Scottish Court of Session Decisions

The estate of Knockfin is situated on the north or left bank of the river Dhiag, which runs through Glen Affaric, in the county of Inverness, in a north-easterly direction. On the Knockfin side of the river the population is very thin, as the ground is used for a deer forest.

The estate of Guisachan lies on the south or right bank of the river, and marches with Knockfin for a distance of 13 miles. The river Dhiag is the boundary between Knockfin and the Glen Affaric shootings and Guisachan. The population on the Guisachan side of the river is more numerous, but consists wholly of persons employed on or about the estate.

Guisachan House lies about 200 yards to the south of the river. Within the policies are the ruins of an old mill, hereinafter called the Old Meal Mill, about 250 yards to the south of the house.

About 350 yards above, i.e., to the west of the house, the Dhiag is crossed by a bridge called the Black Bridge. This is a foot bridge, the Knockfin end of which is about 300 yards from the Strathglass county road, which runs along the north bank of the river as afterwards described.

About 540 yards below, i.e., to the east of Guisachan House, the Dhiag is crossed by the White Bridge. This is a substantial wooden structure, resting on stone abutments on each side, and suitable for carriage traffic. The Knockfin end of this bridge is about 45 yards distant from the Strathglass county road, with which it is connected by a good road. On the south side there is a carriage road connecting the bridge with Guisachan House.

Near the Black Bridge there was formerly a ford, which till 1854, and occasionally later, was in use, but only for foot and horse traffic. Near the White Bridge there was also a ford, known as Cullessie Ford, which was occasionally used for cart traffic, but seldom if at all after the bridge was built. About a mile and three quarters below Guisachan House, and also on the south bank of the river, lies the village of Tomich. From this village a road runs up the south bank of the river passing in about a quarter of a mile the entrance to the avenue of Guisachan, and crosses the Dhiag at Knockfin Bridge. The road then runs along the north bank of the river, where it is known as the Strathglass County Road, passes the connection with the White and Black Bridges, and ends in a drove road to the west, about half a mile above Guisachan House.

From Tomich, as already stated, this road runs up the south bank of the river till it reaches the avenue gate of Guisachan. The avenue runs along the south bank of the river, and (disregarding a short stretch up to the house), reaches the site of the Old Meal Mill. Thereafter in a quarter of a mile it reaches the farmsteading of Hilton or Tom-Guisachan, at which point a drove road strikes off southward—hereinafter called Road No. 5—leading to Glenmoriston. The avenue road continues westwards past Tom-Guisachan, up the south bank of the Dhiag to Cougie, many miles away, where there is only a shepherd's house. This road will hereafter be called Road No. 1.

From Tomich a road branches off the Strathglass County Road, close to the village, and runs westwards, south of and nearly parallel to the Guisachan avenue for about half a mile, and then strikes southwards at a point hereafter called H, across country to a point where it meets Road No. 5, the drove road to Glenmoriston. This is a drove road, and will hereafter, from the point H to the point where it joins the Glenmoriston Road, be called Road No. 6.

From a point in the avenue of Guisachan, about a quarter of a mile from the gate, a road runs up to join Road No. 6 at the point H where it strikes southward, and this short stretch is also included in Road No. 6, which thus extends from a point in the avenue of Guisachan to the point where it joins the — Glenmoriston Road — No. 5.

Thus the point H, where Road No. 6 strikes southward may be reached from Tomich, either by following the road which branches off the Strathglass County Road, and runs south of and parallel with the Guisachan avenue, or by going along the Strathglass Road, through the avenue gate, along the avenue for about 200 yards, and then down Road No. 6.

In 1854 Lord Tweedmouth bought Guisachan from Fraser of Culbokie. At that date Duncan Chisholm was proprietor of Knockfin.

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In 1858 Lord Tweedmouth erected the White Bridge. About the same time the use of the Old Meal Mill of Guisachan was discontinued, and a new mill was built to supply its place near Tomich, at Guisachan steading.

In 1858 Duncan Chisholm died, and was succeeded by James Sutherland Chisholm, from whom Lord Tweedmouth in 1869 obtained a lease for twenty-one years, from 1870, of the shootings inter alia of that part of Knockfin on the other side of the Dhiag from Guisachan House and policies.

James Sutherland Chisholm disentailed the estates in 1884. He died in 1885, and was succeeded by his son Roderick D. M. Chisholm.

In 1877 Lord Tweedmouth erected the Black Bridge over the Dhiag. This original bridge was carried away by a flood, and another was erected in 1881.

In 1881 William Louis Winans, an American citizen, became tenant of the grazings of Knock-fin.

By deed of assignment dated in June 1885, Lord Tweedmouth, with consent of Roderick D. M. Chisholm, assigned his right to the Knockfin shootings to Winans. Under this deed Lord Tweedmouth made over to Winans certain subjects, “as well as any other buildings or constructions, and the additions and improvements of buildings at Aultbea and other places on or pertaining to the subjects hereby assigned, made by the said first party or his sub-tenant; and the first party hereby undertakes to put the second party into full and actual possession of the subjects hereby assigned,” with certain small exceptions, “at the date of the assignment, and the whole buildings and other constructions which are to be delivered by the first party to the second party under this assignment are to be received by the second party in the order and condition in which they may be at the date of this transfer or assignment.”

In 1887 Roderick Chisholm died; Mrs Annie Macdonnell or Chisholm, his mother, was his general disponee and representative.

On 30th April 1886, Winans, as tenant of the Knockfin shootings, with consent of Roderick Chisholm, raised an action of declarator in the Court of Session against Lord Tweedmouth. Before the case was decided by the Lord Ordinary Roderick Chisholm died, and his mother Mrs Annie Chisholm was sisted as a pursuer in his stead. The summons contained five conclusions with reference to the pursuers' rights in the bridges over the river Dhiag and roads connecting these bridges with the public road on the north, and with reference to public rights of way over roads on the south bank of the river, i.e., through Guisachan estate. Certain of these conclusions were abandoned, and the judgment of the Lord Ordinary upon certain others was acquiesced in. Those which it is necessary to set forth were as follows:—“It ought and should be found and declared, by decree of the Lords of our Council and Session, ( first) that under and by virtue of a deed of assignment entered into between the pursuer William Louis Winans and the defender, dated 22nd and 24th June 1885, there were assigned to the said William Louis Winans the defender's whole right, title, and interest in and to (1) the northmost half of the two bridges erected by him across the river Dhiag, in the parish of Kiltarlity and county of Inverness … or one or more of them, the said bridges over the river Dhiag being situated, the one called the White Bridge, 540 yards or thereby north-east of Guisachan House, belonging to the defender, and the other called the Black Bridge, 350 yards or thereby south-west of Guisachan House … and (2) in and to the roads and paths connecting the said bridges on the north with the public roads running through the lands of Knockfin belonging to the pursuer Roderick Donald Matheson Chisholm; ( second) that the northmost half of the said two bridges erected by the defender across the river Dhiag are situated entirely within the said lands of Knock—I fin, and that the roads and paths connecting the northmost ends of the said bridges with the said public roads running through the lands of Knock; fin are also situated entirely within the said lands; ( third) that the pursuers are entitled at any time, and without any process of law, to shut up the said bridges, so far as situated on the lands of Knockfin, or one or more of them, and the said connecting roads and paths on the said lands, or one or more of them, by placing a fence or fences across the said bridges and connecting roads and paths, so far as situated on the lands of Knockfin, or one or more of them, so as to prevent the use of the said bridges and connecting roads and paths, or one or more of them, as accesses to or from the said public roads, the pursuers always leaving sufficient openings in any fence or fences which may be placed by them opposite the north end of the ford over the Dhiag, situated 450 yards or thereby north-east of Guisachan House, and opposite the north end of the other ford over the Dhiag, 875 yards or thereby, measuring along the course of the river, to the west of the ford above mentioned … and upon the line of the roads or paths connecting the said fords with the public roads running through the lands of Knockfin: Or otherwise, in the event of it being found that the pursuers are not entitled to shut up the said bridges and connecting roads and paths, or one or more of them, it ought and should be found and declared that there exists a public right of way for passengers, both on foot and by horse, and for cart and carriage traffic, and for the passage of cattle and sheep, or at all events, for foot-passengers over and along the same, or across and along such of the said bridges and connecting roads and paths as it may be found that the pursuers are not entitled to shut up, and also over and along the portions of the said bridges situated on the lands of Guisachan, and along the roads or paths connecting the said bridges, so far as situated on the lands of Guisachan, with the public roads on the south side of the river Dhiag … and that the pursuers and all others are entitled to use the same for all purposes of passage for which the said bridges and connecting roads and paths are available; and in that event it ought and should be further found and declared that the pursuers are entitled to erect gates across the said bridges and connecting roads or paths on the north side of the river Dhiag … (or across such of them as they may not be found entitled to shut up), without any restriction as to the height or method of construction of the same, provided only that the said gates shall be furnished with the same facilities for egress and ingress as exist in connection with the gates at present existing in connection with the said bridges and connecting roads and paths.

