Scottish Court of Session Decisions

In August 1883 Andrew Brodie and Malcolm Neil, weavers, both residing in Kilbarchan, in the county of Renfrew, raised this action of declarator against Thomas Mann of Glentyan in the parish of Kilbarchan, concluding that the road or way near to the village of Kilbarchan leading from the Bruntshields public road past the farm of Wardhouse on the defender's property of Glentyan, and joining the Lawmarnock public road, was a public right-of-way or road, and that the pursuers as inhabitants of Kilbarchan, and members of the community, and

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all others, were entitled to the free use of the road for all purposes without interference by the defender; further, that the defender should be ordained to remove all gates, fences, and other obstructions which excluded the free and open access to the said public road or right-of-way.

The road in question connected the Bruntshields public road and the Lawmarnock public road, and was about 500 yards in length. It led from the Bruntshields Road past the farm-steading of Wardhouse farm, and into the Lawmarnock road.

The defender acquired the estate of Glentyan about 1874, having purchased it at that date from the trustees of the late Captain Stirling.

The pursuers averred that the farm of Ward-house was acquired by Captain Stirling about 1846, and that at that date, and for time immemorial before that, the road in question consisted of a well formed road with hedges along its whole course on both sides, and that for time immemorial, or at least for forty years prior to 1846, a public right-of-way had existed over this road, and that it had been regularly used by the inhabitants of Kilbarchan for the purpose of carting, riding, driving, and walking. They further alleged that about 1851 a gate was erected by Captain Stirling at the entrance to the road from the Bruntshields public road, but as the gate was not locked it formed no obstacle to the use of the road; that although from and after 1860, when a death by drowning occurred in a dam at the roadside, the gate was kept locked, yet the key was kept at Wardhouse, and was available for such of the public as wished to use the road. The pursuers also alleged that the said road for time immemorial, or at least for forty years before 1874, when the defender acquired the property, had been a public right-of-way, and an established line of communication for carts and other vehicles, and had formed an easy and convenient road between Lochwinnoch and Bridge of Weir.

They then set forth that the defender had endeavoured to impede the access of the public to the road.

The defender averred that the road in question was made about 1820, by the then tenant of Wardhouse farm, from the farm-house to the Bruntshields road, for the use of the said farm, and had been used as an estate road by those occupying Wardhouse and Glentyan, which had belonged to Captain Stirling before he bought Wardhouse; that it was used as an estate road, but was never a public road, or recognised as such, but was used for working a part of the lands of Wardhouse which lay to the south of the Bruntshields road, while the farm-steading lay a considerable distance to the north of that road.

He also alleged that the gate was put on the road in 1840, and it had been kept locked, and only opened for the use of friends or tenants of the defender or his authors. “(Stat. 3) The defender and his authors have held and possessed the said estate on a valid irredeemable title, free from any such road or right-of-way as is now alleged by the pursuers, for more than forty years or otherwise, and in any event for more than twenty years prior to 1883; and no such road or right-of-way has existed or been claimed or used during said periods. The public never claimed or exercised or possessed any right-of-way in or over the said service or estate road, or over any part of the defender's estate, until the summer of 1883. At that time certain persons, including the pursuers, claimed a right-of-way over said estate from the said gate or door opening into Bruntshields Road, along said service or estate road to Wardhouse steading, and thence to Lawmarnock Road, being the right-of-way now claimed by the pursuers. Certain of them during the said summer repeatedly passed over the line of road now claimed, in large crowds, causing great and wilful damage to the defender's property, and inter alia they destroyed the gate or door aforesaid. They also, at or about the same time, destroyed two iron gates belonging to the defender, and situated at or near the Lawmarnock Road end of the road now claimed.”

The pursuers pleaded that there having from time immemorial, or at least for forty years prior to 1874, existed a public right-of-way over the said road, they were entitled to decree of declarator as concluded for.

The defender pleaded—“(2) There never having been any public road or right-of-way, as alleged by the pursuers, the defender should be assoilzied. (5) Separatim, in respect for more than forty years prior to 1883, or otherwise, and in any event, for more than twenty years prior to 1883, there has been no road or right-of-way as alleged, and no claim to or use of any such road or right-of-way, but the defender and his authors have held and possessed the said estate free from any such road or right-of-way, therefore the defender should be assoilzied.”

It was proved that there had been no public use of the road for a considerable period prior to the raising of the action, and the two questions to which the evidence was mainly directed were —(1) Whether the defender and his authors had successfully excluded the public for forty years prior to 1883? (2) Whether, assuming that he had not done so, the pursuers had proved an uninterrupted use of the road as a public road prior to 1847?

