Scottish Court of Session Decisions

LORD PRESIDENT (Normand).—The question in this case is whether the public has a right of way on foot along a path or track about a quarter of a mile in length on land belonging to the pursuer, the Marquis of Bute, on the island of Bute. The northern terminus of the path is a public road, the southern terminus is said to be the foreshore of the bay at Scalpsie. The public road which forms the northern terminus connects towards the east with the west road running roughly north and south between Rothesay and Kingarth. From this junction it runs west or slightly to the north-west past the farm house of Ambrismore across the Quien Burn, past Ladeside House, past the northern end of the path in dispute and so on to Scalpsie farm, where it turns south-westwards to Ardscalpsie farm. There it again turns northwards past Mecknoch and Kilmory to Milton, where it joins another road which links Rothesay with the western and northern part of the island. Of the path itself it may be said that it has the general appearance of a rutted farm track. Scalpsie Bay, the alleged southern terminus of the right of way, is a place of much natural beauty looking towards the island of Arran. In its full extent it is a crescent measuring along its arc somewhat under two miles, but the sandy foreshore is of much less extent and is about 750 yards long. Above the foreshore is a stretch of sand about 50 feet wide, and above that again a grass shelf about 110 feet wide, and then there is a wall separating the grass shelf from the fields. The foreshore has been declared by decree of the Court to have been the property of the pursuer and his predecessors since 1714. The track in dispute passes through the wall, which I have mentioned, at a gate fastened by a hook and staple; another gate similarly fastened is situated at the north end of the track where it joins the public road. Apparently there have been gates at these points so far as the memory

of the witnesses extends. The track passes down the western side of a field; there is no fence on the east side of the track, and the fence on the west side is rather the fence separating the two fields than a fence for the track itself.

It is necessary to explain at this stage the somewhat unusual procedure which has taken place. On the original record the conclusions for declarator that there was no right of way on the track between the public road and Scalpsie Bay, and for interdict against trespass, were met by averments that the bay had been for more than the prescriptive period a public place to which members of the community and visitors resorted for the purposes of bathing, walking, recreation and amusement; and that the path itself had been used as a right of way, at least for foot passengers, from time immemorial. There were no averments by the defenders that the track had ever been a public road. The pursuer, on the other hand, asserted that the track exists for estate purposes, and that it had never been used by the public except by tolerance.

A voluminous proof was led before the Lord Ordinary, who held, in effect, that there had been from time immemorial such user by the public as was inconsistent with tolerance, and that the bay was proved to be now at least a public place by the resort to it by the public for pleasure purposes for many years past. I ought to say now that I would have felt no difficulty in holding that the Lord Ordinary had misdirected himself when he rejected the proposition that the termini of an alleged right of way must both of them be public places at the commencement of, and throughout, the prescriptive period during which it is necessary to prove public user of an alleged right of way. But counsel for the defenders gave the admission, which, in my opinion, could not have been withheld, that the evidence of public user of an alleged right of way anterior to the existence of public termini would be of no avail. One result of the Lord Ordinary's view of the law is that he does not find expressly when the bay became a public place, although, as I read his opinion, he regards it as having become a public place in the seventies or eighties of last century. If that is the correct reading of the opinion, the misdirection did not affect the result at which he arrived. However that may be, the prescriptive period in this case begins in 1894, for the pursuer first sought to exclude the public from the path in 1934, and the defenders admittedly cannot succeed unless the foreshore was a public place in 1894 and onwards.

The Lord Ordinary's interlocutor finding in favour of the defenders on the question of right of way was pronounced in December 1935. After the pursuer had reclaimed, the defenders, the County Council, discovered an old minute book of the Commissioners of Supply and Justices of the Peace for the County of Bute, in which were certain entries relating to the roads administered by them in the earlier part of the nineteenth century. The County Council were advised that certain of these entries established that the track claimed as a right of way had been in 1819 part of a road taken over from the pursuer's predecessor as a statute labour road. A condescendence of res noviter was lodged by the County Council and a record was made up. On this new record evidence was taken before my brother Lord Moncrieff.

Upon this new evidence Mr Patrick, for the County Council, contended that, in 1819, a road beginning at the foreshore of Scalpsie Bay and following the line of the disputed track to its northern end, thence eastwards along the line of the present public road (apart from a slight variation recently made) to its junction with the west road to Kingarth and thence along a still existing, but in part no longer public, road to New Farm was taken over as a public road. The importance of this contention, if made out, is that it would follow that in 1819 part of the foreshore of Scalpsie Bay was a public place. And it was in order to establish this point that Mr Patrick used the evidence taken before Lord Moncrieff. He did not assert that the disputed track was now a public road. He continued to maintain that the right of the public on it was a right of way for foot passengers, and for proof of that he relied on evidence of prescriptive public user. He further maintained that the portion of the foreshore which he claimed to have established as a public place in 1819 had never lost its public character, but, on the contrary, that it had been extended by public resort so as to comprehend the sandy foreshore of the bay. Accordingly, the first question to be determined is that which arises on the evidence taken before Lord Moncrieff—whether there was in 1819 a public road along the line of the present track and reaching to the foreshore of Scalpsie Bay. [His Lordship then dealt with the evidence, upon which he reached the conclusion that the track in question was in 1819 part of a public road extending to the foreshore at Scalpsie Bay, and continued]—If that conclusion is correct, it is an inevitable consequence that the foreshore where it is reached by the road was in 1819 a public place.

The road taken over in 1819 certainly remained a public road till 1836. In that year the Justices of Peace and Commissioners of Supply resolved that, till the public revenue of the public roads should be increased, the statute labour moneys and services should only be applied to certain roads in the Parish of Kingarth, and these roads did not include the road from New Farm to Scalpsie Bay. The Marquis of Bute undertook to keep in repair the roads which were not to be kept up by statute labour money and services under this resolution. By 1887 the road by Scalpsie farm, Ardscalpsie, and Kilmory, to Milton had been completed by the predecessors of the pursuer, and in that year the road from its junction with the West Kingarth road to Milton was added to the list of highways. That part of the road taken over in 1819, which extends eastwards to New Farm, was not added to the list of highways; nor was the disputed track. Whether, or for how long, or for what purposes, the disputed road remained a public road after 1836 (assuming that it was a public road between 1819 and 1836) are questions not in issue. The pursuer of course denies that it was ever a public road; the County Council do not assert that it is a public road now, and claim only that it has been used as a public right of way for the prescriptive period or longer.

