Scottish Court of Session Decisions

Peter Cowden and James Galloway entered at Martinmas 1874 and Martinmas 1880 respectively as tenants of the adjoining farms of Cardrain and East Muntloch, in the county of Wigtown, both the property of the Earl of Stair. Galloway's lease of East Muntloch provided that the farm was to be let to him “as presently occupied by David M'Kitterick,” while Cowden's lease of Cardrain provided that it was let to him as “presently possessed by Alexander Drynan.” The farms lay between the two public roads known as the Cardryne Road and the Cairngaan Road, and were separated by a march-fence extending nearly the whole way between these two public roads. On the north side of this fence there was a service road from the Cardryne Road on the west to the Cairngaan Road on the east, passing wholly through Galloway's lands. About 200 yards from its junction with the Cairngaan Road it struck northwards through a field of Galloway's.

Galloway raised this action to have Cowden interdicted from making any breach or opening in the march-fence between the farms, and from driving carts through these openings on to the cross road. He averred that the cross road was wholly on the lands let to him, and was kept up by him alone, and that the defender was wrongfully making an opening in the march-fence and carting turnips from one of his fields along the service road and out on to the public road to the east of his farm, and was thus cutting up and injuring the service road.

The defender averred that under his lease he became tenant and occupant of his farm “as then possessed by Alexander Drynan.” “ (Stat. 2.) The defender's predecessors in said farms or lands regularly used the road condescended on by the pursuer both as a footway and for the passage of horses and wheeled vehicles by making openings from time to time in said fence as occasion required, and otherwise, and the defender has since his entry to the foresaid subjects used and enjoyed the said road in a similar way and to a similar extent up to the intimation of the interim interdict granted against him at the pursuer's instance in this action. The defender is entitled, in accordance with the practice of his predecessors in said farm, and in virtue of his rights and privileges as tenant thereof, to make openings in said fence to enable him to obtain access to said road, and to fill up such openings when such purposes are served. The said road could not be used by the defender for the benefit and uses of his said farm unless access is obtained thereto through said fence as formerly. The public have regularly, continuously, and uninterruptedly used and enjoyed the road condescended on as a footway and for the passage of horses and wheeled vehicles from time immemorial, or for a period of upwards of forty years prior to the present time.” He further averred that it would be a serious hardship and inconvenience to him to have to use other routes which made the distance for carting several miles greater.

The pursuer pleaded, inter alia—“(2) The defender as tenant of the farm of Cardrain having no right of passage therefrom, to, or servitude over the road through the pursuer's farm, ought to be interdicted from driving carts or otherwise using said road by means of said communication in the march-fence.”

The defender pleaded—“(1) The defender having possessed and enjoyed the use of the road condescended on for upwards of seven years is entitled to a possessory judgment. … (3) The defender having leased his farm as held by his predecessors, is entitled to the privileges enjoyed by them, and the use of the road in question being one of these, the interim interdict should be recalled, and he should be assoilzied, with expenses.” He also pleaded, separatim, that the disputed road was a public road.

Proof was led, the import of which appears from the note of the Sheriff-Substitute and the opinion of Lord Craighill.

The Sheriff-Substitute ( Maxwell) pronounced this interlocutor:—“Finds that the pursuer has been tenant of the farm of East Muntloch from Martinmas 1880; finds that the defender has been tenant of the farm of Cardrain from Martinmas 1874; finds that there is a cross road from the Cardryne public road to the Cairngaan public road, along the north side of the march fence between said farms; finds that the defender and his predecessors have for more than seven years prior to November 29, 1882, been in continuous possession, and have used and exercised the right of access along said cross road to their fields on the said farm of Cardrain, south of said march fence; therefore finds, in point of law, that defender is entitled to the benefit of a possessory judgment; therefore recals the interim interdict, assoilzies the defender from the conclusions of the petition, &c.

“ Note.— …. The real question at issue between the parties appears to be whether the defender is entitled to make openings in the march-fence, and to use the road as a means of access from the two public roads to the three fields on his farm south of the march-fence. The defender,

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who led in the proof, alleges that he is entitled to use the road in this manner, on three grounds—( First), That he has possessed and enjoyed the use of the road in this manner for more than seven years; ( Second), That he holds the farm as possessed by his predecessors therein; and ( Third), That the road in question is a public one. I am of opinion that he has succeeded in establishing the first and second of these pleas, and that therefore the interim interdict must be recalled.

“I think the defender has clearly established that since his entry to the farm he has used this road as a communication between his farm and the two public roads. The pursuer does not adduce any witnesses who can contradict the fact of the road being so used. It appears from some of his witnesses that a former tenant in East Muntloch had objected to certain parties using the road, but that was certainly previous to 1872, when the pursuer's predecessor entered the farm. From the evidence of Drynan, defender's predecessor in Cardrain, it appears that he, and his father before him, used the road in the same manner as the defender whenever it suited them to do so. The defender, therefore, having proved that he has enjoyed the use of this road as a communication to the public roads from his farm for more than seven years, and that it was so possessed by his predecessor, is, on the authority of Macdonald v. Dempster, November 15, 1871, entitled to a possessory judgment. Lord Cowan in his judgment in that case quotes with approval the principle laid down by Lord Balgray in Liston v. Galloway, 14 S. 97, as applicable to such cases, viz.—‘That a party who has enjoyed peaceable, possession of a right for seven years, is entitled to be protected in it against summary invasion of the state of possession.’ Now, I think it sufficiently established by the defender that he has been seven years in peaceable and uninterrupted possession of this right of access before the pursuer objected. It is not quite clear when the pursuer first objected. He cannot himself remember. So I take it to be by his letter of November 29, 1882.

