Case Report: (1868) 6 M 896

Key points: Petition to Court for marking line of a right of way on map or plan – whether competent or not – use of surveyor / engineer – effect of undue delay in bringing Petition.

The facts: This case, although dealing with a right of way question, deals only with a procedural matter. It was started almost three years after the decision in Darrie v Drummond regarding fishermen’s access from a village to a creek at the seashore, where they kept their boats. Subsequent owners of the land affected by the right of way in that Action (i e the successors to the original owners of the ground) petitioned the Court to appoint a Surveyor to have the precise line of the route marked on a plan; the Petition was refused, on the grounds that the matter should have been raised when the original Action was still before the Court and before its final disposal.

Comments: This case indicates that a Court is prepared to consider a request that the line of a right of way be marked on a plan prepared by a Surveyor appointed by the Court, a practice also followed in Mackintosh v Moir.