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The fifth conclusion was for declarator of right of way for cart and carriage traffic, for passengers on foot and horseback, and for cattle and sheep, or at all events for foot-passengers—(1) By Road No 1 from Tomich by Guisachan Old Meal Mill, and Tom-Guisachan or Hilton to Cougie. (5) By Road No 5 from the point where it leaves No 1 near Tom-Guisachan or Hilton to Glenmoriston. (6) By Road No 6 from a point about 200 yards within the avenue gate of Guisachan and joining the road to Glenmoriston from Tom-Guisachan—Road No 5—about two miles south of Guisachan House.

The summons then concluded that the defender should be ordained to remove any gates or other obstruction which interrupted the free use of these roads, which had, it was alleged, been acquired by prescriptive use.

The facts and dates above stated were not disputed.

The pursuer averred with regard to the Black and White Bridges (omitting reference to a third bridge over the Leth Allt burn, which was removed by Lord Tweedmouth before the Lord Ordinary decided the case)—” (Cond. 3) During his tenancy under the said lease the defender erected two bridges in order to connect the estate of Guisachan belonging to him with the shooting grounds of Knockfin, of which he was tenant. One of these bridges is now known as the Black Bridge, and is situated on the River Dhiag, the medium, filum of which at that point forms the boundary between the estates of Guisachan and Knockfin. The other bridge is to the west of the Black Bridge, and is situated on the Leth Allt Burn, which runs into the Dhiag. These bridges were erected about the year 1880 or 1881, and were used by the defender and his servants as a means of ingress and egress to and from his Knockfin shootings. Another bridge popularly known as the White Bridge had been erected by the defender about 1858, across the River Dhiag to the east of the Black Bridge. These three bridges are all built of wood, and the White Bridge is the only one of them available for cart traffic. When the defender constructed these bridges, he at the same time formed paths on both sides of the said rivers connecting the bridges with the public roads, which run along the north and south sides of the River Dhiag and the Leth Allt Burn. The northmost half of each of these three bridges is situated entirely within the lands of Knockfin, belonging to the pursuer the Chisholm.” (Cond. 5) Under and by virtue of the said deed of assignment the defender's right, title, and interest in the said three bridges or at least the Knockfin ends of them, from the medium filum of the river Dhiag and the Leth Allt Burn respectively, and the roads and paths connecting them with the public roads on the north, were assigned to the pursuer Mr Winans. The said pursuer thereupon became entitled to deal with the said bridges, roads, and paths in such way as he thought fit, saving always such rights, if any, as the public might have acquired over the same. In point of fact, the public had not up to the date of the said assignment acquired any right of use or passage over the said bridges, roads, or paths, nor have they done so since. The pursuer Mr Winans is entitled to shut up the said bridges, roads, and paths, by running a fence or fences across the same, or in any other way, openings being left by the said pursuer opposite the fords after mentioned. At all events, if the said pursuer be not entitled to shut up the said bridges, roads, and paths, he is entitled to run a fence or fences across these bridges, roads, and paths, provided only that he leaves gates in the fence or fences opposite the bridges, roads, and paths.” He further averred that in running a deer fence along the Knockfin side of the Dhiag he had left the access to the fords at the White and Black Bridges free.

The defender in answer stated—“Admitted that the bridge now known as the Black Bridge is situated on the river Dhiag, and was erected by the defender after his purchase of Guisachan, but explained that this bridge was erected in place of an old bridge which formerly stood at or near the same site, and had been carried away by a flood. This old bridge was in existence long before the defender purchased Guisachan, and had been erected and used in lieu of a ford road over the river Dhiag, which had been used by the proprietor and tenants of the estate of Guisachan from time immemorial as a means of access to and from the Strathglass County Road on the north side of the river.… Admitted that the bridge called the White Bridge, which crosses the Dhiag to the east of the Black Bridge, was erected by the defender about the year 1858. Admitted also that these bridges are built of wood, and that the White Bridge is the only one available for cart and carriage traffic. Explained and averred that the White Bridge was constructed with the consent of Duncan Chisholm of Chisholm, the predecessor of Mr Chisholm in the lands of Knockfin at the date of its erection, and that this bridge was built as a substitute for a ford road for foot-passengers, carriages, and horses which had from time immemorial existed and been used by the proprietors, tenants, and others, residents on the estate of Guisachan, as a means of access to and from the Strathglass County Road on the north side of the river. Admitted that the defender, in or about the year 1858, made a small piece of carriage road on the lands of Knockfin, with the consent of the proprietor of these lands, in place of the road formerly existing at the ford, and connecting the said bridge with the Strathglass County Road north of the Dhiag. The said ford road and the bridge road now substituted for it have been used by the proprietors of Guisachan as a right of way for carts, carriages, and horses, as well as foot-passengers for much more than the prescriptive period. Explained that from the dates of their construction, and at and after the date of the said deed of assignment the said bridges were in constant use by the defender and his servants and tenants on the estate of Guisachan, as roads or paths of access to and fro from the estate of Guisachan from and to the north side of the river Dhiag.… The road running by the White Bridge was in particular so used, as the ford road had been previously as one of the principal avenues or approaches to and from Guisachan House, and the road to Tomich, on the north side of the river Dhiag. They were so used without interruption or hindrance until quite recently, when the pursuer Winans erected a deer fence along the north side of the said river and burn, so as to cut off the access to the estate of Guisachan by these roads or paths.” He

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further denied that Winans had acquired right to these bridges by virtue of the assignation, or that it was contemplated at the date of that deed that any such right should be conveyed to him.

In Cond. 11 the pursuers set forth as members of the public, that there were public rights of way over about twelve roads or paths on the Guisachan side of the Dhiag. Amongst these were the Roads Nos. 1, 5, and 6 above referred to. It was not averred in the condescendence that Guisachan Old Meal Mill was a public place.

