Scottish Court of Session Decisions

The Scottish Rights of Way and Recreation Society (Limited), in conjunction with Thomas Duncan of Clova, Kirriemuir, and James Farquharson, at one time a shepherd at Auchallater, near Braemar, raised this action against Duncan Macpherson, of Glen Doll, Cortachy, Kirriemuir, to have it found and declared that there existed a a public road or right-of-way for passage on foot and horseback, and also for driving cattle and sheep, in or near the direction shewn by the red line A, B, C, D, E on a plan produced, leading the said road from the point A or a point near thereto on the public highway between Braemar and Blairgowrie, ascending Glen Callater, and ascending the Glen of the White Water and Glen Doll to the point E or a point near thereto, on the public highway, proceeding down Glen Clova to Kirriemuir, so far as the said road passed through the property of the defender, and that the pursuers and the public generally were entitled to the free and lawful use and enjoyment thereof, for the purposes of passage on foot and on horseback, and of driving cattle and sheep, and that in the particular line and direction above mentioned, or in such line and direction as might be fixed by the Court, so far as the said road passed through the property of the defender, and that the defender had no right to impede or obstruct the pursuers and others foresaid in the said free use, possession and enjoyment of the said public right of way or any part thereof, or of any of these said rights, or to exclude them from access thereto. There were further conclusions for fixing the line of the road at the sight of the Court, and for the removal of all gates, water-fences, trees, and other obstructions in so far as they might exclude free and open access to the road, and for interdict against troubling and molesting the pursuers and all others in the peaceable use and enjoyment of the said road in all time coming.

The line of road began at or near the farm of Auchallater near Braemar, on the Invercauld estate belonging to Colonel Farquharson, being the point marked A on the plan. It proceeded in a south-easterly direction up Glen Callater, through Colonel Farquharson's property, past the point marked B on the plan, entered the defender's property at or near a hill named Tolmount, being the point marked C on the plan, and proceeded down the Glen of the White Water by the route commonly known as Jock's Road, thence down Glen Doll past the shooting-lodge of Glen Doll situated near the farm-steading of Acharn to the farm-house of Braedownie, at about fifty yards westwards from which, at the point marked D on the plan, it left the defender's property and emerged on the public road or highway to Kirriemuir and Forfar, thence proceeding down Glen Clova to the village of Milton of Clova, at the point marked E. It was between C and D, i.e., between Tolmount and Braedownie by way of Jock's Road, that the defender denied the right-of-way. It was admitted that from D to E, i.e., from Braedownie south-east to Milton of Clova, there was a county road. Before the action was raised, Colonel Farquharson admitted the existence of a right-of-way between A and C.

The pursuers averred that for time immemorial the road had been continuously and without interruption used by the public on foot and on horseback as a public road and as a public drove-road for cattle and sheep; that it afforded the only direct means of communication between Braemar and Glen Clova; that it was extensively used by drovers and others in Forfarshire resorting to the Braemar market, and by drovers and others pro-proceeding from the Braemar market to the Cullow market and other markets in Forfarshire; and that it was the ordinary route by which large numbers of cattle and sheep from Strathspey, Rhynie, and other districts which had been brought to Braemar were taken south to the Forfarshire markets. The defender denied these averments. It was admitted that he refused to recognise the pursuers' right over the road, and insisted on his right to plant trees, and to erect a gate, and keep it locked and refuse all access to the road, and to deal with the solum thereof as his own property.

The defender averred that at the point D on the plan at Braedownie, which was near the entrance to the Glen of the Doll, the county road from Kirriemuir terminated, and that the termination of the county road marked the beginning of a well-defined farm road which was believed to be a right of way. That this farm road, which began on the defender's property, proceeded in a northerly direction until it reached the Cald Burn; and that at this point the road divided into two ways, one of which proceeded in a north-westerly direction along the Burn of Towal past the shooting lodge of Bachnagairn and onwards till it reached the lands of Colonel Farquharson at or near the point C, the terminus of the alleged right-of-way on the defender's property.

The pursuers pleaded—“(1) The road libelled having been used by the public as a public road or right-of-way in the manner condescended on for time immemorial or for the prescriptive period, the pursuers are entitled to the decrees of declarator concluded for. (2) The defender having obstructed the public use of said road, in the manner condescended on, the pursuers are entitled to the various decrees concluded for against him.”

