Case Report: (1884) 11 R 766

Key points: Deviations in line of right of way – substitutions in line of public right of way – bypassing of natural barriers to passage – accumulation of use of original and substituted routes.

The facts: A pedestrian path had existed from the ferry at the junction of the Rivers Kelvin and Clyde westwards to Whiteinch and Scotstoun. This had been used for recreation for more than 40 years, without interruption or molestation. There had been diversions of the path to avoid certain industrial premises. These had diverted the path away from the riverbank in places. Between 1852 and 1854 the Clyde River Trustees (as represented by Hawthorne) formed an embankment along the river and so formed a new footpath (on the embankment), which had been extensively used by the public. It was established by inference that there had been a pre-existing footpath, used as a matter of right and not of mere tolerance. Fences erected by Hozier, the proprietor of Partick Estate, had been broken down by the public in order to bypass areas subject to flooding. In addition, part of the route was diverted around a sawmill, so blocking the riverside path, but the public accepted the diversion and continued to walk along the remainder of the path. This diversion had operated for less than 40 years. Hozier disputed the existence of a right of way over the new route.

Decision: Where a public right of way has been constituted and a substitute or deviated route is provided, the ordinary rule that 40 years’ possession (or use) is necessary to create a new right has no application in relation to the substitute route.

Comments: (1) This case is useful authority in the case of rights of way which have been subject to diversion. (2) There is a dictum (a legal statement of principle) to the effect that where evidence of use sufficient to constitute a right of way is available for part of the prescriptive period, “it is not very material that the only prior uses of the road may be indefinite or ambiguous” (Lord Kinnear, at p 769).

Cases referred to:
(1) Jenkins v Murray (1866) 4 M 1046
(2) Mackintosh v Moir (1871) 10 M 517
(3) White v Lord Morton’s Trustee (1866) 4 M (HL) 53 (Not in Ken).
(4) Rodgers v Harvie (1829) 7 S 287
(5) Macdonald v Farquharson (1832) 10 S 236 (Not in Ken).

See also:

Rodgers v Harvie.
Mackintosh v Moir.

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