the public to use them would be undoubted. But that must be subject to this limit, that the road must be capable of being used for such a purpose. It won't do merely to say that the public have had carts on this road, and that the carts have gone up or down a little way and then returned. That is not the use of a public road. A public road is a road between one public place and another, and therefore, that is not the use by carts of a public road. But the important point is, that this road cannot in fact be traversed by carts from one end to the other. In short, it is not a road which is capable, without engineering operations, of being made a cart road. In these circumstances we would not be justified in holding that the public have a right to use it as a cart road, for the result would be, that if the authorities took in hand to maintain this road for the public benefit, they would proceed to make the road a cart road, and that would be a conversion from the physical state of the road in which the public have used it, into a different state altogether. That would be an unjust result. The case of Forbes was quite different. There the road was suitable for the passage of carts. It required no conversion. The public had used it from time immemorial as a public road for the transport of goods; and when carts came into use they found no difficulty in driving carts from end to end. The best evidence of that was, that though the use by carts had not endured for the prescriptive period, it had endured for thirty years, showing that there was no difficulty in so using the road. The report of Forbes in Shaw is not very satisfactory; and, in particular, the opinion ascribed to Lord Glenlee, is such that I could not accept it. The report of Lord Glenlee's opinion in the Faculty Collection is much more satisfactory. In Shaw, he is made to announce the proposition that the property of the solum is in the public, but it is plain that that is not what he said. What he says, as reported in the Faculty Collection, is, “this implies that the surface of the road belongs to the public, and that they are entitled to use it in the manner most beneficial for the uses in which public roads are employed.” That I quite ascribe to him. The surface of this road I hold to belong to the public

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