Scottish Court of Session Decisions

On 23rd November 1899 the Lord Ordinary ( Low) before answer allowed the parties a proof of their averments, but in regard to the existence and use of the road in question, limited the proof to the period of seven years prior to the date of the operations complained of.

Opinion.—“I think that there must be inquiry in this case, and the question is whether the proof should be in any way limited.

The respondent has admittedly crossed the boundary between his lands and those of the complainers, and commenced certain operations upon the latter. The respondent says that a road runs through his lands and the complainers' lands, and that he was repairing a part of the road which had been injured by the action of the sea. If there was in fact a road through the complainers' lands, or if the respondent was doing no more than what was necessary to make it passable, the complainers may have no right to object. The latter however aver that there is no road from the respondent's lands over their lands and that when this note was brought he was proceeding to construct a road through a grass field where no road previously existed. The complainers' averments therefore are clearly relevant.

The respondent does not seem to be sure as to the nature of the road which he claims, because he alleges that it is either a public highway vested in the County Road Trustees, or a public right-of-way, or a servitude road in favour of his property.

The complainers object to have these questions tried in this process, and contend that if the respondent desires to raise a question of a public road or a servitude road he ought to bring an action of declarator. They accordingly asked that the process should be sisted to allow the respondent to bring a declarator, or that the proof should be limited to the use which has been had of the alleged road for the possessory period.

The respondent on the other hand argued that he was entitled not only to prove possession for the last seven years, but to go back to the origin of the possession in order to show that it was lawful. The authority chiefly relied upon by the respondent was the case of M'Kerron v. Gordon ( 3 R. 429). There Gordon brought a petition in the Sheriff Court to have M'Kerron and others interdicted from trespassing upon his lands. The respondents in their answer claimed a right-of-way and brought a counter petition to have Gordon interdicted from shutting up the way. A proof was led from which it appeared that the way had originally been a public road, which, however, the Road Trustees had lawfully shut up many years before, but that notwithstanding the shutting up of the road the public had continued to use it, although the proprietor had tried to prevent them doing so. The Sheriff-Substitute interdicted Gordon from shutting up the road, but the Sheriff recalled this interlocutor and granted interdict in Gordon's favour. The case then came before the Second Division, and it was held ( diss. Lord Gifford) that although possession was proved by the public for more than seven years, it was also proved that the possession was in its origin unlawful, and that therefore Gordon was entitled to interdict. Lord Gifford was of opinion that the Sheriff ought to have given effect to the possession which was proved, leaving the question of permanent right to be decided in a declarator.

That was obviously a very special case which was decided upon evidence which had been actually taken, and I do not think that it can be regarded as laying down any general rule to the effect that it is competent to determine questions of permanent right in a purely possessory action. This appears to me to be an action of that nature. If, as the complainers aver, there has been no use of a road across their lands from those of the respondent, then I do not think that the latter was entitled to enter and commence operations upon the complainer's lands, although he may be in a position to establish right to the road which he alleges in an appropriate action.

I am therefore of opinion that the proof should not be allowed to go beyond the use of the alleged road for the period of seven years prior to the operations complained of.”