Scottish Court of Session Decisions

Lord President—The case has been tried under issues. The pursuers claimed a public right of way (1) from a point near St Andrews, on the turnpike road to Crail, along the coast to the “Rock and Spindle” and “Kinkell Harbour;” and (2) from thence along the coast to the village of Boarhills. Upon that trial the jury returned a verdict for the pursuers as regards the first part of the footpath, viz., from St Andrews to the “Rock and Spindle” and “Kinkell Harbour;” and a verdict for the defenders as regards the last part of the path between “Kinkell Harbour” and Boarhills. We refused to disturb the latter part of the verdict, and it now stands as decided that there is no public footpath between “Kinkell Harbour” and Boarhills. We granted a new trial as regards the first part of the verdict. The considerations by which we were led to this were these—There was a difficulty in seeing any sufficient evidence to justify the jury in holding that this public footpath stopped either at the “Rock and Spindle” or at “Kinkell Harbour.” The “Rock and Spindle” was clearly not a public place, and there was no satisfactory evidence to show that “Kinkell Harbour” was so. It was not difficult to see the cause of this. The pursuers had directed their attention to prove a public foothpath all the way to Boarhill, which is unquestionably a public place. They consequently failed to see the importance of proving that “Kinkell Harbour” was a public place, in the event of their not succeeding in proving the latter part of their contention. A new trial has accordingly taken place. The issue was whether there existed a public footpath from a certain point on the turnpike road to Kinkell Harbour. There is no doubt that the main point in the second trial was, whether “Kinkell Harbour” was in a proper sense a public place. The first trial showed that there had been considerable use by the public of the footpath from St Andrews for upwards of forty years. The ground on which we are asked to set aside this second verdict, is that it is against evidence in so far as it assumes that “Kinkell Harbour” is a public place. The evidence is narrow. I may say that “Kinkell Harbour” is certainly not a very public place. At the same time, to make a good terminus of a public right of way it is not necessary to prove that the place is one of much resort. Any place where the public resort for some definite and intelligible purpose will be sufficient. It has been shown, in the first place, that for a very long period the place has been called “Kinkell Harbour,” indicating a certain use of the creek which exists there. The name is found in maps of some authority which go back to between 1820 and 1830. It appears from reports of the local Admiralty Court, that as far back as the end of the seventeenth century, persons designed as “Skippers of Kinkell” were summoned to appear at Anstruther Easter for the purpose of considering the interests of skippers and fishermen on that part of the coast. This is an indication that from an early period the place had been resorted to by fishing boats. Although there is much evidence on the part of the defenders that no boats of the present construction can use the creek, it does not follow that the old-fashioned boats, which we know were much smaller, could not use it. When we connect this evidence with the testimony of the pursuers' witnesses, I am not able to say that no evidence exists to show that “Kinkell Harbour” is a place of public resort. Certainly boats go there occasionally. It may be admitted that the greater number are pleasure boats. But I do not discount the pleasure boats. Where the public resort to a particular place on the coast for pleasure and recreation, that may be enough to constitute that particular place a sufficient terminus for a public right of way. But the use of the creek has not been confined to pleasure boats. While I am of opinion that the evidence is narrow enough to instruct that “Kinkell Harbour” is a public place in the sense to make it a legitimate terminus of a right of way, I am not prepared to disturb the verdict of the jury.

The other Judges concurred, and on the same grounds.