Mr Patrick for the County Council put his case thus. He maintained that the foreshore terminus of the road never ceased to be a public place, and that the road is a right of way because the public has used it as an access to a public place as of right since 1836. Alternatively, he relied on the Lord Ordinary's ground of judgment, and maintained that the sandy foreshore had been made a public place by the resort of the public by the year 1894 at least, and that the track had been used by the public as of right since that date.

It will be convenient now to summarise the evidence bearing on the use of the road by the public. It is not necessary to enter into a detailed examination of it, because there was substantial agreement between the parties about the facts. The first hand evidence of witnesses goes back to about the year 1865. There is also some hearsay evidence, or traditional evidence, to which I shall refer later, bearing on the period 1836 to 1865. It is proved that from 1865 down to 1934 the track was used by pedestrians for the purpose of going to the foreshore. Among those who used it were some who were tenants on the Bute estates. But, even if they and their friends and visitors and servants all fall to be discounted, there remains a considerable user on fine Sundays in summer by visitors to Rothesay and other places in the island. On such days in the seventies of last century a dozen people might be seen on the beach at a time. The volume of those who came to the bay increased, but the increase was so gradual that I find it difficult to mark its stages. By the decade 1870 to 1880 cabs and landaus used to drive parties from Rothesay to the northern terminus of the track, whence they walked to the shore, subsequently walking back to the carriages and being driven home. Within the next ten years the drive to the bay had become a regularly advertised drive by wagonette and cab hirers in Rothesay. In summer considerable use was made by the public of these facilities, not only on Sundays but on week-days. By about 1920 it was not unusual to see twenty people on the shore at one time. At seasons other than summer the shore was usually deserted, and no substantial use was made of the track. It was in 1932, when the defenders first called began to run a regular service of motor omnibuses from Rothesay to Scalpsie Bay, that a marked change took place. The omnibuses brought hundreds of people. In the previous year, 1931, the County Council decided to level a road metal dump at the place where the track met the public road and to make there a parking place for cars to stand while the occupants visited the beach. This was done at least with the acquiescence of the pursuer's factor. After the motor omnibuses service began there was some discussion between the pursuer's factor and one of the directors of the motor omnibus company about repairing the track for the convenience of those who used it. The discussion was abortive, but no protest was made on behalf of the pursuer against the use that was being made of the road. In 1933 the pursuer's factor authorised a Mr Thomson to hire out deck chairs for the use of people who wished to sit on the foreshore. In 1933 an estate servant was instructed to keep people on the track and not to allow them to trespass on the fields. In the following year the pursuer, in consequence of complaints by the tenant farmers of damage to stock, for the first time sought to exclude the public. The gate at the top of the track was padlocked and the bus proprietors then used portable stiles to enable their passengers to get over the wall. The padlock was removed on one occasion by someone unknown.

The people who used the track, whether visitors from Rothesay or tenants of the farms or their friends, used it for the purpose of reaching the foreshore, where they walked, bathed and played games. They also picnicked and took meals occasionally on the foreshore itself, but more frequently on the grass shelf above it. The grass shelf is in no sense a public place. Large parties had sometimes obtained leave, from the farmer apparently, but it appears that what they asked for was leave to use a field for picnic purposes. In general all the use of the track and foreshore which I have described was taken by the public without leave or licence from any one, and those who took it did not suppose either that special leave was required, or that they were trespassing, or that their use of the track or foreshore was by tolerance.

I come now to the interval between 1836 and 1865. One of the witnesses, M'Fie, says that his father used to say that the track was a public road, and that his uncle said the same. His brother states that his father said that it was a right of way. Now, these witnesses were born at Ladeside where their father and their grandfather before them had lived, Their father remembered the mill and had himself taken corn down to it to be ground. He died about 1898, aged 78. I see no reason to doubt this evidence, and it falls to be considered, not only along with the evidence that the road was once a public road in the proper sense, but also with the evidence of user going back to the limits of, the memory of any living witness. The fair inference from that evidence is that the user proved from 1865 onwards may be presumed to have extended back at least to 1836, when the M'Fies' father was a young man.

As has already been said, if there was from 1819 to 1836 a public road to the foreshore, that part of the foreshore on which the, public road debouched was certainly a public place, and, as the public continued to resort to the foreshore by the track, it seems impossible to hold that the foreshore ever ceased to be a public place. In fact no, argument was submitted to us that it had so ceased. Similarly, if the road was a public road, I doubt if tolerance could play any material part in the case. I am unable to construe the minute of 1836 as the definite abandonment as a public road of the road taken over in 1819, operating at its date as a retrocession of the road to the Marquis of Bute free of all public right whatever. There is nothing in the decision or in the dicta in Winans v. Lord Tweedmouth which could support such a view of the terms of the minute. Nor is it necessary to decide whether

some of the dicta in Winans can be reconciled with other decisions of which were cited to us—Campbell v. Walker 1 M 825, 1 Macph 825 ; Lang v. Morton; Town Council of Perth v. Kinnoul; Bell v. Magistrates of Prestwick 1930 SC 241 . The terms of the resolution passed by the Justices were provisional, and it seems to have been intended to transfer the maintenance of the road temporarily to the Marquis of Bute without abandonment of public rights. As the Marquis was the principal heritor of the island the arrangement is intelligible from a practical point of view. It is true that, from its date, no public money appears to have been spent by the public road authority on the disputed road and that it was never put on the statutory list of highways. But, if during the whole period from 1836 onwards the road was used by the public as an access from one public place to another, the circumstances are entirely different from the circumstances of the road in Winans v. Lord Tweedmouth, and I should find it impossible to hold that at any time usage by tolerance had supervened upon usage as of right. The user by the public has, so far as the memory of witnesses extends, been limited to foot traffic. The explanation of this is, I think, to be found in the history of the locality. It is long since the mill and the lime kilns ceased to exist. Communications between the local farms and Rothesay have been improved. There was for a long time no public occasion for vehicular traffic on the disputed track. Meanwhile it was used by cart traffic for estate purposes, and the repairs expended upon it appear to have been only such as would keep it fit for carts. By the time that cabs came to be employed to bring members of the public the track seems to have been little suited for them. The public by prolonged failure to use the road for wheeled traffic may perhaps have lost the right to use it for such traffic, and a road on which the public have no right to drive may have lost the character which it once possessed as a statute labour road. On these two matters I express no opinion. But the public having continued to use the road for foot passage with unrestricted freedom from 1836 to 1934 have, in my opinion, established upon it a right of way for foot passengers.

