Scottish Court of Session Decisions

Michael Barker Nairn of Dysart House, Dysart, raised an action against James Kinlay and others, all residing in Kirkcaldy or Dysart, to have it declared that a certain portion of the policies and gardens of Dysart House belonged exclusively to him, and that neither the defenders nor the public had any right-of-way over the said subjects or any part thereof. The pursuer sought, in particular, declarator that there was no public right-of-way or servitude of passage over that portion of the Dysart policies extending between the Castle Rocks or Red Rock on the west and the Noop Rock on the east above high water-mark, and that these rocks, in so far as above high watermark, were the exclusive property of the pursuer. There were also conclusions for interdict corresponding to the declaratory conclusions.

The compearing defenders averred that from time immemorial there had existed a public right-of-way along the shore beginning at Dysart Harbour, and terminating at a junction with the High Street of Kirkcaldy. This right-of-way, they further averred, followed for the most part a made footpath in the Dysart House policies, and numerous tracks or paths struck down from it to the shore. As it approached its western terminus it broke into two branches, one on higher ground, the other descending to the shore. “(Stat. 3) The path or right-of-way in question has been continuously

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and extensively used by the public from time immemorial, or at any rate for more than forty years prior to 1896. It affords a short and convenient access between Dysart Harbour and Kirkcaldy Harbour, and in consequence of the natural beauty of the shore at that point has always been a favourite and much prized resort for the inhabitants of both places. The traffic has been so extensive as to have worn steps in the rocks where these are crossed by the path.”

The defenders denied that prior to the purchase of the estate by the pursuer in 1896 there had been any interruption of the use of the footpath in question by the public.

The pursuer denied the existence of the alleged public right-of-way, and averred that there had been a great deal of trespassing on his policies. The made footpath referred to was a private estate walk, and the tracks branching off therefrom were made by trespassers without the knowledge of the proprietor. As a matter of tolerance the pursuer's authors had allowed boys and lads to scramble over the Red Rock, but any climbing over it that took place was not in the exercise of a public right-of-way. “In 1852 some of the inhabitants of Kirkcaldy put up a ladder against the Red Rock for the purpose, it was stated in the newspapers at the time, of enabling bathers to get over the rocks at half tide. Immediately after this ladder was fixed up, the then Earl of Rosslyn asserted and vindicated his legal rights by sending men to remove the ladder, and it was accordingly taken down and removed. The public recognised the Earl of Rosslyn's right at the time, and then and ever since have acquiesced in his decision.”

The pursuer further averred that the alleged right-of-way claimed by the defenders, after leaving the pursuer's property, was shown on the plan produced by them as passing through the properties of eleven different owners. The branches from the main track near its west end were servitude roads for the accommodation of the Path-head feuars. The pursuer finally produced and founded on a contract of excambion entered into in 1820 between one of his authors and the Town Council of Dysart, whereby the former became entitled to enclose the ground at the Lethem Wells entirely within his own policies, it being provided that the inhabitants of Dysart should continue to have the privilege of taking water from the wells, “and that by the present access or footpath leading from the harbour of Dysart to the said wells, to be used for that purpose only.”

On 4th February 1899 the Lord Ordinary ( Kyllachy) dispensed with the adjustment of issues, and before answer allowed parties a proof of their respective averments.

Opinion,—“I do not think it advisable to say much in disposing of this matter. The argument has touched upon points which, if I tried the case as judge, or as directing a jury, I should require to consider and deal with deliberately. All I have at present to decide is, whether this case presents sufficient specialties to take it out of the ordinary rule, and justify its being tried by a judge without a jury. I find on the whole that the case does present sufficient specialties, and that therefore the trial should go to proof before myself. I do not go over the specialties of the case which have been enumerated by Mr Wilson and Mr Jameson. I dispense with issues, and appoint proof on a day to be fixed.”

The defenders reclaimed, and argued—The Lord Ordinary was wrong. There was no specialty to take this case out of the general rule that actions of right-of-way must go to a jury. That rule could not now be disputed— Hope v. Gemmell, March 1, 1898, 25 R. 678. The coincidence of the right-of-way and the made footpath left the question precisely what it would have been if there had been no such coincidence, viz., had there been use of the footpath for forty years as a matter of right?— Napier's Trustees v. Morrison, July 19, 1851, 13 D. 1404. The fact that alternative lines were suggested for part of the right-of-way was no obstacle to trial by a jury, for a verdict in favour of the pursuers of the issue could be worked out and given effect to by the Court— Mackintosh v. Moir, March 2, 1872, 10 Macph. 517. The cases of Blair v. Macfie, February 2, 1884, 11 R. 515; and Fraser Tytler's Trustees v. Milton, March 15, 1890, 17 R. 670, which were the leading exceptions from the general practice, were clearly distinguishable from the present one. In the former the main consideration that influenced the Court was the prejudice that had been excited in the public mind by newspaper discussion ( per Lord Shand 11 R. 517), and even in the latter there were indications that the Court would consider the presence of that element as of paramount importance in determining that an action of this kind should be tried before a judge. But there was no suggestion of such an element here, and accordingly the usual practice ought to be followed.

Argued for the pursuers—The general practice must be conceded to be beyond doubt— Malcolm v. Lloyd, March 17, 1885, 12 R. 843; Fraser Tytler's Trustees, ut sup; Hope, ut sup. But there were specialties in this case which made it a proper object for being excepted from the general rule. In the first place, the case was one of great complexity and difficulty. The facts presented a legal aspect, and a jury would not be the most suitable tribunal to decide them. The averments as to interruption, for example, and as to the effect of the excambion in 1820, raised questions more fitted to be solved by a trained legal intelligence than by the lay mind. The coincidence of the alleged right-of-way with a made footpath was another fact of the same nature. Then there was obvious confusion as to the exact line of the path. That was one of the main grounds of judgment in Blair, ut sup. Lastly, the alleged right-of-way before reaching its terminus passed through the property of eleven other proprietors who were not and could not be made parties to this action. A

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similar state of matters formed the basis of the decision in Fraser Tytler's Trustees, ut sup. If the defenders here desired to have the question submitted to a jury, their proper course was to raise an action of declarator of right-of-way, calling not only Mr Nairn but the eleven other proprietors as well.