Case Report: 1900 8 SLT 8

Key points: Former right of way blocked by railway – rights over substitute route provided by railway company for owner – public use by right or due to acquiescence by landowner – onus on landowner to demonstrate tolerance.

The facts: The report on this case is brief and it is difficult to envisage the situation on the ground without seeing the plan used in Court. A footpath became blocked at an intermediate point by the construction of a railway. At the request of, and for the benefit of the landowner (Cadell), the railway company constructed a new path from the point of obstruction, but having a different terminus from the original, albeit in close proximity to the original. The new line of path had also been used by the public, though for less than the prescriptive period. Cadell maintained that the original line had not been a right of way and that the public had no right, therefore, over the new line. The case hinged, therefore, on the question as to whether the original line had been a right of way. Cadell insisted that the public had no such right and he sought Interdict against the use of the path by Stevenson as a member of the public and as representing the public.

Legal arguments: Cadell argued that the public’s use of the original line had been due to his tolerance and not ”as of right”, and that, because he did not challenge the public’s use of it, his tolerance must be assumed; accordingly, he argued, no right of way had been created over the original line; that being so, the public had no right to use the new line.

Decision: The important point was how Cadell had reacted to the public’s use of the original line: whether he ought to have known what was happening on his ground, and whether, if he took no action, he lost his plea of tolerance. The Court held (1) that the original line had been used by the public ‘as a matter of right’ and had, therefore, been a right of way, and (2) that, because the public could no longer use the old line because of the blockage, they adopted the new line; in these circumstances, there was no need to show that the substituted line had been used for the prescriptive period; even a short period of public use with Cadell’s acquiescence would create a right to continue using it. Cadell’s evidence was against him: he knew of the public’s use of the new line, he “grumbled a little”, but took no steps to stop the use or to indicate that he merely tolerated it; his behaviour, therefore, amounted to acquiescence. Cadell’s request for Interdict against Stevenson’s use of the new line was refused.

Comments: This case illustrates (a) that if a landowner wishes to plead that a route has existed only by his tolerance, then he must have taken steps to make the public aware of this fact, either by some positive action to stop public use or by making his mere tolerance known to them; and (b) that it is not necessary to establish full prescriptive use of a new part of a pre-existing public right of way; even “quite a short period” will suffice.

Cases referred to:
(1) Jenkins v Murray (1866) 4 M 1406
(2) Mackintosh v Moir (1871) 9 M 574
(3) Mann v Brodie (1885) 12 R (HL) 52
(4) Hosier v Hawthorne (1884) 11 R 766