While this is sufficient for the decision of the case, it is proper that I should deal also with the case as it presented itself to the Lord Ordinary. I agree with the result at which he arrived on the evidence before him. I have already commented upon his view of the tempus inspiciendi for determining whether the termini of an alleged right of way are public places. His finding that there has been, year in and year out, without exception of any year whatever, a stream or succession of people passing by the public road and the track to the coast appears, to me to be an overstatement. The traffic certainly did not continue throughout any one year but was really a summer and fine weather traffic. The description of it as a stream is exaggerated even for the summer. It would be more accurate to say that the public passed along

the road regularly, but in varying numbers, in fine summer weather as their occasions to go to the beach arose, and the numbers slowly increased with the increase of population. Nor do I agree with the Lord Ordinary's adverse comment on the evidence of certain witnesses an for the pursuer. There is nothing in the record of what they have deponed that suggests to me lack of honesty or candour, and I think it right that they should be absolved from any imputation on their integrity.

While it is the law of Scotland that the terminus of a right of way must be a public place, it has been laid down that it need not be a very public place or a place of great resort—Duncan v. Lees, Lord President Inglis at p. 856—and it is a question of fact suitable for determination by a jury whether a place is or is not a public place—Scott v. Drummond . The foreshore, although it is subject to public uses and although the public cannot be interdicted from using it—Hope v. Bennewith; Young v. North British Railway Co., per Lord Watson at p. 54;Darrie v. Drummond, per Lord Deas at p. 500—is not in itself a public place in the sense of a proper terminus of a right of way. To make it such a public place there must be actual public resort—Darrie v. Drummond, and the opinion of Lord Moncrieff in Rainsford Hannay v. Smith, November 1934, unreported. Originally the property of the foreshore is in the Crown, which may alienate its property in the foreshore or lose it by adverse prescriptive possession on a habile title. But the Crown holds it subject to certain rights, sometimes said to be inalienable and sometimes spoken of as a trust on behalf of the public, and these rights remain in the Crown as regalia majora although the property in the foreshore may have passed to a subject—Agnew v Lord Advocate, (1873) 11 Macph 309 . Access and use for the purpose of navigation and white fishing are certainly rights of this character, and when the public resorts to a part of the foreshore which it uses as a harbour, whether there are artificial harbour works or not, that part of the shore may readily become a public place—Duncan v. Lees; Darrie v. Drummond, per Lord Deas at p. 501—and it was conceded in argument that it may not be necessary to establish resort for the prescriptive period if a harbour publicly used be once established. Although it has been said that resort to a place, even if on a foreshore, out of mere curiosity is not enough to create a public right of way—Duncan v. Lees, Lord President Inglis at p. 276—it is nevertheless implicit in a decision of the House of Lords that the public may by resort for purposes such as walking, bathing and recreation—Smith v. Officers of State; cf. Keiller v. Magistrates of Dundee, and the opinions of the Lord Justice-Clerk and Lord Cockburn in Smith v. Officers of State

—acquire a right to use a part of the foreshore as a public place, and there are in other cases dicta to the like effect—Duncan v. Lees, per Lord President Inglis at p. 857; Buchanan v. Lord Advocate, per Lord Shand at p. 1234; Darrie v. Drummond, Lord Deas at p. 501. I reject the contention put forward by the pursuer that such a right can be established only while the foreshore remains the property of the Crown. The authorities cited—Smith v. Officers of State; Keiller v. Magistrates of Dundee —do not establish the proposition. Moreover, it is not in accordance with principle that the subject's right, derived from the Crown, should be immune from limitations or trusts for the benefit of the public which affected the right of the Crown, or that his rights as proprietor should be less susceptible of adverse public possession than the Crown rights had been.

There are expressions in certain of the cases which place this public right of recreation in the same category as the rights of navigations and white fishing, but somewhat subordinate to these rights. On that view, resort by the public to a definite part of the foreshore, if it is in sufficient volume and continued so long as to show that it is not a temporary caprice or casual occurrence but evidences a settled practice, might establish that part of the foreshore as a public place. This was the view taken by Lord Moncrieff in the recent case in the Outer House—Rainsford Hannay v. Smith, November 1934, not reported. But there are also expressions which suggest that the right to use the foreshore as a public place for recreation is acquired by prescription. If it were necessary to decide between these alternatives, I should prefer the former. For there are difficulties in the way of prescription without title against the Crown, and it is also difficult to reconcile the notion of the acquisition of a right by prescription against the Crown with the authoritative decision that the Crown is a proper protector and asserter of the right once acquired—Smith v. Officers of State .But, whatever be the true legal theory, I am satisfied that in the present case the public had, by resort, made of the foreshore at Scalpsie Bay a public place before the year 1894. The bay is a definite place, and the resort to it for at least forty years before 1894 by the public for the purpose of recreation is, I think, established. We are entitled, in the circumstances of this case, where regular resort is proved from 1865, growing only slowly for the next fifty years, to presume an anterior resort as least as far back as 1853 in about the same volume as that which prevailed from 1865 to 1880. There must be some proportion between the volume of the public resorting to the place and the extent of the place itself, and in this case it was urged that the resort of a dozen or even twenty or thirty people at a time, and that only occasionally, was not enough. This is a question of degree; and, bearing in mind that the place need not be a very public place, I hold that the volume was sufficient. If resort could at any time have been said to be unlawful,

a different question would have arisen. But here the resort was by means of an access on which, at the best for the pursuer, indiscriminate public passage was tolerated. There was therefore nothing unlawful either in the use of the access or in the use of the foreshore. If it be assumed that there was in 1836 a part of the foreshore made public by its being part of a public road, then, in my opinion, the subsequent user of the public has extended this public place to the sandy foreshore generally.

