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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson and Others v. Colvile [1868] ScotLR 6_24 (29 October 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0024.html
Cite as: [1868] SLR 6_24, [1868] ScotLR 6_24
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
v.
Facts:
Pursuers of a right of way sought reduction of a warrant of the Justices under 1661, c. 41, and declarator of right of way. Held, in accordance with general rule, that the pursuers must lead in the proof, notwithstanding a defence that the road shut up under the warrant and now claimed by the pursuers was merely a private access to houses on the defender's property.
This was an action of right of way at the instance of certain residenters and feuars in the village of Torryburn, in Fifeshire, against Sir James William Colvile of Ochiltree and Crombie, and of Craigflower House, Torryburn.
It appeared that in May 1863 the defender presented a petition to the Justices of Peace in Quarter Sessions, under the Act 1661, c. 41, craving warrant to shut up a certain road or highway and cross
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lane. This road, the pursuers alleged, was a public road, leading from one of the public streets of Torryburn, named Low Street or the Nether Causeway, near the house of Craigflower, to a public road running along the sea-shore from the west end of Torryburn, and from the public green to and past Crombie Point, and the pier and port and burying-ground of Crombie, as well as to the roads and villages lying along the shore to the south and east of Torryburn. The said road joined the shore road also by a fork, entering on the said shore road farther to the west. These forks, the pursuers alleged, were public roads, one of them being the cross lane already mentioned. The said two roads were part of one continuous and much frequented highway, and had been used by the public for more than forty years preceding the date of the petition. The pursuers further alleged, that in the year 1816 the predecessors of the defender had wrongfully shut up part of the old road, altering the line of road for their own convenience, but without much objection on the part of the public. The petition presented in 1863 stated that a new cart-road and footpath were to be substituted in lieu of those proposed to be shut up, the latter being, the petitioner alleged, on his own property. Various procedure then took place on the petition. Public intimation was made; objections were lodged; a committee of the Justices reported in favour of allowing the proposed alteration of road; and, finally, warrant was granted as craved. The pursuers now asked reduction of this warrant, and declarator that the roads in question were public roads, to the free and unobstructed use of which the pursuers and public were entitled; alleging, that the proceedings under the petition in 1863 were incompetent, the defender having no title to the solum of the roads which he attempted to shut up, and the public being in possession of the roads as public roads. The defender contended, inter alia, that the roads shut up were not public roads, but were made as accesses to houses which formerly existed on ground now belonging to him; that, at all events, they were bye-roads, of no importance or use to the inhabitants of Torryburn or the public, who were better served by the new roads; and that the proceedings in 1863 were carried out consistently with the provisions in the Act 1661, c. 41.
The Lord Ordinary ( Barcaple), in June last, pronounced an interlocutor, allowing the defender a proof that the roads shut up by him, and by his predecessor in 1816, were not public roads, but were made as accesses to houses on land now belonging to him, and to the pursuer a conjunct probation. The defender reclaimed, and asked the Court to recal that interlocutor, so far as it threw on the defender the onus of proof, and to find that the pursuers were bound to lead in the proof.
Young and Balfour for reclaimer.
Fraser and Kerr for respondents.
At advising—
The pursuers here claim a right of way, and they are so far in an unfavourable position that they have against them a warrant of the Justices in Quarter Sessions, shutting up the road. The first tiling they have to do is to get rid of that warrant. The Lord Ordinary has indeed said that he has decided that question in another action against the defender, and is prepared here to do the same; but we have not had that matter under our consideration, and all I shall say in the meantime is, that, looking to the procedure before the justices, I should not be easily persuaded that it ought to be set aside. But in the meantime, without proof, the pursuers cannot get the better of that warrant. They must prove the facts alleged on this record—still more, if they are to prevail in the other conclusions of the summons.
It is said, no doubt, that the defender has made a special defence, and has undertaken to prove that the road was made for a special purpose of his own, and was not in its origin a public road at all; that any use by the public was by sufferance. Now if the defender had been insisting on a proof of that fact as sufficient to void the whole case of the pursuers, I should have been prepared to listen to the argument. But the defender does not do that; on the contrary, he wishes the case to go on in the usual course. I cannot think that in such circumstances such an allegation by the defender ought to alter the ordinary course of procedure. Nothing is more common than that in such cases a defender should endeavour to make out such a defence. This interlocutor therefore must be varied to the effect of finding that a proof shall be allowed to the pursuers of their averments, and to the defender a conjunct proof in common form.
Lord Deas—I am of the same opinion. Supposing this had been an ordinary claim to a public road, nothing more important could have been stated in defence than that this road was made by the defender for some special purpose. That, no doubt, is not conclusive. It is not the statement of a plea that excludes the action, for it is not inconsistent with that plea that the road has since become a public road. But it is more difficult for the public to make out a public road in such circumstances. The question would then be, whether the use by the public was stolen—the proprietor having no interest to prevent the public from enjoying the use of the road. We have had many cases of that kind: some cases in which that fact has been found so important as to entitle a defender to succeed when otherwise he would have failed. Take the case of Jenkins (4 Macph., 1046), where a right to a public road was claimed, and the defence stated by defender was, “I made this road for my own purposes, and I allowed the public to use it, but that was mere tolerance on my part.” In that case the issue was in the usual form. The case was tried before a jury, and it afterwards came before us. We came to the conclusion that the defence was true, and that though the public had used the road for more than forty years, yet that was mere tolerance, and we granted a new trial. And I rather think that the grounds of our conclusion were felt to be so convincing that no new trial ever took place. The public might claim, and in some cases have claimed, a right of way through an avenue, but I don't know of any case where that was held to change the form of issue. Now the leading thing for the pursuers to do is to reduce this decree of the justices, obtained causa cognita, and after apparently very careful procedure, and I see no reason why they should not stand as pursuers. The procedure is all in ordinary form, and nothing is determined as to the onus of proof.
Lord Kinloch—I am of the same opinion. I am not disposed to pronounce any judgment, or indicate any opinion as to the onus of proof. I only say that I see no reason for departing from the
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Agents for Pursuers— D. Crawford and J. Y. Guthrie, S.S.C.
Agents for Defender— Mackenzie & Black, W.S.