The defender pleaded—“(1) The pursuers' averments are irrelevant. (2) There never having been any public road nor right of way in the lines claimed by the pursuers, the defender should be assoilzied. (3) The defender's whole actings having been within his legal rights, he should be assoilzied. (4) The pursuers' averment being unfounded in fact, the defender should be assoilzied.”

The evidence for the pursuers was as follows:—(1) As regarded the use of the road by foot-passengers for the prescriptive period—No tourist who had walked the road was adduced, but Stuart, a Braemar guide, gave evidence that he had taken people up to the Tolmount, and directed them to go down by the disputed road. The innkeeper, and late innkeeper, of Clova deponed that persons had arrived at the inn who to their knowledge had come by the road in dispute.

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Two former ministers of Clova deponed to having had the road pointed out to them as a public road, and having used it. One of them had been shown it as a drove road by the late farmer at Braedownie, who was dead.

Lord Southesk, who was lessee of the Glen Doll shootings in 1862 and 1863, and who was proprietor from 1870 till 1877, deponed that he had always understood that the right of way existed.

Mr Gurney, who was proprietor of Glen Doll from 1877 till 1883, deponed that during the period of his ownership there was no road through Glen Doll, but that foot-passengers, sheep, or cattle could pass, and that in consequence he had given instructions that a space outside the infield dyke of Acharn should be left unplanted in order that sheep might pass that way.

It was proved that a bridge at Acharn over the Esk for the public road at Braedownie had been erected by public subscription. It was also proved that there was a milestone on the road to the west of Acharn marked “18 miles from Kirriemuir.”

( 2) As regarded use by drivers of sheep, cattle, &c.—Witnesses were adduced who deponed to having either actually themselves used the road or to having heard of others since dead using it. This use took place on two occasions in the year, when sheep were driven from Braemar to Cullow to the half-yearly markets. Of these witnesses there were two classes—( a) persons connected with the estate of Glen Doll as tenants, &c., ( b) persons having no connection with the estate. The former spoke to specific occasions of sheep driving, the latter spoke to it at irregular intervals.

In the evidence for the defender it was shown that the tenants on the Glen Doll estate had supplied the drovers passing along the road with refreshment for themselves and fodder for the night for their stock. Since 1879, when the Cullow market ceased, the traffic had also ceased. The defender attempted to show that the Bachnagairn road was the better and superior road.

The Lord Ordinary ( Kinnear) pronounced the following interlocutor:—“Finds that there exists a public road or right-of-way for foot-passengers, and also for driving cattle and sheep, leading from the point A on the plan, or a point near thereto, on the public highway between Braemar and Blairgowrie, ascending Glen Callater and descending the Glen of the White Water and Glen Doll to the point E on the said plan, or a point near thereto on the public highway between Glen Clova and Kirriemuir, and that the pursuers and all others are entitled in time coming to the free use and possession of the said right-of-way so far as it passes through the property of the defender: Continues the cause in order that the particular line and direction of the said road as it passes through the defender's property may be defined; and grants leave to reclaim against this interlocutor, &c.

“ Opinion.—The road in question is a natural hill pass between Aberdeenshire and Forfarshire. It traverses some very high ground, and is in some parts steep and rugged; but there is no doubt that it is a practicable way for foot-passengers and sheep. I do not think it proved that in its present condition it is a practicable road for cattle or horses. But for foot-passengers and sheep it is a practicable means of transit between Braemar and Glen Clova, and it has been used for these purposes for more than forty years.

“Much of the evidence is too general in its character if it had stood alone to establish a right-of-way. But when all necessary deductions upon this account have been made there still remains a sufficient body of testimony to prove that the road has been used as of right by the inhabitants of the district and others as a means of transit between Clova in Forfarshire and Braemar.