On the question of tolerance the main considerations of fact which are relevant are, besides the volume and duration of the user already described, the fact that the pursuer never sought to prevent the public from using the track until 1934. If there was toleration, it was indiscriminate toleration, and that is a circumstance of importance in a place like the island of Bute, which has for long been a popular holiday resort for people of all conditions from Glasgow and the mainland generally. Even when the traffic of motor omnibus passengers reached very large figures, nothing was done to stop it till the tenant complained of injury to stock. The pursuer's counsel maintained that it was proved that the pursuer and his predecessors had, because of their interest in attracting visitors to Bute, allowed the public generally to use the private estate roads all over the island for recreation and for access to the sea at other attractive bays. But it is proved that in the estate office a list was kept of roads which were closed and patrolled once a year precisely in order to prevent uninterrupted use of them by the public from developing into a right of use. The road now in dispute was never in that list, although the list was revised from time to time. The attempt to equate the public resort by this road to the sea with the public resort to other bays is not, in my opinion, of much relevance; and, in any case, I agree with the Lord Ordinary in holding that most of the other bays mentioned in the evidence were not truly comparable to Scalpsie Bay, and there is no evidence that the roads to any of these bays were used as this road was. The Dean of Faculty founded on the locking of the gate at the top of the track for an unspecified period in some year before the war. He invited us to treat this not as an interruption of user but as evidence of tolerance. There is, however, no evidence that it had any effect on the use of the road by foot passengers or that it took place at a time of year when foot passengers would be affected. It is of no more value to prove tolerance than it is to prove interruption. In my opinion, there is evidence of such a user as is not consistent with tolerance.

It was argued for the pursuer that, if the user began in tolerance, it must be held to have been tolerated throughout unless there was evidence of an unsuccessful attempt by the proprietor to stop it. But the test to be applied is not whether in the proprietor's mind there was a disposition to allow the public to use the disputed road; nor is his unsuccessful effort to stop public use the only test, although that may be conclusive against tolerance. The question is rather whether, having regard to the sparseness or density of the population, the user over the prescriptive period was in degree and quality such as might have been expected if the road had been an undisputed right of way. If the public user is of that degree and quality, the proprietor, who fails for the prescriptive period to assert or to put on record his right to exclude the public, must be taken to have remained inactive, not from tolerance, but because the public right could not have been successfully disputed or because he acquiesced in it.

In Mann v. Brodie Lord Watson said (at p. 57):

"Although the principles of law which govern the acquisition of a prescriptive right of way are in themselves simple, yet, in their application to facts, questions of nicety frequently arise. It then becomes necessary to consider whether the user has been that of the public, whether it has been continuous and uninterrupted, and whether it has existed for the full period required by law. These are all questions of fact, and it would not be expedient to lay down any specific rules for their solution. As regards the first of these questions, which has occasioned more controversy than any of the others, I think it is safe to say generally, that in order to constitute a public user of the kind of road claimed in the present action, the user must be of the whole road, as a means of passage from the one terminus to the other, and must not be such user as can be reasonably ascribed either to private servitude rights or to the licence of the proprietor. Then, as regards the amount of user, that must just be such as might have been reasonably expected if the road in dispute had been an undoubted public highway."

In Macpherson v. Scottish Rights of Way Society the question whether the public user could reasonably be ascribed to the licence of the proprietor was considered. Lord Halsbury, L.C., put the question thus (at p. 69):

"Whether, if he was aware of the long continued and well settled practice which was going on from year to year (not through the whole year of course because the occasions did not arise, but on two ordinary and settled occasions in every year) the proprietor would, on the footing of its being a mere licence or permission, be likely to stand by and allow the right, which he must know would very probably be established by such constant user, to be established without interference or remonstrance on his part? … However good-natured the proprietor might be, and however desirous of assisting his neighbours, I think he would desire to protect his rights by insisting upon some record of his rights, or some way of showing that what was being done was by his licence and permission, and not as of right."

Lord Selborne's judgment is to the same effect. In the Outer House case of Rhins District Committee of Wigtownshire v. Cuninghame, there is a valuable discussion by Lord Sands of the part played by tolerance in rights of way cases. I agree with his opinion that the legal character of the way depends on what the public and the proprietor did, and that, if a proprietor lies by while regular and unrestricted public use is made of a private road between two

public termini for the prescriptive period, the law will assume a public right rather than an easy-going proprietor. The teasing logical puzzle why, if tolerance does not harm the proprietor's exclusive possession, tolerance should become fatal if prolonged for forty years, is solved by the practical consideration that continued tolerance of what has come by lapse of time to wear the aspect of an assertion of right is not to be presumed. If effect were given to the pursuer's contention, the more undisputed a public right of way has been in the past the more easy it would be to dispute it now.

The pursuer relied on dicta in certain of the decided cases, notably a dictum of Lord Deas in Mackintosh v. Moir (at p. 576):

"If the proprietor never prevented anybody at all from going, if he allowed everybody that pleased to go, looking upon this as a mere indulgence to them and no injury to him at all, there can be no question that that would be mere tolerance, which of itself would not make a public road, for whatever length of time it might have extended."

—cf. also Lord Deas's opinion in Jenkins v. Murray (at p. 1054). If the dictum is to be taken literally, and as a general proposition, I think it is irreconcilable with the principles on which rights of way cases have been subsequently decided. The opinion of Lord Kinnear in The Magistrates of Edinburgh v. North British Railway Co. was also founded on by the pursuer. But I think that this opinion, so far from helping him, is against him. Lord Kinnear there says (at p. 634):

"I do not think it doubtful that a use which began by tolerance may be followed by a use as of public right, if the facts are sufficient to prove it. For a practice which was originally occasional and confined to a small number of persons may in course of time be followed by a practice too extensive and persistent to be accounted for otherwise than as an assertion of public right, and the proprietor may very reasonably be held to have submitted to a public assertion instead of giving his licence to a privileged few."