The defender in answer stated—“Ans. 10 and 11. Admitted that on the south or Guisachan side the said fords and bridges over the river Dhiag substituted therefor connect with certain roads or paths situated on the estate of Guisachan, and in particular with the avenues and private roads or paths leading to the house of Guisachan and the Old Meal Mill of Guisachan. The Meal Mill has been disused for a long period. Denied that any of the said roads or paths are public. No members of the public have used the said roads and paths on the estate of Guisachan for time immemorial, or at all events for much more than forty years, as public roads or paths, and no member of the public now claims right so to use them. The only persons now resident on the Knockfin estate are the keepers, watchers, and other persons engaged in the preservation of game for the pursuer Winans, as he does not allow any agricultural or pastoral tenants or crofters to reside on it. The said keepers, watchers, and persons engaged in game preserving do not in fact use, and have never used, the Guisachan private roads as public roads. The real pursuer of the present action, Mr Winans, does not truly claim to use the said roads as a member of the public. He has inserted alternative and additional conclusions of declarator of public right of way over twelve or thereby different roads or portions of roads—most of which are situated in or near the policies of Guisachan—in his present action solely in æmulationem vicini, and as a means of retaliation against the defender, who has obtained interim interdict in the Sheriff Court of Inverness-shire against him for cutting off, or attempting to cut off, by means of a deer fence, the rights of access which the proprietors of the estate of Guisachan have enjoyed from time immemorial, or at least for more than forty years, leading from the south or Guisachan side of the river Dhiag and Leth Allt Burn to the north side of the said river and burn and the Strathglass County Road.”

With reference to the road from Glenmoriston to Tom-Guisachan—Road No. 5—the defender admitted that it was public from Glenmoriston to the point where it reached the opening of Road No. 6 (the road to Tomich), but not from that point to Tom-Guisachan. He also admitted that Road No. 6 was public from the point where it left Road No. 5 to the point H, where the road as above described turned eastwards, parallel to the avenue of Guisachan. He also admitted that this last mentioned road to Tomich was public, but denied that the short stretch from H to the avenue of Guisachan was public.

The pursuers pleaded—“(1) On a sound construction of the said deed of assignment, the pursuer William Louis Winans is entitled to decree in terms of the first declaratory conclusion of the summons. (2) The northmost half of the said bridges being entirely constructed on the lands of Knockfin belonging to the pursuer the Chisholm, and tenanted by the pursuer Mr Winans, and the said connecting ways on the north being entirely situated on the said lands, the pursuers are entitled to decree in terms of the second declaratory conclusion of the summons. (3) The defender having no longer any right to the use of the bridges and connecting ways, so far as situated to the north of the said river and stream, and the public not having acquired any rights over the same, the pursuers are entitled to decree in terms of the first alternative of the third declaratory conclusion of the summons, or otherwise to decree in terms of the second alternative, (4) The said fords and connecting ways being public roads or rights of way, the pursuers are entitled to decree in terms of the fourth conclusion. (5) The roads libelled being public roads or rights of way, the pursuers are entitled to decree in terms of the fifth conclusion.”

The defender pleaded—“(1) The averments of the pursuers are neither relevant nor sufficient to support any of the conclusions of the summons. (2) The said deed of assignment not having conveyed or assigned to the pursuer Winans any right or interest in the bridges in dispute, or any part of them, the defender should be assoilzied from the first declaratory conclusion of the summons. (3) The said bridges and connecting ways on the north of the river Dhiag having been made as substitutes for existing rights of way belonging to the proprietor and estate of Guisachan, the pursuer is not entitled to decree In terms of the second and third declaratory conclusions. (4) The said bridges and connecting ways having been made at great expense by the defender, and consented to and acquiesced in by the successive proprietors of Knockfin from the dates of their formation down to the present time, neither he nor anyone in his right can now object to or interfere with their use as roads of access to the estate of Guisachan. (5) The said bridges and connecting ways having been openly used with the knowledge of the pursuers, both at and after the date of the said deed of assignment, as roads of access to the estate of Guisachan by the defender and his servants and tenants, the pursuers are personally barred from insisting on decree in terms of the third declaratory conclusion. (8) None of the roads libelled, with the exception of the roads admitted to be public in the defender's answer to article 10 and 11 of the condescendence, being public roads or rights of way, or at all events not being so in so far as they pass over any part of the lands of Guisachan, the defender is entitled to absolvitor from the fifth declaratory conclusion.”

Proof was led in the whole cause, from which it appeared with regard to:—

(1) The White Bridge.—This bridge was erected by the defender in 1858. At that date the defender was tenant of the Knockfin shootings. Before commencing the bridge he asked permission from Duncan Chisholm, who was heir of entail in possession of Knockfin, to do so at his own expense. It appeared from the evidence that the defender built the bridge on a simple authority from the Chisholm — not given in writing, or at least for which no writing was

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produced—on the understanding that it should not be interfered with. during the Chisholm's life. On this point Lord Tweedmouth deponed—“I became anxious to have a bridge over the Dhiag for the purpose of getting out to the Knockfin Road, which was the only public parliamentary road, and a road which appears in the Highland Roads and Bridges Report from 1817. Duncan Chisholm was proprietor of the Chisholm property at that time. I was acquainted with him for many years before I purchased Guisachan, and after I purchased it he was in the habit of visiting at my house in London. He died in the end of 1858 or beginning of 1859. His factor at that time was Mr Robertson, and Mr Brown was acting for me. I was in communication with Mr Brown on the subject of this bridge, and also with the Chisholm. No. 186 of process is a letter which I received from Mr Brown on the subject of the bridge. I saw the Chisholm in London more than once on the subject of erecting this bridge. My firm impression is that it was by correspondence—but the letter I cannot find, and I am not going to say positively that it was by letter—but my firm impression is that the request was made by letter to Duncan Chisholm for an excambion. I applied to the Chisholm for permission to erect the White Bridge. (Q) Did you get his permission in writing?—(A) I believe I did. I have searched my repositories for any written permission, but I have not been able to find any. I may add that Mr Brown would communicate with Messrs Stewart, Rule, & Burns, who were my agents. They have now ceased to be my agents, and are acting for Mr Winans, so that it was impossible for me to apply to them as to whether Mr Brown had consulted them on the legal points of the question. I have not found any letter from the Chisholm in my repositories. Mr Brown was acting for me at the time. I was frequently in the habit of sending papers to him connected with the estate matters. I have caused examination to be made through my agent of Mr Brown's repositories also, but without finding a letter. I am quite positive that I had direct communication with the Chisholm on the subject of the erection of the new bridge. (Q) Did you receive his permission?—(A) Yes. I am positive of that, and I may also say that the Chisholm was anxious for an excambion. Mr Robertson, the factor, said there were difficulties in the way, and Mr Brown said there were none. I am positive as to these facts. There was some earth taken from the Chisholm's side for filling up in making the bridge. (Q) Was that done with the Chisholm's permission?—(A) Certainly. I would never have thought of putting this bridge on the Chisholm's property without consulting him. I was not present when the bridge was built or earth carted.

I have never had any personal communication with Mr Robertson on the subject. My communication was with the Chisholm direct in London. (Q) Was the bridge in fact built shortly after you obtained the Chisholm's permission?—(A) Yes, it was commenced in the beginning of 1857. There was a road made, connecting the north end of the bridge with the Knockfin Road from 1857 down to the recent dispute. I have used the bridge and road for an access to Guisachan House daily and without objection by anybody.”

