Scottish Court of Session Decisions

This was an action of suspension and interdict whereby the Duke of Athole sought to prevent the respondents, the surviving trustees under the late James Patrick M'Inroy's trust-disposition and settlement, and William M'Inroy of Lude as an individual, from crossing by the Cromalton Pass from one part of the lands of Lude to another. The property of Lude marched with the forest of Athole, and at one point a long tongue of the forest land ran into Lude Property, and for its length divided the Lude property into two. Across the base of this tongue of land ran the Cromalton Pass. Its total length was about 1000 yards, while the detour round the tongue of land was about 5 or 6 miles. This strip between the divided portions of Lude had been claimed by the late Mr M'Inroy of Lude until the late Duke of Athole, then Lord Glenlyon, put an end to it by declarator in 1841.

The complainer averred that the use of the Pass complained of diminished the value of the forest.

The respondents averred that “there has been for time immemorial a public road or right-of-way leading through the said Pass from the public road in Glen Tilt to the public drove road through Glenloch leading through Glen Fernat to Kirkmichael, where there is a market. The said road or right-of-way has been constantly used for cattle, horses, and foot-passengers by all and sundry the members of the public for time immemorial, and for more than forty years prior to the presentation of this note, and down to the present date without challenge by anyone. The respondents moreover have, by themselves, their tenants,

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servants, dependants, and others, used as a matter of right for time immemorial, and at least for over forty years, and without challenge from the complainer or any other, the road leading through the said Pass for the purpose of going from one part of their lands at the east end thereof to their lands at the west end thereof, and for sheep and horses passing along the same.”

The respondents pleaded—“(3) There being a public right-of-way through the said Pass the note should be refused. (4) Separatim, the respondents having a servitude right-of-way through the said Pass, the note should be refused.”

Upon 23rd October 1888 the Lord Ordinary allowed a proof and appointed the respondents to lead.

The proof as to public right-of-way failed, and it was clear that the only use made of the Pass in connection with farming was for the purpose of bringing back sheep which had strayed from the property of Lude. It appeared that since 1821 the proprietors of Lude, their tenants and game-keepers, had used this Pass as a short cut, Except between 1846 and 1878, when it was hardly used at all, the Pass was used by the respondent about ten or twelve times in the autumn and winter for shooting hinds when deerstalking was over in the Athole Forest. While the Pass was entirely in Athole property, the path began and ended in the Lude property, and the Duke and his people had used that part of it which traversed Lude for various purposes. The Pass had been used openly by the respondents, and, as some of the witnesses stated, in assertion of a right, and they had never been challenged, although occasionally the Duke's foresters had been met in the Pass. It was admitted that the respondents had no right to shoot in going through the Pass. The path was merely a track made by the passage of sheep and deer. No challenge from the Duke's people had been given before 1882, although the number of times in which the path was used were seven or ten in the year. One of the complainer's keepers deponed that between 1852 and 1857, when in the Pass with the late Duke of Athole and a forester, M'Ara, they saw the late Mr M'Inroy of Lude and his game-keeper going through the Pass, and the Duke sent M'Ara to turn them back, which was done. Another gamekeeper deponed to having turned off the Lude gamekeeper upon a later occasion. It was in 1882 that the Duke of Athole first objected to the respondents' use of persons going through the pass.

Upon 29th January 1889 the Lord Ordinary ( Kinnear) pronounced this interlocutor:—“Repels the third plea-in-law for the respondents, sustains the fourth plea-in-law for the respondents, repels the reasons of suspension and refuses the interdict, and decerns: Finds the respondents entitled to expenses, &c.

“ Opinion.—The complainer seeks to obtain an interdict against the respondents, by which they are to be prohibited from passing to and fro by the Cromalton Pass, between that portion of their lands of Lude which lies to the east, and the portion of Lude which lies to the west of a hill called Carnlia of Ben-y-glo. The respondents plead that the interdict should be refused, first, because there is a public right-of-way through the Pass, and secondly, because they have a servitude right-of-way for the benefit of the estate of Lude.