In my opinion, the user proved in this case, and its duration, volume, and character, are such as to justify the conclusion that, even if it began in tolerance, it became an assertion of right, and the defenders have discharged the onus of proving a public right of way for foot passengers. Accordingly, if I had had to dispose of the case solely on the evidence which was before the Lord Ordinary, I should have agreed with the findings in his interlocutor.

I move your Lordships to refuse the reclaiming motion, and to affirm the Lord Ordinary's interlocutor.

LORD FLEMING .—The first question which requires to be considered is whether the defenders have established that the track over which they claim a right of way formed part of the road which, according to the minute of 30th April 1819, was to be held and considered in all time thereafter as a public road and maintained accordingly. This

question was not before the Lord Ordinary, as it arises upon the condescendence of res noviter veniens ad notitiam and answers thereto, which were lodged after the case came into the Inner House. The onus in this matter is upon the defenders, for they are claiming a right of way over a road which is admittedly not now a public road. The question of what was the road taken over in 1819 falls to be determined primarily upon a consideration of the description of it given in the minute, and, so considering the question, I arrive at the conclusion that the track in question formed part of the road then taken over. I think that the words "a road … from Scalpsie Bay, &c." must be read as importing a road beginning at or near the foreshore of Scalpsie Bay, and affording an access by road to that bay. [His Lordship then dealt with the evidence on this point, and made the following observations with reference to an estate plan dated 1824 which was produced by the pursuer]—I am not prepared to sustain the defenders' contention (based upon Place v. Earl of Breadalbane ) that this plan has no evidential value at all. It is true that it was recovered from the estate office, but I cannot find that there are any substantial grounds for suspecting its authenticity or impartiality. But although it is, in my opinion, competent evidence, it does not throw any clear light upon the point in dispute. [His Lordship dealt further with the evidence, and continued]—I am of opinion that, upon the terms of the minute of 1819, the road authority took over a road which began at or about the foreshore of Scalpsie Bay, and that the road so taken over must have been the track in question. If that point is established, then the track was a public road in the fullest sense of the term from 1819 to 1836. In the latter year a new arrangement was entered into with regard to a number of roads on the island, and in particular the road taken over in 1819. The part of the minute of the road authority dealing with these roads is in the following terms:—

"roads beyond the line above mentioned to be kept in repair at Lord Bute's expense."

I cannot regard these words as importing a transfer of the road from the road authority to the then proprietor, or as an abandonment in any sense of the public rights in the road. It does not appear to resemble in any way what happened in Winans v. Lord Tweedmouth, and it is unnecessary to consider whether that case can be reconciled with the series of cases relied upon by the defenders, the most recent of which is Bell v. Magistrates of Prestwick . The minute appears to me merely to have the effect of transferring the burden of maintenance from the road authority to the proprietor. It may be that such transfer made no material difference, as the proprietor was probably the principal heritor, but I find nothing in the minute to suggest that it was intended that the proprietor, should have the right to close the road, or that the rights of the public to use it were to be diminished or prejudiced by the transfer of the burden of maintenance. It may be pointed out that the part of the road between New Farm and the west road to Rothesay known as

St James's Drive was never, subsequently to 1837, taken over either as regards maintenance or otherwise by the road authority, but I understand it has all along been subject and remains subject to the public right of passage for all purposes. The part of it between the Kingarth Road near Ambrismore and the point A (along with the continuation thereof westwards) was taken over by the road trustees in 1887, and it has also all along been, and is, subject to all public rights of passage. The track in question was never, subsequently to 1837, taken over in any sense by any road authority. But, according to the view which I take of the evidence of the user of it from 1837 down to the present day, the public have never lost the right of passing along it on foot. In 1837, ex hypothesi, the track had been a public road for 18 years, and every part of the road, and particularly the termini, were public places within the requirement of the law relating to the constitution of public rights of way. So far as foot passage is concerned, there is nothing to indicate that the use which continued after 1837 was of a different character or quality from the user prior to that date. The user has all along been one of right between public places, and the public right of passage by foot has never been lost. On the contrary, for nearly 100 years the public have, continued to use the road as of right for foot passage, and that in itself is sufficient to constitute it a public right of way. I do not find it necessary to consider whether the public lost their right of passage for vehicles by non-use. The defenders in the present case do not assert that such a right exists. Whether they need have made that admission is a question which is not before us, and I offer no opinion upon it.

If, however, the view that the track became a public road in 1819 is erroneous, it is necessary to consider whether the Lord Ordinary's ground of decision in the defenders' favour can be affirmed. That depends upon whether (assuming the track was never a public road) there has been the necessary prescriptive possession for the acquisition of a public right of way. Differing from the Lord Ordinary, but agreeing with your Lordships, I hold that the termini of the way over which the public right is claimed must be public places at the time the prescriptive possession relied upon begins. It is not necessary to essay the task of defining a public place, but it would be safe to say that a place becomes public if the public resort to it in the exercise of a legal right to do so. The terminus here in question is the foreshore of Scalpsie Bay. The public, who reach Scalpsie Bay by passing along the track, use the foreshore for the purposes of recreation, and the question arises, Have the public a right or can they acquire a right by possession to use the foreshore for such a purpose? Now, the foreshore, like all other land in Scotland, was originally vested in the Crown. It was vested in the Crown for two purposes, namely:—(1) In trust for the inalienable rights of the public, and (2) for beneficial enjoyment; and the Crown's right to use it for the latter purpose is alienable. But the Crown can transfer to a subject only the beneficial or proprietary right which it has in the foreshore; it cannot divest itself of the foreshore in so far as it holds it for the inalienable right of the public. Accordingly, a grant by the Crown to the subject of the foreshore is limited ex lege to the Crown's proprietary or beneficial right. It is beyond question that the inalienable rights of the public include the right to use the foreshore for the purpose of navigation and white fishing. These rights exist quite independently of whether they have been exercised by user. The question raised in the present case is whether the public have the right to use the foreshore for recreation and also for passage. Two views have been judicially indicated with regard to this question. One of these is that the right is of the same order as the right to use the foreshore for navigation and white fishing and does not depend upon user—see the Lord Justice-Clerk and Lord Cockburn in Smith v. The Officers of State; Lord Shand in Buchanan v. Lord Advocate; Lord Watson in Young v. North British Railway; and the Lord Justice-Clerk in Hope v. Bennewith . The other view is that the public right of using the shore for recreational purposes depends upon actual user—Lord Moncreiff in The Officers of State; Lord Deas in Darrie v. Drummond . I prefer the former view, as I think it more in consonance with recognised principles. The latter view involves adding another example to the category of cases, always regarded as anomalous, in which prescriptive possession without a title is accepted as conferring rights.