The letter from Mr Brown, No. 186 of process, referred to in Lord Tweedmouth's evidence, was dated 26th February 1858, and was in these terms:—“I went to Guisachan last Monday evening, accompanied by Mr Geo. G. Mackay of Inverness, and Mr William Robertson, the Chisholm's factor, met me there in good time on Tuesday morning. He is under the impression that the entail prevents the Chisholm from conveying any portion (however small) of the estate under a feu-charter, without the consent of the next heirs of entail, and as the Chisholm's next heirs are not known, he believes, or at all events asserts, that it is impossible for the Chisholm to grant a feu of the site for the lodge. I am persuaded that Robertson is wrong, as I know there is an old statute still in force, under which any proprietor in possession of an entailed estate can feu to the extent of half an acre by one deed. But it was quite unnecessary for me to argue the point with the factor, as he seemed confirmed in his own conceit. He, however, expressed his decided opinion in favour of the road and bridge, and assured me that the Chisholm would not only offer you no opposition to the formation and erection of them, but also that he would never think of finding fault with them after they are constructed, during his lifetime; and Robertson said that he was certain the Chisholm would give you an obligatory letter to that effect. In this case, and seeing that the lodge would answer as well, and might be made to look better if built on your own side of the water, I would advise you not to press for a feu right, but make the road and build the bridge under a simple authority from the Chisholm. The road must ever after the Chisholm's death appear a necessary connection of your estate with the parliamentary road, which no Court would order to be shut up without your consent.”

After Duncan Chisholm's death the succeeding heirs, viz.:—James Sutherland Chisholm and Roderick D. M. Chisholm (one of the pursuers) did not take any steps to have the bridge shut up until Winans blocked up the Knockfin access to the bridge, by putting a deer fence across it.

In the lease to the defender from James Sutherland Chisholm of the Glen Affaric shootings, granted in 1869, provision was made for the tenant taking over all bridges, roads, &c., on the shootings, but no special mention was made of the White Bridge.

In 1885, as already explained, Lord Tweedmouth assigned the unexpired portion of the lease to Winans.

(2) The Black Bridge.—This bridge for foot-passengers was erected by the defender in 1877 at his own expense. The first bridge was carried away by a flood, and another was erected in 1881. No permission was obtained from the Chisholm of the day for its erection, but nothing was done by him or his successor to interfere with its use or maintenance.

With reference to the Black Bridge Lord Tweedmouth deponed:—“(Q) With regard to the Black Bridge, has there all along been a ford there?—(A) Yes. I used that for riding as far back as 1851. It was the ford principally used in crossing back and forward from either side. There was a loose plank tied to the Guisachan side which, when any person wanted to cross, was turned over the deep portion, because the

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stream came rather deeper to our side. That plank was once or twice washed away. It was my understanding that there had been a bridge a long time back at that place. There is at present a bridge there called the Black Bridge. You can ride ponies over it. It was erected in 1877, and was washed away, and the present bridge was put up about 1881. I substituted the Black Bridge for the plank, because one of my daughters did not like to go over the plank.—(Q) Was it done in pursuance of any express arrangements with the Chisholm, or because you understood there had been a bridge there before?—(A) There was no leave or permission of any kind given for that bridge.”

The Lord Ordinary found, and it was thereafter taken as a fact in the case, that there were no public rights of way to the fords near these two bridges on the Guisachan side of the river. The White Bridge and connecting roads were largely used by the defender for bringing coals, luggage, &c., to the house from Tomich, so that such heavy traffic did not go along the avenue.

(3) Road No. 1.—This road may be considered in two sections. Section 1, the “Guisachan Road” from Tomich through the avenue gate, and ending at a bridge over a burn in the avenue a short distance nearer Tomich than the house itself. Section 2, the “Cougie Road” from this bridge past Guisachan Old Meal Mill, then past Tom-Guisachan or Hilton where Road No. 5 from Glenmoriston joins it, and so on to Cougie.

Section 1. There was no dispute as to this road from Tomich to the avenue gate. The minutes of the Inverness-shire Road Trustees, extending from 1803 to 1878, showed that in 1814–15, 1818, and 1821 the trustees expended public money to a considerable extent on this road. The Strathglass District Road Trustees were constituted by a private Act of Parliament in 1830. From that date to 1860, during most of which time Fraser of Culbokie was proprietor of Guisachan, the District Road Trustees expended public money on, and in fact maintained the road. The money was voted on the application of the proprietor, and was sometimes voted at meetings at which he was personally present. The last date on which money was so voted was in 1858. From a minute of the trustees of date 17th May 1856, it appeared that Lord Tweedmouth had applied for leave to alter the line of this road slightly at his own expense, and that leave to do so was granted. In 1860 Lord Tweedmouth converted it into the private avenue of Guisachan House. In 1879 the county adopted the Roads and Bridges Act of 1878. Neither this road nor the part of it to Cougie was included in the list of roads taken over by the trustees under the provisions of sec. 41 of the Act. The evidence showed that at Guisachan Old Meal Mill, before it was abandoned, there were only two or three houses. These were pulled down when the mill was given up. There was little evidence of any use being made of the road by the general public, any use that there was being chiefly by farmers driving to the mill to have meal ground there.

Section 2. It was proved that money had been spent on this part of the road by the road trustees in the same way, but to a less extent than on Section 1. Section 2, which led to Cougie, passed only two or three scattered houses on the way, and at Cougie there was only a shepherd's house. The road was much used for shooting purposes by the proprietors of Guisachan, but the evidence of use by the public was even slighter than in the case of Section 1,

Road No. 6.—The defender admitted, as before stated, that there was a drove road from Glenmoriston partly by Road No. 5, then by Road No. 6, and by the road described above as running nearly parallel to the avenue. The only question therefore came to be, which of the two alternative roads, that admitted by the defender, or that claimed by the pursuers, viz., by the short stretch between H, the point where the Glenmoriston road strikes southwards, and the avenue, and thence along the avenue to the east, should be adopted.

As a mere matter of convenience it did not appear, which line was the more convenient for the public, or which was the line most frequently used. It was, however, proved that the route claimed by the pursuers had been shut up by the defender in 1860, and that no complaints as to that act had ever been made before or since this action was raised by any member of the public. It was not proved that Winans (who did not tender himself as a witness) had suffered from the road he claimed being shut up, or indeed that he had ever used the roads claimed as public on the Guisachan side of the river. Lord Tweedmouth further deponed—and no attempt was made to contradict his statement—that he had never turned off any person from the estate.

On 25th May 1887 the Lord Ordinary ( M'Laren pronounced this interlocutor:—“Finds with reference to the first, second, and third conclusions of the summons, that the right of the pursuers to the northmost half of the bridge sometime erected across the Leth Alt Burn is not disputed, and that the said bridge having been removed, it is unnecessary to dispose of the same by decree: And with respect to the two bridges erected by the defender across the river Dhiag, Finds that the northmost half thereof, and the roads or paths connecting the said bridges on the north with the Strathglass County Road, are the property of the pursuer Mrs Chisholm, and are within the possession of the pursuer Mr Winans as her tenant: Finds also that the pursuers are entitled to close the said bridges against traffic, under the conditions and with the reservations as concluded for: Under the fifth conclusion, Finds that there is a public right of way from points to be hereafter determined,—the one between the bridge of Knockfin and the village of Tomich, and the other near Guisachan Old Mill, being a part of the way No. 1 of said conclusion: Finds also that there is a public right of way for passengers, horses, and cattle by the way No. 6 of said conclusion, and by so much of the way No. 5 thereof as connects Glenmoriston directly with No. 6, and ultimately with the Strathglass County Road: Finds of consent that there is a public right of way by the Road No. 7 of said conclusion: Quoad ultra assoilzies the defender from the conclusions of the summons, and decerns: Finds neither party entitled to expenses.”

