Scottish Court of Session Decisions

Subject_1Road
Subject_2Right-of-Way
Subject_3Public Right
Subject_4Servitude.
Facts:

The pursuer in this case was proprietor of the lands of Nether Locharwoods in the parish of Ruthwell and county of Dumfries. The defenders were Lord Berries, proprietor of Carlaverock, and three of his tenants. The question related to a public right-of-way for carts and other vehicles, or alternatively a servitude right of leading peats, which the defenders alleged existed between two public roads on the north and the south sides of the river Lochar respectively, known as the “Annan” and the “Blackshaw” roads. The alleged road crossed the river Lochar by a ford, and passed through the pursuer's lands, which had originally been feued out to the pursuer's predecessors by the predecessors of Lord Herries, under reservation to be mentioned, and the pursuer now sought to interdict the defenders from using the road. It was admitted that there was by the road in question a public right-of-way for foot-passengers, who crossed the Lochar by a wooden bridge; and the pursuer's titles contained a reservation in favour of the Carlaverock tenants of “their priviledge of casting, winning, and leading their peits and turfes in the mosse and muir as formerly.” On the other hand, there was another way by which the Carlaverock tenants could lead their pests from the Locharmoss (to which the foregoing reservation related), but this road was admittedly circuitous. The Sheriff-Substitute (Bois) after a proof granted interdict against the defenders, finding that they had established neither a public right-of-way nor a servitude right. On appeal the Court recalled this interlocutor, finding that the evidence established the servitude of leading pests, but not the public right-of-way.