Scottish Court of Session Decisions

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Cite as: [1895] SLR 33_205, [1895] ScotLR 33_205

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SCOTTISH_SLR_Court_of_Session

Page: 205↓

Court of Session Inner House First Division.

Thursday, December 12 1895.

[ Lord Kyllachy, Ordinary.

33 SLR 205

Alston

v.

Ross.

Subject_1Process
Subject_2Sist
Subject_3Right-of-Way
Subject_4Poverty of Defender — Local Government (Scotland) Act 1894 (57 and 58 Vict. cap. 58), sec. 42.
Facts:

A heritable proprietor raised an action of declarator and interdict to restrain a member of the public from using a path which he had been admittedly in the habit of using for sixteen years, and over which he claimed that a public right-of-way existed. The defender, before the proof was taken, lodged a minute, in which he averred that his poverty prevented him from proceeding with the defence, and that the county council had under consideration whether, in virtue of the powers conferred upon them by the local government act of 1894, they should vindicate the right-of-way claimed by him. He craved the court to sist process pending the decision of the county council.

The Court granted The sist upon an undertaking by the defender not to use the path during the sist.

Headnote:

Mr Robert Lockhart Alston, of Rosehall, Sutherland, raised an action of declarator and interdict against Alexander Ross and others, craving the Court to interdict the defenders from walking along a certain path passing through his property, over which the defenders claimed that a right-of-way existed.

It was admitted that for sixteen years previous to the property coming into the hands of the pursuer, the path had been used by the public without check, but on the pursuer acquiring the estate in 1894 he challenged the right of the public, and raised the present action. The Lord Ordinary, after some delay had been granted on motions by the defenders, fixed the diet of proof in the action for 6th November 1895.

On 30th October the defender Ross lodged a minute, in which he stated that his funds were exhausted, and that he was unable at present to prepare for the proof; that the averments of parties had been brought before the County Councils of Ross and Sutherland, and were being considered by them with a view to deciding whether or not they should use the powers conferred upon them by section 42 of the Local Government Act of 1894 for vindicating rights-of-way; and that, even in the event of their declining to take action, he would obtain sufficient subscriptions from the public to enable him to defend the action. The defender accordingly craved the Court “to sist the cause hoc statu, or otherwise to adjourn the diet of proof for three months;” and undertook, if this were granted, to refrain from using the path during the period of the sist.

The Lord Ordinary ( Kyllachy) refused the motion to sist, and on 6th November, the proof having been called and no appearance having been made for the defender, pronounced decree against him.

The defender reclaimed, and argued that the sist should be granted till the County Council had decided whether to vindicate the right-of-way. The poverty of a party had been considered a sufficient ground for granting such a motion in the cases of Sassen v. Campbell, March 10, 1830, 8 S. 707, and Clark v. Newmarch & Grant, Nov. 17, 1825, 4 S. 182.

The pursuer argued that the decree pronounced against this defender in absence would not constitute res judicata against the County Council should they decide to vindicate the right of way; that he had already caused much unnecessary delay, and had given no indication until the last moment that he was not prepared to go on.

At advising—

Judgment:

Lord President—If the person asserting a right-of-way had been the pursuer, and he had failed to attend a diet of proof, we should have been slow to alter the Lord Ordinary's interlocutor. But the pursuer in this case is seeking to negative a right-of-way claimed by the defender, and to interdict him from using a path which admittedly he has been in the habit of using for a considerable number of years. Accordingly we find that the user of the path is the party attacked, and it is his possession of it which would be altered by an interdict.

Now, the defender points to the statute under which a duty is imposed by Parliament

Page: 206↓

upon the County Council to vindicate rights-of-way, and states that the question of vindicating this right-of-way is now under consideration by the County Council. Now, I think we are bound to give the system a fair chance, and to see that no person is prevented merely by lack of funds from trying this remedy. We cannot disregard the defender's averments that the County Council are considering whether to assert this right-of-way, and we are therefore bound to give him some latitude on his undertaking not to use the path till the case is disposed of.

I am therefore of opinion that we should recal the interlocutor and sist the case hoc statu on this undertaking being given by the defender, it being left open to either party to come and make a motion to the Court during the sist should matters move more rapidly than is anticipated.

Lord Adam and Lord Kinnear concurred.

Lord M'Laren was absent.

The Court, in respect that the defender had undertaken to abstain from using the road in question during any sist of this action, recalled the interlocutor of the Lord Ordinary, and sisted process hoc statu.

Counsel:

Counsel for the Pursuer and Respondent— N. J. D. Kennedy. Agent— Andrew Urquhart, S.S.C.

Counsel for the Defender and Reclaimer— J. Wilson. Agent— Alexander Ross, S.S.C.
1895