“ Opinion.—This is an action instituted by Mr William Louis Winans, who is tenant of extensive moors and forests in the North Highlands, and the late Mr Chisholm of Chisholm, the proprietor of one of these subjects, against Lord Tweedmouth,

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who is proprietor of the estate of Guisachan, in Inverness-shire.

The conclusions are twofold— First, The pursuers claim a right to shut up two bridges over the Dhiag, and one bridge over the Leth Alt Burn, which were put up by Lord Tweedmouth at a time when his Lordship was tenant of the lands now occupied by Mr Winans, for the purpose of establishing communications between the two estates. Secondly, The pursuers (suing as members of the public) claim certain rights of way, seven in number, over the estate of Guisachan. Mrs Chisholm has now been sisted as general disponee and representative of her son, whose death took place some time after the proof was led, and while the case was under consideration.

It may conduce to clearness if I begin by announcing my decision on these points. I find for the pursuers on the matter of the right to close the two bridges which cross the Dhiag. The bridge over the Leth Alt Burn was given up by defender's counsel, and, as I understand, has been destroyed. I find that there is a public right of way from points to be hereafter determined-the one near the bridge of Knockfin, the other near Guisachan Old Mill, being a part of the way claimed as No 1 in the summons. I also find that there is a public right of way for passengers, horses, and cattle by the Road No. 6 of the series, and by so much of the Road No. 5 as connects Glenmoriston directly with Road No. 6, and ultimately with the Strathglass County Road. I shall define the right of way here found in such a way as will make it clear that it forms a thorough fare between two public highways. I shall also declare the public right of way by Road No. 7, in conformity with the consent which I understood to be given by defender's counsel. In regard to all the other rights of way claimed by the pursuers on behalf of the public, I shall assoilzie the defender Lord Tweedmouth from the conclusions of the summons.

With respect to the two bridges over the Dhiag, the facts are these:—The Dhiag, which flows in a north-easterly direction through Strathglass, is crossed by the county road at the Bridge of Knockfin about a mile and a-half below Guisachan House — Guisachan House being situated on the right bank of the stream, while the county road is carried along the left bank from the Bridge of Knockfin to a point about half a mile higher than Guisachan House, where it terminates. Access to Guisachan House is obtained by a carriage road (being one of the roads in dispute) which leaves the county road on the hither side of the Bridge of Knockfin, and leads straight to Guisachan. Soon after Lord Tweedmouth acquired the estate of Guisachan it was found that it would be for the convenience of those residing in the mansion-house to have a bridge over the Dhiag near the mansion, enabling them to get to the county road without going round by Knockfin. The defender asked permission of the Chisholm (Mr Duncan Chisholm being then the proprietor and head of the family) to form a bridge at his own expense connecting Guisachan with the county road. I am satisfied, on the evidence of Lord Tweedmouth and of Mr George G. Mackay, that the Chisholm did in fact give his permission to Lord Tweedmouth to form the bridge, and the bridge (known as the White Bridge) was built accordingly at Lord Tweedmouth's expense in the year 1858. It has since been constantly used for the cart and carriage traffic of Guisachan until its use was challenged by Mr Winans in a way which is not to be admired, viz., by carrying a deer fence across the approach to the bridge.

“It is for consideration what is the nature of the right acquired by the defender in virtue of the permission given to erect the bridge, and in considering this question it is to be observed that Mr Duncan Chisholm's right to his own estate was that of an heir of entail.

“There is no evidence that Lord Tweedmouth desired either a right of property in, or a servitude over, the small part of the Chisholm property on which he proposed to form the bridge, and its connection with the county road. If such a right had been desired, the right could not have been acquired except for a valuable consideration, because the Chisholm estates were entailed. But there is no evidence that Lord Tweedmouth desired anything more than that a bridge and approach should be formed for his convenience, he undertaking their formation, because it was for his convenience, and receiving from the Chisholm all the right which he was able gratuitously to confer, namely, a use by tolerance during the granter's lifetime.

Mr Duncan Chisholm was succeeded in the possession of his estates by Mr James Sutherland Chisholm, a distant relative, who, again, was succeeded by Mr Roderick D. M. Chisholm, one of the pursuers in this action. Neither of these gentlemen took any step to terminate or interrupt the defender's use of the White Bridge; nor did they or either of them do anything to confirm that right. During the greater part of this time, the defender was tenant of the Glen Affaric forest, being the part of the Chisholm estate on which the White Bridge was formed—first as a sub-tenant holding from Colonel Inge, and later as a tenant under a lease for twenty-one years obtained from Mr James Sutherland Chisholm on the expiration of Colonel Inge's holding.

“In the lease, which provides for the use of bridges made and to be made on the Glen Affaric property, nothing is said regarding the White Bridge over the Dhiag, and I conclude that the use of this bridge was continued, as it had begun, on no higher title than tolerance. In 1885 Lord Tweedmouth sub-let the Glen Affaric shootings to Mr Winans, and again nothing is said as to the White Bridge over the Dhiag. But it is evident that the conditions were altered by this arrangement. While Lord Tweedmouth was in the occupation of the lands on both sides of the Dhiag there were reasons for allowing him the use of the bridge, which ceased to exist when he assigned his interest in the Glen Affaric shootings to Mr Winans. Accordingly it is not surprising that the late Mr Chisholm and his successor, Mrs Chisholm of Chisholm, should have thought fit to support Mr Winans in this part of the case. Lord Tweedmouth's use of the bridge being, as I hold, merely tolerance, it could not compete with the right of possession acquired by Mr Winans under the assignment of 1885. It would then rest with Mr Winans, as tenant in possession, to say whether, as a matter of courtesy or good neighbourhood, he would allow Lord Tweedmouth

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to have the use of the bridge. He is not entitled to pull down the bridge, nor do the pursuers ask a declaration that they are entitled to do so. The bridge was put up with the consent of a former proprietor, who bad a right to make improvements on his property. It is partly on Lord Tweedmouth's property, and it is an improvement pertaining to the two estates. It must stand (unless the two proprietors agree to remove it) on the chance that at some future time they may agree to open it. This cannot be done (in my opinion) as long as Mr Winans retains his objection to the use of the bridge. But at the expiration of the lease it will be in the power of Mrs Chisholm, if she chooses, to throw open the bridge under such conditions as to the use to be made of it as the joint-owners may mutually agree on.

All that I have said about the nature of the occupation of the White Bridge, and the absence of any title or usufruct on the part of the defender, applies to the Black Bridge, which is besides only a foot-bridge in connection with a forest-path. It is therefore unnecessary that I should state separately my reasons for making the declaration desired by the pursuer regarding this bridge. This disposes of the first, second, and third of the conclusions of the summons.

I proceed to the consideration of the second branch of the pursuers' case—that relating to the seven rights of way claimed on behalf of the public over Guisachan estate. I may here remark that the mode of description of these ways followed by the pursuer is somewhat arbitrary, and the division into seven ways does not appear to me to correspond to the natural lines of communication of the estate, but rather to have been selected with reference to the pursuers' own views and claims in this action. I shall, however, endeavour to deal with the questions as nearly as possible in the order in which they are presented in the summons.

