Session Cases At 200: Where there’s a will there’s a way

Session Cases At 200: Where there’s a will there’s a way

Lord Hamilton

To mark the bicentenary of Session Cases, the Scottish Council of Law Reporting is running a poll to determine readers’ top three cases. Today, former Lord President, Lord Hamilton explains the details of his top choice: Scottish Rights of Way and Recreation Society Limited v Macpherson 1887 14 R 875; 1888 15 R (HL) 68.

Access to the countryside for the purposes of recreation, including walking, has long been an important aspect of Scottish life. In recent years it has been the subject of legislation in the Scottish Parliament. However, there is a significant historical background in the earlier law, as interpreted and applied by the Scottish courts in cases brought before them. This is one such case.

Duncan Macpherson was the proprietor of an estate which included Glen Doll in Angus (then Forfarshire). Through that estate ran a route which the pursuers claimed was part of a public right of way. The route commenced at Auchallater, a few miles south of Braemar on the public road leading to Blairgowrie, and proceeded through Glen Callater, the Glen of the White Water and Glen Doll to a point on the public road in Glen Clova. Although the pursuers did not lead in evidence testimony from any “tourists” (recreational walkers) there was evidence from others of such use. The evidence on which the pursuers primarily relied was the use of the route, over at least the prescriptive period (then 40 years), for the driving of sheep from the market in Braemar to a market at Cullow in Forfarshire.

The defender denied that the public had any right of way over the route in so far as it traversed his ground.

The Lord Ordinary (Lord Kinnear) described the “road” as “a natural hill pass between Aberdeenshire and Forfarshire. It traverses some very high ground, and is in some parts steep and rugged; but there is no doubt that it a practicable way for foot-passengers and sheep”. The amount of the public usage proved was not extensive but “the extent of the use which will indicate right must depend upon the nature of the country and the requirements of the inhabitants. It must be such a use as might reasonably be expected if the way were reputed to be public, and admitted to be so by the proprietors of the land…”. He granted declarator (that it was a public right of way).

A reclaiming motion by the defender failed (Lord Young dissenting), the majority endorsing the Lord Ordinary’s approach.

The defender’s appeal to the House of Lords was dismissed unanimously. A difference between Scots law and English law was noticed by the Lord Chancellor (Lord Halsbury), English law requiring that it can reasonably be inferred “that the owner had a real intention of dedicating that way to the use of the public”, while Scots law required only that it can be established “that for the necessary period there has in fact been such a use of the way which negatives a mere licence or permission”. Lord Selbourne and Lord Watson expressly endorsed the view that the evidence which was required depended on the particular circumstances.

Apart, possibly, from the observations about the required evidence, this case did not itself make new law; it turned largely on the facts. The relevant principles of positive prescription, which went back at least to Stair’s Institutions, had been restated by Lord Watson in Mann v Brodie 1885 12 R (HL) 52 at p.57. A number of other cases in the nineteenth and twentieth centuries applied these principles including Marquis of Bute v McKirdy and McMillan 1937 SC 93 (access from a public road across private land to a part of the foreshore used for bathing and recreation).

While in more recent times issues of unimpeded travel across the countryside have been addressed by the legislature, the courts’ role in laying down and applying the relative principles in reported cases has remained important.

The Scottish Rights of Way and Access Society, now ScotWays, is the independent charity which has since 1845 promoted public access rights in Scotland.

I commend this case for your vote as a top Session Case as it illustrates the courts vindicating, against private proprietors, traditional public rights of travel in the countryside.

Nominate your top cases here.

Share icon
Share this article: