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Held that an action concluding for a public right of way, or alternatively for a servitude road, was of too complex a nature to he sent to trial by jury.
Mr Shand (with him the Lord Advocate and Mr H. J. Moncreiff) for the pursuer, stated that his desire was that the usual course should be adopted in this case—a course which up to the present time had been almost invariably followed in right of way cases. He knew of only one case—the Loch Katrine case—in which this course had not been taken, and then it was by consent of parties. And it might be mentioned, by the way, in regard to that case, that their Lordships, on appeal, overturned the decision of the Lord Ordinary. He contended also that there was nothing unusual in the course here taken of sending two issues to the jury—an issue, first, of right of way; and, secondly, of servitude. He was not aware, either, of any recent substantial reason in favour of the course asked by the defender. The St Andrews case had been referred to, but the reason why in that case there had been more than one trial was simply that the pursuer had brought forward only part of his evidence on the occasion of the first trial. And in the Dunoon case a similar thing had occurred. Unless it was to be held that in future no right of way cases should be sent to a jury, he saw no reason for adopting any but the usual course of jury trial in this case.
The Solicitor-General (Mr Asher with him) for the defender, cited four cases of right of way in which double trials had been necessary; and in regard to the last of these cases—the Dunoon case—he said that many of the Judges had expressed their dissatisfaction with the verdict. Taking these cases as a sort of standard, he was not surprised that the Court had suggested for consideration whether it was proper to try questions of this kind by jury. Juries, he said, had great difficulty in distinguishing between use as of mere toleration, and use as of right; and yet it was upon this very distinction that the whole case must necessarily turn.
Answered by the Lord Advocate for the pursuer—There was no specialty in this case to distinguish it from others of the same class. It was a case of quite common occurrence, and they were quite familiar with the alternative issue which was presented in the present instance. If trial by jury should be abandoned in these cases, he thought the prospect of arguments on the evidence (1) before the Lord Ordinary; (2) before their Lordships; and (3)—a thing which had not hitherto occurred in the experience of anyone—before the House of Lords, was a prospect not very agreeable. He thought that House would be apt to ask—Why has the Court of Session now, in 1872, departed from what has been the inveterate practice of the Court since 1815, when trial by jury was first introduced into Scotland? He hardly thought the Court would venture to pronounce an opinion that trial by jury had become discredited in Scotland. Such an expression of opinion would have the probable effect of a change of the law, so as to make that form of trial less optional. Reference was made by defender to the peculiarity of the road in this case as distinguished from others; but it did not seem to his Lordship that there was any such peculiarity as to call for the adoption of any but the ordinary course of trial by jury in these cases. He concluded by saying that it appeared to him that there was not much matter for argument in the case, but that it was rather matter for judgment by the Court on consideration whether they should now, in 1872, depart from the course adopted in such cases since jury trial was introduced into Scotland.
At advising—
The Lord Justice-Clerk—We have to consider the way in which the case should be tried. It is an action of declarator which has two alternative objects—1st, to have the road marked on the plan as A to F declared to be a public road; and 2d, to have a part of that road from a point A to D declared to be a servitude road. In order to decide whether the matters raised would be more properly tried by the Court or a jury it is not necessary to consider the general qualifications of juries to try right of way cases. I am not prepared to lay down any general rule or to alter the ordinary
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I see no reason for holding that a jury is a better tribunal than the Court for trying questions of servitude roads. In such cases there are always peculiarities and questions of mixed law and fact, which are more fitted to be tried by the Court.
It may be doubted if the two rights claimed should properly be included in the same action. The difficulty is that you have a double set of claims referable to the same possession. If the pursuer will abandon his conclusions for the servitude road there is no reason why the question of a public right of way should not be tried by jury. But if the action is to be tried as it stands I think it should be tried before the Court.
An observation on the allegation of the right is that it is doubtful how far the termini is sufficiently distinct. It might, perhaps, be amended so as to make it similar to the Burntislaud case ( Cuthbertson v. Young, 13 D. 1308).
Solicitors: Agents for Pursuer— Finlay & Wilson, S.S.C.
Agents for Defender— M'Ewen & Carment, W.S.