Marquis of Bute v McKirdy & McMillan
| Jurisdiction | Scotland |
| Judgment Date | 11 December 1936 |
| Docket Number | No. 10. |
| Date | 11 December 1936 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Mackay.
Roads and StreetsRight of wayConstitutionTrack connecting public road with foreshoreTrack at one time part of public road to foreshore but subsequently not maintained as public roadPublic placeResort by public to foreshore for recreationUse of track as access to foreshoreSea.
A proprietor, who owned the foreshore ex adverso of his lands, brought an action of declarator that there existed no right of way over a track about a quarter of a mile in length leading from a public road to the foreshore.
The track was held to have been part of a road extending to the foreshore, which became a public road in 1819, but which ceased to be maintained at public expense in 1836. It was proved that from 1865 till 1934, when the proprietor first attempted to close the track, it had been used by the public as an access to the foreshore for the purpose of bathing and recreation. The evidence justified the inference that this use had extended as far back as 1836.
Held (1) that, the track having been at one time a public road, the foreshore at its terminus had acquired the character of a public place which it had never lost; and further that, even if it was not established that the track had ever been part of a public road, the resort by the public to the foreshore for recreation had made the foreshore a public place prior to 1894 when the prescriptive period began; and (2) that the extent of the public use of the track throughout the prescriptive period was consistent, not with tolerance by the proprietor, but with the assertion of a right by the public.
Opinion, per Lord Moncrieff, that a public road could not lose its character as such merely by failure on the part of the road authority to maintain it and without resort by them to the statutory procedure for closing it.
Authorities reviewed.
The Most Honourable John Crichton Stuart, Marquis of Bute, brought an action against (1) M'Kirdy & M'Millan, Limited, motor hirers, Rothesay, (2) certain of their employees, and (3) the County Council of the County of Bute, concluding "(First) For declarator that the pursuer and his predecessors and authors had and have the sole and exclusive right of property in All and Whole the Four pound land of Quien and Scalpsie with the Mill of Scalpsie and mill butt and mill lands thereof, in the Island and County of Bute, as described in the title deeds thereof, and that free of any servitude of road or passage or public right of way for passengers by horse or foot or with vehicles through or upon the same with the exception of the public road from Ambrismore by Ladeside to Scalpsie (marked in green on the plan to be produced at the calling hereof), and that the pursuer and his tenants and servants are entitled to prevent and exclude the defenders, and all others, members of the public, from entering, walking, riding or driving through or upon the said land of Quien and Scalpsie, or any part thereof other than by the said public road; And in particular, but without prejudice to the foregoing generality, for declarator that there exists no public right of way for passengers either by horse or on foot or with vehicles from a point on the said public road (marked A on the said plan) along a cart track leading in a south westerly direction through the pursuer's said land of Quien and Scalpsie in or nearly in the direction shown by the red line AB marked on the said plan to a point marked B; and (Second) for interdict against the first and second-named defenders from entering upon the pursuer's said land of Quien and Scalpsie, and passing through or over the same or any part thereof, either on foot or horseback, and with or without vehicles or conveyances (except by the foresaid public road), and from troubling, molesting or obstructing the pursuer, his tenants and servants, in the peaceable use, enjoyment and possession of the pursuer's said land, and from breaking down, injuring or interfering with the gates or fences upon or around the pursuer's said land."
The pursuer pleaded, inter alia:"(1) There being no public right of way or servitude of road or passage over the said Four pound land of Quien and Scalpsie except by the said public road, and in particular there being no public right of way or servitude of road or passage between or near the points A to B by the route shown in red on the said plan, decree of declarator and interdict should be granted as concluded for."
Defences were lodged by all the defenders, and a proof was heard before the Lord Ordinary (Mackay).
