United Kingdom House of Lords Decisions

The facts of this case appear in the twelfth volume of the Court of Session Reports ^(a).

An action was instituted by the Respondents against the Duke, to have it found and declared that a certain road from Blair Athol to Braemar, popularly known as the passage of Glen Tilt, was a public road, and that the Pursuers and “all others” were entitled to the free and uninterrupted enjoyment thereof.

To this action his Grace, as the owner of Glen Tilt, put in a preliminary defence denying the Pursuers' title to sue.

The Lord Ordinary (Lord Ivory), on the 15th of June, 1849, repelled the Duke's defence, “and sustained the title of the Pursuers to insist in the action.”

His Lordship on the same occasion issued the following note or memorandum, giving a concise statement of the pleadings, and explaining the grounds of his decision:—

The Pursuers' allegations, in point of fact, must in the present stage of the proceedings be taken as true. It is averred, 1. That the Road sought to be declared, is, and from time immemorial has been, a public road,—used and travelled on by the public on foot and on horseback,—frequented as a drove-road by drovers and their sheep or cattle,—the regular, and main, and only direct thoroughfare for purposes of business or recreation of the district; as such, until lately, maintained in whole or in part at the public expense, or by statute-labour, &c. &c.; and, accordingly, that, were it now to be closed, the Pursuers and the public would thereby be deprived of the direct and common means of communication with the upper part of the valley of the Dee, and with the

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( a) By Messrs. Young, Tennent, Fraser, & Murray; and usually called the Second or New Series, p. 328.

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public roads or paths leading therefrom to the valleys of the Avon or the Spey. It is averred, 2. That the Defender or his predecessors have illegally set up gates, fences, and other interruptions, across this road, and have for some years back used various means to stop up, obstruct, or obliterate the same, and to deprive the Pursuers and the public of the use thereof; that, in particular, the Defender has interrupted and threatened individuals passing along the said road, and has employed gamekeepers and other persons to prevent and interrupt their so passing; that since the commencement of these proceedings, he has so stopped and interrupted the Pursuers themselves; and that he accordingly now disputes upon the Record that there is any public road, or any right in the public to travel, through Glen Tilt; and that all persons attempting so to travel without his consent, are guilty of trespass, and subject in consequence to pains and penalties.

In this state of matters, assuming it to be true, it is surely impossible to dispute that somewhere or other there must exist a legal remedy for the very grievous wrong thereby inflicted on the public. In England, it is believed such a remedy would be found in the proceeding of indictment. But with us, no such course is open; and redress must therefore, of necessity, be sought by way of action. No doubt, as is laid down by Erskine, 4, 1, 17, “We have admitted no action in our law, upon questions of civil right, which can be pursued by any other than the person interested.” But if, according to Stair, 2, 7, 10, highways be “patent to all the lieges, without respect to land,” and as in the parallel passage of Erskine, 2, 2, 5, “their use belongs to all the subjects or members of the Kingdom, and to those strangers to whom it allows the liberty of trade,”—it would be difficult to maintain that any party against whom a highway is closed, or to whom its use is denied, and all access prohibited and prevented, is a “person interested” in the sense here intended.

Accordingly, if before bringing the present action, the Pursuers (as is averred on the Record in regard to others) had actually been interrupted and turned off the road, when travelling along it in the exercise of their supposed right, the Lord Ordinary sees no room to doubt that this would have qualified an undoubted title and interest to prosecute declarator. For, as “Declarators may be in all points of right and possession,” so they “may be pursued for instructing and clearing any kind of right relating to liberty, dominion, or obligation;” (Stair, 4, 3, 47;) and though “they are not to be raised or insisted in where there is no competition or pretence of any other right,” (Ibid.) yet, even in this respect, there could here have been no colour of objection; in as much as the Defender not only most strenuously disputes the right asserted by the Pursuers, but contends for a directly opposite and conflicting right, as belonging to himself.

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But it was not necessary that the Pursuers should thus expose themselves to an actual collision with the Defender. It was enough that the latter (as is averred) had, by his previous conduct towards others, made known what were his pretensions, and his determination, at his own hand, to assert and make them good. The Defender can hardly be allowed to say that, had the Pursuers attempted to use the road, they would have been treated by him differently. For they have, since the institution of this process, brought matters fairly to the test, by making the attempt; and, as was to have been anticipated, they were stopped and turned back.

The Pursuers, therefore, in respect of title and interest, stand very much in the same situation with the parties at whose instance, in various cases, questions have heretofore been raised in regard to the right of drove-road. It is their interest in the use of the road as res publica, which constitutes their title. It is not as owners or possessors of any dominant tenement, asserting an ordinary right of servitude, that they pursue; and of course no written title is necessary to be produced in support of their action. To repeat the words of Lord Stair, already quoted, the highway is “patent to all the lieges, without respect to land.” Accordingly, though all the proprietors in the district, and all the tenants and residenters in the immediate neighbourhood, were to oombine, it is beyond their united power to shut up what is a public highway; and were they to make the attempt, every party entitled to travel along the road would, in the very interest implied in that right, have sufficient title to prosecute declarator, or any other necessary process to preserve and keep it open.