I postpone consideration of the fourth conclusion, which relates to rights of way by certain fords over the Dhiag claimed in connection with the other ways in question, because it is obvious that the fords are merely parts of the ways claimed, and the right to their use cannot be advantageously considered apart from the right to the ways to which they are said to be accessory.

Under the fifth conclusion of the summons I consider, first, Road No. 1, as there described. For reasons which will immediately be apparent, I must deal separately with the sections of this road, four in number, as to which the evidence and the legal considerations applicable to that evidence are distinct. These are—Section 1, from the county road near the village of Tomich (near Knockfin Bridge) to Guisachan Mill; section 2, from Guisachan Mill to Cougie, where the road claimed branches in two different directions; sections 3 and 4, the two branch ways leading respectively to Kintail and Glenmoriston.

The question is really more simple than it at first appears, because from Cougie, whence the two ways diverge to Kintail and Glenmoriston, (1) there is not and never was a made road to either of these places, and (2) there is no evidence (not enough, as I think, to deserve serious consideration) of a public right of way constituted or perpetuated by immemorial use. On this part of the case I find without doubt or difficulty for the defender. The question is thus limited to sections 1 and 2 of the way in question, or the part extending from Tomich or Knockfin by Guisachan Mill to Cougie. Cougie was, before Lord Tweedmouth's acquisition of the property, a shepherd's cottage. It is now, I understand, a keeper's house-not in any view, present or retrospective, a public place whereto a right of way could be acquired by prescriptive use.

But it is contended that there is a public right of way from Tomich or Knockfin to Cougie, because the road connecting these places, and especially the section from Knockfin to the Mill of Guisachan, is a made road, maintained by and under the administration of the Strathglass District Road Trustees. This is a question to which I have given a great deal of consideration, and I shall state briefly the conclusions at which I have arrived.

When a claim is made on behalf of the public, whether to a right of way or to the use of any common or unenclosed ground or other heritable property for purposes of utility or recreation, the public right must of course be referable to some known legal category, and in general such a right, if it exists, must be referred either to purchase, to presumed grant as proved by prescriptive use, or to actual grant or dedication to public uses, the evidence of which is not necessarily connected with prescriptive enjoyment. In former cases—one of them relating to the right of the inhabitants of Callander to the square in which the church is situated—I have expressed the opinion that if a superior or proprietor lays out a piece of ground—a road, a square, or a garden—for the use of his feuars or disponees, this is evidence of an appropriation of the subject to their use which, in conjunction with evidence of actual use may satisfy a court of law that the subject was irrevocably appropriated to public uses so as to disentitle the owner to shut up the subject or convert it to other uses. There is not much authority on this topic, but I think there is none which is contrary to what I have said. The law is stiff on the subject of written titles to heritable property; but it is not of such cast-iron rigidity as to oppose itself to the acquisition of rights of use by the public in the only way in which such rights can be acquired—by de facto appropriation of the land to the service of the community. Especially is this the case with respect to the appropriation of land for the purposes of inland communication, because it is matter of general experience that the acquisition of a road by purchase is a very unusual thing, and that the more usual, if not universal arrangement, is that in which the proprietor gives the site of the road in consideration of the benefit to his estate of having a way made through it, while the road trustees undertake the cost of making and maintaining the road, or, as the case may be, of putting in repair and maintaining an existing road. In such cases no deed of conveyance is necessary, because the proprietor of the estate through which the road is carried does not intend to part with the solum of the property, but only to make an irrevocable grant of the use of the surface for public purposes.

Now, taking first the section of road from Knockfin or Tomich to Guisachan Mill, it is my opinion that such an appropriation to public uses was made by Mr Fraser of Culbokie, the former

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proprietor of Guisachan. The printed excerpts from the minutes of meetings of the Strathglass District Road Trustees prove conclusively that from 1831 to 1861 (a period of thirty years) this road was maintained at the public expense, and that it was treated in all respects as one of the public roads of the county falling within the administration of the district trust. The money voted year by year for the repair of this road was voted on the application of the proprietor, and very often at meetings of the road trustees at which he was personally present. The trustees never disputed their liability to maintain the road, nor, so far as the minutes show, did the proprietor reserve a right to close the road, or lay claim to any higher interest in it, or any right different from the bare right of property which the other proprietors of the district had in the county roads passing through their respective estates. If this was the position of Mr Fraser of Culbokie, Lord Tweedmouth did not claim any different position after he acquired the property. In a minute, dated 17th May 1856, it is stated that Mr Marjoribanks of Guisachan (Lord Tweedmouth) wished ‘to have the line of the Guisachan Road, in so far as it passes through his place, altered.’ The minute then describes the alteration in terms which I need not read, an alteration which it is stated has been already made, ‘in hopes that when it has been completed to the satisfaction of the trustees or their overseer, they would sanction this alteration on the road, and adopt the same as part of the district road, and allow the present line either to be shut up or made private at Mr Marjoribanks' pleasure.’ Nothing can more clearly show that the defender, on taking over the property, recognised that the road to Guisachan was a public road under the management of the district trustees. The trustees evidently so understood the application, because they took it into consideration, and recognising that the proposal was ‘just and reasonable,’ resolved ‘to sanction the alteration if satisfied with the execution of the work’—that is, of the substituted road and bridge over the Guisachan Burn.

Now, the argument against the right of the public is that the administration of the road by he road trustees was not continued for forty years, and that Guisachan Mill is not a public place. To the first objection I think it is a sufficient answer that immemorial use (limited in proof to forty years) is only required where the public are claiming a right adversely to the proprietor, and when there is no direct evidence of grant or appropriation of the road to public uses. In a case like the present, where the proprietor is shown to have consented to the appropriation of his land to the purposes of a public road, a much shorter period of use than forty years is probably sufficient to establish the public right. I do not hold that the obtaining money from the rates in one year would be sufficient evidence of appropriation, nor do I say that any set period is necessary. There must be evidence to satisfy the Court of the proprietor's consent to make an irrevocable appropriation of land to purposes of public utility; and this, when followed by actual possession on the part of the public, and actual administration by the local authority continued for a reasonable time, will, in my opinion, suffice to constitute the right.

Then as to Guisachan not being a public place, if this argument were good for anything, there would not be half-a-dozen roads in all the Highland counties from which the public might not be excluded at the pleasure of the proprietors. Very few of the Highland roads are thoroughfares; only the main lines of communication from one county to another cross the watersheds which divide the mountain districts. It is the normal condition of things in these counties that a district road is carried upland through a valley or glen as far as the habitable tract of land extends, and there it comes abruptly to an end. Of course, if it be a private road, the public never can acquire a right of way over it, because it does not terminate at a place of public resort. But if the road is public in the sense that it is made and maintained at the public expense, and is, with the proprietor's consent, placed. under the administration of the local authority charged with the duty of providing means of communication for the district, then it appears to me that the law as to public termini is not applicable. In such a case the only question is whether the road is one which the trustees may lawfully make and maintain; and it is obvious that they may do so if one of the termini be a public place, and if along the line of the road there are habitations and a population for whose accommodation a road is needed. In the present case the road led to a mill, a place to which the farmers had to drive, and there is evidence of the existence of a village or scattered cottages at Mid-Guisachan, which have since been removed. There was also the mansion-house of Guisachan to which the road led; and I see no reason to doubt that the trustees were properly administering the assessments in so far as these were applied to the maintenance of the Guisachan Road.