The import of the proof fully appears from the judgments of the Lord Ordinary and Lord Mure.

The Lord Ordinary pronounced this interlocutor—‘Finds it proved that the defender and his predecessors in title have excluded the public from the use of the road in question since the year 1846, and that there is no proof of the assertion of a right on the part of the public since that year: Finds it not proved that the road in question has been a public road during the period of forty years antecedent to the commencement of the year 1847, and finds that such use as the members of the public have enjoyed during that period has been by tolerance: Therefore assoilzies the defender from the conclusions of the action, and decerns.

“ Opinion.—This action is brought by certain inhabitants of the village of Kilbarchan to establish a right-of-way on behalf of themselves and the public over a road which has been described as passing from the Lawmarnock Road (which runs east and west past the village of Kilbarchan) to the Bruntshields Road, which also runs in an easterly and westerly direction, but lies to the south of the Lawmarnock Road, and they allege that the road in question connecting the two public highways which I have named is a great convenience to the villagers and their neighbours,

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as affording a shorter and more convenient access in certain directions. I daresay as regards the matter of convenience and utility the allegations are true enough, and indeed there is no counter case made on that question. The pursuers seek to establish their right on the usual footing of presumed grant established by evidence of forty years' use of the road on the part of the public. I see that in the condescendence the use claimed is stated alternatively, as is quite competent—first, as a use reckoning back from the year 1874, and alternatively as a use reckoning back from 1846, which is a date denoting a period soon after the commencement of the possession of the late proprietor Captain Stirling.

The case for the defender is directed to negative both these grounds of action. In the first place, he contends that he has successfully excluded the public, that he and his authors and predecessors have successfully excluded the public for the period of forty years, or alternatively for twenty years, and have thereby acquired a right to the property discharged of this claim on the part of the public. And alternatively he contends, or rather in addition to that plea he contends, that no public right has been proved for a period of the requisite duration antecedent to the commencement of the time when the public were first excluded. So there are two questions of fact to be tried, one relating to the exclusive possession by the proprietors of the road in question during the period of forty years antecedent to the action, and the other, if that shall not be established, relating to the use of the road antecedent to the commencement of the proprietors' exclusive right.

It will be necessary for me in the first place to consider at what date the proprietors of this property of Glentyan and Wardhouse commenced to close the road against the public, and for two reasons—first, because if I should find that the public, as alleged on record, have been excluded for forty years, it would be unnecessary to inquire into their use of the road antecedent to that period. But secondly, even if exclusive possession is not shown to have extended during the period of forty years, it is still necessary to know how long it has extended in order that we may fix the date from which the use alleged on behalf of the public is to be reckoned backwards. So the logical order of the consideration of the case is different from the chronological order, and I must deal with the latter part of the case, I think, first.

Now, there is no doubt that Mr Mann, the defender, who acquired this property in 1874, has all along claimed the use of the road as his exclusive property, and has excluded the public, and the real question in this branch of the case relates to the extent to which a similar right was asserted by Captain Stirling, Mr Mann's predecessor. Captain Stirling bought the property of Wardhouse in February 1844. He had for many years—how long is immaterial—been in possession of the adjoining property of Glentyan, on which his residence is built, but it was in 1844 that he acquired the property which includes the solum of the road in question. According to the evidence adduced for the defenders, he had put up a gate at the south extremity of the road, where it adjoins the Bruntshields Road in 1846. According to the pursuers' evidence that gate was not erected till 1851, and for a considerable period thereafter the gate was not closed against the public. There is undoubtedly a conflict of evidence as regards the period when the gate was put up. The evidence in support of the date of 1851 I think rests mainly, if not entirely, upon the testimony of Mr Mitchell, who connects it, in the manner which he describes, with the date of the birth of his fourth and youngest son. The most important evidence in support of the date of 1846 is that of a witness who was coachman in the employment of Captain Stirling—Macgregor—and who is now similarly employed by the Sheriff-Substitute at Greenock. Macgregor left the employment of Captain Stirling at Martinmas 1846, and he says the gate was erected before he left. He has occasionally visited at Kilbarchan since that time, but he said that he had no doubt in his own mind that his recollection of the gate did not refer to these intermittent visits but to the time when he was in the service of Captain Stirling, and in answer to a question put at the end of the case he said that although he had been at Kilbarchan he did not believe he had ever been within sight of the gate since he left Captain Stirling's service. Now, if Macgregor is speaking the truth, the circumstance which he mentions seems to preclude all possibility of mistake on his part as regards the date, because, unless he imagined a gate, there is no other way of accounting for his statement that he had seen it there than that it existed while he was in Captain Stirling's employment antecedent to Martinmas 1846. With regard to the evidence of the witness Mitchell, it may be observed that it is matter of common experience that when witnesses are asked how they remember a particular date they will remember it because some family event happened in that year. Now, if there were any direct relation between the birth of Mr Mitchell's youngest son and the erection of the gate in question, that would be testimony of equal value to the testimony of Macgregor. If, for example, Mitchell's evidence had been that he went that way for the doctor and found the gate closed against him, that would be proof of the existence of a gate as at that time. But the mere circumstance that the witness's youngest son was born in the year 1851, coupled with his impression that 1851, and upon the day of the birth of his son, was the beginning of his recollection of the gate, will not in my opinion outweigh the positive testimony of Macgregor, who could not possibly have seen the gate at the later period. On this subject I conclude by saying that it lies with the pursuers to establish their case affirmatively; and in case of doubt I should hold that the exclusive right—a right which belongs to the property—has prevailed since the period to which the evidence of credible witnesses is applied. In short, it has not been proved that the date of the gate being erected was so recent as 1851; and the evidence of Macgregor, with certain corroborations which I need not particularly refer to, satisfies me that the gate was in fact erected in 1846.

Then the next question on this branch of the case is the character of the possession since the gate was erected. Now, if there was in fact, a public way along the road in question prior to

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that period, prima facie the erection of the gate is an assertion on the part of the proprietor that he intends to dispute the right-of-way, and that he, so far as within his power, intends to prevent it being reared up into that legal right which after a certain time it would be no longer in his power to put an end to. But, of course, the mere putting on of a gate would not run against the acquisition of the road by the public if it was left open, if it formed no substantial impediment to the use of the road by the public, and if in point of fact the public continued to use the road as they had used it before. In this case I think there is a preponderance of evidence to the effect that the gate was generally closed against the public. The gardeners who were successively in the employment of Captain Stirling stated that they were instructed to keep it closed against the public, and they endeavoured, as far as they could, to carry out their instructions. No doubt the gate was sometimes open—it was necessary for the convenience of the property that it should be so. Unless it had been intended to be opened sometimes, there would probably have been no gate put there. The best mode in which Captain Stirling could assert his claim against the public would have been to build a wall across the road, but he needed an access from the Bruntshields Road, and no doubt when the gate was open it was used by others than Captain Stirling and his tenants and servants. Several witnesses cited by the pursuers stated that they found the gate open and passed through. And one witness, Mr Craig, who was a farmer on the north side of Wardhouse, says that his father and uncle had, down to the year 1860, once a-year brought carts of hay to their respective farm-steadings from Lochwinnoch. On one occasion, when the witness came with the carts, it was found that a loaded cart would not pass under the gateway; and the person who resided in Wardhouse—the ploughman and sub-manager of Captain Stirling's farm—brought a key or wrench with which to unscrew the top bar of the gateway, and thereby allowed their carts to pass through. The mode of admission rather suggests that this was an exceptional case, and I do not think there is any evidence of carts having used the road after the gate was put up, except the evidence of Mr Craig, which I accept as perfectly honest and reliable.

The question is—Would the use of the road once a-year, between 1846 and 1860, by one family, with evidence of occasional use by foot—passengers, amount to a continued assertion of a public right-of-way? In considering this I must take into view that, if I can rely upon the evidence applicable to the previous part of the case — the previous period—there must have been a great many other persons, both foot-passengers and owners of carts and vehicles, who would have found it convenient to pass by the road in dispute, and that none of them, from the time the gate was erected, seems to have actually used the road. Not only so, but it is not proved that any single individual ever remonstrated with Captain Stirling in regard to the erection of the gate, or, having been refused admittance, claimed admittance as a matter of right. It therefore appears to me that from the erection of the gate in 1846 down to the present time the public have been in fact excluded, with occasional exceptions, which may be explained as tolerance or favour, and there has been no assertion of the right. I am not speaking of actions raised, but of an assertion by word or letter, until a period approximate to the date of the action. In these circumstances I think it has not been established that the defender and his authors have had the exclusive occupation of the road for forty years, so as to shut out further inquiry; but that it has been established as matter of fact that these gentlemen have had exclusive use of the road since 1846.

Next in order comes the question, whether by the operation of the statute of 1874 the period necessary for the acquisition of an exclusive right on the part of the proprietor has been reduced from forty years to twenty? On this subject I shall content myself with stating my opinion, which is, that the statute has made no alteration on this branch of the law. The statute has reduced the period of the positive prescription to twenty years, and therefore it is quite sufficient for the proprietor to show that he has exclusively possessed some pertinent of his property for twenty years in order to establish a right to it—I mean in the general case. But there is no doubt that this road was a pertinent of Captain Stirling's property, and his successor Mr Mann. They have had all the right to it which any proprietor could have. The question is as to the discharge of a collateral right burdening the property; and in the absence of any reference in the statute to the negative prescription, or to the common law rule in regard to the discharge of such claims, I must hold that if the public ever had a right to this road, their right could not be extinguished by exclusive use on the part of the proprietor for a period short of forty years, the consuetudinary period of prescription.

Now, I come to the second and more critical branch of the case—whether antecedent to the year 1846, when the gate was erected, the public had used the road for forty years in such a manner as to presume an antecedent grant on the part of the proprietor. Of course, as was pointed out by pursuers' counsel, if there be no parole evidence reaching as far back as forty years from the last date—from the date of reckoning—then the evidence for the whole period of human memory short of forty years will be sufficient to establish the right, the issue always being whether there has been that use for forty years or for time immemorial. But I do not think that any question of this kind arises here, because there is evidence reaching back to the full period of prescription. In considering the effect of that evidence it is very necessary to attend to the description of the road, and to the purposes for which it was formed. In the present case it is obvious, I think, by inspection of the plans, aided by evidence, that the primary and most important use of this road, in both its parts, was as an access to the farm and farm-steading of Wardhouse—I mean, that the occupiers of that farm would more frequently have occasion to use the road as an access than any other person whatever. Being a road entirely on the lands of the farm of Wardhouse, I think it was to all appearance intended primarily for the accommodation of the farm. This opinion—presumption at all events—which I should have arrived at independently of the evidence, is strongly confirmed by the evidence of Mr Stevenson of Auchinames, whose father was tenant of Wardhouse from, I

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think, 1805 to 1819, before he succeeded to the property of Auchinames, which he afterwards farmed as proprietor. Mr Stevenson, the son, was only born in 1812, and therefore his recollection does not go back nearly to that period. But he was informed by his father that Mr Stevenson, the father, had completed, or greatly improved, the road in question when he came to the farm, or soon after he came to the farm in 1805. Prior to that time the only access to Wardhouse for a loaded cart was by that part of the road in question which connects Wardhouse with the Lawmarnock Road: and therefore at that time we have a road, being merely an access to a farm-steading, and not leading from one public place to another. I think the fair import of Mr Stevenson's evidence is, that there was a track of some kind leading to the Bruntshields Road, and that horses, passengers, and perhaps empty carts could pass that way, but there was no access for a loaded cart in that direction; and Mr Stevenson senior had to cart his manure round by the village. Mr Stevenson senior made a bridge across the little stream that passes to the south of the steading, improved the road, and fenced it, or completed the fencing, so as to make it a good practicable road for farm purposes. Therefore the history of the road, at least as regards its character from 1806, is this, that it was made not in one continuous track leading from one public place to another, but in two separate sections designed as accesses from different public roads to a common point. That point was of course the farm-steading to which the road was intended to give access. I have been referred to a case in which the view was expressed that if it is shown that the road was originally an avenue leading to a private house no length of possession on the part of the public will suffice to constitute a right-of-way by that road, and along another road leading in a different direction to a public place. That doctrine, if stated without qualification, seems to me to be somewhat inconsistent with the practice which has prevailed in subsequent cases of allowing an issue as to a road across the estate of one proprietor, although the public place to which it leads is separated from that proprietor's grounds by an intervening estate. I think that the later law has somewhat modified the views expressed by the Lord Justice-Clerk Hope in the case referred to. While not professing to give a positive opinion upon a point on which high legal authorities have differed, I should not, if acting upon my own opinion, be disposed to say, that in no circumstances could a right-of-way be constituted by piecing together two separate roads intended as accesses to a mansion-house, or farm, or other country place. But certainly the circumstance that the road was originally designed as an access or accesses to a private house is a material circumstance to be considered in weighing the evidence, and it strongly suggests that there was no original purpose of dedication to the use of the public. Such a road is in a very different position as regards the use of the public from a road made by a proprietor right through his property for the general convenience of the tenants on the estate. In such a case, if the public have been allowed to use it along with the tenants without discrimination, that is the ordinary case in which a right of public way is established; because I suppose no proprietor ever made a road merely for the use of the lieges. He makes it generally for the convenience of his estate; but if the lieges use it for forty years he is held to have included them in the original destination. Here, however, the origin of the road is not very favourable to the plea which lies at the foundation of the pursuers' case, and it would be necessary, I think, to prove continuous and unequivocal use on the part of the public for the whole period from the foundation of the road, which I am inclined to put about forty years before the period of 1846, in order to establish affirmatively the case which is raised under this branch of the condescendence. Well, then, has such a use been proved? As regards the earlier period, from 1806 to, I think, 1808, we have no evidence but that of Matthew Houston, and from 1808 to 1810 we have the evidence of Matthew Houston and John Houston, witnesses who are not related to each other I believe. From that period downwards there are various witnesses, the number increasing as we come nearer to the present time. Now, what does Matthew Houston's evidence amount to? He was a boy of ten years, I think, in 1803, when his recollection begins, and he only noticed the road because he was in the habit of going there guddling for trout. He was there in the pursuit of his amusement as a boy, and no doubt looked about him, and as far as I can judge he seems to have retained a pretty clear and accurate recollection of what he saw. He speaks of there being a road of some kind when he first knew the place, but he remembers the erection of the bridge; and before that time the only means of getting from the Bruntshields Road to the farm was by going down into the stream and crossing a ford. Now, Matthew Houston undoubtedly says that as far back as he can remember the road was used by milk carts bringing milk to the village. But he does not speak of any other use by carts except the carts that brought milk to the village two or three times a-week in the morning, but he does not know where those carts came from. His evidence is quite consistent with the supposition that they may have, been carts coming from the Wardhouse estate, or coming by that road with the permission of the proprietor or tenant. John Houston's evidence does not seem to me to amount to anything more; and it is really only when we come down to near the year 1820 that there is evidence of anything like general use of the road by farmers in the neighbourhood and owners of vehicles. Mr Johnstone pointed out that that evidence applied to all the farms bordering the two roads both to the north and south; and if there had been evidence of that character extending over the whole period of forty years—as much as applies to the period from 1820 to 1840—I do not doubt that the present claim might have been established. But the difficulty that occurs to me in considering the pursuers' case, is that when you go back to the earlier portion of the prescriptive period to which the evidence must apply, the use spoken of was merely occasional, and falls very far short of what would be necessary to establish a public right-of-way. It is notorious that all over the country there are farm roads—roads made and maintained by the proprietor for the convenience of his tenants—which are occasionally used by

