Scottish Court of Session Decisions

The pursuer of this action, James Rome, was proprietor of the lands of Hillhead and St Michael's Walls, otherwise called Old Walls, near Lockerbie in Dumfriesshire. He had acquired these lands in 1870 from the trustees of Charles Stewart, the former proprietor, who died in 1875, and who had been, for about fifty years previous to his death, factor on the Annandale estates, of which the lands of Old Walls originally formed part. The lands of Old Walls were bounded on the north-east by the lands of Newfield belonging to Mr Hope Johnstone of Annandale, and on the west by a public road called the Dryfe Road, leading from Lockerbie. The dwelling-house of Old Walls was reached by a short approach from the Dryfe Road, and this access was continued up to and across the march with Newfield, whence it proceeded to Newfield farm-steading. The farm of Newfield, along with the larger and adjoining farm of Gillenbie, also on the Annandale estate, had been occupied since before the beginning of the present century, first by James Stewart, a brother of Charles Stewart, and afterwards by James Stewart's son, who died in 1882, when the two farms came into the joint occupation of the present tenants James and Hugh Sloan.

This action was raised by Mr Rome against Mr Hope Johnstone, as proprietor, and the Sloans, as tenants of Newfield and Gillenbie, for declarator that the pursuer had the exclusive right to the road above mentioned running from the Dryfe Road through his lands and eastwards over the march to Newfield, and to interdict the defenders from trespassing upon it.

He averred that the road was a private road forming part of his property, and was the main access to his mansion-house; that Charles Stewart, while factor on the Annandale estates, and afterwards as proprietor of Old Walls, had given to his brother and nephew, successive tenants of Newfield and Gillenbie, permission to use the road occasionally for access to and from the Dryfe main road as a personal privilege merely, but their use of it was never exercised in virtue of any right or servitude but merely by tolerance; that the tenants of Newfield and Gillenbie had always resided at the latter farm, and the proper access to Gillenbie, and thence to Newfield, was by a roadway leading to it from another road called the Corrie Road passing on to Newfield; that the road through Old Walls had been constructed and maintained at the sole expense of the pursuer and his predecessors solely for access to the pursuer's lands, and the defenders' authors had never assisted in making or

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repairing it; that the defenders the Sloans had from the commencement of their tenancy trespassed on and made use of the road as an access to Newfield and Gillenbie by leading horses and carts, and driving cattle and sheep, and recently, in particular, by carting stones for certain building operations at Newfield farm-steading—more extensively than the former tenants. They were thus destroying the amenity of the pursuer's house and damaging the road.

The defenders averred—“For time immemorial, or at all events for upwards of forty years, there has existed a right-of-way to Newfield for carts, carriages, driving cattle and sheep and foot passage by the road leading from the Dryfe Road through the said lands of Hillhead and Saint Michael's Walls to Newfield, being the road in dispute. This road has been in use for time immemorial, or upwards of forty years, by the defenders and their predecessors in the farms, and their servants, for all purposes connected with the farm, among others the carting of lime, manure, tiles, and coals, the driving of cattle and sheep, and foot passage. Said road is the only road by which such carting can be done, and there is no other or separate road to Newfield from the Dryfe Road.” In like manner there had existed from time immemorial, or for upwards of forty years, an access by the same road to Gillenbie through Newfield.

The pursuer pleaded—“The road in question being the property of the pursuer, he is entitled to decree of declarator and interdict, in terms of the conclusions of the summons.”

The defenders pleaded—“(1) There having existed for time immemorial, or at all events for upwards of forty years, a right-of-way by the road in question for all kinds of traffic to and from said farms of Newfield and Gillenbie, and in particular for carts and carriages, and for driving cattle and sheep, and for foot-passengers, and the defenders and their predecessors in said farms and their servants having so used said road for that period, they are entitled to continue to do so. (2) The road in question being the only practicable access from the Dryfe Road to the farm of Newfield, and being absolutely necessary for the enjoyment thereof, and having been used as such access by the defenders and their predecessors for more than forty years, the defenders are entitled to absolvitor.”