“It is true that the use which has been proved, taking all the evidence together, is by no means extensive. There could be little or no use made of such a pass during the winter months, and even during that part of the year when it was practicable and convenient to travel by it there may have been weeks together without any stranger to the estate making any use of the road. The most important purpose for which it would appear to have been used by persons not resident on the estate was the driving of sheep from Braemar to Forfarshire; and this could not have occurred more than once or twice in any year. Nor does the use for any other purpose, which can be referred to as an assertion of right appear to have been much more frequent. The uses which have been proved, therefore, would probably be altogether insufficient to establish a public right if the road in question had traversed a populous district well provided with other means of communication. But the extent of the use which will indicate right must depend upon the nature of the country and the requirements of the inhabitants. It must be such a use as might reasonably be expected if the way were reputed to be public, and admitted to be so by the proprietors of the land, and I think the use which has been proved is just what might have been expected in such a district. The material point is that the pass through Glen Doll is the natural and direct means of access to Braemar on the one side and Clova on the other. The only road which can reasonably be brought into competition with it—that by Bachnagairn—does not seem to have been used to anything like the same extent; and it does not appear that anybody ever abstained from using it who might have been expected to do so if it had been admittedly public.

“It is said, however, that the evidence is not only scanty, but that if uses which in no way indicate an assertion of right are disregarded, there has been hardly any use, except on very rare occasions, which might easily escape the notice of a proprietor; and in the application of this argument it is said that the use of the path through Glen Doll by the tenants of that estate, and by the tenants on the neighbouring estates, ought not to be taken into consideration. In so far as regards the tenants in Glen Doll this observation appears to me to be well founded. But it does not apply with the same force to the tenants of neighbouring proprietors, nor to persons living in Clova, who, although they might be tenants of the proprietor of Glen Doll, had no occasion to make use of a way through the Glen for the enjoyment of their tenancy. It may be that a proprietor may be disposed to allow his

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own tenants, or those of his neighbours, to make use of roads on his estate which he does not throw open to the public. But it does not follow that the use by such persons of such a way as that in question is to be thrown altogether out of consideration. The greater part of the population in such a district must be tenants either of the proprietor whose land is traversed by the alleged road or of his neighbours. It is true that the use of a road by farmers or others living on the line of road exclusively will not prove a public right, because it does not prove that the road is used as a means of communication between two public places. But it may still be taken into account along with other evidence, although it is in itself the use of a part only, and not of the whole line of road, of which it is necessary that a public use should be proved. The question is, whether such use as has been proved, taking all the evidence together, is to be ascribed to tolerance or to the assertion of a right?

“But the most important evidence of any specific use of the road is that by drovers and cattle-dealers who were accustomed to take sheep which had not been sold at the Braemar market to the market at Cullow in Forfarshire. This use alone would probably be sufficient to establish the pursuers' case, because it cannot be explained by tolerance. It is said to be obsolete, because the market at Cullow has been discontinued. But there is nothing to show it may not be resumed; and if it were certain that this particular use was now at an end, that would not affect its value as a piece of evidence to show that during the period of prescription the road had been resorted to by the public, and not merely by privileged persons.

“Taking the whole evidence together, I think there is enough to show that there was such a use of the road by the inhabitants of the district generally, in the course of their ordinary avocations, as to infer a public right. I do not think it possible to ascribe this use to tolerance. There can be no question that the pass through Glen Doll was generally reputed to be a public right-of-way. Those who used it did so because they believed they had a right to use it. There is no evidence that anybody ever asked leave of the proprietor of Glen Doll to use it. And it is certain that there is no room for the suggestion of tolerance during the ownership of Mr Gurney and of Lord Southesk, because they both of them say that they believed that there was a public right of way through their property. It may be that they did not feel the public use to be at all burdensome, and they might have been willing to submit to it irrespective of right. But their evidence shows that they did not understand that they were tolerating a use which they might put a stop to; but they, as well as the inhabitants of the district, believed they had no right to object. There is a material piece of evidence to the same effect, but of much earlier date than the ownership of Lord Southesk—the evidence of a witness named Ogilvy, who was examined on commission, and who speaks to the objection entertained by his father, who was a tenant in Glen Doll, to the use by the public of the road through the Glen, and says that his father was desirous to put a stop to it, but became satisfied that there was no use in attempting to do so, because there was a public right of way. There is some real evidence in the same direction, because the construction of the bridge at Acharn by subscription indicates a belief on the part of the subscribers that the public had an interest in the access to Glen Doll. Although I do not think there is evidence of the use of the road by cattle to any material extent, it does not seem necessary to qualify the terms of the declarator on that account, because it would be within the public right to use it for cattle if it be a drove road for sheep.

