Case Report: (1856) 19 D 91

Key points: Continued public use of old road – old road claimed as right of way – gates erected to block access – removed by public.

The facts: A road through the Estate of Cally was closed by the Estate proprietor in 1806, after it had been replaced by a new road. Public use of the old road did not cease. Gates were erected, but did not cause an obstruction. Then in 1854 the proprietor erected new gates which did effectively block the right of way. These gates were removed in protest by the public. An Action was raised by the landowner for authority to re-erect the gates pending a decision regarding the status of the alleged right of way.

Decision: The circumstances proved that a public right of way did exist; the proprietor was not entitled therefore to erect gates to obstruct it. He could erect gates, but not in such a fashion as to block the road.

Comments: One of a series of cases concerning gates on rights of way, still of relevance today. The key point is whether gates ‘materially’ (i.e. significantly) interfere with public passage.

Cases referred to:
(1) Neilson v Vallance (1828) 7 S&D 182 (Not in Ken).
(2) Cuthbertson v Young (1862) 14 D 465
(3) Rodgers v Harvie (1825) 5 S&D 851
(4) McDonald v Watson (1830) 8 S&D 584
(5) Calder &c v Learmonth (1851) 13 D 343 (Not inKen).