But, whatever view of this matter is taken, the defenders have established that, long before 1894, Scalpsie Bay had become a public place. The user by the public had continued so long and was of such a character that it was sufficient not only to establish the right but also to establish that the public had exercised the right. I should here add that, if prescriptive possession is necessary for the acquisition by the public of the right of using the shore for the purposes of recreation, I am quite unable to understand how such possession should not be as effectual against a grantee of the Crown as it is against the Crown itself. I also hold it proved that there has been for the last forty years continuous and uninterrupted possession, as of right, of the track by the public for the purpose of foot passage. I do not find it necessary to analyse the evidence with regard to the user of the shore and the track by the public. That has already been fully done by the Lord President, and I concur with his opinion on that matter in omnibus. I wish to add, however, a few words upon the question of whether the user of the track can be ascribed to tolerance on the part of the proprietor. The amount of use which is required to constitute a right of way, to quote Lord Watson's words in Mann v. Brodie, (at p. 58), "must just be such as might have been reasonably expected if the road in dispute had been an undoubted public highway." If

the track in dispute in the present case had been a public highway, I do not think that the user by the public would have been different from what it has been. That applies to the extent of the user, its character, and the times and seasons at which it took place. I also agree with the view expressed by Lord Sands in Rhins District Committee of the County Council of Wigtownshire v. Cuninghame, that the mental attitude of either the proprietor or of the members of the public who used the disputed road is of little significance. But, so far as it goes, the conduct of the proprietor, even at a quite late date and when the public user was certainly becoming somewhat burdensome, seems to me to point rather to a recognition of a public right than to a permission which the proprietor thought he could terminate at any time. I refer particularly to the negotiations with regard to the repair of the track, to the sending of the estate constable to keep the public to the track, to the granting to Mr Thomson of the privilege of hiring out chairs to the public, and to the failure of the proprietor to put this track on the list of roads to be closed once a year in order to prevent the public from acquiring a right of way over them.

I think that this reclaiming motion fails, and that the Lord Ordinary's judgment must be affirmed.

LORD MONCRIEFF .—I am of the same opinion.

In reviewing the decision of the Lord Ordinary two principal questions require to be determined. These questions are:—First. Is Scalpsie Bay, or any determinate part of the bay, "a public place" such as is capable of forming the terminus of a right of way; and did the bay become such "a public place" at such a period as would be required to enable it to play that part as a terminus of the track from A to B, which is described, and over which the public rights are in issue, in these proceedings? Second. Has there been during the requisite period such user of the track by the public as cannot reasonably be explained by tolerance or licence, but infers, on the contrary, the constituting of a public right of way? These questions are each of them questions which are dependent for their answer both on law and on the facts. Upon a consideration of the facts established in the evidence and on a review of the authorities, the Lord Ordinary has answered both questions in the affirmative. In my opinion these affirmative answers ought to be reaffirmed.

It is, however, necessary to advert in the first place to an aspect of the case which was not open to be considered when the Lord Ordinary pronounced judgment. After the action had been reclaimed and had passed out of the Outer House, and while the reclaiming motion was depending for hearing in the rolls of this Division, the respondents asked for and obtained leave to lead supplementary evidence. They desired this opportunity in order that they might be enabled to make part of the documentary evidence in the cause, and to support by any requisite

parole testimony, certain early minutes of meetings of the Commissioners of Supply and Justices of the Peace, as the then existing road authority in the county. In support of their motion they explained that these minutes had gone astray and that, notwithstanding diligent efforts to find them, they had only come to hand by a series of accidents shortly before the motion had been made. The motion was granted, and proof was taken before myself on a remit from your Lordships. The evidence so taken was reported to the Court, and is now presented as part of the evidence in the cause.

I formed an impression during the taking of the evidence, which has been confirmed by reference to the notes of evidence, that it might have been open to counsel for the reclaimer to argue that these minutes of the earlier road authority might with some certainty have been traced by the respondents in time to allow of their being put in evidence at the original proof if only search had been timeously made in what was indicated by local history as being an appropriate quarter. If an argument to this effect had been maintained with success, the evidence furnished by these minutes would have fallen to be disregarded. A party is not entitled to adduce such evidence after closing his proof, unless failure to make earlier production can be explained as having been consistent with proper diligence. The learned Dean of Faculty, however, declined to state this argument, and preferred—with great propriety, if I may say so—as representing his client upon such a question, that the Court should be invited to arrive at its decision upon a consideration of all relevant circumstances. This evidence may, accordingly, be referred to as part of the evidence in the cause. [His Lordship then narrated the evidence led before him, and made the following observations with reference to an estate plan which was produced by the pursuer]—I had occasion to consider, under reference to the authorities, the evidential value of estate plans in the opinion which I delivered in November 1934 in the case of Rainsford Hannay v. Smith and Others, which is not reported. I remain of the opinion which I then expressed, that such a plan may be consulted and taken into account as furnishing evidence in appropriate cases on such a matter as the extent of ancient possession, or the existence or identification of a road; and should not in all cases be excluded merely because it is adduced to support the interest of the party by whom it had been prepared. [His Lordship dealt, further with the evidence, and continued]—

