Scottish Court of Session Decisions

The pursuers in this matter were inhabitants of St Andrews, and as members of the public they sought to establish a public right of way from the east end of the town of St Andrews, along a path which led from the East Sands along the top of the cliffs, to a place called the Rock and Spindle, and to Kinkell Harbour, and thence to the harbour and village of Boarhills. They accordingly brought two actions of declarator, one against David Duncan, tenant of and residing at Brown-hills, in the parish of St Andrews; and the other against Thomas Duncan, the proprietor of Kinkell. These cases were tried before Lord Mure and a jury upon identical issues, which differed only in stating two different points upon the road from St Andrews to Crail as the point of departure of the alleged public right of way at the St Andrews' end.

The first of these issues was as follows:—“Whether, for forty years and upwards prior to 1869, or for time immemorial, there existed a public footpath or right of way for foot passengers, in the direction of the red line on the plan, No. 17 of process, leading from a point of the turnpike road from St Andrews to Crail, marked ‘A’ on the said plan, to the East Sands, and thence along the margin of the said sands, and thence along the lands of Brownhills to the ‘Maiden Rock,’ and thence along the said lands and the lands of Kinkell to the ‘Rock and Spindle’ and to Kinkell Harbour, and thence leading by a line near the seashore, along the said lands of Kinkell and the lands of Kingask and other lands, to the harbour and village of Boarhills, or to or between any, and which, of the said points or places?”

The second issue only differed from this in that it assumed another point, marked “B” upon the plan, on the road from St Andrews to Crail as the point of departure of the said alleged right of way at the St Andrews end. In fact, two different means of access from the Crail road to the East Sands were claimed, and from the East Sands onward there was but one path claimed under both issues as a public right of way.

The jury's verdict in both cases was as follows:—“Find for the pursuers under the first issue “That for forty years and upwards prior to 1869, or for time immemorial, there existed a public footpath or right of way for foot passengers in the direction of the red line on the plan, No. 17 of process, leading from a point of the turnpike road from St Andrews to Crail, marked ‘A’ on the said plan, to the East Sands, and thence along the margin of the said sands, and thence along the lands of Brownhills to the ‘Maiden Rock,’ and thence along the said lands and the lands of Kinkell to the ‘Rock and Spindle,’ and to ‘Kinkell Harbour:’ And find for the defender under the said issue for the rest of the way—viz., from ‘Kinkell Harbour’ to ‘Boarhills Harbour:’ And further find for the pursuers under the second issue, That for forty years and upwards prior to 1869, or for time immemorial, there existed a public footpath or right of way for foot passengers in the direction of the red line on the plan, No. 17 of process, from a point of the turnpike road from St Andrews to Crail, marked ‘B’ on the said plan, to the East Sands, and thence along the margin of the said sands, and thence along the lands of Brownhills to the ‘Maiden Rock,’ and thence along the said lands and the lands of Kinkell to the ‘Rock and Spindle,’ and to ‘Kinkell Harbour:’ And find for the defender under the said second issue for the rest of the way—viz., from ‘Kinkell Harbour‘ to ‘Boarhills Harbour.’”

Both the pursuers and the defenders moved for a rule, to show cause why a new trial should not be granted, in respect that the jury's verdict, so far as against them respectively, was contrary to evidence. A rule was allowed in both cases.

It is unnecessary to go much into the evidence, in respect that the question as to a new trial depended not so much upon the public use of the path, of which there was little doubt, but on this farther question, whether the terminus of the right of way, as found by the jury, was a public place in the sense which is required by the law on this subject. There was no doubt that the harbour and village of Boarhills, the termini of the more extensive right of way attempted to be established, were such public places; but there was much doubt

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whether the evidence adduced was sufficient to establish that either the Rock and Spindle or Kinkell Harbour, the termini of the path as restricted by the jury, were such public places—the one being a mere natural curiosity, and the other being of very doubtful use as a harbour, even for boats.

The nature of the whole case will sufficiently appear from the following arguments of counsel.