“It does not appear to me to be material to the question of right that sheep-drovers in coming through Glen Doll were at one time in the habit of crossing the stream which runs through the Glen, and taking the south side, and afterwards were more in the habit of keeping to the north. But there is a question as to which the parties are not agreed—whether the line of road should now be laid down on the north or on the south? Both parties, however, agree that the question of right should be finally determined before the line is definitely fixed, and I have therefore granted leave to reclaim.”

The defender reclaimed, and argued—The evidence adduced to establish a public right-of-way here was not of the quality or extent which the law required. Indeed, a fair criticism to make upon it was to say that if the right of way Society intended to raise their action on this sort of evidence, there was a great danger that proprietors in their own interests would in future shut up from the public access to walks within their policies which formerly they had been glad to throw open. It was a striking fact that in an action raised in the interest of the public pedestrian, no tourist had been brought forward to give evidence of having walked the road in question. It was an exhaustive description of the evidence to say that it related to the driving of sheep from Braemar to Cullow, and was limited to the contingency of drovers failing to sell their stock at Braemar. An examination of the evidence on this point showed (1) that the driving of sheep was limited to persons who belonged as tenants or otherwise to the Glen Doll estate; (2) that when drovers unconnected with the estate used the road on their way to or from the markets, they received, as of tolerance, refreshment from the proprietor's servants or his tenants, and their stock were also foddered for the night. This was just gratuitous giving of lodgings for the night, and could hardly be ascribed to assertion of right. It was not enough otherwise to show that persons had occasionally seen people going along the road, and the same might be said of the hearsay evidence of dead persons. The road was not even the most direct and convenient road to Braemar, the Bachnagairn road not being so steep. Even the guide who was adduced deponed that he had never travelled the whole of the road in question. The evidence of witnesses who spoke to driving their sheep from the neighbouring farms was of no importance. They did not use the road as of right, and their use was of a sporadic and scattered character. A great deal of the traffic was just that of the proprietor. Since the market at Cullow ceased in 1879 there was no evidence of use. There was then nothing like the habitual resort to market by people of the district—the use was a contingent and occasional and not a systematic one. The next question, then, was quo animo

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was the practice suffered by the proprietor? Was it to be inferred from a man's allowing people to pass through his property occasionally that there was assertion of right? The defender could have no possible interest or reason to object. Indeed, he would have acted harshly and oppressively if he had done so. The whole evidence, then, only related to a practice which must on every view of it be ascribed to tolerance.

The respondents replied—The question for the Court here was, whether upon the evidence the use of the road was as of right, or was to be accounted for by mere tolerance? Taking the road as a public one by tradition, was the traffic proved of such a character as to indicate a public road?— Napier's Trustees v. Morrison, July 19, 1851, 13 D. 1404; Mackintosh and Others v. Moir, February 28, 1871, 9 Macph. 574. The nature and character of the country through which the road ran was undoubtedly to be considered, and the Lord Ordinary had taken this view. The road was the natural and only direct one for those going from Braemar to Clova, and was no steeper, except at Jock's Road, than Bachnagairn. All the pursuers' witnesses said that they considered it a public road. The point most relied on by the defender was that the use of the road seemed to be confined to drovers driving sheep between the two markets. It was very natural that the drovers should mention having seen people connected with the Glen Doll estate using the road, for they would be just the persons best known to them, and therefore most likely to be noticed by them, but they all said further that they frequently saw others using the road whom they could not identify. But the evidence was certainly not to be attributed to these two markets, for it was most clearly proved that the use was habitual at other times. The point made about supplying the drovers, as of tolerance and good neighbourhood, with refreshment must be discounted. It was ridiculous to say that there was no right of way because refreshment had been given. Though no tourist had been adduced, yet there was ample evidence that many were seen using the road. The guide at one end of the road said that he had directed pedestrians to the road, and the innkeeper at the other end said he had received them. If the road was a public one, then the fact that the market at Cullow had ceased to exist did not affect its character— Duke of Athole v. Torrie, June 3, 1852, per Lord Ivory, 1 Macq. 70; Marquis of Breadalbane v. M'Gregor, July 14, 1848, 7 Bell's App. 61. There were also two pieces of real evidence in support of the pursuers' contention in the bridge at Acharn and the milestone. On the whole matter the traffic proved was in no sense to be ascribed to mere tolerance. It amounted to an assertion of right by the public.

At advising—