(Also in reports under the name ‘Magistrates of Edinburgh v North British Railway Co.’)
Case Report: (1904) 6 F 620
Key points: whether right of way had been proved by 40 years of public use openly and as of right – whether right of way existed over land bought and required for statutory undertaking – situation of bridge carrying route over the railway.
The facts: Hope Lane in Edinburgh had existed since 1825 as a private road, though some public use was tolerated latterly. The main east coast railway line to Edinburgh intersected it and a bridge was built, over which the road passed. In 1872 the railway company acquired more land through which the road passed, with the aim of building a marshalling yard. To that end they then closed the road and removed the bridge. Edinburgh Corporation raised proceedings against them to require them to restore the bridge and open the road, and sought a declarator that the road was a public right of way.
Decision (Lord Kinnear): The evidence did not prove that use by the public, which was originally by tolerance of the owner, had become use as of right for the necessary 40 years. Further, as the land acquired by the railway company was required to carry out its statutory undertaking, it had no power to grant a dedication to the public and equally had no power to acquiesce in the public acquiring a right by use. There was no duty to maintain the bridge and if it fell down the busy line would have to be crossed at ground level and the operation of the railway impaired.
Comment: In the later case of British Transport v Westmoreland County Council Lord Keith referred to this decision, and said that he would agree with Lord Kinnear if what Lord Kinnear had meant was that a public right of passage was incompatible with the use of the railway in this particular case, but he would not agree if what Lord Kinnear meant was that in no circumstances could the public acquire rights over railway property.
Cases referred to:
(1) Brodie v Mann (1885) 12 R (HL) 52
(2) Wallace v Police Commissioners of Dundee (1875) 2 R 565 (Not in Ken).
(3) Oswald v Ayr Harbour Trustees (1883) 10 R 472
(4) Rodgers v Harvie (1827) 5 S 851
(5) Napier v Morrison (1851) 13 D 1404 (Not in Ken).
