Scottish Court of Session Decisions

The pursuers in this action, who are a local authority, and the successors to North East Fife District Council, seek declarator that a right of way for pedestrian traffic exists over a route from a point on the A913 public road between Newburgh and Abernethy eastwards to a point on an undesignated public road leading from Newburgh to East Lumbennie, near a building known as Whinnybank. The length of the route in question is slightly over one mile. The defenders are proprietors of a property known as Bloomfield which lies near the middle of the route. Since about 1988, the defenders have taken steps to challenge persons attempting to use the route and have also, at times, attempted to obstruct it. In the pleadings, a question is raised as to whether or not the defenders are proprietors of any part of the solum of the route but that issue appears not to have played any material part in the proceedings. The action was raised in the Sheriff Court at Cupar and eventually went to proof, which occupied eleven days. On 24 March 1997, the sheriff found that the pursuers had established that the route was a right of way for pedestrian traffic. The defenders appealed to the sheriff principal, but on 23 March 1998 the sheriff principal refused the appeal. The defenders thereafter appealed to this court.

In their case as originally pled, the pursuers and respondents maintained that the right of way was established by evidence of use for a prescriptive period of either twenty years or forty years. The sheriff held that the respondents had failed to establish continuous use for any appropriate recent prescriptive period and that decision has not been challenged on appeal. The sheriff held, however, that it was established that a public right of way existed over the route in the 1920s (the date 1925 being taken, for convenience, as the tempus inspiciendum) and that that right of way had not been lost by exclusion or non-use for any subsequent prescriptive period. The two questions raised in this appeal, as in the appeal to the sheriff principal, are whether the sheriff was entitled to hold that the right of way had been established in the manner explained above and whether he had been entitled to hold that that right had not been lost.

The route is shown on a plan No. 2/1 of process. At its western end, it begins at a point on the A913 road, which is marked as point A. From point A the route proceeds in a south-easterly direction over the railway line from Hilton Junction to Ladybank, passing a house known as Woodcliffe House. At a point marked B on the plan, the route intersects with a road or track which leads northwards to the farm buildings of Wester Clunie Farm. From point B, the route continues to a point marked C opposite the appellants' property. From there, it continues to a point marked D where it intersects a road running north-eastwards to Easter Clunie Farm, and from point D continues to point E, a point opposite Ninewells Farm. It then further proceeds to point F, at an intersection with a public road marked as Q52, and finally, to the easterly terminus, a point marked G on the undesignated public road. The termini of the route, at points A and G, are clearly public places, as indeed is point F.

In findings 11 to 22 the sheriff surveys the historical material about the route. In finding 11 he states that between point F and point G the route passes a mound of stones known as MacDuff's Cross and that between points E and F it passes an ancient relic known as Sir Robert's Prap, which was said to have marked the site of a duel fought in 1672 between two persons returning from a fair in Perth. That relic is shown on an ordnance survey map of 1895. The findings continue:

The sheriff then refers to part of Mr. Snoddy's description of the route, and to a number of deeds, to which we shall return, and then further finds as follows:

In the note attached to his interlocutor, the sheriff records that the respondents sought firstly to prove that the route had been a public road from time immemorial and remained a public right of way or, alternatively, that it had been used as a right of way for the common law period of 40 years prescription or for the period of 20 years after the coming into force of the Prescription (Scotland) Act 1973. He says that he was not satisfied that the route had ever been a public road maintained at public expense and continues:

The sheriff then refers to the evidence and to some authority and later says:

The sheriff then says that on that view the road would continue to be a public right of way until the right was lost by adverse possession and that he was not satisfied that the right had been so lost.

The sheriff principal sets out and considers the submissions made to him in some detail. He rejects a number of criticisms of the sheriff's approach, describing his judgment as careful and discerning. He then says:

The sheriff principal then refers to Kinloch's Trustees v. Young 1911 S.C. (H.L.) 1 and continues:

The sheriff principal then refers to the sheriff's finding that part of the route was overgrown and difficult of passage for a time and to evidence about recent events, including the placing of gates across the route at various points, which, he observes, do not point one way or another. He goes on to hold that the conclusion reached by the sheriff was open to him in the circumstances and that there was no basis for substituting any alternative view of the facts.

