Case Report: (1895) 23 R 273

Key points: Right of way claimed – Action for Declarator of absence of right of way – whether case may be delayed to allow an interested party to appear – effect of Local Government (Scotland) Act 1894.

The facts: Alston raised an Action against various parties using a claimed right of way across his Estate in Strathoykell. Ross and other Defenders were unable to pay for a defence but claimed that the case should be sisted (i.e. delayed) to enable Sutherland County Council (which had been set up only shortly before) to enter the legal process to defend the Action in terms of section 42 of the newly-enacted Local Government (Scotland) Act of 1894, which required local authorities to assert, protect and keep open public rights of way. (It should be noted that this important duty was first placed upon local authorities following representations made by the Scottish Rights of Way Society).

Decision: It was held that the Court was bound to allow the County Council to consider whether or not it was obliged to defend the Action in terms of its duty under the said Act to vindicate public rights of way.

Comments: This was a case turning on special circumstances following the recent passing of the new Act. The Court allowed the case to be delayed to enable the County Council to consider its legal position. It must be noted that Ross and the other Defenders undertook not to use the route until the legal position was settled.