Case Report: 1927 SN 98, 142
Key points: Access to churchyard and ruined church – whether churchyard a public place – whether a private servitude of access can co-exist with a public right of way – right to effect repairs and works.
The facts: Saxton was the owner of a former manse of a country parish in Peebles-shire. The parish had been conjoined with other parishes in 1810, and the church adjoining the manse ceased to be used. It had been allowed to get into a state of disrepair and was now a ruin. However, the churchyard adjoining the remains of the church was still in use for burials, and the road to it continued to be used by pedestrian and wheeled traffic in connection with this purpose. Smith raised an action alleging that Saxton had, without authority, carried out certain repairs to a road of which Smith was proprietor, and erected fencing on the side of it. Saxton claimed that he was justified in so repairing the road as he had a servitude right over it and as it was also a public right of way.
Decision: The Court held that Saxton had set forth facts sufficient, if proved, to establish that the churchyard was a public place which might properly form the terminus of a right of way and that there was no impossibility in the co- existence of a public right of way and a servitude right of access over the same road. Furthermore, it was held that no material distinction could be drawn between motor traffic and other forms of wheeled traffic (this being in 1927) either in the case of a public right of way or a servitude right of way. It was observed that the whole members of the community within the parish have a right in the parish church and graveyard. This right also extends to the public generally, whether resident in the parish or not.
Comments: This case is not fully reported but does contain some useful statements of legal principle concerning public and private rights of way; however, it is only authoritative in respect of the position of a parish church or churchyard as the terminus of a right of way.