Scottish Court of Session Decisions

This was an action of declarator of right-of-way raised by Robert Robertson, bootmaker, Dunkeld. against the Duke of Atholl and others, in which the pursuer sought to have it declared that a certain right-of-way existed between Dunkeld and Kirkmichael, passing through the lands of the defenders.

The defenders, inter alia, averred that the pursuer “is not in a financial position to carry on this action out of his own re sources, and that as a matter of fact he has been put forward by certain other persons to carry on the action on their behalf so that they may escape liability for the defenders' expenses. The said persons have formed themselves into a committee, have raised funds by public subscription, and are the true domini litis They include the Reverend J. W. Hamilton, United Free Church minister, Dunkeld, and John Murray, joiner, Dunkeld.”

The defenders further averred that the Parish Council of Dunkeld and Dowally having been interdicted by the Duke of Atholl from erecting guide posts along the alleged right-of-way, requested the District Committee to take proceedings to vindicate the alleged public right, and that the District Committee after taking evidence “found that the said right-of-way did not exist, and accordingly decided not to take proceedings for its vindication.”

The defenders pleaded, inter alia—“(3) In the circumstances either the said Reverend J. W. Hamilton and John Murray should be sisted as parties to the action or the pursuer ought to be ordained to find caution.”

The Lord Ordinary allowed a proof of the above averments, and after dealing with other matters in connection with the case pronounced the following opinion.

Opinion.—.… “Now, if these averments by the defenders are true I do not think that it would be just to allow the defenders to be involved in a long and costly litigation of this kind without some security for their expenses in the event of their being successful.

“The case of Jenkins v. Robertson, 7 Macph. 739, appears to me to be a direct authority for that view. That was also an action for declarator of an alleged right-of-way. The pursuers were three labouring men who, the defenders averred, were in indigent circumstances, and had on that account been put forward as pursuers by certain persons who desired to vindicate the alleged right-of-way with the view to avoid liability for costs. The First Division allowed the defenders a proof of these averments, and, the result being that they were substantially established, ordained the pursuers to find caution.

“In some respects I think that this case is more favourable to the defenders than that of Jenkins By the 42nd section of the Local Government (Scotland) Act 1894 the duty of protecting rights-of-way is laid upon the district committee, and if a parish council represents to the district committee that a public right-of-way has been or is likely to be shut or obstructed, or encroached upon, it is the duty of the district committee, ‘if they are satisfied that the representation is well founded, to take such proceedings as may he requisite for the vindication of the right-of-way.’

“I do not think that these enactments lender it incompetent for a private individual to bring a declarator of a right-of-way, but they have a material bearing upon the question which I am now considering. If it is the case that the District Committee, whose statutory duty is to vindicate public rights-of-way have come to the conclusion after full inquiry that no public way exists over the line claimed, it seems to me that it would be most unjust to allow the proprietors of the lands over which the alleged way passes to be dragged into Court at the nominal instance of a man of straw put forward by persons who are dissatisfied with the decision of the District Committee without security for expenses.

“I therefore propose to follow the course adopted in the case of Jenkins, and to allow the defenders a proof of the averments to which I have referred.”

The defenders were allowed a proof of the averments.