Scottish Rights of Way & Access Society

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I’m Ken, the ScotWays Knowledge Base

Ask Me Your Outdoor Access Question

Important People of Scottish Access

12
  • Important People of Scottish Access – Adam Black (1784-1874)
  • Important People of Scottish Access – Archibald Eneas Robertson (1870-1958)
  • Important People of Scottish Access – Arthur W Russell (1873-1967)
  • Important People of Scottish Access – Donald Bennet (1928-2013)
  • Important People of Scottish Access – Donald Grant Moir  (1902-1986)
  • Important People of Scottish Access – John George Bartholomew (1860-1920)
  • Important People of Scottish Access – John Hutton Balfour (1808-1884)
  • Important People of Scottish Access – Professor Sir Robert (Bob) Grieve (1910 -1995)
  • Important People of Scottish Access – Rennie McOwan (1933-2018)
  • Important People of Scottish Access – Viscount James Bryce (1838-1922)
  • Important People of Scottish Access – Walter Arthur Smith (1852-1934)
  • Important People of Scottish Access – William Ferris (1894-1963)

Introducing Ken

1
  • Hello, my name is Ken.

Court Cases

144
  • An outline of the Scottish Courts System
  • The Authority of Case Law
  • Cases under the Land Reform (Scotland) Act 2003
    • Aviemore Highland Resort v Cairngorms National Park Authority
    • Caledonian Heritable Ltd v East Lothian Council
    • Creelman v Argyll & Bute Council
    • Forbes v Fife Council
    • Gloag v Perth & Kinross Council and the Rambler’s Association
    • Law Society of Scotland v Scottish Legal Complaints Commission
    • Renyana Stahl Anstalt v Loch Lomond and The Trossachs National Park Authority Appeal Decision
    • Snowie v Stirling Council and Ramblers Association Lindsay and Barbara Ross v Stirling Council
    • Tuley v Highland Council
    • Williamson v Highland Activities Limited
  • Public rights of way and private servitude rights of way
    • Creation of public rights of way – need for public place end points
      • Cuthbertson v Young
      • Darrie v Drummond
      • Duncan v Lees
      • Jenkins v Murray
      • Lauder v MacColl
      • Leith-Buchanan v Hogg
      • Magistrates of Dunblane v Arnold-McCulloch
      • Marquis of Bute v McKirdy & McMillan
      • Melfort Pier Holidays Ltd v The Melfort Club and Others
      • Midlothian Council v Crolla
      • Oswald v Lawrie
      • Scott v Drummond
      • Smith v Saxton
      • Wood v North British Railway
    • Creation of public rights of way – use as of right by the public for the prescriptive period
      • Aberdeen City Council v Wanchoo and Neumann v Hutchison
      • Ayr Burgh Council v British Transport Commission
      • Burt v Barclay
      • Cadell v Stevenson
      • Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd
      • Duffield Morgan v Lord Advocate
      • Kinloch’s Trustees v Young
      • Magistrates of Elgin v Robertson
      • McGregor v Crieff Co-operative Society Ltd
      • McInroy v Duke of Athole
      • Norrie v Magistrates of Kirriemuir
      • Rhins District Committee of the County Council of Wigtownshire v Cunninghame
      • Richardson v Cromarty Petroleum Co Ltd
      • Rome v Hope Johnstone
      • Scottish Rights of Way & Recreation Society Ltd v Macpherson
      • Strathclyde (Hyndland) Housing Society Ltd v Cowie
      • Wills Trustees v Cairngorm Canoeing and Sailing School Ltd
      • Wilson v Jamieson
    • Creation of rights of way – interruption of the prescriptive period
      • Mann v Brodie
    • Different kinds of use of rights of way
      • Aberdeenshire Council v Lord Glentanar
      • Carstairs v Spence
      • Crawford v Lumsden
      • Macfarlane v Morrison & Others (Robertson’s Trustees)
      • Mackenzie v Bankes
      • Malcolm v Lloyd
    • Need for a particular line for public rights of way
      • Home Drummond & Another (Petitioners)
      • Hozier v Hawthorne
      • Mackintosh v Moir
    • Obstruction of rights of way
      • Aitchison v India Tyre & Rubber Co.
      • Anderson v Earl of Morton
      • Drury v McGarvie
      • Earl of Morton v Anderson
      • Fife Council v Nisbet
      • Geils v Thomson
      • Glasgow and Carlisle Road Trustees v Tennant
      • Glasgow and Carlisle Road Trustees v Whyte
      • Graham v Sharpe
      • Hay v Earl of Morton’s Trustees
