Case Report: 1911 SC (HL) 1

Key points: Prescription – substitution of new right of way during the prescriptive period – whether road connecting two public roads was a private road – effect of earlier periods of use.

The facts: For a period of less than 40 years, prior to 1875, the public had used, without interruption and as a matter of right, a private road running through the Estate of Altries, connecting two public roads (the private road being called Standingstones Road). In 1875, an alternative track was substituted for part of the route; the public had used that alternative section of the track without interruption and as a matter of right until the raising of the Action in 1909 (i.e. for 34 years).

Legal arguments: (1) Young contended that, in counting the years of prescription, he was entitled to add the period of use prior to 1875, thereby giving a total period of use of more than 40 years. (2) The Trustees argued that, notwithstanding the period of use, no right of way had ever existed or been acquired. Any use which had been made as a matter of express leave and licence and not as a matter of right, and that persons using the road had been for the most part tenants of the Trustees and not members of the public.

Decision: It is sufficient evidence of use of a right of way if one can accumulate, as one can, use of the earlier route along with that of the substituted route.

Comments: This is a useful case where there had been a substantial diversion of a right of way. The House of Lords decided that successive periods of use could be added together to constitute the prescriptive period. It was also stated that it was not enough to ”pick to pieces first one and then another piece of evidence”; conversely, it was stressed that evidence, as established, is to be considered collectively and cumulatively. The Lord Chancellor also stated: ”It is lamentable to see so much expense wasted upon so small a subject”.

Cases referred to:
(1) Hozier v Hawthorne (1884) 11 R 766
(2) Mann v Brodie (1885) 12 R (HL) 62
(3) Scottish Rights of Way and Recreation Society Ltd v Macpherson (1888) 15 R (HL) 68

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