Case Report: (1868) 6 M 936
Key points: Right of way for foot passengers and horses – extension of use to cover carts and carriages – public not entitled to change character of right of way – partial use insufficient to establish right.

The facts: (1) A track, in a remote part of Letterewe, leading up the Gruinard River from Aultbea and traditionally used by the Lewis drovers when taking their cattle to the lowlands, had been in existence as “a public road for the passage of horses with and without burdens, and of cattle, sheep and the like”; (2) carts had only recently come into use in the area; (3) the route could not be traversed by carts from one end to the other; (4) the route could not be made into a cart road without engineering operations.

Decision: (a) A member of the public is neither bound nor entitled to make expensive or extensive alterations on another person’s property to convert a track into a cart or carriage road; (b) the mere existence of a public road (i.e. route or way) does not mean that it may be used for all purposes; (c) the fact that a route may be used in part for the passage of carts does not mean that the whole length of it may be used for carts.

Comments: This is a useful case in questions of the extension of the use of a route to cover additional categories of use, e g from pedestrian use to use by vehicles. It was said by the Lord President ”The public must take the route as they find it and not alter its character”. This is not to be confused with the public’s right to effect minor repairs.

Case referred to: Forbes (1829) 7 S 441 (Not in Ken).