Case Report: (1823) 2 S 540

Key points: Obstruction of public road – wall built across road – exclusion of public – right to remove obstruction.

The facts: In 1818 Graham dedicated land for construction of a road for public use. Sharpe and others (as Road Trustees) constructed and repaired the road. Some 3 years later, Graham built a wall across the road to prevent public use. The Trustees had the wall removed and were sued by Graham for damages. The Court of Session upheld the Trustees’ right to remove an obstruction from a public road.

Comments: This decision is only briefly reported, and the arguments of the parties and the reasoned judgements of the Court are not set out in any detail. It would appear that the Court was influenced in favour of the Trustees by virtue of their being, in a sense, representatives of the public; however, it would be dangerous to rely on this decision as conferring any right on private individuals to remove obstructions from public rights of way with impunity.