Murray and Others v Arbuthnot
| Jurisdiction | Scotland |
| Judgment Date | 29 November 1870 |
| Date | 29 November 1870 |
| Docket Number | No. 48 |
| Court | Court of Session (Inner House - Second Division) |
R.
Road—Footpath—Edinburgh County Road Acts.—
Jury Trial—Verdict, Form of.—
THIS was a declarator of a public right of way for foot-passengers through part of the lands of Mavisbank, belonging to Mr Arbuthnot. The issue sent to the jury was—‘Whether, for forty years and upwards prior to the 14th day of May 1867, or for time immemorial, there existed a public right of way for foot-passengers, leading from the village of Roslin, in the parish of Lasswade, eastwards to a point at or near the top of the north bank of the river Esk, and there entering and running through the property of Mr Trotter of Dryden, and thence through the defender's property, known as the “Swallow Knowe” or “Fir Plantation,” along or near the top of said Swallow Knowe or Fir Plantation, down to and across the public road from Loanhead to Polton Station of the Esk Valley Railway, and thence, onwards and eastwards, along the north bank of the Esk to Lasswade, Dalkeith, and other places in that direction?’
The trial took place on the 22d and 23d July 1870 before the Lord Justice-Clerk.
The following facts were proved:—The path in question had been used as a public right of way for time immemorial prior to 1824. On 2d April 1824 Mr Mercer, then proprietor of Mavisbank, applied to a general meeting of the road trustees for the county of Edinburgh, stating ‘that there is a footroad from Roslin to Lasswade Church, which passes through that part of the petitioner's property in this parish called the Swallow Bank, by a steep part in that bank, and which in wet weather is hardly passable. The petitioner proposes to turn that footpath, by making it in future pass along the north side of the bank. In this way, it would be made much easier for the passengers, and the distance will he increased only from about 80 to 100 yards.’
He founded on the 21st section of the Road Act, 1803, afterwards quoted, and he prayed the trustees ‘to take the premises into consideration, and to appoint a committee of your number to visit the road in question, and the proposed alteration, and to report; and, on advising said report, to authorise the petitioner, at his own expense, to alter the site of the said footroad or path in the manner before proposed, or in such other manner as to your honours shall seem more advisable; and, on the new road or path being completed to the satisfaction of the convener, or a quorum of the trustees of the Lasswade district, to authorise the petitioner to shut up the old footpath, and to prohibit the public from using the same in...
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