The Solicitor-General ( A. R. Clark), for the pursuers, in support of the verdict so far as it was in favour of the pursuers, and to show cause why a new trial should not be granted so far as that part was concerned, argued—In the first place, the evidence establishes that there was a very general belief in the district that, between St Andrews and Kinkell Harbour, a public right of way did exist. This, I admit, does not carry very much weight, but at the same time cannot be thrown out of view. In the next place, I shall submit to your Lordships that between these two places there has been from time immemorial a sufficiently well defined footpath. There is no suggestion that that footpath was required, or existed, for the use of the farms through which it ran, and there is evidence that where dykes or palings have crossed this path there was always accommodation made for the public by means of steps, wicket gates, and stepping stones, and this under circumstances where they were not needed for the use of the farm servants. In the first view, therefore, of the case, we have clearly the existence of a footpath not required for any private use, and evidently made by the use of the public, for there is no other account of its formation. We must now consider the character of the place to which this path leads, and the uses to which it has been put. Kinkell Harbour is a public place, at least to this extent, that it is part of the sea shore. This, indeed, is not enough for my case, and I must show in addition that the public were in use of resorting there for some definite and legitimate purpose, but I am not obliged to show that that purpose was a purpose of profit. Now, throwing aside all idea of Kinkell Harbour as a harbour, still the public have been in use of resorting thither for definite objects—namely, visiting the Spindle Rock, and taking their pleasure in various ways in its neighbourhood. The late case of Darrie v. Drummond, 3 Macph., 496, supports the sufficiency of this object. Is not this use of Kinkell Harbour just as good in the eye of the law as the existing public use of Portobello Sands, so often referred to. But, on the other hand, I do not entirely admit that Kinkell Harbour wants the essential characteristics of a harbour. In conclusion, I submit that you have a footpath established to Kinkell, that the public have used it, and used it as a matter of right for the requisite length of time. I admit that the public in their use may have strayed off it, and done things that they had no business to do, and may have been tolerated in doing so; but the question of the public right does not depend upon this, and was one for the jury; and in deciding as they have done they have not gone contrary to the evidence, and it is not for your Lordships to disturb their verdict. He then reverted very shortly to the second question, in which the jury had found against his clients—viz., whether a public right of way did not lead from St Andrews by Kinkell to Boarhills Harbour? There was no doubt, he said, in this question that Boarhills Harbour was a public place, and he submitted that though there was no well defined path after passing the “Spindle Rock,” there was still sufficient evidence to establish a right of way as concluded for.

The Lord Advocate ( Young) for the defenders—In support of the motion for a new trial, gave, first, a general view of the character of the evidence led for the pursuers in support of the right of way. He then endeavoured to show that the nature of the use by the public, avowed and proved, was not that kind of use which the law recognises as establishing a public right of way. There was evidence, he said, that people made use of the path frequently upon Sundays to saunter along for mere purposes of pleasure and exercise; that fisher women were in the habit of using it to bring home their loads of whelks from the rocks beneath when the state of the tide rendered it a more convenient road for them; that on occasions during or after a storm, the fishermen took the path at the top of the rocks, that they might keep a look out for missing boats, or for their drifted lobster pots and other gear; that the crew of the lifeboat had on one occasion been known to use it, and that the men of the Ordnance Survey had been in use to do so. But the most formidable allegation of use, he contended, was the one which attempted to establish a public right of picnicing at the Spindle Rock, and consequently a public right of way to go there and picnic, and to gather flowers and roots, or to geologise on the way. All this occasional use, he said, he was ready to admit, without in the least damaging his case. It was use which any good-natured and kindly-dispositioned tenant would at any time allow, provided there were no abuse. The tenant would have right to stop it, but would never think of doing so, unless he had cause of complaint, as in the present case. There is, however, no evidence of such use as can establish a public right of way. That use must be of such a character that you cannot reasonably suppose its being submitted to, unless it is in the exercise of an undoubted right. He then went on to show that Kinkell Harbour is not a proper terminus for such a right of way, and showed wherein it wanted the essential qualities of such a terminus. He therefore submitted that the jury had gone against the evidence, and that his clients should be allowed a new trial, as to that part of the right of way, which the jury had found established, viz., between St Andrews and Kinkell Harbour. On the other part of the issue laid before them, he submitted that the jury were right in finding that there was no evidence of a public right of way from Kinkell on to Boarhills, and therefore this part of their verdict should stand.

At advising—