Case Report: 1914 SC 633

Key points: Creation of right of way – rights of frontagers – access to property – right to use part of right of way only.

The facts: An established right of way ran through land belonging to McRobert; Reid owned property fronting a part of the route; he used the portion of the route leading from his frontage to one of the route’s termini (‘the access portion’) for getting to and from his property. McRobert raised an Action against Reid, asking the Court to interdict Reid from trespassing on his (McRobert’s) property.

Legal arguments: McRobert’s case was that while Reid was entitled to use the route from end to end, he was not entitled to use the access portion by itself for access to his property. Part of McRobert’s argument was that such use would add considerably to the burden imposed on him by the use of the whole route. Accordingly, McRobert sought Interdict against Reid trespassing on his ground.

Decision: The Court held that: (1) the right of the public to use a right of way was not confined to end-to-end use, but might be exercised over any part of it and that Reid, as owner of property abutting a right of way, was entitled to use a part of the route as an access to his property; and (2) the surface of a right of way ”…and every square inch of it, belongs to the public, not of course in property, but in order that it may be used for certain purposes”. The public’s primary right was that of passage; when one is on a right of way ”at every step one passes from one public place to another”, so that any point on a right of way is a public place.

Comments: The main importance of this case is the decision under (1) above, i.e. that the owner of ground abutting a right of way may use a part of the right of way as an access to his property. The report is silent about Reid’s type of use of the access; any extension of the type of use, e.g. from pedestrian access to access by heavy vehicles, might have been successfully challenged.

Cases referred to: Many cases and authorities were referred to, of which the following appear in the present volume:
(1) Thomson v Murdoch (1862) 24 D 795
(2) McGavin v McIntyre & Co (1874) 1 R 1016
(3) Hay v Earl of Morton (1861) 24 D 116
(4) Sutherland v Thomson (1876) 3 R 841
(5) Mann v Brodie (1885) 12 R (HL) 52
(6) Torrie v Duke of Atholl (1849) 12 D 328 1852 15 D (HL) 17 (1852) 1 MacQ 65
(7) Macfie v Scottish Rights of Way & Recreation Society Ltd (1884) 11 R 1094
(8) Scottish Rights of Way & Recreation Society Ltd v Macpherson (1887) 14 R 875 and (1888) 15 R (HL) 68
(9) Mackenzie v Bankes (1868) 6 M 936