In the argument for the appellants, the attack was concentrated on finding in fact 23. It was submitted that that was the only finding which made reference to the whole of the alleged route: other findings related only to parts of it. The sheriff's conclusions based on the maps could not be supported. There were no markings which could be interpreted as the route now sought and his conclusion was far-fetched. As he had pointed out, the respondents had fallen short of proving continuous user of the route for the prescriptive period and that was tantamount to a finding that they had failed to prove their case. Mr. Campbell, who represented the appellants, went through the historical material, pointing out variations in the marking of the route and also drawing attention to marks which suggested the presence of gates on it. He drew attention to the intersection of the route by farm tracks and suggested that nothing could be taken from the maps beyond the existence of a possible internal estate road. There was no helpful evidence as to the origin of the historical maps or the quality of the information on which they were based. They might show a route of some sort but it did not correspond with the ordinance survey maps or with anything found on the ground and the sheriff himself had found that it was not shown that the route was a road maintained by the public or taken over under the Turnpike Acts. Mr. Snoddy's supposed description of the route was at best incomplete and did not mention Wester Cluny or Bloomfield. The maps in the title deeds were of no real assistance. The evidence of Davidson and Wilson was unclear and inconsistent and amounted to no more than some recreational strolling on the ground. There was contrary evidence from the first-named appellant who had been familiar with the area, although not continuously present or resident there, from 1937 and from a neighbour Mr. Laurie for the period from 1956 to 1980. Mr. Campbell also referred to the fact that Perth and Kinross Council, when approached by the first-named appellant, had declined to take any interest in maintaining that the route was a public right of way. As was apparent from Mr. Snoddy's description the part of the route between points B and C had been heavily overgrown and virtually impassable and that state of affairs had continued into the 1980s. The evidence taken as a whole did not add up to sufficient to establish the proposition which the sheriff had accepted, particularly in view of the paucity of any evidence of use of the route from end to end and the fact that any use at all was at best very infrequent. From the 1930s to the 1980s there was no real evidence of any substantial use from end to end at all. Constitution of a right of way depended on proof of use by the public as of right for the requisite period. There was only slender proof of use before 1925 and two shaky witnesses to whom the status of the route was "notorious" from what they had been told in school. The ordinance survey maps and the historical evidence did not assist the respondents. So far as the question of continued use was concerned, there was evidence of occasional use by some walkers from time to time over the whole period from 1925 apart from the period 1939 to 1945. However, the sheriff should have weighed that evidence against the evidence of the appellants to the effect that there had been no material use, or at least held that any use was so occasional as not to amount to a considerable continued use, such as to preserve the right of way.

In reply to the last point, Miss Paterson for the respondent submitted that there had been evidence of people who regularly used the route from end to end, albeit no more than once or twice a year, coupled with evidence of use of part of the route. Even slight continued use was sufficient to maintain the right of way. The sheriff had been right to accept that there was some use of the route, particularly in view of the fact that the appellants, who were the main source of contrary evidence, had not always been at the locus. The historical evidence made it clear that there was a route substantially along the line of the proposed right of way and that had even been recognised in evidence by the first-named appellant. The sheriff and sheriff principal had correctly approached the evidence, regarding it as a number of pieces which fitted together to form a pattern. What the pattern showed was the existence of a known historical route, the use of which had never wholly ceased.

In addition, both parties referred to a range of authorities concerned with the creation and extinction of public rights of way. We do not think it necessary to examine these authorities in any detail. The general principles are well-known and clearly established. The requirements of a right of way were set out by Lord Sands in Rhinns District Committee v. Cunninghame 1919 2 S.L.T. 169. The termini of the right of way must be public places; there must be user from end to end on a continuous journey; the route must follow a definite line; and there must be use continuously for the prescriptive period as of right. In the present case, there is no doubt that the termini of the alleged right of way are public places. The issues are whether it is sufficiently clear that the route follows a definite line on the ground; whether there has been sufficient use as of right to establish a right of way; and whether any right which may have existed has been lost. This case is, therefore, really concerned not with legal principle but with the assessment of the weight and strength of the evidence. That is very much a matter for consideration in the circumstances of the particular case, as Lord Watson emphasised in Mann v. Brodie 1985 12 R. (H.L.) 52. There are only a few points of law which should, perhaps, be commented on. Firstly, as we understand the position, in the absence of some formal grant or other formal basis for a public right of way, such a right can only be established by evidence of use for the appropriate prescriptive period. Accordingly, what is implied in the sheriff's finding that the route was a right of way from time immemorial is that it had been used by the public, as of right, for a period of at least 40 years before 1925, and that the right had never been lost: and it is in that light that the evidence and the sheriff's findings on it require to be considered. Secondly, it is helpful to bear in mind, that, as was laid down in Scottish Rights of Way and Recreation Society Limited v. McPherson 1887 14 R. 875, the use which may be held sufficient to establish a right of way is use of a kind and degree which could reasonably be expected given the nature of the alleged right in question and its location and circumstances; and that as was said by the Lord President in Marquis of Bute v. M'Kirdy 1937 SC 93, in relation at least to the earlier periods under consideration evidence of tradition is admissible and acceptable. Thirdly, once a right of way is established, it can only be lost by proof of non-use for the prescriptive period, so that very much less in the way of use may suffice to maintain a right of way in existence than is necessary for its creation. In the course of argument there was discussion of various circumstances in which it might be said that continuing use was so small as to be immaterial, (such as the case of a poacher using the route by night) but we do not think it necessary to discuss such extreme cases. The general rule appears to be that continuing use which is not, in all the circumstances, negligible or immaterial will suffice to maintain the right. It may be mentioned also that once the right is established, the route becomes available for use by the public over part of the route as well as over the whole (McRobert v. Reid 1914 S.C. 633).

The evidence which has to be considered falls broadly under two chapters, namely the historical evidence relating to the position before 1925 and the evidence of use since that date. Much of the historical evidence was introduced by Catherine Kinnear, a rights of way assistant employed by North East Fife District Council. The sheriff notes that he found her evidence convincing but, since she was speaking to materials which she had gathered, it is the nature and weight of the materials, rather than anything about her own evidence, which is important. The sheriff and the sheriff principal did not think it necessary to look at those materials in detail in their Notes. For the purposes of this appeal, however, it seems to us that it is necessary to examine them a little more closely.

It is convenient to begin with excerpts from the two books referred to in the sheriff's findings. The book by T.G. Snoddy was first published in 1966 and contains little or nothing in the way of reference to sources, but it does indicate the author's understanding of the nature and course of a road from Auchtermuchty to a ferry at Carpow. At p. 68, the author says:

The author then describes a passage from Auchtermuchty over Hill Pass to Whinnybank and from there to MacDuff's Cross, which he discusses at some length. The Cross is associated with a tradition or legend that MacDuff, the Thane of Fife, when fleeing from Macbeth, crossed the Tay by the ferry to Carpow and went from there past the site of the Cross, and on to Auchtermuchty. Mr. Snoddy then describes the route of the old road from MacDuff's Cross to Ninewells farmhouse, passing Sir Robert's Prap, about which again he gives a certain amount of information. At p. 77 he states:

The author then describes the discovery and excavation of a Roman legionary fortress at Carpow. In her evidence, Miss Kinnear explained that Mr. Snoddy had written two well-known walking books about Fife, of which this book was one, that he was a person who had enjoyed walking in the countryside and had talked to locals and collected information from them and from sources such as statistical accounts. She expressed the opinion that the route described by Mr. Snoddy from Whinnybank to the road between Newburgh and Abernethy appeared to correspond reasonably well with the route with which the action is concerned.

The second book to which reference was made is one called Ferries in Scotland by Marie Weir, published in 1988. The most material passage is at p.106 where it is stated:

On the following page, it is further said:

Again, the author does not cite any sources for the information contained in that passage. On the face of it, however, the information set out would appear to point to the existence of a substantial ferry at Ferryfield. There is also some reference to the ferry in a book entitled Lindores Abbey and its Burgh of Newburgh by Alexander Laing, FSA Scot, published in 1876, which also refers to the story of MacDuff's crossing of the Tay and its connection with the monument known as MacDuff's Cross.

The second source of historical information about the route consists of a number of maps and plans. The earliest map referred to is Stobie's map of Perth and Clackmannanshire published in 1783, to which the sheriff refers in finding 13. The map shows the road from Abernethy to Newburgh more or less along the line of the modern road. It also shows a road running from a point on the south bank of the Tay, just at the mouth of the Earn, which is marked Aitken's Boat. That road runs south-eastwards to meet the road from Abernethy to Newburgh and then in a slightly more easterly direction to a point marked as MacDuff's Cross, passing a point marked W. Clunie on the way. The map does not show any part of the County of Fife and therefore does not show any continuation to Auchtermuchty from MacDuff's Cross. The map does, however, suggest that there was a road northwards from MacDuff's Cross towards Newburgh.

The second map referred to, Thompson's map of the south-east part of Perthshire with Clackmannan dated in 1827, is on a smaller scale but shows very much the same arrangement of roads and also shows Wester Clunie and MacDuff's Cross. Like Stobie's map, Thompson's map does not extend far enough to show any continuation of any road into Fife.

As the sheriff finds, in findings 18 to 21, the route or parts of it are referred to in dispositions or deeds of various dates. It is referred to in deeds of 1910 (production 18/9) and 1949 (production 18/12) as "the highway leading from Abernethy to Loch Mill". It is also referred to in a disposition of 1925 (production 18/11) as "the cart road leading to Loch Mill". Loch Mill is situated some distance to the south of the line of the route, on the section between points F and G. Accordingly, while these deeds indicate that there was understood to be a road or route of some kind, they do not identify it as part of a route from Carpow to Auchtermuchty; indeed they suggest a different destination. Similarly the references in the deeds mentioned by the sheriff in findings 20 and 21, ranging from 1891 to 1966, to part of the route as "a common loan" may indicate some understanding that there was a route but do not take the matter much further. The pursuers do, however, obtain more assistance from production 18/4, a plan dated in 1825. This plan seems to have been prepared in relation to a division of lands at Easter Greenside and shows Carpow Farm. It shows, in addition, a road from the northern road to Newburgh which seems to correspond with the modern highway and, going off from it approximately in the position of the route, a line marked as "Road From Aitken's-Boat to Auchtermuchty".

In addition to the older plans and to the estate and disposition plans, which have been discussed, there were produced a number of ordnance survey maps of various dates from the late 19^th Century onwards. The sheriff refers to these in finding 22. There can, in our view, be no real doubt that these do show a route marked on the map following the line of the route in question, and while the fact that the route appears on a map gives no guidance as to its status, the maps do show the existence of a route on the ground. Further, looking at a more extended map of the area which includes lands to the south and east and is referred to as 2/1 of process, it is quite easy to follow the whole of the route described by Mr. Snoddy from Auchtermuchty via MacDuff's Cross, Ninewells and West Clunie to Carpow. The maps and plans to which we have referred were all discussed in the course of the evidence of the first appellant and, generally speaking, it can be said that it was not disputed that it could be seen that a route or track of some kind had existed and, subject to some observations as to parts of it having been overgrown or obstructed, still existed; but that it could not be precisely identified with the route with which the action is concerned and that there was nothing to indicate that there was, or ever had been, anything other than a farm or estate road, at most, on the ground.

A third source of historical information consists of evidence of traditional understandings given by some local residents. Mr. R.F. Batchelor, a Newburgh resident aged 67 said (Vol. 5 p.669) that it was local knowledge that the route is or was a coach road and added "it has always been cried the coach road or ferry road, just local knowledge". He referred to Mr. Snoddy's book and to a map which he recollected seeing, but said that the road had been known as the coach or ferry road before the book was published. Mr. R.S. Pearson, a Newburgh resident aged 47, said that he understood that the route was a right of way, but explained that he had gained that impression from Mr. Snoddy's book and from what he had heard from a local teacher, Mr. Alan Tyrie. There were a number of other witnesses who referred to Mr. Tyrie but Mr. Tyrie himself was not called as a witness. Mr. R.J. Scotland, another Newburgh resident, aged 59, explained, (Vol. 6 p. 907) that his grandfather had owned Ferryfield Inn and that there had been a ferry from Ferryfield to Cairney Pier on the north side of the Tay. He said, at p. 908,

He explained that the coach road was the route marked on the map with which the action was concerned and added that he had gained the impression that people used this route from the ferry to Auchtermuchty from his father and relations because his father at some time did row the boat across, it being a rowing boat. Mr. Scotland added that the inn at Ferryfield closed about the early to mid-1920s. He also said that the road had been known locally as a coach road, a right of way and a drover's road. Mr. Scotland gave further explanations in cross-examination (Vol. 7 p. 1023), in the course of which he agreed that there was no question of coaches using the ferry or of coaches, so far as he was aware, actually using the route. It is appropriate to add that although Mr. Scotland gave a considerable amount of evidence about actual use of the route, the sheriff did not accept some material parts of his evidence. Mr. Alexander Moncrieff, a retired blacksmith, aged 69 and resident in Newburgh, gave further evidence in relation to Mr. Tyrie and his explanation that this road was an old coach road or drover's road.

