Mann v Brodie
| Jurisdiction | UK Non-devolved |
| Judgment Date | 04 May 1885 |
| Court | House of Lords |
| Docket Number | No. 6. |
| Date | 04 May 1885 |
Lord Blackburn, Lord Waston, Ld. Fitzgerald.
Road—Public right of way—Presumption—Prescription.—
In an action brought in 1883 for declarator of public right of way over a road leading from one public road to another public road, it was proved that during the thirty-seven years from 1846 to the date of the action the public had been excluded from the use of the road—that from 1820 to 1846 the public had used the road as of right. The evidence as to the remainder of the forty years prior to 1846 was insufficient per se to prove that the public had used the road as of right.
Held (in rev. judgment of the First Division) that the presumption arising from the exclusion of the public from the road for thirty-seven years without challenge overcame the presumption that the use prior to 1820 had been of the same character as that between 1820 and 1846, and that, therefore, in the absence of any distinct evidence as to that use, the pursuers had failed to instruct a prescriptive right to the road.
(In the Court of Session, June 13, 1884, 11 R. 925.)
The defender appealed.
Lord Blackburn.—In this case the Lord Ordinary (M'Laren) pronounced an interlocutor, in which he ‘finds it proved that the defender and his predecessors in title have excluded the public from the use of the road in question since the year 1846, and that there is no proof of the assertion of a right on the part of the public since that year: Finds it not proved that the road in question had been a public road during the period of forty years antecedent to the year 1847,’ and he gave judgment for the defender.
The pursuers reclaimed, and the Judges of the First Division recalled the interlocutor, and found it proved that ‘the road in question had been a public road during the period of forty years antecedent to the commencement of the year 1847,’ and gave judgment for the pursuers. The First Division differed from the Lord Ordinary, not as to any question of law, but as to the effect of the evidence.
There was not anything in the nature of the evidence to give the Lord Ordinary, though he heard the witnesses, better means of judging than the Judges of the First Division or your Lordships, who only read the notes; and the Judges, I think, owed it to the respondents to form their own opinion, and to act upon it if it was different from that of the Lord Ordinary. I think now that your Lordships owe it to the appellant to form your own opinion and to act upon it, though it is different from that of the Inner-House. I need not say that I should not lightly differ from them, even though in so doing I agreed with the Lord Ordinary.
The evidence is voluminous, but there is no difference between the Judges below except as to the effect that ought to be given to the evidence relating to the period, I think I may say, between 1805 and 1810, which is directly touched by only a very little of the evidence; and as to the weight to be given to the contrary presumptions arising, one in favour of the pursuers, from the fact, which they all agree is proved by preponderating evidence, that the road was used by the public during a period between 1820 and 1846, affording some reason for acting on slighter evidence during the earlier fourteen years which are required to make up the forty, and one the other way, arising from the fact, which they all agree in finding, that the public have been excluded from 1846, and that there is no proof of the assertion of a right on the part of the public since that year.
Though exclusion for less than forty years will not extinguish a public road which is proved to have been created, the fact of no right having been asserted during an exclusion of so long a period as thirty-seven years affords some reason for requiring more evidence to establish that such a right really existed. There must have been many alive in the period between 1846 and, say, 1856, and now dead, who must have known much more as to what really was the state of user of the road between 1805 and 1820 than those now alive, and if they did not assert a right, it affords some ground for surmising that they did not think that right existed, and, therefore, some ground for looking more critically at the evidence produced to prove that it did.
The case is to be governed by the law of Scotland. Any reference to English law is apt to mislead, unless the difference of the law of the two countries is borne in mind. In both countries a right of public way may be acquired by prescription. In England the common law period of prescription was time immemorial, and any claim by prescription was defeated by proof that the right claimed had originated within the time of legal memory, that is, since a.d. 1189. This was, no doubt, an unreasonably long period. And sometimes, by legal fictions of presumed grants, and in part, by legislation, the period required for prescription as to private rights has, in many cases, been practically cut down to a much shorter definite period—(See Angus v. DaltonELR.)1 But this has never been done in the case of a public right of way. And it has not been required, though in the way in which the evil of the period of prescription being too long has been avoided, an opposite evil of establishing public rights of way on a very short usurpation has sometimes been incurred.
In Poole v. HuskissonENR2 Baron Parke says,—‘In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate—there must be an animus dedicandi, of which the user by the public is evidence, and no more; and a single act of interruption by the owner is of much more weight upon a question of intention than many acts of enjoyment.’
But it has also been held that where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was. It is therefore, I may say, in England never practically necessary to rely on prescription to establish a public way.
Now, it is here to be observed that though the length of time during which a road is used as a public highway is an element in determining whether a dedication should be inferred, it is not any definite time, and a very short period of usurpation will often satisfy a jury. But I am far from thinking that the law of England is here at all the perfection of reason, or such as ought to be introduced into the law of Scotland if not so already.
No case is made here as to a right of way created by the owner, either on the titles or by such acts (if any there be) as without any writing might, according to the law of Scotland, preclude the owner and those who claim under him from denying that a right of way had been created. The sole claim is by prescription, and I think there is no dispute that, by the law of Scotland, the period of prescription is forty years. If the public had used the road to such an extent and in such a manner that they may properly be said to be possessed of it, and they have had such possession for forty years, they have acquired the right, and that although it was shewn that the owner in fee was, during that time, not dedicating it; but if less than forty years' possession is proved there is not, as I understand, any principle or authority for saying that a dedication is to be presumed. And again, when the public are excluded for forty years, their right, however clear it may be that they once had one, is gone, by negative prescription. The question, in short, is as to possession by the public or against
the public for a period of forty years, and not, as in England, as to user by the public for such an undefined time, and in such a manner and under such circumstances as to justify the inference that an owner in fee had dedicated.
I think that evidence of possession by the public, such as is proved in this case, between 1820 and 1846, would, in England, justify a jury in finding a dedication before 1846; but it does not justify a finding of prescriptive right, unless it is proved that it continued so long, either at the beginning or end of the period, as to amount to forty years.
I do not propose to enter into the evidence in detail. I agree with the Judges below that the fair result of the proof is that, in 1842, when Captain Stirling, already the owner of Glentyan, purchased the adjoining farm of Wardhouse and began to take steps to throw it into his policies, he did exclude the public from a road which they had possessed for some time. I agree also in thinking that this exclusion was not complete till the gate was set up across the road.
The appellant's counsel shewed that there was some conflict of testimony as to whether the exclusion was complete from the time the gate was set up, and also as to the time when the gate was put up, some putting it in 1846, some in 1851; but I think the preponderance of proof was that the gate was set up in 1846, and that the exclusion of the public was complete from that time, and not before. That puts the defender in possession, as against the public, for thirty-seven years, but not for forty.
The Wardhouse farm lies between two public roads, the northern being called Lawmarnock Road and the southern one the Bruntshields Road. A small stream of water flows across the Wardhouse farm to Glentyan mill, and a dam was made for the mill close by the Bruntshields Road. The farm steading of Wardhouse farm is erected about halfway between the two public roads on the northern or Lawmarnock side of the stream. When all this was done does not appear, but it certainly...
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