The principle now laid down appears to receive strong illustration from such cases as Scott ^(a), where “action was sustained at the instance of those having occasion to travel a turnpike road, concluding against the trustees to put the road in repair, or to remove the toll-bar;” and Earl of Cassilis ^(b), where, at the instance of parties similarly situated, in respect of the right to use, a declarator was in like manner sustained against the Burgh of Wigton and other Burghs, and against sundry particular heritors, concluding for immunity “from tolls for cattle passing through these towns, or by certain roads or bridges leading through their grounds, or those of the other Defenders.” And this, notwithstanding it was contended, very much to the same effect as is now done by the Defender, that the Pursuers had “no title to pursue this general declarator for the lieges; and it ought not to be sustained for themselves, as no absolvitor can be proceeded upon it; and they are obliging the Defenders vexatiously to show their writings; but if any unjust toll is asked of any in particular, he may, in a proper

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( a) Guild v. Scott, Faculty Collection of Decisions, 21st December, 1809.

( b) Earl of Cassilis v. Burgh of Wigton, Morr. 16122.

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way, obtain a remedy against it.” If, in the present case, the Defender had shaped his obstruction in the form of an exaction of toll, as the price of being allowed to pass along the road, these authorities would have afforded an express precedent for declarator of immunity at the Pursuers' instance.

It only remains to notice the Defender's observation, that in all of these cases the action was brought at the instance of parties who actually used the disputed roads. But so it is also averred here, the express allegation of the Pursuers being, that they have, all and each of them, “travelled on the said road,” and “been in use to proceed along it, when travelling between Aberdeen, or other places on the Dee and Blair-Athole,” or “between their respective places of residence and the upper parts of the valley of the Dee, as also between their respective places of residence and the valleys of the Avon and the Spey.” And the injury, accordingly, of which they complain is, that the shutting of this “regular road and thoroughfare” will deprive them “of the means of communication between these important places, &c., otherwise than by adopting indirect roads, and making a circuit of many miles.”

Even, however, had the Pursuers' averments not been so expressed as to their actual use of the road in time past, their right to use it in time to come would still have been undoubted; and the Lord Ordinary is not prepared to say that this of itself would not have constituted a sufficient interest to entitle them to resist and oppose the Defender's attempt viâ facti (for such is the allegation) to exclude them and the rest of the public from what they distinctly allege to have been an ancient, and to be still an existing, public way.

The case of Tait ^(a) does not seem at all of weight as an adverse authority. For the only point decided was, that in a case of proper parish roads, which had been shut up by decree of the proper authorities, and another and approved line substituted in its stead, mere servants, hired from term to term, having no fixed settlement of their own, but living in family with their masters, had no title, because they had no proper or abiding interest, to prosecute a reduction of the decree; Lord Balgray significantly asking, “if the master has agreed, or does not object, to the alteration of the road, what right or title has his servant to resist it, and put himself in opposition to his master?” Even in that case, however, none of the Judges doubted or called in question the general principle, that interest in the road was sufficient to give title to pursue in questions of this class. Lord Craigie, indeed, remarked, that as “the road is alleged to be a public kirk and market road, he apprehended that any member of the

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( a) Tail v. Lord Lauderdale, 10th Feb. 1827, 5 Shaw & D. 306.

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community, who can show sufficient interest, is entitled to resist any alteration.”

The Duke reclaimed against the Lord Ordinary's interlocutor to the First Division of the Court of Session who, on the 12th of December, 1849, unanimously adhered to and confirmed his Lordship's decision ^(a).

His Grace, being still dissatisfied, appealed for justice to the House of Lords; and was there met by the Pursuers in the character of Respondents.

The Solicitor-General (Sir Fitzroy Kelly) and Mr. Rolt, for the Appellant: There is no authority or principle which can justify a proceeding by private parties in vindication of a right merely public. Infinite inconvenience will arise if such a suit be countenanced. A perfect stranger having no connexion with Glen Tilt may maintain it. And the owners of land in Scotland will be exposed to perpetual vexation. [ Lord Brougham: Why might not a proprietor prevent that mischief by bringing an action to have it declared that his land was free from such a claim?] In England the remedy would be by indictment under the control of the Attorney-General. [Lord Brougham: You know well that such indictments, though technically of a public character, rarely fall under the Attorney-General's notice. They are usually left to the private party.] The Attorney-General may stop a vexatious indictment by a nolle prosequi; but in Scotland the proceeding is subject to no check. The consequences, therefore, of affirming this judgment will be serious. The principle, moreover, on which it rests is entirely new in the law of Scotland. Erskine, 4. 1. 17. Galbreath v. Armour ^(b), Kerr v. Hamilton ^(c), Oswald v. Lawrie ^(a),

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( a) The Judges present were the Lord Justice-General (Boyle), Lord Mackenzie, and Lord Jeffrey. Lord Fullerton was absent.

( b) Bell's App. Ca. 374.

( c) 23rd January, 1823, 2 Shaw, 149.

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