Scottish Court of Session Decisions

This was an action of declarator and interdict by the trustees of William Fraser-Tytler of Sanquhar, Elgin, against certain parties residing in Forres, to have it declared that the portion of the said estate which lay between the town of Forres and the farm of Marcassie, the property of A. D. Ainslie, of Delgetty Castle, was free of any public right-of-way.

The defenders, as members of the public, claimed a right-of-way over a portion of the lands of Sanquhar, and they averred as follows—“From time immemorial, or at least for forty years immediately prior to the raising of the present action, there has been a public road and right-of-way for foot-passengers, which has been used continuously and without interruption by members of the public through the said estate. The said public road and right-of-way was the original or at all events a very ancient public road between the burgh of Forres and other places to the south and west, and the village of Rafford and other places to the south and east, and was used by the public from the first, and for greatly more than the prescriptive period, not only for foot passage but for driving sheep, cattle, and other bestial, and for cart traffic.” They averred that after reaching the march of the Sanquhar estate the road entered the farm of Marcassie, and thence proceeded to the village of Rafford.

Mr Ainslie was not called as a party to the process.

The pursuers denied the existence of any such right-of-way as that claimed by the defenders.

In April and May 1889 an agitation was commenced in Forres with a view to induce the public to vindicate their rights over the road in question; and upon several occasions members of the public proceeded along the said road after taking, when necessary, violent measures to obtain access.

The defenders pleaded—“The road in

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question having been used as a public road and right-of-way from time immemorial, or at least for the prescriptive period, continuously and without interruption, and the defenders having done, and having claimed to do, no more than use and assert the said right-of-way as members of the public, are entitled to absolvitor, with expenses.”

By interlocutor of 12th February 1890 the Lord Ordinary ( Wellwood) allowed the parties a proof of their averments.

“ Opinion.—In this action the pursuers, who are proprietors in trust of the estate of Sanquhar, seek declarator to the effect that they hold part of the estate, which lies between the town of Forres and the farm of Marcassie free of any public right-of-way, or servitude of road or passage over the same, or any part thereof, and conclude for interdict against the defenders, who are inhabitants of the town of Forres.

The defences to the action have varied. In the original defences the defenders maintained that a public right-of-way existed through the pursuers' property from the point A on the plan, near the town of Forres, running past B and C to the point D at the south-eastern extremity of the estate, and thence across the lands of other proprietors to the village of Rafford, and other places towards the south and east; and by another road to the south-west, to the road leading from the village of Rafford to the old quarries of Coathill. It is not maintained that the point D is a public place.

On adjustment of the record, however, a material addition was made to the defences, the effect of which was that the defenders claimed three additional rights of way through the pursuers' property—the first running from A to the point C on the line A B C D, and thence to the point E, where it joins the public road from Forres to Rafford; the second from A to C, and thence westward to F, where it joins the Altyre public road; and the third from E through the point C to F.

The defenders proposed five separate issues applicable to the five roads thus claimed, and asked that the case should be tried with a jury. The pursuers maintained that it should be tried without a jury. I took time to consider the matter, and was prepared to give judgment, when the defenders stated that they did not desire a proof as to the three additional roads claimed on adjustment, and asked leave to withdraw the proposed issues applicable to those roads. I allowed this to be done, and reconsidered the case; but I remain of the opinion which I entertained at the close of the first discussion—that it is desirable that the case should be tried without a jury.

As the case stood on the closed record the defenders claimed a public right-of-way over not fewer than five roads, and this of itself appeared to me to be a strong reason for not sending the case to a jury. The matter is, to a certain extent, simplified, because the defenders now claim only two roads instead of five. At the same time, the case is not restored to the position in which it stood when the defences were lodged, because the defenders have disclosed, if there is any foundation for their averments, that an extensive use by the public was made of the road from A to C, not for the purpose of proceeding to D, and thence southward, but to E or to F; and although the defenders do not now ask to have it found that a prescriptive right-of-way exists over these roads, it may be anticipated that there will be a good deal of difficulty and confusion as to whether persons seen on the road between A and C were proceeding to D, or to E or F.