In my opinion, it is proved that a road to the seafront at Scalpsie Bay was taken over as a public road in 1819. Had it been argued, in view of the defect of any evidence that it had been closed, that this road had remained a public road until the present day, a finding to that effect would itself have been conclusive of both the questions which I have formulated as being principally in issue in this case. Moreover, such an argument would, in my opinion, have been open to the respondents in fact and in law, had they not taken a course whereby they have barred themselves from stating it. Once a road has been made public, I know of no way in which the rights of the public in the road can be excluded, or the road itself closed, except by following one of the three alternative methods of closing a public road which are available in law. These methods are (1) resort to statutory procedure under the Turnpike Roads (Scotland) Act, 1831: (2) resort to statutory procedure under the Roads and Bridges (Scotland) Act, 1878;and (3) application to Parliament for a particular enactment. If the statutory procedure be resorted to, a road will only be closed after the giving of public notice and the hearing of objections which may be stated by qualified members of the public. An application to Parliament itself affords opportunity for opposition. I am clearly of opinion that a public road cannot be closed by mere failure on the part of the road authority to expend money on its maintenance; nor do I think that the public can lose their right of passage as the, result of the failure or refusal of a road authority to include in the list of highways, as directed in the Roads and Bridges (Scotland) Act, 1878, what may be proved or admitted to have been a public road. Failure to include a public road in this list may have consequences as to rating and upkeep with which this case is not concerned. The mere non-inclusion of a road in the county list of highways cannot, however, in my opinion, be conclusive against the public in a question of their right to use the road.

The only authority which was cited to support a contrary proposition was a dictum of Lord Adam in the case of Winans v. Lord Tweedmouth . In the case itself it was decided that a road, which had never been used by the public and which led to no public place (being a road accordingly which, as was recognised by Lord Adam, it had been, ultra vires of the road authority to maintain), after the road authority had ceased to maintain it, had reverted to the proprietor unencumbered by any public right, of passage. Any right in the public of passage over the road, as was explained by Lord Adam, had been derived from an implied grant on the part of the proprietor and not from the assertion of a public right of user. It was decided that such a grant of a road must be assumed to have been conditional upon continuing maintenance of the road at the cost of the public, and to have been open to be withdrawn, and to have been in fact withdrawn, by the proprietor as soon as the road had ceased in fact to be maintained. It is clear that any public right in such a road differs toto cœlofrom the rights of the public in properly constituted public roads. Such a road as was the subject of decision in the case of Winans could of course be abandoned or closed without application to Parliament or resort to statutory procedure. There is, however, a dictum by Lord Adam to the effect that, even had the road at one time been "a proper district road," it would have reverted to the proprietor free, from any, public right of way upon its mere abandonment by the trustees. This observation was, however, completely obiter, was not required for the decision of the case, and is in

direct conflict with the three subsequent cases of Lang v. Morton, Perth Town Council v. Earl of Kinnoul, and Bell v. Magistrates of Prestwick . It is, moreover, a dictum with which in any event I find myself, with all respect, unable to agree. I refer in particular to the opinion of the Lord President in Lang v. Morton . The dissenting opinion of the Lord President in Bell v. Magistrates of Prestwick proceeded upon the view that, on a sound interpretation, the private Act under which that particular road had been constructed had also authorised ab ante the abandonment of the road.

By their admission that at some undefined period the public had lost their right of passage over the road except on foot, and by their failure to reclaim against the determination of the Lord Ordinary to this effect, I must, however, recognise that the respondents have barred themselves from maintaining such an argument. A public road over which the public had no right of passage for vehicles which the road (as in this case) was qualified to carry, apart from particular police regulations under local or general statutes, would be an anomaly which the law does not and would not readily recognise. Mr Patrick in his able argument was, accordingly, content to rely on a single early chapter of the association of the public as matter of history with this road, and did not find himself concerned to trace that history in so far as it may have extended after 1836. Incidentally, I may say that, as I read the minute of 30th April 1836, it evidences rather a continuation of the road as a public road, to be maintained under obligation by Lord Bute as the principal heritor, than a closing of the road; but, estothat the road should properly be regarded as having ceased after 1836 to be a public road, Mr Patrick was in any event in a position to rely, and did rely, on its history of having been a public road from 1818 to 1836 as furnishing evidence (first) that the user of the road by the public which, as shown by the evidence, was both continuous and considerable, had had its origin in right and not in tolerance, and (second) that the area of the foreshore at Scalpsie Bay in the neighbourhood of the point at which the public road reached the bay had been during this period a public place. In my opinion, the history of the road as a public road during this limited period, even if the road should be regarded as having ceased thereafter to be a public road, affords evidence which is sufficient to establish both these propositions. I further regard these propositions as so established, when taken along with the evidence as to the continued user of the road and resort to the shore, as conclusively affording reason to support the public right which is in issue in the case. I am accordingly of opinion that the decision of the Lord Ordinary falls to be affirmed upon this entirely independent ground.

In case a different view should hereafter be taken of the value of the evidence of the witnesses who were adduced after the case left the Outer House, I may add, as a separate ground of judgment, that

in my opinion the Lord Ordinary arrived at the only proper conclusion upon the evidence which was before him. Even if the user of the road should be viewed as having had its origin in tolerance in place of in right, I regard the universality of that use, its uniformity and uninterrupted enjoyment, and the widely varying character of the individuals who exercised it during living memory, as sufficient when estimated cumulatively to exclude the idea of tolerance. If such general user by all and sundry of the persons available to make the use should be regarded as evidence of a tolerance which a proprietor might at any moment intervene to recall, the history of the law as interpreted in the decisions would not be easy to explain; and there would indeed be few avenues of passage through the less frequented districts of Scotland over which the public could successfully have asserted a right. As I endeavoured to make clear in the case of Rainsford Hannay to which I have referred, I am fully as reluctant as was Lord Deas to discourage the proprietors of landed estates from continuing the enlightened and liberal administration of their property rights which has been the honourable tradition of the great majority of the landowners of Scotland. Nevertheless, I cannot agree with Lord Deas, in so far as he may have expressed such an opinion in the case of Mackintosh v. Moir, that a landed proprietor who never prevents anyone at all from using a road, allows everyone to go as he pleases, and continues to exercise no control for a quite undetermined period, does not thereby enable the public to set up, by what must be assumed to, have been adverse possession, a public right of way. An unlimited and unregulated licence is, in my opinion, inconsistent with that exclusive element which is one of the leading characteristics of a right of property.