“The pursuer, however, further contends, that according to the terms of defender's lease he cannot make an opening in the march-fence as a communication between his farm and the road. In terms of the fourteenth clause of their respective leases, the burden rests upon them of repairing the fences, and this being a mutual fence, it is for each of them to assist in keeping it in repair; and it is contended for the pursuer, that the defender by making these openings does not observe this stipulation of the lease. It appears that neither the defender nor his predecessors have put gates in these openings, but have only put in flakes, or some other temporary obstruction, because an opening is not constantly required to each field. I do not think the defender, by making these openings, even if, as alleged by the pursuer, he sometimes delayed too long in building them up, can be held to have contravened this clause of his lease. It was also argued for the pursuer that he suffered loss from the defender's cattle trespassing on his farm by way of these openings. It is not clearly proved whether the cattle came through these openings or over the march fence, which does not seem to be of the best description. However that may be, the pursuer has his remedy under the Act 1686, c. 11, and his having suffered in this way cannot, I think, entitle him to have the defender interdicted from using the road as an access to his farm.

“It was further contended for the pursuer, that if the defender was allowed to use this road, which the pursuer only is bound to maintain under the sixteenth clause of his lease, then a greater burden is laid upon the pursuer than appears from the terms of his lease. This may be so, and may give the pursuer a right of relief against his landlord, but cannot, I conceive, affect the defender's right to use the road.”….

On appeal the Sheriff ( Macpherson) pronounced this interlocutor:—“Adheres to the interlocutor appealed against, except (1) in so far as it assoilzies the defender from the conclusions of the petition, and in place thereof recals, in hoc statu, the said words; and except (2) in so far as the said interlocutor finds the pursuer liable to the defender in expenses; and recals the said finding, and in place thereof Finds the pursuer liable to the defender in expenses up to the date of the appeal, except the expenses of the proof; finds neither party entitled to said expenses, nor to expenses in the appeal: Quoad ultra, remits to the Sheriff-Substitute to proceed with the cause.

“ Note. —Whether the question raised is of real importance to the pursuer or not, the defender has shown a material interest in the road across the pursuer's farm, and in having access to it, several even of the pursuer's witnesses saying that such access and use at certain times save the defender three miles of cartage, but the defender does not seem to have been careful of the pursuer's interests in the manner of the use of the road to which it has been found that he has established a possessory right.

“It is unnecessary to go in detail into the evidence. The effect is to show that it is the pursuer, not the defender, who is seeking to invert the recent possession. This he may have a right to do, but not in a process of interdict. Never was a case in which a right-of-way could have been less satisfactorily tried, for both pursuer and defender are mere tenants of the same landlord, and he is not made a party to the action, yet the question was proposed to be raised, and a great deal of evidence led upon it. The whole proof on both sides has been most unwarrantably protracted, and instead of trying to apportion the faults it has seemed best to allow neither party the expense of it.

“I mentioned this case at the last sittings at Stranraer, stating my view of the evidence in the hope that the parties might see fit to take it out of Court by some arrangement for the benefit of both. However loose the practice of the occupants of the land adjoining the road in question may have been, or however common such practice may have been in Galloway or elsewhere, it is quite out of keeping with modern usage, and now that there is but one tenant on each side of the march-dyke the place or places of access to the road should be regulated, and a proper gate or gates should be erected. The interlocutor has been framed so that it may still be ascertained by agreement between the parties, or by remit to a man of skill, what sort of access and whereto the road is required for the convenient and economical enjoyment of the defender's farm. This seems eminently a case where regulation

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may perfectly secure both the rights and convenience of both parties.”

The defender appealed, and argued — The Sheriff was wrong in ordering further procedure. The case was exhausted by the Sheriff-Substitute, whose interlocutor was right. The defender's title was his lease, and under it he held his lands “as possessed by Alexander Drynan.” How were they possessed at that time? The proof was conclusive of the fact that the service-road was used exactly in the same manner as the defender used it. The case fell to be distinguished from Duncan v. Scott, June 20,1876, 3 R. (H. of L.) 69, in which there was no previous possession to refer back to for a definition of rights. He was entitled on a consideration of the proof to a possessory judgment, and as the pursuer's rights in the march-fence were in no way imperilled there was no need for the further procedure ordered by the Sheriff.

The pursuer replied—The service-road was wholly on his lands; therefore, prima facie, the defender's use of it was illegal. The defender's encroachments on the march-fence partook of the nature of an unusual and burdensome right—Hume's Decisions, November 14, 1797, p. 798— of which he must offer conclusive proof if he was to obtain a possessory judgment— Gow's Trustees v. Mealls, May 28, 1875, 2 R. 729. But the proof was by no means conclusive in his favour, and rather went to show that the right was exercised by his predecessors through the mere tolerance of his neighbours. The words “as possessed by Alexander Drynan” merely designated the subjects, and did not refer to the use of them— Alexander v. Butchart, November 24, 1875, 3 R. 156. The case fell to be ruled by Duncan v. Scott, cit. supra. The Sheriff was right in ordering further procedure for regulating the mode of access to the road.

At advising—