Scottish Court of Session Decisions

In June 1872 Mr Alexander Morison Gordon of Newton, in the county of Aberdeen, presented a petition to the Sheriff of that county, in which he set forth that John M'Kerron, mason, residing in Insch, had upon several occasions trespassed upon the farms of Ledikin and Bridge of Shevock, and in the wood of Ledikin, the property of the petitioner. The petition concluded with the usual prayer for interdict. At the same time Mr Gordon presented a similar petition against Robert Slorach, farm servant, and William Fraser, mason.

In December of the same year, and while these actions were still before the Sheriff, a third petition for interdict was brought at the instance of M'Kerron against Mr Gordon, as proprietor, and also against the tenants of the farms of Bridge of Shevock and Ledikin. The petitioner alleged that a public road or pathway, which he as one of the public was entitled to use, ran through these farms, and that fences had been put across it by the respondents. The petition prayed for interdict against these encroachments upon this public road, and for the removal of the fences. The three actions were conjoined upon 27th June 1873.

Mr Gordon, while not denying that at one time a road such as was claimed by the respondents had passed through his lands, maintained that it had been legally shut up in the year 1815 by the road trustees, acting under a county road statute (39 and 40 Geo. IV. c. 32), when another road was substituted for it. He further pleaded that even although it was not legally shut up at that time, the public had lost all right to pass that way a non utendo for forty years and upwards.

It was maintained by Mr M'Kerron and the respondents in the petitions at Gordon's instance, that as the road in question had been used as a public road for at least seven years prior to the proceedings taken against them by Mr Gordon, they were entitled to the benefit of a possessory judgment. They denied that the road had ever been legally shut up, alleging that a minute of the road trustees founded upon by Mr Gordon was vitiated and unauthenticated, and also that the trustees had failed to comply with the provisions of the statute as to notice of their intention to close .the road to the public.

A proof was taken, and from the evidence led it appeared that various members of the public had been in the habit of going upon the road, but that they had been challenged and obstacles placed in their way by the proprietor.

The Sheriff-Substitute ( Dove Wilson), on 31st August 1875, issued an interlocutor, in which he found that proceedings of the road trustees were regular and defective, and that the road in question had remained open as a public footpath, and he accordingly granted the interdict sought by Mr M'Kerron and others.

Against this interlocutor Mr Gordon reclaimed.

On 26th October 1875 the Sheriff pronounced the following judgment—

Edinburgh, 26 th October 1875. — The Sheriff having heard parties on the petitioners' appeal against the interlocutor of 31st August last, and having also considered the record, proof, and whole process, recals the said interlocutor: Finds it proved that in 1815 the road in question was shut up by the road trustees in virtue of the powers contained in the Statute 39 and 40 Geo. III. c. 32; that it was then enclosed within his grounds by the petitioner, and ceased to be used for carts and horses; that although there is evidence of its continued use as a public footpath, no such possession has been established on the part of the public subsequent to its suppression as would be sufficient to constitute a public right-of-way; therefore, in the petition at the instance of Mr Gordon, repels the defences, grants interdict in terms of the prayer of the petition; dismisses the counter-petition; finds the petitioner Mr Gordon entitled to expenses; allows an account to be given in, and remits the same when lodged to the Auditor for taxation and report, and decerns.

Note.—The proceedings in this case commenced with a petition at the instance of Mr Gordon of Newton against Mr John M'Kerron, mason in Insch, to have him interdicted from trespassing on the lands of Ledikin and others, the property of the petitioner. The defence stated to the action is a right of public way by a line of road which used to run from Insch to Old Rayne; and at the same time a cross petition was lodged at the instance of Mr M'Kerron, craving an order on Mr Gordon for the removal of the fences and other obstructions tending to interfere with the public right.

It is hardly necessary to observe that in a case of this kind the jurisdiction of the Sheriff is of a somewhat limited character. ‘A judgment by the Sheriff (says Lord Deas) in the case of a servitude road may settle the matter of right just as would be done in a declarator, but in the case of a public road the Sheriff can settle only the matter of possession till a declarator is brought in this Court; and, consequently, the proof allowed is different in the two cases, being forty, years' possession in the one case and seven years’ possession in the other, facts beyond the seven years being no further regarded than as they may indicate the character of the possession (as by tolerance or otherwise) within the possessory period— Thomson v. Murdoch, 21st May 1862, 24 D. 975. To ascertain the character of the possession which has been proved on the part of the public in this case, it thus becomes necessary to go back to the year 1815, when the road came to be dealt with by the District Road Trustees, under the Act 39 and 40 Geo. III. c. 32.

Under this Act a new road, called the Gardensmill turnpike, was opened in the year 1803. It is part of the Great North Road from Aberdeen to Huntly and Inverness. The improved line of communication superseded sundry by-roads, which were accordingly shut up by the road trustees under the powers contained in section 71 of the statute.

By this section it is made lawful for the trustees ‘to shut up and suppress roads of every description which may appear useless or of little importance to the public.’ The statute does not prescribe the manner in which this power is to be exercised. It assumes that it Would be the accessory result in many instances of the new and improved means of communication which the statute authorised, and so it leaves the matter in the hands of the trustees without prescribing the formalities to be observed. The

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power might thus be exercised on their own motion on the petition of a proprietor, or on the verbal application of any one interested, the only qualification attached being that notice of the resolution to shut up a road should be advertised at the churches of the parishes through which it passed for two consecutive Sundays, one month at least before it was actually shut up. The object of this was to enable persons opposed to the resolution to carry it to the next general meeting of the trustees; and meanwhile, in the event of an appeal being taken, the Sheriff, if he saw cause, was authorised to suspend the execution thereof until the matter was determined by the general meeting. But failing this suspension, the resolution, on the lapse of a month from the date of the notices, took effect.

The road in question led past the farm of North Ledikin, then through the Ledikin Wood, and so to the existing turnpike. As it approached the eastern end it branched out into two different lines, one going to Lawrence Fair and the other to the Bridgend of Shevock, these two lines forming a triangle, of which the Gardensmill turnpike, when it came to be made, was the base. The first step taken after the formation of the new turnpike was to cut off the limb running down to the Bridge of Shevock. The proceedings in this matter have been recovered. There was first a report from a committee recommending it to be closed, and then the district meeting authorised the notices to be given. No further finding appears to have been deemed necessary. The road was completely obliterated, not a trace of it now remains, and to the regularity of the proceedings no exception has been taken. The town of Insch was also connected with the Gardensmill turnpike by a new road which joined it at the Mill of Newton. This road was opened sometime before the year 1815, and the result was that there were now two roads from Insch to Old Rayne, running nearly in the same direction, at a short distance from each other—the one by the Gardensmill turnpike and the branch from the Mill of Newton just referred to, the other by the road which is now the subject of controversy.

In these circumstances, the proprietor of Newton, the grandfather of the present petitioner, brought the question of its suppression before the road trustees at a district meeting which was held at Pitcaple Inn on the 29th May 1815. The minute bears—‘Culsalmond. At the request of Mr Gordon of Newton, a committee, to consist of Messrs Horne-Elphinstone of Logie, &c., and Leslie of Warthill, with the heritors of the parish, was appointed for the purpose of inspecting certain roads and the alterations thereof to be pointed by him, Mr Gordon convener, and for shutting up the old road from Insch to Old Rayne, passing through his and Rothney's lands, now useless. The same was ordered.’

It is proved beyond all doubt that the road here referred to is the road in question, and that the minute is in the handwriting of Dr Beattie, who was clerk to the Garioch Road Trust. The writing appears to have been crowded in after the remainder of the minute was written, but there is no reason for saying that it was not all written at one time, and is not an authentic record of the proceedings of the meeting. The challenge which has been attempted of the genuineness of the document is not therefore well founded. It is said, however, that the minute does not prove that the trustees ever resolved to shut up the road in dispute. The committee appointed was merely to consider the propriety of its being shut up, and there is nothing to shew what was done upon the report, or indeed that they reported at all. The Sheriff is unable to accept this view. The words, ‘The same was ordered,’ cannot refer to the appointment of the committee, for that had already been done. They can only mean that it was the suppression of the road which was ordered, and the remit to the committee was, inter alia, to take the steps necessary for carrying the order into execution. This construction is supported by the terms of the next entry of the subject, dated the 1st of April 1816, when the clerk reported that the usual notice had been given ‘in the parishes of Culsalmond and Insch for shutting the roads which formerly led from Insch to Old Rayne, passing through the lands of Newton and Rothney, as ordered by the district on the application of the proprietor.’ This minute bears the initials of Mr Horne-Elphinstone, one of the committee, and it is reasonable to conclude that no further step was considered necessary either by the board or its committee. At all events, such was the opinion of both the clerk and Mr Gordon, of Newton. Mr J. F. Beattie says that about the year 1818, being one day in a hurry for the post, he proposed going ‘by the old road, but his father told him to go by the new road, as it was a bad example going by this one,’ meaning evidently because it had been closed; and Mr Jessiman states that when he entered to North Ledikin in 1823 Mr Gordon told him that the road was shut up and that the people had no right to go there, and he accordingly ploughed it up. The steps subsequently taken for its suppression are proved by the condition in which it now exists, and which is thus described:—‘At the western part of the petitioner's lands it is still a cart-road in very bad order, then comes a grass-field, with all trace of the track obliterated. It then enters the wood of Ledikin, into which the passage is barred by a gate. The line of the old road through the wood is shown by the feal dykes, but between these the track has been planted with trees, some of them supposed to be thirty years of age. As it emerges from the wood the passage is barred by a fence and a feal dyke which goes straight across the old road. After leaving the wood there is the track of a cart-road in the same line as the old road which now leads from the farm of East Ledikin, and then there is cultivated land all the way down to the turnpike. ’ These operations, which are certainly not of yesterday, entirely destroyed the road as a public highway for horses and carriages. That is admitted by even the defenders' witnesses. But if the act of the road trustees was effectual to this extent, there is no resisting the conclusion that it was completely suppressed for every purpose whatever, because the language of the resolution makes no reservation of it as a footpath, and there is nothing to show that such a thing was ever suggested.

“If then the road was well suppressed in 1815, and the track was obliterated and the passage barred in the manner described, it is

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difficult to see how the public could nullify the Act of Parliament by simply refusing to recognise the resolution of the trustees. The evidence indeed shows that many persons on foot continued to use it as a short cut, and attempts were continually made to stop them without apparently much success. This possession might have been sufficient to maintain an existing right but not to create a new one, and in the circumstances it is apprehended that it was incumbent on the defenders to bring up their case to this point. Although people are now willing to say that in scaling the dykes and leaping the fences they believed that they were exercising a legal right, it has been justly observed that in a case of this kind it is not enough that you find witnesses to say so; the circumstances must not be inconsistent with that conclusion in point of law — Jenkins v. Murray, 4 Macph. The foundation of the rule of law which gives to the public a right to traverse the lands of a proprietor by a footpath being substantially presumed grant ( Forbes v. Morison, 13 D. 1404), they were bound to show that all parties, the proprietor included, concurred in treating the Act of 1815 as practically rescinded. But so far from this being the case, the position of the matter all through has been simply this—that as between the public and the proprietor, neither of them would acquiesce in the proceedings of the other. There has been a kind of possession, but it was only a possession of a supposed road—a road which a public statute has declared that the public (in the event which has occurred) shall not possess. Therefore, notwithstanding the long interval which has elapsed, the Sheriff is of opinion that the proprietor is entitled to have the statute enforced.”

Against this judgment Messrs M'Kerron, Slorach, and Fraser appealed to the Court of Session.

Argued for them—Whatever might be the result of declarator, were it brought to try the right-of-way, the appellants were entitled to a possessory judgment, as they had established a use of the road by the public for seven years. The road was never legally shut up by the trustees, as the provisions of the statute were not complied with by them.

Argued for the respondent (Mr Gordon)—In order to entitle a person to a possessory judgment something more than mere possession for seven years was necessary. There must be a title of some sort. Here, so far from the public having a title, the presumption was that the road was legally shut up in 1815 by the trustees. The evidence of possession on the part of the public was defective.

Authorities— Napier's Trustee v. Morrison, July 19, 1851, 13 D. 1404; Shearer v. Hamilton, Jan. 24,1871, 9 Macph. 456; Calder v. Adam, March 2, 1870, 8 Macph. 645; Wilson v. Henderson, March 2, 1855, 17 D. 534; Pollock v. Thomson, Dec. 18, 1858, 21 D. 173; Murray and Others v. Arbuthnot, Nov. 29,1870, 9 Macph. 198; Calder v. Learmonth, Jan. 27, 1851, 9 Sh. 343; Murray v. Stewart, Nov. 14, 1859, 2D. 12; Wallace v. Police Commissioners of Dundee, March 9, 1875, 2 Ret. 505; Forbes v. Morison, Dec. 31, 1851, 14 D. 134; Carson v. Miller, March 13,1863, 1 Macph. 601; Glasgow v. Carlisle Road Trustees, Feb. 9, 1854, 16 D. 521.

At advising—