Moreover, the roads now claimed do not at their southern extremity terminate within or at the boundary of the pursuers' property, and it will be necessary for the defenders to prove prescriptive use of the continuation of the road ABCD to some public terminus through the lands of other proprietors who are not parties to this process. As has been pointed out in previous cases, and especially by the Lord President in Blair v. Macfie, 11 R. 517, questions of delicacy may arise in regard to the character and sufficiency of the evidence requisite to establish the necessary use of such continuations of the road.

The pursuers also founded on popular feeling on the subject of public rights-of-way as a reason for not trying the case with a jury. I do not in this case attach very much importance to this objection, and if it stood by itself I should not be prepared to withhold the case from a jury. It is not alleged that the case has been made the subject of newspaper discussion by the defenders, or even by others; and it is also true that the case is not to be tried in the locality but in Edinburgh. At the same time, I do not think that popular feeling on the subject can be entirely ignored. It is a matter of common knowledge, and indeed has been brought under the notice of the Court in more cases than one, that there is at present an unusual amount of public interest taken in the assertion and maintenance of public rights-of-way all over Scotland, and that a society exists for the express purpose of supporting and enforcing such claims. The natural result is that every right-of-way case, with whatever locality it may be connected, is keenly watched and canvassed not only by the inhabitants of the district but also by members of the association and other persons interested in other claims of the same kind throughout the country.

In this class of cases it is a matter of some delicacy to decide as to the mode of proof. They are not among the enumerated causes, and there is no statutory provision that special cause must be shown for trying them without a jury. The defenders, however, founded strongly upon the previous practice of the Court. 1 doubt whether this can be pressed so far now as it was at one time, because since the re-introduction or resuscitation in 1866 of trial before the Lord Ordinary without a jury, and especially since 1872, many of the more important right-of-way cases have been tried without a jury, in particular Macfie v. Stewart, 1872, 10 Macph. 408; Blair v. Macfie, 1884,

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11 R. 515; Hozier v. Hawthorne, 1884, 11 R. 766; Brodie v. Mann, 1884, 11 R. 925, and 12 R. (H. of L.) 52; Scottish Rights of Way and Recreation Society, Limited, &c. v. M'Pherson, 1886, 14 R. 7 and 875, and 15 R. (H. of L.) 68; Winans v. Lord Tweedmouth, 1888, 15 R. 540. It is said by the defenders that stronger reasons existed for ordering proof before the Lord Ordinary in Blair v. Macfie and The Scottish Rights of Way and Recreation Society, Limited v. M'Pherson, than exist in this case. This may have been so as regards popular prejudice, at least in the case of Blair v. Macfie. But it must be observed that in the two cases just mentioned, the Court in ordering trial without a jury, altered the judgment of the Lord Ordinary; and no doubt in dealing with a question of discretion stronger reasons were required to induce the Court to take that course than if the case had come before them in the first instance.

Taking it, however, that the tendency of the Court still is, in the absence of special reasons to the contrary, to appoint such cases to be tried by a jury, I think that sufficient grounds exist here for adopting the other mode of trial.”

The defenders reclaimed, and argued that the case was one specially suited for jury trial. There were no particular circumstances such as were present in the cases cited by the Lord Ordinary, and which had induced the Court to send them to proof. The mind of the public had not been inflamed by the press, nor would the jury be in any way biassed, as the case would be tried in Edinburgh and away from the locality. There was no settled rule that such cases must be sent to a proof, and in the present case finality would be more speedily arrived at by a jury trial— Malcolm v. Lloyd, March 17, 1885, 12 R. 842; Scottish Rights of Way and Recreation Society v. M'Pherson, October 23, 1886, 14 R. 7.

Counsel for the respondents were not called upon.

At advising—