 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Malcolm v. Lloyd [1886] ScotLR 23_371 (4 February 1886) URL: http://www.bailii.org/scot/cases/ScotCS/1886/23SLR0371.html Cite as: [1886] ScotLR 23_371, [1886] SLR 23_371 |
||
[New search] [Printable PDF version] [Help]
Page: 371↓
[
( Ante, vol. xxii. p. 554, 17th March 1885).
In an action raised in 1885 for declarator of right to a servitude road the jury found that the pursuer, his predecessors and authors, had
Page: 372↓
possessed the road in question for forty years and upwards for the use of foot-passengers and horses, and that they had also possessed it for the use of cars or sleds for upwards of ten years prior to 1854, and for the use of carts from and after that year. Held that the verdict imported a right to a servitude road for carts, horses, and foot-passengers.
In terms of the interlocutor of the First Division, dated 17th March 1885, as previously reported, the trial in this action of declarator of right-of-way took place before the Lord Ordinary ( Kinnear) and a jury on 18th June 1885. The following issues were sent to the jury:—“(1) Whether for forty years prior to 7th January 1885, or for time immemorial, the pursuer and his predecessors and authors have possessed for all purposes a road leading in a south-easterly direction from said farm [of Achaleck, belonging to him] through the lands of Minard, belonging to the defender, to the public road leading along Loch Fyne side, and which road prior to the year 1854 ran in or near the line A, B, C, K, L, M, G, H on the plan, and thereafter in or near the line A, B, C, D, E, F, G on the said plan? (2) Whether for forty years prior to 7th January 1885, or for time immemorial, the pursuer and his predecessors and authors have possessed a road leading as aforesaid for the passage of horses and cattle? Or (3) Whether for forty years prior to 7th January 1885, or for time immemorial, the pursuer and his predecessors and authors have possessed a road as aforesaid for the passage of foot-passengers?” The jury returned the following verdict:—“That in respect of the matters proved before them, they find on the first issue that the pursuer and his predecessors and authors have possessed the road therein described for forty years and upwards for the use of foot-passengers and horses, and that they have also possessed the said road for the use of cars or sleds for upwards of ten years prior to the year 1854, and for the use of carts from and after the said year; and on the second issue find that the pursuer and his predecessors and authors have possessed the said road for forty years and upwards for the use of horses, but not for the use of cattle; and on the third issue they find for the pursuer.”
On a motion to apply the verdict, the Lord Ordinary on 17th July 1885 pronounced the following interlocutor:—“The Lord Ordinary having heard counsel on the effect of the verdict of the jury, applies the same, and in respect thereof finds and declares that the pursuer, as heritable proprietor of the farm of Achaleck, has good and undoubted right to a servitude road for the passage of carts, horses, and foot-passengers leading from the said farm of Achaleck over the estate of Minard to the public road by the side of Loch Fyne, and that by the line marked on the plan, and lettered A, B, C, D, E, F, G, H; and that the pursuer and his tenants and others in the occupation of the farm of Achaleck have good and undoubted right to the use of the said road, and that the defender is not entitled to molest them in their use thereof, and decerns: Finds the defender liable in expenses,” &c.
Against this interlocutor the defender reclaimed, and argued—The Lord Ordinary was wrong in his interpretation of the verdict. All that the jury intended to say was, that there was here a road suitable for horses and sleds, not a cart road, which would be a servitude more burdensome on the servient tenement. The two kinds of roads were quite distinct, and the import of the proof was that only horses and sleds or cars had used this road during the prescriptive period.
Authorities— M'Kenzie v. Banks, June 19, 1866, 6 Macph. 936; Forbes v. Forbes, February 20, 1829, 7 S. 441; Bell's Prin. secs. 1010 and 985.
Replied for pursuer—This was not a case of making a servitude more burdensome. The distinction attempted to be introduced by the defender was truly a fanciful one, as there was no practical difference between a sled and a cart, the latter of which was only a sled on wheels. The Lord Ordinary had given the only intelligible interpretation to the verdict of the jury.
Authorities—Ersk. Inst. ii. 9, 4; Hozier v. Hawthorne, March 19, 1884, 11 R. 766; Dingwall v. Farquharson, 3 Pat. App. 564.
At advising—
There were three issues sent to the jury, but it is only with reference to the first of these that any question has been raised. That issue is in these terms—[ His Lordship here read the first issue]. The finding of the jury on that issue is in these terms—[ His Lordship here read the verdict on the first issue as above quoted].
Parties, I think, are now agreed that cars and sleds are synonymous expressions. Now, sleds are just carriages without wheels, a class of vehicle which was at one time very common in Scotland, and though they are now to a large extent superseded by the wheeled cart, yet they are still to be found in certain parts of the Highlands.
The mode in which the Lord Ordinary has applied the verdict of the jury is by finding and declaring that the pursuer, as heritable proprietor of Achaleck, has good and undoubted right to a servitude road for the passage of carts, horses, and foot-passengers from Achaleck to the public road by the side of Loch Fyne—in short, he considers that he can give declarator that this is a cart-road, because it is found that though the use of carts on this road was only commenced in 1854, yet it was undoubtedly used for cars or sleds prior to 1854 for the necessary period of ten years. He is further of opinion that carriages and sleds are one and the same thing.
I think that the Lord Ordinary is right in the view which he has taken of this verdict, and am for adhering to his interlocutor.
It is to be kept in view that this is a servitude road, and not a public road. The distinction is often a most important one, although it does not enter into the decision of the present question.
Now, there are three kinds of servitude roads in the law of Scotland, the difference between which is well stated by Erskine in the passage to which we have been referred (Inst. ii. 9,12), where, after narrating the kinds of servitude roads known to the Roman law, and describing the difference which existed between them, he proceeds to explain
Page: 373↓
No doubt for a considerable period the only use to which this road was put was for sleds drawn by horses. Now, a sled is just a carriage for the conveyance of peats or other produce—it is a carriage just as much as a cart is. The wheels may no doubt facilitate the cart's progress, but in point of use it is just the same as the sled. Whatever conveys farm or other produce is just a carriage. In taking the view which he has done I think the Lord Ordinary was right, and that his application of this verdict is sound. The substance of that interlocutor is just this, that the pursuer is to be allowed to use carts on a road on which sleds were used till 1854, and carts since then, and he is not to be confined to using this road for horses merely. If he were to be so limited he could not even use sleds, as in so doing he would be going beyond his rights. But it is clear that when sleds have been used the road cannot be merely a horse track.
The Lord Ordinary might have gone even further than he has gone, and granted decree in terms of the declaratory conclusions of the summons [see ante, vol. xxii. p. 555], but taking the interlocutor as it stands I think it is well founded, and I am for adhering to it.
The Court adhered.
Counsel for Pursuer—Sol.-Gen. Robertson— Comrie Thomson— Murray. Agents— Mitchell & Baxter, W.S.
Counsel for Defender— Mackintosh— Darling. Agents— Pearson, Robertson, & Finlay, W.S.