      • Kirkpatrick v Murray
      • Lanarkshire Water Board v Gilchrist
      • Lord Donington v Mair
      • Macdonald v Watson
      • Midlothian District Council v MacKenzie
      • Rodgers v Harvie
      • Soriani v Cluckie
      • Stewart, Pott & Co. v Brown Brothers & Co
      • Sutherland v Thomson
    • Procedural issues
      • Alexander v Picken
      • Alston v Ross
      • Hope v Landward District Committee of the Parish Council of Inveresk
      • Macfie v Scottish Rights of Way and Recreation Society Limited
      • Nairn v Speedie
      • Potter v Hamilton
      • Torrie v Duke of Atholl
    • Public and private rights of way – ancillary rights and burdens
      • Allan v McLachlan
      • Lord Burton v Mackay
      • McRobert v Reid
      • Milne v Inveresk Parish Council
      • Moncrieff v Jamieson
      • Preston’s Trustees v Preston
    • Relationship of public rights of way with private servitude rights of way and with ‘roads’ under the Roads (Scotland) Act 1984
      • Public rights of way and ‘roads’ under the Roads (Scotland) Act 1984
        • Davidson v Earl of Fife
        • Hamilton v Dumfries & Galloway Council
        • Hamilton v Nairn
      • Relationship of public rights of way with private servitude rights of way
        • Alvis v Harrison
        • McGavin v McIntyre
        • Thomson v Murdoch
    • Rights of way – land owned by statutory undertakers or the Crown
      • Ayr Harbour Trustees v Oswald
      • British Transport v Westmoreland County Council
      • Edinburgh Corporation v North British Railway Co.
      • Ellice’s Trustees v Commissioners for the Caledonian Canal
      • Kinross County Council v Archibald
      • Lord Advocate v Strathclyde Regional Council and Lord Advocate v Dumbarton District Council
      • Oban Town Council v Callander & Oban Railway
      • The Ramblers Association v The Secretary of State for Environment, Food and Rural Affairs (and Others)
  • Navigation rights and rights in relation to the foreshore
    • Navigation rights
      • Campbell’s Trustees v Sweeney
      • Colquhoun’s Trustees v Orr Ewing & Co
      • Crown Estate Commissioners v Fairlie Yacht Slip Ltd.
      • Denaby and Cadeby Main Collieries Ltd v Anson
      • Ellerman Lines Ltd v Clyde Navigation Trustees
      • Kames Bay Case – Petition of the Crown Estate Commissioners
      • Walford v David
      • Wills Trustees v Cairngorm Canoeing and Sailing School Ltd
    • Rights in relation to the foreshore
      • Leith-Buchanan v Hogg
      • Marquis of Bute v McKirdy & McMillan
      • Officers of State v Smith
  • Liability
    • Cases relating to contributory negligence
      • Smith v Finch
    • Liability of recreational users to one another
      • Anthony Phee v James Gordon & Niddry Castle Golf Club 4 November 2011
      • Milne v Duguid
      • Pearson v Lightning
    • Occupiers’ liability: Cases involving ‘hazards’ in the outdoors
      • Anderson v The Scottish Ministers
      • Brown v South Lanarkshire Council
      • Duff v East Dunbartonshire Council
      • Fegan v Highland Regional Council
      • Graham v East of Scotland Water
      • Johnstone v Sweeney
      • Lang v Kerr Anderson & Co.
      • Marshall v North Ayrshire Council
      • McCluskey v Lord Advocate
      • Michael Leonard v The Loch Lomond and The Trossachs National Park Authority
      • Prosecution by the Health & Safety Executive Dunoon Sheriff Court, 18th August 2010
      • Strachan v Highland Council
      • Tomlinson v Congleton Borough Council
      • Trueman v Aberdeenshire Council
      • Wright v Nevis Range Development Company
    • Occupiers’ liability: Cases involving children
      • Dawson v Scottish Power
      • Glasgow Corporation v Taylor
      • Jolley v Sutton London Borough Council
      • Stevenson v Glasgow Corporation
    • Occupiers’ liability: Cases involving facilities/indoor premises
      • McCondichie v Mains Medical Centre
      • Poppleton v Peter Ashley Activities Centre
      • Porter v Borders Council
    • Cases involving animals
      • Gardiner v Miller
      • Shirley McKaskie v John Cameron
      • Welsh v Brady
  • Other cases of interest
    • Carol Rohan Beyts v Trump International Golf Club Scotland Limited
    • Law Society of Scotland v Scottish Legal Complaints Commission
    • Neizer v Rhodes
    • R v Howard

The Bookshelf

30
  • Welcome to The Bookshelf
  • Legislation
    • Legislation 1960-1969
    • Legislation 1970-1979
    • Legislation 1980-1989
    • Legislation 1990-1999
    • Legislation 2000-2009
    • Legislation 2010-2019
    • Legislation 2020-2029
  • Guidance on Legislation
    • Guidance on Legislation 1990-1999
    • Guidance on Legislation 2000-2009
    • Guidance on Legislation 2010-2019
    • Guidance on Legislation 2020-2029
  • Responsible Access
    • Publications on Responsible Access 1990-1999
    • Publications on Responsible Access 2000-2009
    • Publications on Responsible Access 2010-2019
  • Rights of Way and Outdoor Access Management
    • Land Management
      • Managing Land for Outdoor Access 2000-2009
    • Path Management
      • Path Management 1980-1989
      • Path Management 1990-1999
      • Path Management 2000-2009
      • Path Management 2010-2019
      • Path Management 2020-2029
    • People Management
      • Managing the Public 2000-2009
      • Managing the Public 2010-2019
    • Signposting
      • Signposting and Interpretation 1990-1999
      • Signposting and Interpretation 2010-2019
      • Signposting and Interpretation 2020-2029
  • Surveys of Rights of Way, Access and Procedures
    • Surveys of Rights of Way, Outdoor Access and Procedures 1980-1989
    • Surveys of Rights of Way, Outdoor Access and Procedures 1990-1999
    • Surveys of Rights of Way, Outdoor Access and Procedures 2000-2009
    • Surveys of Rights of Way, Outdoor Access and Procedures 2010-2019

About Access Rights

40
  • What are Outdoor Access Rights?
  • Rights of Way
    • A local landowner has fenced off a path that is well used by local people, and has put up a sign saying No trespassers’. What can I do about it?
    • Can I ride my motorbike on a right of way or take it off road?
    • Development Proposals and Outdoor Access
    • Do public rights of way exist in Scotland?
    • Horse riders are using a local path and churning it up so that it is difficult for walkers to use. What can be done?
    • How does a route become a right of way?
    • Is there any need for rights of way, now that there is freedom of access?
    • Is there any record of rights of way in Scotland?
    • My neighbour says he has a right to go along the path at the back of my house. Could this be a public right of way?
    • Private Signs, Private Roads, Public Roads, What’s the difference?
    • Rights of access to land
    • There is a path close to my house which local people say is a right of way. Can I divert the route so as to protect my privacy?
    • There is a proposal for a windfarm development that will be close to a well-used right of way. What can be done?
    • Where can I cycle?
    • Where Can I Ride or Drive my Horse?
    • Who’s responsible for path maintenance?
  • Statutory Access Rights
    • A Brief History of Access Rights
    • A local landowner has fenced off a path that is well used by local people, and has put up a sign saying No trespassers’. What can I do about it?
    • Are access rights different in Scotland from those in England and Wales?
    • Can I go wild camping in Scotland?
    • Can I ride my motorbike on a right of way or take it off road?
    • Horse riders are using a local path and churning it up so that it is difficult for walkers to use. What can be done?
    • Is there any need for rights of way, now that there is freedom of access?
    • Private Signs, Private Roads, Public Roads, What’s the difference?
    • Right to Roam Timeline
    • Rights of access to land
    • The Coming of Access Rights
    • The Scottish Outdoor Access Code, A Replacement for the Country Code
    • What activities are covered by rights of access?
    • What activities are not covered by rights of access?
    • What are core paths?
    • What does behaving responsibly mean?
    • What happens when there is a dispute about whether, or how, the rights of access apply?
    • What is a Local Access forum?
    • Where can I cycle?
    • Where Can I Ride or Drive my Horse?
    • Where do access rights not apply?
    • Who should I contact if I have a problem about access rights?
    • Who’s responsible for path maintenance?

History

17
  • 175th Anniversary
  • 1844 The beginning of ScotWays
  • 1964 When figure 740 changed the face of path signs
  • A Brief History of Access Rights
  • Boardwalks, the oldest types of constructed path
  • Historic Footpaths
  • Right to Roam Timeline
  • ScotWays’s Oldest Standing Signpost
  • The Association for the Protection of Public Rights of Roadway in and Around Edinburgh
  • The Bedford Memorial Bridge
  • The Changing Face of ScotWays Signs
  • The Coming of Access Rights
  • The First ScotWays Signposts
  • The History of ScotWays
  • The Launch of the Heritage Paths website
  • Welcome the Scottish Rights of Way and Recreation Society Limited
  • What’s in a name?

