Scottish Court of Session Decisions

This was an action of suspension and interdict at the instance of Mr Edwin Sandys Bain of Easter Livilands, against Mr James Morrison of Wester Livilands, and his feuar Mr Smith.

The interdict craved was to prohibit the respondents from shutting up or inclosing a footroad running through their lands, and from interfering with the said road, so as to injure or affect the complainer's use and enjoyment thereof. And farther, to order the said respondent to restore the said footroad to the state in which it was prior to certain illegal operations alleged to have been executed by the respondents.

The respondents pleaded inter alia that, “having provided a road equally convenient to the complainer with that which has been closed up, the complainer is not entitled to interdict.”

The Lord Ordinary ( Mure), pronounced the following interlocutor, from which the circumstances of the case will sufficiently appear:—

“18 th January 1871.—The Lord Ordinary having heard parties' procurators, and considered the closed record, proof adduced, and whole process, finds it admitted that the complainer and his authors have for time immemorial had the use of a servitude foot-road through the lands of Bizzetland, Wester Livilands, and Braehead, as a means of passage from the complainer's property of Easter Livilands to the town of Stirling: Finds (2) that in the year 1839, disputes having arisen between the complainer and Mr Murray, then proprietor of Wester Livilands, relative to a proposed alteration of the said foot-road, an action of declarator was raised at the instance of the complainer against Mr Murray, to have the complainer's right of foot-road declared, and to have Mr Murray ordained to remove certain obstructions which he had erected thereon at or near the points marked C and D on the plan No. 37 of process: Finds (3) that after various proceedings had been taken in the said action, a joint-minute was entered into between the parties, in respect of which a judgment was pronounced giving effect to the complainer's right of foot-road; and finding and declaring that the said road was to be in the line and direction of that now claimed by the complainer as marked yellow on the said plan, with right to the complainer to take all competent steps in reference to the state and condition of the foot-road, and the walls and stiles thereon: Finds (4) that since the date of that judgment the complainer and his family and dependants have had the full and uninterrupted use of this foot-road down to the date of the proceedings now complained of: Finds (5) that the field marked No. 6 on said plan, through which the said foot-road runs, having been acquired by the respondent Mr Smith, he proceeded in the beginning of June 1870, with the knowledge and approval of the other respondent, to obstruct the complainer's road through the said field, by erecting an iron railing or other fence thereon, at and between the points marked C and D on the plan, and thereby preventing the complainer from making use of that portion of the foot-road: Finds (6) that this was done without judicial authority, or obtaining the consent of the complainer, and without any communication having been made to him relative to the proposed alteration: Finds (7) that upon this proceeding coming to the knowledge of the complainer, he communicated with the respondent Mr Morrison on the subject, when he was informed that the other respondent was acting in terms of the feuing plan of the estate of Livilands, and it was at the same time intimated to the complainer that it was the intention of the respondent, in carrying out the feuing plan, still farther to alter the foot-road as shown upon the plan, and to substitute for it the road to be called Livilands Road, as marked pink and blue upon the plan: Finds (8) that the road so proposed to be substituted for the foot-road in question has no foot-road upon it separate and distinct from the carriage-way, and is not therefore as convenient a road for the complainer as the servitude road; and that the respondents have not come under any obligation to give the complainer the use, in time to come, of the road so proposed to be substituted, or to make a proper foot-path thereon: Therefore grants interdict as craved, and ordains the respondents to restore the foot-road in question, between the points C and D on the plan, to the state in which it was prior to the operations complained of, but without prejudice to the respondents, or either of them, establishing in any competent process their right to have the foot-road in question, or any part thereof, shut up or altered upon their substituting, or undertaking to substitute therefor, an equally safe and convenient foot-path for the use of the complainer; and decerns: Finds the complainer entitled to expenses, of which appoints an account to be given in, and remits the same, when lodged, to the auditor to tax and report.

Note.—It appears to the Lord Ordinary that the respondents are under some misapprehension as to the position in which the owner of a servient

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tenement stands towards the owner of the dominant tenement as regards the right of the former to alter a servitude road of the description here in question. They are no doubt correct in supposing that the owner of the servient tenement is not to be restricted in the use of his property beyond what the purposes of the servitude may require, and that he is entitled to have one road substituted for another, provided it is equally sufficient and convenient for the dominant owner. And it may be that, where no material alteration is proposed, or where all that is intended is to regulate the use of the road by the erection of gates or stiles, the servient owner is entitled to do that at his own hand, leaving the propriety of the alteration, if challenged, for after determination; Wood, 9th March 1809. But when the alterations begun and contemplated are of the material and extensive nature here in question, involving a complete inversion of the use and possession of the road as it has existed for years, the Lord Ordinary is not aware of any authority for holding that this may be done by a servient owner, except under judicial authority first applied for and obtained, or under an arrangement with the dominant owner.

Such questions are generally disposed of under a declarator in this Court— Bruce, January 25,1745, M. 14,525; Ross, February 19, 1751, M. 14,531; Magistrates of Renfrew, July 5, 1823; Macdonald, January 24,1832; and if that is the course usually followed the circumstances of the present case are such as seem to render it the more necessary that some such course should have been here adopted, because the complainer's right to the line of road in question has been authoritatively fixed in a process of declarator in this Court, where the question raised related to an alteration substantially the same as the one here objected to. At the same time, as the complainer's claim to a right of servitude road is not here actually disputed, and the questions raised relate mainly to the manner in which that right is to be exercised, the Lord Ordinary would not, as at present advised, be prepared to hold that, as contended for by the complainer, the present is an incompetent process in which to try such a question; and if the respondents had undertaken to give the complainer in all time coming a sufficient substitute road at sight of a surveyor, with a properly laid out foot-path thereupon, and not to alter the existing foot-road till that matter had been adjusted, the Lord Ordinary would have been disposed to deal with that question in this process.

But no such obligation has been undertaken or proposed by the respondents, and as no proper foot-path has been formed alongside of the carriageway already made, it appears to the Lord Ordinary that the complainer was warranted, in the special circumstances of this case, in applying to this Court for redress against the shutting up of the foot-path by the respondent Mr Smith, and against the further projected alterations as shown on the feuing-plan of the other respondent; and that he is entitled to be protected in the use of the foot-road as fixed by the judgment of this Court in 1839, until the terms and conditions on which the respondents are to be entitled to have that line of road altered are authoritatively settled.”

The respondents reclaimed.

Solicitor-General and Lancaster for them.

Watson and Burnet for the complainer.

At advising—