The principal witnesses in the second chapter of evidence, at least in respect of establishing the existence of a right of way were John Matthew Wilson and John Davidson. The defender's counsel criticised the sheriff for placing reliance upon the evidence of the witnesses who spoke to pre-war events and in particular to the fact that he accepted these two witnesses as material witnesses. Counsel's contention was that the recollections of these witnesses were so slight, removed in time, and confused, that no regard should be paid to them. Certainly these witnesses were often vague about detail. This is not in itself surprising. The topographical detail of walks taken in childhood with one's parents over 60 years ago are scarcely likely to have had the sort of strong impact which might endure until the old age of the person giving evidence. On the other hand if the sheriff considers such witnesses honest (as he did) he may have been able to form the view that the overall picture spoken to by a witness could be relied upon even although some of the individual details may be doubtful. This is indeed how the sheriff appears to have approached matters. As we have already observed it is important to place evidence in a case like this firmly in the context of the whole evidence relating to the matter.

The witness John Wilson was a retired works manager who had lived in Newburgh all his life. He was 78 years of age when he gave his evidence. His father had been aged 45 when John Wilson was born. The summation of Mr. Wilson's evidence was that when he was aged about 8 years old he had, with his parents, regularly walked along the route for recreational purposes on a Sunday. Usually only a part of the route was walked but occasionally the whole route from point A to point G was walked. He had walked the whole route in both directions. Probably the whole route was walked only once or twice a year in summer time. An important element of his evidence was that in the summer time all the families from the West Port of Newburgh were walking all the local routes and in particular the present route at the weekend. As he stated there were always two or three groups of people walking up the road on a Sunday. After about 1931 he would walk the route with friends and after his military service and the end of the war he continued to walk the route occasionally until he was about 65 years old. Since 1987 he has walked the full route only once or twice. He described how all the older local residents, and his father, described the route as an old road. His father told him that there used to be an Inn at the point of the route marked F. All his life he personally considered the route as a public road and he also had been told that persons using the ferry at Ferryfield approached this ferry by way of the route. Until recent years when the defender had attempted to interfere with person using the route no challenge had ever been made to the use made by the public of the route. Moreover, although the vegetation on the route had for a period deteriorated and somewhat obstructed the route, it was always possible to proceed along the route. In our view there is nothing to invalidate the careful assessment made by the sheriff of this witness.

The witness John Davidson was aged 76 when he gave his evidence. In respect of detail his evidence was certainly confused and perhaps because of this sometimes seemed contradictory. He had been a maintenance engineer and his family had long been connected with Newburgh. He had begun walking the route when about 11 or 12 years old. The purpose of his use of the route had been to pick brambles with his father. He thought that at that time there was no gate along the route. Indeed evidence of the presence of gates along the route was rather inconclusive but what seems clear is that until recent years any gates along the route did not present any disincentive to persons who were using it. They were not regarded by the public as a barrier or as being in position so as to discourage pedestrians. Mr. Davidson confirmed that the route represented a straight path clearly bounded by fences and we did not understand this evidence to be challenged. Although the evidence of the witness as to having walked the whole route occasionally was somewhat vague he certainly did assert that sporadically he would walk the complete route so as to pick brambles. This meant that at some point he would leave the route to approach the bramble bushes and then return to it perhaps not at the identical spot where he had left the route but maybe a hundred yards further along it. Where it necessary to take account of this evidence we doubt if such a slight and random variation in the use of the route should be regarded as material but we do not, in any event, consider that his evidence of bramble picking expeditions is clear enough to be persuasive on matters of detail. In the post-war period Mr. Davidson claimed that he often walked along part of the route. His school teacher and others at Newburgh had told him that the route was a public road. This was his understanding and his use of the road was never challenged. It is clear from his evidence that in the post-war period there were not too many people who used the road, although he would see occasional pedestrians including tinkers. Despite challenge on the matter the witness insisted that from 1949 until December 1983, when he retired, he would walk the whole route every three or four years. He did not find that overgrown vegetation disturbed his use of the road.

