Scottish Court of Session Decisions

This was an action at the instance of John Wilson junior, miner, and William Baxter, beetler, Millheugh, in the county of Lanark, pursuers; against Mrs Eliza Hamilton or Stevenson Hamilton and James Stevenson Hamilton, Fairholm House, in the parish of Hamilton and county of Lanark; William Smith Dixon, ironmaster, residing at Belleisle, Ayr; and his Grace the Duke of Hamilton, defenders. The question was one of right of way for foot passengers, and the issues sent to the jury were as follows:—

“(1) Whether or not there has existed for forty years prior to 1873 a public right of way for foot

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passengers from the public road between Stone—house and Millheugh, from a point at or near the west end of the bridge across the River Avon, known as Millheugh Bridge, to a point on the road known as the Glasgow and Carlisle road, at or near the west end of the bridge across the River Avon, known as the Fairholm Bridge; and (2), Whether or not there has been a similar right of way from the first-named point on the Stonehouse and Millheugh road to a part of the Glasgow and Carlisle road at or near the Quarter Brae.”

Counsel for the Defenders—Asher and Moncreiff Agents—Bruce & Kerr, W.S.

Counsel for the pursuers having opened the case, evidence was adduced to show that the road in question had been used for forty years for walking purposes. One witness stated that he had seen large numbers of people using the road, and that ever since he remembered there had been a gate at the west end of Fairholm Bridge, but that he never recollected finding this gate shut. He had never had his right to use these roads questioned, and he had often gone down to the ford on the river Avon from Millheugh with a party numbering seven or eight. There had always been a gate at the end of Fairholm Bridge, as well as a lodge. The lodge was used by the gamekeepers of the Duke of Hamilton, but the gate, he thought, was merely put there to prevent cattle getting on to the path. This gate had not always been kept standing, it having been sometimes allowed to lie in disrepair on the road. The old gate had been removed, and a new one, considerably higher than the other, put up in its place. He had seen notices up at the Fairholm gardener's lodge about the road being private, but he had never read them. He did not recollect seeing any notices at the Fairholm Bridge. Another witness, aged 79, deponed to having, when young, gone messages from Stonehouse to Hamilton. On these occasions he went always by the Fairholm Bridge. He had often driven carts over the road by the Quarter Brae and across by Fairholm Bridge, but had never been stopped by any one.

Counsel for the defence in opening observed, that the road claimed here was not a road across a field, but an avenue leading to the defenders' house, and that therefore the presumption was very strongly against the defenders having intended to give the public an absolute right to come and go by it. The effect of finding that the public had a right to this road' would be to entitle any one to come from any part of the world and. insist upon going over the road and passing within 80 or 100 yards of the proprietor's house. The road in question had been formed for the convenience of the then proprietor of Fairholm and of the conterminous proprietor, the Duke of Hamilton, and the bridge of Fairholm had been built for the exclusive use of them and their employés. The facts that a bridge was built, that a gate was placed at one end of it with locks upon it, and that a lodge had also been erected, were sufficient indications that the proprietor meant to keep the road private, and proof that one person had been turned back by the gate-keeper would be worth the evidence of twenty people who had not been turned.

After evidence for the defence had been led, and counsel had spoken, the Lord President having summed up, the jury found unanimously for the defenders on the first issue, and for the pursuers on the second.