Case Report: 1937 SC 93

Key points: Access to foreshore for recreational purposes – road no longer publicly maintained – terminus at foreshore become a public place – inference regarding nature of earlier use.

The facts: This case related to public access to the foreshore at Scalpsie Bay, near Rothesay, on the Isle of Bute. The proprietor of the foreshore, the Marquis of Bute, sought a Declarator to the effect that no right of way existed over a track about a quarter of a mile in length leading from a public road to the foreshore. It had been established that the track was part of a road, extending to the foreshore, which became a public road in 1819, but which ceased to be maintained at public expense in 1836. It was proved that from 1865 to 1934, when the proprietor first attempted to close the track, it had been used by the public as an access to the foreshore for the purpose of bathing and recreation. The evidence justified the inference that this use had extended as far back as 1836.

Decision – Public Places End Points: (On appeal) (1) The track having been at one time a public road, the foreshore at its terminus had therefore acquired the character of a public place, which it had never lost and, further, even if it were not established that the track had been part of a public road, the resort by the public to the foreshore for recreation had made the foreshore a public place prior to 1894 when the 40-year prescriptive period (to 1934) began. (2) The extent of the public use of the track throughout the prescriptive period was consistent, not with tolerance, but with the assertion of a right by the public. In his opinion, Lord Moncrieff stated “a public place is one to which the public have right of access, which the public have right to occupy and which in fact the public do occupy by a practice of resort”. He also expressed the opinion that a public road could not lose its character as such by a failure on the part of the Roads Authority to maintain it and without resort by them to the statutory procedure for closing it in terms of the statutory powers that applied at the time – the Turnpike Roads (Scotland) Act 1831 or the Roads and Bridges (Scotland) Act 1878. He further stated that he did not consider that the public could lose their rights of passage as a result of the failure or refusal of the Roads Authority to include in the list of highways, as directed under the Roads and Bridges (Scotland) Act 1878, what may have been proved or admitted to be a public road.

Decision – Rights to the Foreshore: The court analysed previous cases concerning the foreshore and came to the conclusion that “a practice of resort by the public to the shore for recreation must be regarded as an exercise of one of those minor public rights with which the title of the Crown is charged.” (Lord Moncrieff).

Comments: This is a lengthy but illuminating case containing a wealth of citation of authorities and including a study of public rights to and recreation on the foreshore. It also has relevance to the question of routes formerly but no longer maintained by a local authority.

Cases referred to: There was a copious citation of cases, including the following:
(1) Winans v Lord Tweedmouth (1888) 15 R 540 (Not in Ken).
(2) Campbell v Walker (1863) I M 825 (Not in Ken).
(3) Lang v Morton (1893) 20 R 345 (Not in Ken).
(4) Town Council of Perth v Kinnoul (1909) SC 114 (Not in Ken).
(5) Bell v Magistrates of Prestwick (1930) SC 241 (Not in Ken).
(6) Duncan v Lees (1871) 9 M 855
(7) Scott v Drummond (1866) 4 M 819
(8) Hope v Bennewith (1904) 6 F 1004 (Not in Ken).
(9) Young v North British Railway (1887) 14 R (HL) 12 AC 544 (Not in Ken).
(10) Darrie v Drummond (1865) 9 M 496
(11) Macpherson v Scottish Rights of Way Soc’y (1888) 15 R (HL) 68