It was explained in the evidence that since 1861 Lord Tweedmouth had improved the road in question, and had formed an entrance to it, with a lodge and gates, and had to some extent altered the direction of the road near Guisachan House. I am thus left in some uncertainty as to the actual limits of the old district road; but if counsel are not agreed as to this, I may make a remit to some person in the locality to suggest a suitable place for the terminus of the road in so far as public.

Nothing that I decree will prejudice the right of the defender to apply to the County Road Trustees to have the road shut up, as being no longer necessary for the accommodation of the public, should the facts warrant such an application.

I come now to the section of right of way No. 1, which extends from Guisachan Mill to Cougie, Now, as to this section there is evidence that during the period already referred to, 1831–1861, small sums of money were voted by the Strathglass Road Trustees for the repair of the ‘Cougie Road.’ But it is also clearly proved that there never was a road in the proper sense from Guisachan Mill to Cougie, and that the sums voted were such as would be totally inadequate even to the maintenance of a footpath. There was, moreover, no population whose wants were to be supplied, because the path led only to a shepherd's house, and it is at least questionable whether the sums voted under this

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head were a proper application of the road-trust funds.

I have already explained that, in my view, the question whether a road has been irrevocably appropriated by a proprietor to public purposes by making it over to road trustees is a question of fact in which all the circumstances are to be weighed. In regard to this small portion of a mountain track not leading to any place, and not really required for public purposes, there is not, to my mind, satisfactory and unequivocal evidence of its appropriation to the uses of the public. There is the fact that Mr Fraser of Culbokie received small sums of public money for its repair during a period of thirty years; but there are no other circumstances of weight, and I rather incline to look upon this as an instance of somewhat lax administration of the road money. With respect to the rights of way claimed under Nos. 2, 3, and 4, I shall say nothing except that paths of this description traversing a private estate are not proper subjects of a public right of way, and that the case relating to them has failed.

Nos. 5 and 6 taken together constitute a way from the Bridge of Knockfin to Glenmoriston. Starting from the Glenmoriston side there is one way only over the hill, but at a point about 1 1 2 miles distant from Guisachan the path bifurcates—one branch leads directly down a steep descent to Guisachan Mill, whence access to Bridge of Knockfin is obtained by the Road No. 1, already considered. The other branch or fork leads in a more gradual slope and in a direct line to Knockfin. The way No. 5 of the summons is the way from Glenmoriston to Guisachan Mill. No. 6 is the branch to Knockfin.

Now it is clearly established, as is indeed admitted by the defender, that there is a drove road from Glenmoriston to Strathglass in the direction indicated. And having regard to past practice, and the reason of the thing, I am clearly of opinion that the pursuers are not entitled to Nos. 5 and 6 together, but are only entitled to one way from Glenmoriston to Strathglass. The question is, to which of these ways. The defender contends that No. 6, or the straight line to Knockfin, ought to be declared the line of the right of way, urging that the evidence of use preponderates in favour of that way, which is also the nearest and the most convenient. In this view of the evidence, and on all the grounds enumerated, I think the defender's case is well founded. Indeed, I am at a loss to see any reason, except a controversial one, which could induce the pursuers to hunt up evidence in favour of carrying the public way past Guisachan House after the defender had intimated in the record that he conceded the alternative way leading to Knockfin by No. 6. There is evidence that both ways have been used during the prescriptive period, but in the view I take it is not necessary to analyse the evidence, because the convenience of the proprietor and of the only section of the public who use the way—drovers, with their sheep and cattle—alike point to No. 6 as the preferable route.

Way No. 7 is admitted on record, and no evidence was led regarding it. If a declaratory finding is desired regarding it, I understand the defender does not object.

I now return to conclusion fourth, the consideration of which was postponed, because the conclusion has reference to certain fords on the Dhiag to which it is alleged that the public are entitled in connection with the various rights of way claimed under conclusion fifth. Now, the only ways whereby the fords would be accessible to the public are those which I have negatived, being the way (part of No. 1) leading from Guisachan to Cougie, and the way (part of No. 5) leading from the fork in the Glenmoriston Road into a connection near Guisachan House, with the aforesaid way No. 1. The disallowance of these two ways carries with it the disallowance of the claim to the fords, which, besides, have not been shown to be necessary for the service of the public.

The pursuer Mr Winans, whose name stands first in the summons, and who is understood to be the chief promoter of the action, did not tender himself as a witness. He has not asserted that he desires to use any of the ways claimed, and it has not been shown that any of them would be subservient to his convenience as tenant of the adjoining property. He professes to be a suitor on behalf of the public, but there is no evidence that any member of the British public ever asked him to sue on his behalf, or ever complained of being prevented from passing over Lord Tweedmouth's estate. Lord Tweedmouth gave evidence that he never turned any person off his estate, and that no one who asked permission to view it was ever refused. In this general statement I presume the pursuers are meant to be included. His Lordship's evidence on this subject is uncontradicted. It therefore appears to me that the action is wholly unnepessary in the interests of the public and of the pursuers, and that while on some points the pursuers have had a technical success they are not entitled to the expenses of the litigation.”

The defender reclaimed, with leave of the Lord Ordinary, and argued—(1) The White Bridge.—It was incompetent for the Lord Ordinary under the conclusions of the summons to find that Mrs Chisholm was proprietrix of the northmost end of this bridge. The question really was as to the right of the pursuer Winans to shut it up under the third conclusion of the summons. Even if there had been no communication with the Chisholm in 1858, objection to the erection of this bridge was barred by acquiescence. But full consent had been obtained, and there was nothing to show it was limited or conditional, or given only for the Chisholm's lifetime. There had always been a right of servitude in favour of Guisachan over Cullessie ford, and this bridge was a substitute for the ford. This was proved by the evidence, and especially by the presence of the Chisholm's factor at the marking out and adjusting of the site of the bridge. The difficulties of the factor were as to a proposed excambion, lest that should infer a contravention of the entail and consequent irritancy. The substitution of one servitude road for another, no greater burden being put upon the servient tenement, was an act of ordinary administration competent to an heir of entail in possession. Even if it was an alienation, challenge was only competent during the contravener's lifetime by an action of irritancy at the instance of the substitute heir of

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entail. It was too late for Sutherland Chisholm to challenge the act after he succeeded to the estates, still more after he had disentailed the estates, and it was still more incompetent for Roderick Chisholm, the original pursuer in this action, who succeeded to the estates as a fee-simple proprietor, to bring a challenge thirty years after the consent had been given and the bridge had been erected.—Bell's Prin. 946, 947; Kincaid v. Stirling, January 12, 1750, M. 8403; Aytoun v. Douglas, July 1, 1800, M. Property App. No. 5; Macdonald v. Farquharson, January 24, 1832, 10 S. 236; Duke of Buccleuch v. Magistrates of Edinburgh, February 17, 1865, 3 Macph. 528; Cowan v. Lord Kinnard, December 15, 1865, 4 Macph. 236; Sanderson v. Geddes, July 17, 1876, 1 R. 1198; Grahame v. Magistrates of Kirkcaldy, January 19, 1881, 8 R. 395, and July 6, 1882, 9 R. (H.L.) 91 (Lord Watson's review of previous cases); Sandford on Entails, p. 431; More's Notes to Stair, p. 190; Lothian v. Willyson, February 13, 1725. M. 15,554; Earl of Kinnoul v. Keir, January 18, 1814, F.C.; Fullarton v. Hamilton (Bargany case), July 26, 1822, 1 Sh. App. 265, and June 20, 1825, 1 W. & S. 410; Maxwell v. Maxwell, December 15, 1843, 6 D. 255; Marquis of Huntly v. Nicol, January 9, 1858, 20 D. 374; Innes v. Hepburn, May 18, 1859, 21 D. 832; Earl of Leven and Melville v. Cartwright, June 12, 1861, 23 D. 1038; White v. Lord Morton's Trustees (Aberdour cases), July 13, 1866, 4 Macph. (H.L.) 53; Stewart v. Stewart (Murthly case), July 5, 1877, 4 R. 981.