The first of these pleas cannot be sustained, because there is no evidence that the Pass has ever been used by anybody as a means of transit from one public place to another. But the evidence which has been adduced in support of the second plea requires serious consideration; and in order to appreciate its effect it is necessary to understand the relative situations of the two estates which are said to constitute the servient and dominant tenements with reference to the path over which it is said to extend.

The Cromalton Pass is a narrow defile in the Ben-y-glo range of mountains. The hills to the north belong to the complainer, and at the point in question the hill to the south, which is called Carnlia, belongs partly to the complainer and partly to the respondents, the summit and the greater part of the northern slope being the property of the complainer, and the remainder of the hill forming part of the estate of Lude. The consequence of this position of the march between the two estates is, that it is impossible for the respondents or their tenants or servants to pass from the eastern to the western portion of Lude at the foot of Carnlia without either passing over the complainer's property in the Cromalton Pass for a distance of about 900 yards according to their own view, or 1300 or 1400 yards according to the complainer, or else going round by the south side of the hill for a distance of five or six miles. It is manifest that this is a state of matters in which a right of servitude over the one estate for the benefit of the other would very readily grow up, because if the people on Lude had any occasion to pass to and fro between the two portions of that estate which are separated by the Duke of Athole's property they would certainly be very apt to cross the piece of unenclosed moor land which is interposed unless they were prevented from doing so by the Duke. But the respondents do not maintain that the servitude they have acquired extends generally over the Pass, but that it affects a definite pathway by which the Pass is traversed, and it is a peculiar and a very important feature in the case that this pathway passes through both estates in such a manner that neither proprietor can make a convenient use of it without going upon his neighbour's land. There is some controversy as to its origin. But that does not appear to be of any material importance. Assuming that it was originally formed, as the complainer maintains, by the passage of sheep and deer, there can be no question that it is now a mountain pathway in a defined direction practicable for men and horses, and that it has been used as such for more than forty years by the complainer and his predecessors. It is a continuous

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path which passes from the complainer's property to the west, or northwest of the Lude estate, through a portion of that estate at the west end of the Pass, then through the complainer's property in the Pass, and again, at the east end of the Pass, through another portion of the Lude estate. It does not appear to be impracticable, but it is admitted that it is not convenient to reach the Cromalton Pass from the west without going through Lude, and it is proved by the evidence on both sides that the complainer and his predecessors, and their keepers, foresters, and others authorised by them, have in fact been accustomed to use the pathway on Lude for the purpose of reaching the other portion of the same pathway where it traverses the Cromalton Pass. If the complainer were now maintaining a right of servitude over Lude I should think it very difficult for the respondents, in the face of the evidence which has been led, to resist that claim. The only question is, whether, while they have submitted to the use which the Dukes of Athole have made of the Lude estate, they have acquired any corresponding right over that portion of the path which passes through the property of the Duke?

Their case is, that they have made use of the pathway for more than forty years on all occasions when they required to do so for the convenient enjoyment of their own estate, and I think this is proved. But the question remains whether these occasions have been sufficient in number and character to establish a right of servitude.

“There appear to be two purposes only for which this part of the estate can be beneficially used—sheep pasture and sport; and it is therefore in connection with one or other of these two purposes that the respondents have required to traverse the Cromalton Pass. The evidence of use for the first of these purposes appears to me to be insufficient. There can be no doubt that the tenants and shepherds of Lude have been in the habit for a long course of years of making use of the path in dispute for bringing back strayed sheep which had wandered over the march into the Athole Forest. They could not do otherwise if the strayed sheep were to be recovered. But when two adjoining properties in such a country as that in question are not divided by fences or by any natural barrier, it is inevitable that sheep should find their way across the march, and if the proprietor or his tenant to whom they belong follows them into his neighbour's land, and brings them back by the nearest way, he does so in the exercise of an entirely different right from a servitude right-of-way. No use of this kind therefore will avail to establish such a servitude. There is some evidence that the path may have been used by shepherds in the course of their employment on other occasions. But it is too vague in character, and the occasions to which it refers are too infrequent to be taken into account.