Wilson and Davidson were the most important witnesses in regard to the position in 1925, but there was evidence from others. The witness Alexander Williamson was 72 years old at the time of the proof. He is a retired accountant and has always lived in Newburgh. As a child he used to walk along the route from point F to point A. In the mid-1980s the witness claims to have walked the whole route from A to G once or twice. He only began to be challenged by the defender about 1994. Mr. Tyrie, his school teacher, and his parents had always told him that the route was an old coach road. Mr. Tyrie described the route as being part of a network of pleasant walks in Fife and as leading to the ferry at Ferryfield.

The witness Thomas Lennie is a retired machine operator. He was aged 70 at the date of the proof. He had resided at Newburgh for 67 years. From the time he was a child he had walked what he described as the whole route but he had begun his walks from point F on the route. When walking he would sometimes enter onto an adjacent field for a distance about 10 yards or so if the path was difficult to walk upon because of vegetation. He had also regularly walked along the part of the route which runs from G to F. The witness claimed that his walks had been varied. It was only about 1989 that the defender began to object to persons on the road.

The witness Alexander Moncrieff was aged 70 at the time of the proof. He claimed that he had walked the full route from A to G. Perhaps this had happened about three times between 1934 and the war. He indicated that in the 1950s quite a lot of people had walked along the route. However, it has to be noted that although in his evidence Mr. Moncrieff claimed to have walked along the whole route he may well have been referring to the section from A to F. It is fairly clear from the whole evidence that a number of persons who walked the route entered it from the Woodriffe Road at point F. He had been taught by his teacher Mr. Tyrie that the route was part of the old coach road and that it was the only road available to get to the ferry. He claimed that the route had always been known locally as a right of way. When he was young there had been the ruins of the Inn at point F.

The witness Alan Williamson was a retired farmer, aged 69 at the time of the proof. When he was at school he would walk the route a dozen times a year but normally from point F to A. There were cattle grids between point F and point G on the route and his understanding was that these grids were there in place of a gate because the route was a public right of way. He also remembered a louping stone at point F which his father had told him was used in relation to an old Coaching Inn. His grandfather had also told him that the route was a right of way. The witness and his friends used a variety of walking routes in the area. Finally the witness Robert Bachelor was aged 69 at the time of the proof. He had lived at Newburgh all his life. He too had walked the route but like other witnesses he walked from point F to A. He sometimes walked from point F to G. On one occasion during the war he cycled along the whole route. When he was young his family would walk along the route every Sunday. The route was always called the coach road. In his childhood the road was thought to be used by tinkers and he was often frightened of meeting them. He had always thought the coach road was a right of way. The Inn at point F had been called Duff Tavern.

It is clear that the direct evidence of older witnesses as to use of the route would not be sufficient, by itself to establish sufficient use to constitute a public right of way over the route. However, if there is other evidence sufficient to show that there formerly was a coach road, drove road, or ferry approach road, along the route, the evidence of older witnesses could be sufficient to show that the original rights of way persisted for pedestrians up until modern times. The evidence by witnesses that they had made full pedestrian use of the route from point A to point G is slight. On the other hand Mr. Wilson was clear that he had, albeit only occasionally, walked along the whole route since his early childhood. Other witnesses who claim to have walked "the route" were rather more vague in their recollection but there was a fair body of clear evidence from persons who had used the route as a way of getting from point A to point F. It is important to keep in mind the character of this route. It runs across relatively quiet country and inevitably public use of the route could not be heavy. By 1925 any practical business reasons for using the route would be small, particularly with the advent of motor cars. However, the evidence accepted by the sheriff shows that in the late 1920s a significant, if moderate, use was made of the road for recreational purposes when on a Sunday local families would walk along the route. Their evidence supports the view that certainly a number of members of the public were using the route to move between two public places, namely point A and point F. However, it was clear from the evidence of witnesses that the local public used the available network of roads in the area for a variety of walks. The distance from F to G is relatively short and it is clear that members of the public sometimes walked along it unhindered. Moreover, the stretch of road in question runs in a straight line as a continuation of the earlier stretch of straight road. There was a cattle grid on the road between F and G. There was evidence to the effect that no measures were taken at the time to exclude the public from any part of the route, despite the regular use that was being made of it. If Mr. Wilson's family occasionally walked the whole route and other families were regularly using the route for a Sunday walk it would be somewhat improbable if others did not occasionally walk along the route beyond point F to point G where they could have connected with another public road. This is especially so when it is considered that there was a body of evidence that members of the public residing at Newburgh considered that they had a public right of way over the whole of the route in question. This is not a case like Mann v. Brodie where there was no clear evidence of the public's attitude to the route. In this case there is a considerable body of evidence to the effect that in Newburgh the local population understood that the route was a public right of way and that such public use extended back to historical times. Moreover, given that at the time witnesses such as Mr. Wilson were told by older relatives that the route was a public route it seems unlikely that the pedestrian use of the route had simply started overnight. The local knowledge imparted to the witnesses appears to have been that the route had always been used by the public for various purposes in view of its character as a public right of way. Moreover the witnesses identified the route in this case as the route known as the coach road or ferry road and indeed the old maps and plans show no likely alternative road.

As we have explained, the appellants maintained, both in evidence and in the submissions on their behalf, that the evidence was quite insufficient to establish any more than a possible estate road, rarely if ever used by the public in modern times. The sheriff explains, in findings 33 and following, the history of the appellants' connection with, visits to and residence in the area since 1937. We do not think it necessary to repeat what is set out in the findings. It is sufficient to say that although the appellants were not, by any means, continuously resident in the area, even after their purchase of Bloomfield in 1966, and there were periods when they were only sporadically present there, their evidence, which the sheriff accepted as credible, pointed to a very low level of use and that that evidence must be given weight in assessing the overall effect of the proof.

Taking all the evidence together, the conclusions which can be drawn are, in our view, as follows: firstly, it seems to us to have been sufficiently established by the proof that there is a reasonably defined and discernible route on the ground along the line which the pursuers claim as a right of way. That part of the route between points B and C was certainly heavily overgrown for a long period but the evidence does not establish that for any particular length of time it was impassable. Secondly, the route on the ground corresponds very well with the old route from Auchtermuchty to the ferry at Carpow described in the historical evidence. It is true that the older maps are drawn to a very small scale, but the relationship between the line of the route on the ground and the historical landmarks is convincing: and there is no other candidate for the route shown on the historic maps. We have remarked upon the fact that there is little in the way of clear indication of the sources from which the historical evidence was derived. On the other hand, there is no historical material contradicting that on which the respondents rely and even the first-named appellant conceded that the historical evidence pointed to a route or road of some kind. Thirdly, the historic route was part of a larger route connecting Auchtermuchty to the Carpow ferry, and available for use for general public purposes. Fourthly, there was evidence of a strong local understanding that the route was a right of way. Fifthly, there was no evidence that the public had ever been excluded from use of it and there was evidence, set out above, that there was use continuing into the 1920s. It may be added that there is nothing to indicate that there was any attempt to prevent the public from using the route until some time in the 1980s. Taking all the information together, it seems to us that there was sufficient material before the sheriff to entitle him to draw the conclusion, that there had been use by the public as of right, as part of a larger public road, for much more than 40 years before 1925, and which still continued in 1925, though to a much reduced degree. It must, we think, be acknowledged that, in comparison with other cases in which public rights of way have been held proved, this is a case in which the evidence is limited and relatively indefinite: but much of the material evidence is directed to the position as it was more than 75 years ago, and some indefiniteness is to be expected. It may be added that the sheriff had himself visited the locus and had also the advantage of hearing and seeing the witnesses. In our opinion, no ground has been set up for interfering with the conclusion at which he arrived.

The second ground of appeal concerns the use of the route since 1925. This can, in our opinion, be dealt with much more briefly. The sheriff did consider the appellants' evidence, which, as we have noted, he treated as credible, and that evidence pointed to a very low level of use, since at least 1937. There was, however, some evidence of use, and, in our view, the sheriff was entitled to conclude that there had never been non-use of the road for a sufficient period for the right of passage along it to be lost. The use has certainly been very slight for substantial periods of time but, apart from the 1939 to 1945 period, which is one in respect of which evidence of use might well not be expected to be available, some use did continue. We think there is some force in the appellants' submission that in order to prevent a right of way being lost, there must be evidence of use which is not so trivial or inconsiderable as to be capable of being disregarded as immaterial . In the present case, however, in our view, the sheriff was well entitled to conclude that there had been sufficient use to keep the right of way alive.

In all the circumstances, therefore, this appeal falls to be refused.