(2) The Black Bridge.—Guisachan had always had an artificial means of crossing the river at this point. There had always, or at least for forty years, been some kind of a bridge there. In erecting the Black Bridge Lord Tweedmouth had merely done what it was necessary for him to do in order to exercise his undoubted right. It was the right of the owner of a dominant tenement to restore a bridge which had been knocked down or to put up a bridge where a ford on a servitude road had become impassable—Stair ii, 7, 10; Clelland v. Clelland, January 19, 1619, M. 12,769; Malcolm v. Lloyd, February 4, 1886, 13 R. 512. This bridge did not pass by assignation to Mr Winans, for it was not—any more than the White Bridge—an incident of the sporting rights of the Glen Affaric shootings. There was no conclusion in the summons warranting the Lord Ordinary's finding that the northmost end of the bridge was Mrs Chisholm's property.

(3) Rights of Way.—Road No. 1—The respondents had admitted there was no evidence to instruct a right of way beyond the Old Meal Mill. It was incompetent for the Lord Ordinary to find there was a right of way to that spot, viz., over part of the road claimed, because there was no conclusion to that effect in the summons. Further, the Old Meal Mill was not a public terminus. It had been taken down by the proprietor of Guisachan without remonstrance about 1856, and its site was a grass plot. No public use even of that part of the road had been proved, and consequently there had been no prescriptive use for forty years. The theory of dedication relied on by the Lord Ordinary was quite unknown to the law of Scotland. Dedication, even by the law of England, must be to the public, but here, if at all, it had been to the district. The expenditure of public money on this road had probably all along been illegal. The expenditure had always been for the benefit of the owner of the property, not of the public, and all expenditure of public money ceased in 1858. Since then this road had been used as a private avenue without objection from either the public or the road trustees, and it was not in the list of roads transferred to the new body of trustees under the Roads and Bridges Act, 1878— Poole v. Huskinson, January 19, 1843, 11 Mees. & Wels. 827; Dyce v. Hay, May 25, 1852, 1 Macq. 305; Duke of Atholl v. Torrie ( Glen Tilt case), June 3, 1852, 1 Macq. 65; Henderson v. Earl of Minto (Lochgelly case), June 1,1860, 22 D. 1126; Darrie v. Drummond, February 10, 1865, 3 Macph. 496; Jenkins v. Murray, July 12, 1866, 4 Macph. 1046; Duncan v. Lees (St Andrews and Kinkell Harbour case), December 13, 1870, 9 Macph. 274, and June 20, 1871, 9 Macph. 855; Brodie v. Mann ( Kilbarchan case), June 13, 1884, 11 R. 925, and May 4, 1885, 12 R. (H.L.) 52. As to No. 6—The line admitted by Lord Tweedmouth from the point H through the farm-steading to Tomich was the true public road. It had been used by the public to the exclusion of the line claimed by Mr Winans since 1870, and it was the shorter road of the two. The object of the respondent in claiming the other line was simply to get on to the appellant's avenue and through the appellant's lodge gate— White v. Lord Morton's Trustees, supra; Mackintosh v. Moir, March 2, 1872, 10 Macph. 517.

Argued for the respondents—

(1) The White Bridge.—The respondents had not asked for declarator that the northmost end of the bridge was Mrs Chisholm's property, because, although they did not see how the opposite view could be maintained, she was willing that the bridge should remain until better times or altered circumstances. The consent given by the Chisholm in 1858 was and could be only for his lifetime. This was proved by the letter of his factor. To have created a perpetual burden over Knockfin would have been an alienation, and therefore a contravention of the entail. The substitution theory had been reared up for the purposes of this case. Guisachan had never had a servitude right over the Cullessie ford. If there was not a public right over it, there was at least a mutual right possessed by the tenants on both sides of the river, irrespective of whether they belonged to Guisachan or to Knockfin. Lord Tweedmouth had admitted in his evidence that he was ignorant at that date of the existence of a ford. The case of acquiescence ( Duke of Buccleuch v. Magistrates of Edinburgh) founded on by the appellant differed in so many points from this case as to have no bearing upon it. The length of time here which had elapsed was of no consequence when combined with the facts that for two years after Duncan Chisholm's death in 1858 there had been an interregnum in the proprietorship of Knockfin, and that in 1864 Lord Tweedmouth became the tenant of Knockfin shootings, so that thereafter his use of the bridge was not adverse to the proprietor. If Duncan Chisholm contravened the entail, Sutherland Chisholm could challenge the illegal act even after his succession— Lnnes v. Mordaunt, July 5, 1822, 1 Sh. App. 169—and even after he had disentailed

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the estate. His son and successor Roderick, the original pursuer, was not barred from challenging this act of alienation although he had succeeded as fee-simple proprietor, for he was entitled to the estate free of anything that had been illegitimately put upon it. The bridge, and consequently the right to shut it up, had passed to the respondent Winans under and by virtue of the assignation.

(2) The Black Bridge.— There was no consent at all given for the erection of this bridge; it was erected by Lord Tweedmouth when he was tenant of Knockfin, simply for his convenience in enjoying the subjects he had leased. There was no right of servitude, and no ford there. Indeed, the only ford was 135 yards further up the river. Before the erection of this bridge a plank was kept on the Guisachan side to enable the people to get over the deep water—to act as a stepping-stone in fact. That was all, and the right not having been there, it was unnecessary to look at Clelland's case. Besides, this bridge also fell under the assignation in favour of Winans.

(3) Rights of Way.—Road No. 1 bore the name for years of a district road. It was Lord Tweedmouth who turned this road into a private avenue. Before his days there was no gate and no lodge, and the road led up to the threshold of the mansion-house, which was then rather a centre of population than a secluded building. “Dedication” did not need to be pleaded. Public money was spent upon this road as de facto a public road as far back as 1820 and down to 1860, and by accepting money for its upkeep Lord Tweedmouth and his predecessors and authors conceded this was a public road. The Old Meal Mill, not necessarily qua mill, but as representing the centre of the district, marked sufficiently a public terminus, after which point the farmers and others took their private roads to their own houses. To refuse to admit it was a public place would be to refuse public access to villages at the head of highland glens. The Kinkell Harbour case was in the respondents' favour. As to road No. 6—The true line was by the avenue. Lord Tweedmouth's having insisted upon people going round by his line since 1870 did not deprive the public of the true line. If the respondents wished to cross from Knockfin to Glenmoriston they would have to go a detour of 1000 yards if the steading route were adopted. The case of Mackintosh was not in point. There was no law to the effect that the convenience of the proprietor should be consulted contrary to the interest of the public. Hozier v. Hawthorne, March 19, 1884, 11 R. 766, though not an authority for the respondents, illustrated this point.

At advising—