But the use for the purpose of sport is, in my opinion, proved to have been such as to infer a right. It is proved by the respondent Mr William M'Inroy that he first went through the Pass with the Lude gamekeeper in 1843, when he was a boy of twelve, and he gives this account of his subsequent use of it—‘In 1846 I began to shoot regularly on the Lude moors. Between that and 1878 I was frequently shooting in the neighbourhood of Carnlia. (Q) And when you had occasion to pass from the west side of Carnlia to the east side of Carnlia while shooting, how did you go? —(A) After I began to shoot, and when I used the Pass, I kept the path until I got to the shoulder of the hill at the east end; and in going the reverse way from east to west, when I got to the end of the Pass where the hill widened out I went in any direction that suited for shooting purposes… . Between 1846 and the present time I have gone through the Cromalton Pass sixty or seventy times. I always went through the Cromalton Pass when it suited my convenience to do so. I understood in my early days, before I began to shoot, that we were to use the Pass whenever we chose, and that we had a right to do so, but we were not shoot while in it. I was led to understand that both from my father and from the old keeper. In going through the Pass myself I always did so in the exercise of that right. I never fired a shot in it. I never heard a doubt expressed as to my right to walk through the Pass.’

His evidence is confirmed by the Rev. Donald Gordon, who is the son of the keeper to whom he refers. And it is proved by the witnesses Admiral Hay, Mr John Hay, William Carrick, and Angus Cameron that the practice to which Mr M'Inroy speaks, of going through the Pass whenever it was convenient for the purpose of shooting, or for keepers going over the ground, has been continued down to the present time without any interruption until 1882, when the keeper Cameron was informed by the complainer that he was trespassing. Nothing followed upon that challenge, and the respondents and their tenants and servants have continued to use the Pass since 1882, as they did before, until the present proceedings were taken. It is said that a great part of this use is not available as evidence of right, because it does not appear whether the witnesses kept the path, and if they were in the Pass but not on the path, it is possible that their trespass upon the Duke's ground is to be attributed to a claim of property which the late Mr M'Inroy had put forward in the ground which is now admitted to belong to the complainer between the two divided portions of the Lude estate, and it is said that the claim was maintained until the late Duke, then Lord Glenlyon, put an end to it by legal proceedings instituted in 1840. This observation may apply to the evidence of Colonel M'Inroy of the Burn, because he speaks to a period when the claim of property had not been abandoned, and he is unable to define the particular part of the Pass by which he was in the habit of going from one side of the Carnlia Hill to the other. But it does not apply to the evidence of Mr

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William M'Inroy, or to that of the other witnesses I have mentioned. The hill has all along been admitted to be on the Duke's property. It lies on the north side of a burn which runs through the Pass, and Mr M'Inroy's claim did not extend to that side. Mr M'Inroy says distinctly that after 1846 he kept the path after entering the Pass, and the other witnesses concur in saying that whenever they entered the Pass they coupled the dogs and refrained from shooting in accordance with the late Mr M'Inroy's instructions. It is quite plain therefore that they were passing over ground which did not belong to Mr M'Inroy. I think it proved, as the result of the evidence, that the proprietors and shooting tenants of Lude and their gamekeepers have been in the habit for more than forty years of passing over the ground in dispute on all occasions when it was necessary or convenient for them to use it as a means of transit from one part of Lude to another, and that they did so in the assertion of a right, but not a right of property, because, while they held themselves entitled to pass over the ground, they did not hold themselves entitled to hunt it with dogs or to shoot game upon it. The only evidence to the contrary is that of a witness, John Stewart, who speaks to an occasion, between 1852 and 1857, when the late Mr M'Inroy and his keeper, Gordon, were observed by the late Duke of Athole in the Pass, and were turned back by the Duke's orders. Two other witnesses say that they heard of this incident from a keeper who is now dead. I attach no importance to this evidence, because all the parties to the interview are dead, and it is impossible to tell whether Mr M'Inroy was on the path or on some other part of the ground within the Pass, or where he was going, or why he turned back, if he did turn back, or what was said to induce him to do so. But it is certain that he did not cease to assert or to exercise his right of passage when it was convenient for him to do so. If any inference can be drawn from this incident, therefore, it makes against the complainer's case, because it shows that the respondents and their predecessors have continued to assert their right in spite of a challenge so far back as 1857, and that no attempt has been made to make the challenge effectual.