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other persons as short cuts, and from a feeling of good neighbourhood that is allowed to a moderate extent, and unless it amounts to such use as is inconvenient or seems to point to assertion of public right, it is not likely that it will be stopped. I see, up to about the period of 1820, no evidence of any use, except such as may be predicated of any of the ordinary farm roads made and maintained by proprietors throughout the country. Therefore in my opinion the pursuer has failed to establish the prescriptive use antecedent to 1846, which is a necessary part of his case. That failure does not arise from the absence of living witnesses applicable to the earlier period of forty years, because there are living witnesses, but because their evidence, whether from want of means of knowledge or from defective recollection, or from the facts being against the case, does not seem to me to amount to use as matter of right, and in the assertion of a right.

My opinion, therefore, on the whole case is that the defenders have had the exclusive use of the road from 1846 downwards through their predecessors in title, and that the pursuers have failed to prove the necessary use on the part of the public for forty years, or time immemorial antecedent to that date, and accordingly the defenders are entitled to be assoilzied from the conclusions of the action.”

The pursuers reclaimed, and argued—There was direct evidence of public use from 1806 onwards, and besides, from the year 1820 to 1846 there was a use of this road clearly proved, if not admitted, of such a kind as would not have been tolerated unless there had been previously an existing right of way. No interruption took place prior to 1874, when defender acquired the property, the gates having been proved to have been kept unlocked. For forty years prior to 1846 this road had been proved to have been a public right-of-way; the road might have been improved by the tenant, but that did not take away the right of the public to the use of it, that right having once been established.

Argued for the respondent—There had not been proved for forty years prior to 1846 a use by the public of this road. Their non-possession of it for the thirty-seven years subsequent to 1846 was much against the probability of such use. The road was essentially in its situation and formation an estate road, and any use of it which the public might enjoy was only by the tolerance of the proprietor. The thirty-seven years' disuse must be held to have sopited any right of use by the public.

Authorities— Forbes v. Morrison, July 19, 1851, 13 D. 1404; Wallace v. Police Commissioners of Dundee, March 9, 1875, 2 R. 565; Magistrates of Elgin v. Robertson, January 17, 1862, 24 D. 301; Campbell Douglas v. Hozier, October 19, 1878, 16 Scot. Law Rep. 14; Hill v. Ramsay, 5 Pat. App. 299; Waddell v. Earl of Buchan, March 26, 1868, 6 Macph. 690; Sutherland v. Thomson, February 29, 1876, 3 R. 485; Rodgers Harvie, Jan. 17, 1829, 7 S. 287, aff. 3 W. & S. 251.

At advising—