v.
Young.
Subject_Road — Right-of-Way — Prescriptive Public Use — Deviation and Substitution.
Proof — Evidence — Road — Right-of-Way — Prescription — General Use — Tenants’ use — Judge of First Instance.
Process — Proof or Jury Trial — Road — Right-of-Way — Prescription — Deviation.
Facts:
Circumstances in which held that for the purpose of establishing by prescriptive use a public right-of-way from one highway to another, which use did not extend to the full prescriptive period, it was right to take into consideration the earlier use of a way between the
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two highways, although such way began and finished at different points and followed throughout a different line.Evidence held sufficient to establish by prescriptive use a right-of-way for foot-passengers where the use was that chiefly of tenants, but where little more could be looked for.
Observations ( per the Lord Chancellor) on the preponderant weight to be given to the opinion of the Judge of First Instance where the question came to rest on oral evidence.
Held ( per Lord Ordinary, Salvesen) that inquiry should be by proof and not by jury trial in an action as to the existence through prescriptive use of a public right-of-way, in which arose the question whether and to what extent there could be taken into account use, at an earlier period, of an entirely different line of passage.
Headnote:
On 19th June 1907 Robert Kinloch, W.S., Perth, and another, the testamentary trustees of the late Alexander John Kinloch of Altries, in the county of Kincardine, who died on 19th July 1879, brought an action against John Young, farmer, Easter Tilbouries, which adjoins Altries. In it the pursuers sought declarator “that the estate service road through the said lands and estate of Altries, now belonging to the pursuers, and which service road leads in a continuous line from a point on the road between the Netherley turnpike road and Easter Ashentilly, immediately to the west of the West School of the parish of Mary-culter and marked A on the plan produced herewith, to a point on the said Netherley turnpike road marked E on the said plan, and which service road is shown by a red line on the said plan, is private and belongs exclusively to the pursuers, and that no public road, footpath, or public right-of-way for traffic of any description exists through the said lands and estate of Altries along the line of the said service road, or along any other line connecting the said respective points A and E on said respective roads,” with corresponding interdict.
Source: https://www.bailii.org/