Scottish Hill Tracks

19
  • Scottish Hill Tracks ~ Overview
  • SECTION 11: Glen Coe & Appin
  • SECTION 13: Loch Leven to Glen Spean
  • SECTION 14: Ardgour, Moidart & Morven
  • SECTION 15: West Mounth & Sidlaw Hills
  • SECTION 17: Cairngorms
  • SECTION 19: Monadh Liath
  • SECTION 2: Central & South-West Borders
  • SECTION 20: Loch Eil to Glen Shiel
  • SECTION 21: Glen Affric, Kintail & Strathfarrar
  • SECTION 22: Mull & Skye
  • SECTION 23: Wester Ross
  • SECTION 24: Caithness, Sutherland & Easter Ross
  • SECTION 3: Lammermuir & Moorfoot Hills
  • SECTION 4: Pentland Hills
  • SECTION 5: Clydesdale & Lowther Hills
  • SECTION 6: Galloway & South Ayrshire
  • SECTION 7: Arran, Inverclyde & North Ayrshire
  • SECTION 9: Southern Highlands

Heritage Paths

18
  • Heritage Paths Introduction
  • Historic Footpaths
  • The Launch of the Heritage Paths website
  • About Types of Heritage Paths
    • Coffin Roads
    • Drove Roads
    • Fish Roads
    • Heritage Paths Introduction
    • Leisure Paths
    • Medieval Roads
    • Military Roads
    • Pilgrimage Routes
    • Postie Paths
    • Public works and private enterprise: moving towards the modern transport system
    • Religious Routes
    • Roman Roads
    • Salters’ Roads
    • Trade Routes
    • Traveller Routes

Signposting

5
  • 1964 When figure 740 changed the face of path signs
  • A Signposting Tour of the Cairngorms
  • ScotWays’s Oldest Standing Signpost
  • The Changing Face of ScotWays Signs
  • The First ScotWays Signposts

#RespectProtectEnjoy

3
  • A different way to get there or doing something different.
  • Different Ways
  • Places to Visit
  • Home
  • Ask Ken
  • Court Cases
  • Public rights of way and private servitude rights of way
  • Creation of public rights of way – use as of right by the public for the prescriptive period
  • Burt v Barclay

Burt v Barclay

Case Report: (1861) 24 D 218

Key points: Use of route by right or by tolerance of proprietor – right of proprietor to enclose land – route having no public places at termini – destruction of fences regarded as trespass.

The facts: In 1856 Barclay owned a field which he enclosed with fences. Burt, the owner of the adjoining land, claimed that these fences crossed a public road or path leading from part of his ground to a mill, owned by Barclay. Burt made openings in the fences, which were in turn closed up again by Barclay. Barclay sought Interdict against Burt in order to stop Burt trespassing on his (Barclay’s) property.

Decision: The evidence did not establish ”any public road, or any servitude road, or indeed any road at all”, on the basis that the alleged road had no public termini (it is to be assumed, therefore, that Barclay’s mill was not a ‘public place’ in the sense of being a mill to which local farmers were thirled). Burt’s allegations were consistent with the tolerance of Barclay, the proprietor of the ground. Latterly, Burt had been using the alleged road and persuading others to do likewise, but persons doing so had been stopped by Barclay.
The evidence of use was consistent with the owner’s tolerance; if a landowner chose to allow straggling over unenclosed land, that did not constitute the creation of a right of way nor did it prevent his enclosing his land. The Interdict sought by Barclay was granted.

Comments: This case illustrates: (1) that a public right of way, under common law, has to run from one public place to another public place; and (2) that use of a ‘servitude road’ to establish a ‘servitude of way’ (i.e. a private right of way) must be such as to exclude any suggestion that its use was due to tolerance by the landowner; (3) that it is relevant to apply the term ‘trespass’ in instances in which damage is done while on the land of another; compare the situation in Geils v Thomson in which Thomson was held to be trespassing on Geils’ land even though Geils had first committed a wrong.

Case Law Public rights of way and private servitude rights of way, Court Case, Creating Rights of Way - Use as of Right, Creating Rights of Way - Use for the Prescriptive Period, Public rights of way and private servitude rights of way, Rights of Way
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Updated on 4 January 2022

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The Scottish Rights of Way & Access Society. Upholding Public Access.
Registered Office: 24 Annandale Street, Edinburgh, EH7 4AN. Tel: 0131 558 1222.
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