A proof was led.

The pursuer proved that when he was negotiating for the purchase of the property he was assured on more than one occasion by John Stewart (deceased at the date of the action), son of Charles Stewart, that the road was a priyate road belonging to the property, and could be closed at any time. The road, as far as the house of Old “Walls, was a well-defined metalled road. Beyond the gate which led to the house it was less defined, and was growing green. In that condition it crossed the march into Newfield, and was practically the same up to Newfield farm, but was clearly a made road all the way. With the exception of a part in the Old Walls' land it was fenced, or showed traces of having been formerly fenced, all the way from Dryfe Road to Newfield, with a dyke and hedge, on the Old Walls property on both sides, on the Newfield property distinctly only on one side. The whole of the road appeared to have been made at the same time. It varied from 30 to 35 feet in width from hedge to hedge. The hedges were of the same age on both sides of the march, and must have been planted before the beginning of the century. It was the nearest way from Newfield to Lockerbie. To go over the hill by Gillenbie, which could only be done by a track over a wet moor not capable of being used in winter, would be about three times as long.

The pursuer failed to prove his allegation of the existence of a cart road to Newfield by Bishops-cleugh and Crofthead, there being for much of the way by that route only a footpath.

The defenders proved uninterrupted use of the road by the tenants of Newfield for carting and driving stock for upwards of forty years, and that no other road had ever been used for these purposes. A land valuator, called for the defenders, gave his opinion that the closing of the road would seriously affect the value of Newfield.

The Lord Ordinary assoilzied the defenders.

“ Note.—Since this case was argued I have read my notes of the evidence, but I cannot say that my reconsideration of the case has in any degree altered the impression made on my mind at the time. The summons concludes that the pursuer has right as proprietor to the exclusive possession and occupancy of the road leading through his lands from the Dryfe Road past the mansion-house of St Michael's Walls eastwards towards Newfield. The evidence appears to me to establish in point of fact that Mr Hope Johnstone and his authors have for a period exceeding the years of prescription used the road as an access to Newfield farm, and for the carriage of farm produce and materials necessary to the occupation of that subject. The road was apparently formed before the commencement of the present century, and the evidence is all one way. The pursuer, who purchased the property of St Michael's Walls in 1879, urges in opposition to the apparent weight of the evidence, that the use of the road was given by the late proprietors of St Michael's Walls as a favour or personal privilege to his brother, the tenant of Newfield. If this was the case, it is unfortunate that Mr Stewart did not obtain from his brother, or from Mr Hope Johnstone, a letter or acknowledgment in writing that the road was used by them under his permission, and not of right. In the absence of such an acknowledgment the case appears to me to be in no way distinguishable from the ordinary case of a servitude acquired by prescriptive possession. I understand the law to be that a use unchallenged and unqualified extending over a period of forty years is evidence of a grant of servitude. I have only to add that although the evidence extends over a period considerably longer than the prescriptive period, the pursuer was not successful in showing that at any time within the memory of living witnesses the road in question had been closed against the proprietors of the Annandale estates or their tenants at Newfield.”

The pursuer also indicated an objection to the defenders' title to Newfield. But it was proved to my satisfaction that Newfield has been possessed as part of the Annandale property, and any technical objection on this score has thus been obviated. I shall assoilzie the defenders; and it will be understood that I do so on the ground that a servitude of way has been proved in favour

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of the defenders' farm of Newfield.”

The pursuer reclaimed, and argued—Right-of-way must be founded on grant, or it must be acquired by use as a servitude by way of aggression on the servient tenement and against the will of its proprietor, not by mere permission, long or short. The defenders had failed to prove the acquisition and enjoyment of a right sufficient to satisfy this rule, and his proof went for nothing, because it began in permission and continued in tolerance..

The defenders replied—The road was clearly made, and meant to be used, as a permanent access. Granting that the use began in permission—and that was not proved—it was now changed into right by immemorial possession. The evidence of use showed no permissive condition attached to its continued enjoyment. (2) Property implied right of access to a public place as an accessory, and this was the only one existing here.

At advising—