The purport of the evidence led at the proof, which is more fully referred to in the opinions of the judges, was as follows:The track, the right of way over which was in dispute, was a rough cart track about a quarter of a mile in length leading from a point on a public road in the Island of Bute to the foreshore at a place known as Scalpsie Bay. The pursuer was the owner of the adjoining lands over which the track passed, and also of the foreshore. At the point where the track left the road, and also at the point where it passed through a wall near the foreshore, there were gates fastened by a hook and staple. Scalpsie Bay was a place of much natural beauty. It contained a sandy foreshore, about half a mile in length, and well suited for bathing. The bay was a well-known place of resort for the inhabitants of, and visitors to, Rothesay. Evidence given by witnesses who had known the locality since about 1865 showed that, throughout the intervening period, the track had been used by pedestrians as an access to the foreshore for the purpose of bathing and recreation, and there was hearsay evidence to the effect that it had been regarded as a right of way at least since 1836. The use of the track was practically confined to summer, and especially to holiday seasons. It gradually increased in amount with the increasing popularity of Bute as a holiday resort. From about 1890 hirers of vehicles in Rothesay advertised drives to the point where the track left the public road, from which the passengers made their way by the track to the foreshore. In 1931 the County Council, with the acquiescence of the pursuer, made a parking place for cars at the junction of the road and the track. In 1932 a regular service of motor omnibuses was started taking large numbers of people from Rothesay to this point. In 1933 the pursuer's factor authorised a tenant to hire out deck chairs to the public who had come to the foreshore by the track. In 1934, in consequence of complaints by tenants of injury to stock, the pursuer for the first time sought to exclude the public from the track by locking the gates, and in 1935 he brought the present action.
On 12th December 1935 the Lord Ordinary, inter alia, found that there was no right of way over the track for passengers by horse or with vehicles, but that there was a right of way for foot passengers.
LORD PRESIDENT (Normand).The question in this case is whether the public has a right of way on foot along a path or track about a quarter of a mile in length on land belonging to the pursuer, the Marquis of Bute, on the island of Bute. The northern terminus of the path is a public road, the southern terminus is said to be the foreshore of the bay at Scalpsie. The public road which forms the northern terminus connects towards the east with the west road running roughly north and south between Rothesay and Kingarth. From this junction it runs west or slightly to the north-west past the farm house of Ambrismore across the Quien Burn, past Ladeside House, past the northern end of the path in dispute and so on to Scalpsie farm, where it turns south-westwards to Ardscalpsie farm. There it again turns northwards past Mecknoch and Kilmory to Milton, where it joins another road which links Rothesay with the western and northern part of the island. Of the path itself it may be said that it has the general appearance of a rutted farm track. Scalpsie Bay, the alleged southern terminus of the right of way, is a place of much natural beauty looking towards the island of Arran. In its full extent it is a crescent measuring along its arc somewhat under two miles, but the sandy foreshore is of much less extent and is about 750 yards long. Above the foreshore is a stretch of sand about 50 feet wide, and above that again a grass shelf about 110 feet wide, and then there is a wall separating the grass shelf from the fields. The foreshore has been declared by decree of the Court to have been the property of the pursuer and his predecessors since 1714. The track in dispute passes through the wall, which I have mentioned, at a gate fastened by a hook and staple; another gate similarly fastened is situated at the north end of the track where it joins the public road. Apparently there have been gates at these points so far as the memory
of the witnesses extends. The track passes down the western side of a field; there is no fence on the east side of the track, and the fence on the west side is rather the fence separating the two fields than a fence for the track itself.
It is necessary to explain at this stage the somewhat unusual procedure which has taken place. On the original record the conclusions for declarator that there was no right of way on the track between the public road and Scalpsie Bay, and for interdict against trespass, were met by averments that the bay had been for more than the prescriptive period a public place to which members of the community and visitors resorted for the purposes of bathing, walking, recreation and amusement; and that the path itself had been used as a right of way, at least for foot passengers, from time immemorial. There were no averments by the defenders that the track had ever been a public road. The pursuer, on the other hand, asserted that the track exists for estate purposes, and that it had never been used by the public except by tolerance.
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