The question that remains is, whether the use, which I hold to be proved, is sufficient in law to establish a servitude? and I see no reason to the contrary. The exercise of a right to shoot game in such a county as that in question is, so far as regards the legal character of the right, a beneficial occupation of land just as much as any other kind of occupation. The notion that it is a mere personal franchise as distinguished from the occupation of land has been rejected in a series of cases, of which Bulloch v. Stewart, 8 R. 331, may be referred to as the most recent. And therefore if a land-owner finds it necessary for the advantageous exercise of this particular use of his estate to pass over his neighbour's pathway as a means of transit between two portions of his own estate, and if he makes use of it for this purpose for a sufficient length of time, he will in my judgment establish a servitude of way just as if he had used the path for the benefit of an agricultural or pastoral subject. The only question is, whether he has in fact used it on all occasions when he required to do so? and on this point I think the evidence is in favour of the respondents.”

The complainer reclaimed, and argued—(1) A limited right such as shooting could not establish a servitude right of road. The use here was even more limited than a right of shooting, as all that the Lord Ordinary had found the respondent entitled to was a right of passing over the Duke of Athole's lands from one part of the Lude estate to another for the purpose of sporting. (2) The only use that was attempted to be proved was a use during part of the year, and it was not even shown that this use was made every year so that the use was not continuous. (3) The use had not been uninterrupted, as on each occasion that any of the Lude people had been found by the Duke or his keepers they had turned them back. If there had been any use as alleged, it was only by toleration, and in exercise of good neighbourhood, while knowledge of the use had not been brought home to the Duke of Athole or his factor— Chatto v. Lockhart, March 5, 1790, Hume 734; Purdie v. Steil, July 20, 1749, M. 14,511; Earl of Morton v. Stuart, June 21, 1813, 5 Pat. App. 720; Napier's Trustees v. Morrison, July 19, 1851, 13 D. 1404; Scottish Rights of Way, &c. Society v. Macpherson, July 6, 1887, 14 R. 875— aff. May 14, 1888, 15 R. (H. of L.), 68; Rankine on Landownership, 350; Gibb v. Bruce, December 1, 1837, 16 S. 169; Marquis of Breadalbane v. M'Gregor and Others, December 3, 1846, 9 D. 210.

The respondents argued— Prima facie there was strong probability of the existence of a servitude right-of-way. It was very convenient and almost necessary. Both ends of the path rested upon Lude property, and the Duke could not step out of the Pass without trespassing. A servitude could be acquired by use for a limited Purpose, e.g., turf roads and kirk roads. Here the only use that could be made of the lands was for sporting or pasturage purposes. The respondents did not press the claims for a servitude for pasturage purposes, but they had shown that for a very much longer period than forty years the proprietors and tenants of Lude had been in the habit of going through this Pass on their way from one part of the estate to another. The possession had been continuous, because although it had not been for every time of year, the Pass had been used for a part of every year when needed. It had also been uninterrupted, as neither the appellant or any of his servants had challenged the right of the respondents till 1882. The attempts that had been made to prove that on two occasions the Lude people had been stopped in their passage through the Pass were altogether too vague and unsatisfactory to show that the right to challenge them had

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been exercised. But if these occasions were to be taken for any purpose, they must be held to show that the use made by Lude was not given as of toleration, but was continued and claimed after challenge. It was not necessary to show that the owner of the servient tenement knew of the right that was being exercised if it was done in an open manner— Ross v. Ross, February 19, 1751, M. 14,531; Porteous and Others v. Allan and Another, June 17, 1773, M. 14,512; Malcolm v. Loyd, February 4, 1886, 13 R. 512. This right added to the value of the Lude estate— Stewart v. Bulloch, January 14, 1881, 8 R. 381.

At advising—