In the present case I do not find it necessary, after the detailed examination of the evidence by the Lord Ordinary, again to deal with that evidence in detail. It may be that the Lord Ordinary somewhat overpaints the picture when he says that there has been "over this track, year in and year out without exception of any year whatever, a stream or succession of people passing from the public road to the coast." Reserving for immediate consideration the question whether the shore at Scalpsie Bay, apart from any relation with the terminus of a public road, should properly be regarded as having been from a sufficiently early period "a public place," I am, however, of opinion that the evidence of general and steady use by all classes of persons, including summer visitors to Rothesay who had no relation with the estate, taken along with, inter alia, the evidence of the recognised popularity of Scalpsie Bay, and of the early inclusion of the bay among the places of, interest in the island which were advertised in the hirers' printed lists, affords amply sufficient evidence to exclude an inference of mere tolerance, and to support an inference that, throughout a period greater than that required for prescription, there was a continuous and unmistakable assertion of a public right. I see no reason to differ

from counsel for the reclaimer in his comment on the evidence given by the witnesses who were interested in the hiring of carriages, and I am inclined to think these witnesses may have tended to overstate the frequency of resort by the public to the bay in hired vehicles in the earlier days. I do not share with the Lord Ordinary the doubt he expressed as to the credibility of certain of the witnesses who were adduced by the reclaimer. I regard it, however, as sufficient to say in this connexion that, on a general view of the whole evidence in the case, including the evidence as to the attitude of the estate representatives towards the question during the two years which preceded the sudden closing of the track in 1934, I agree with the Lord Ordinary in finding a body of testimony which cumulatively establishes such a continuous user of the track by the public as cannot be explained by tolerance on the part of the proprietor but evidences the successful assertion of a public right of way.

I am further in agreement with the Lord Ordinary in holding that, apart from any inference from the fact of its junction with the public road, the shore at Scalpsie Bay had become a "public place" before the commencement in 1894 of the period required for the prescription of a right of way. I regard the year 1894 as a critical one in this connexion, seeing that, differing from the Lord Ordinary, I remain of the opinion which I expressed in the case of Rainsford Hannay that "before a point on the foreshore can be accepted as having played a part of forming a constituting terminus of a right of way, the place must have been public before the user had commenced." If a contrary view should be taken, as was taken by the Lord Ordinary, this would allow of a passage being prescribed by a history of public possession which, as regards the earlier part of it, had consisted in mere penetration into private property. It has long been settled that such limited penetration by the public is not relevant towards constituting a right of passage.

In considering, apart from any question of the date of the origin of this character, whether the place had become "a public place," I regard it as of primary importance to ascertain whether the area which is the subject of question is situated above high water mark or is situated on the foreshore. In the case of land which is situated above high water mark, it has long been recognised that the public as such (being without a competing title to the land) is feudally disenabled from establishing against the landowner a right of occupation of the land so as to make an area a public place, howsoever long may have been the practice of public resort. The leading case is Dyce v. Hay (1852) 1 Macq 305 . The underlying principle of that decision is that property rights in land, unless in a single case which has been recognised as exceptional, cannot be invaded by the public, by reason of the defect of any competing title upon which the public can found. The single exception is in the case of a public right of way, and the ratio which supports

that exception has never been exactly explained. It is a consequence of the application of this principle that a "public place" has so far been recognised as having been established in an area of ground which is situated above high water mark in three cases only. Thus the recognition has followed (1) on a dedication of the ground to public uses as forming part of an authorised public road or highway; (2) on dedication by a proprietor or a group of proprietors to public uses whether by an implied grant in favour of the public, or by an express grant in favour of persons who are qualified to represent the public; or (3) on long continued occupation by the public of burgh lands, inferring a dedication of such special lands to particular public purposes. It is a common feature of all these three examples that the public right is in each case founded upon a sufficient title. Thus, in the case of a public road, there may be a statutory title in favour of the road authority, or their title may have been completed by a gratuitous or a remunerative grant. The second example explains itself; while in the case of burgh lands, as I said under reference to the authorities in the case of Anderson v. Magistrates of Lauder (at p. 729), "inveterate usage may be apt to charge the title of the Corporation with a special trust."

In the case of lands which are situated below high water mark on the other hand, a title is at once available to which the public may ascribe the possession which they exercise by any practice of resort. This title is that title of the Crown to the whole of the foreshore of the realm, under which these shores are held inter regalia for certain primary and secondary public uses, concurrently with being held under the separate and subaltern title which, subject always to the public uses, vests the same shores in the Crown for beneficial enjoyment. In view of the decision in the case of Officers of State v. Smith, and having in view certain pronouncements of opinion by the learned judges who decided that case, as for example the passage in the opinion of the Lord Justice-Clerk at the foot of page 720, and having further in view the opinion to a similar effect of Lord President Inglis in Duncan v. Lees, I do not think it can now be disputed that, in appropriate cases, a practice of resort by the public to the shore for purposes of recreation must be regarded as an exercise of one of those minor public rights with which the title of the Crown is charged. In this aspect of the case, which, as I have stated, I regard as only its secondary and alternative aspect, I do not think that it would be appropriate to endeavour to ascertain the true ratio which is the basis of these minor public rights; to consider for example how far they are dependent for enjoyment on a history of actual assertion, or how far they are open to be excluded by a conflicting occupation in right of the property title. These are questions upon which I do not think it would be altogether easy to reconcile the various conflicting views which have been expressed by learned judges. I regard it as sufficient for the decision of the present case

that, as is shown in the evidence, a practice of public resort to the foreshore for recreation has long been exercised; that this practice has not conflicted and does not conflict with the exercise of property interests by the Crown or by vassals of the Crown; and that such a practice of recreation on the part of the public may, on any view of the law of the foreshore, be found to be charged upon that title in the Crown which is available to support such public possessory acts. I only desire further to negative the argument under which it was maintained for the reclaimer that a grant by the Crown of the property in the foreshore to a private owner, being a grant which can only be made subject to the public usages, introduces any relevant factor of distinction. I myself prefer the view, which was taken for example by Lord Cockburn in Officers of State v. Smith, that the public rights are charged upon the title in the Crown which is concurrent with, yet paramount over, the Crown's title of property; but, if the public right should be regarded, as appears to have been the view of the learned judges who decided the case of Keiller & Scott v. Magistrates of Dundee, as charged upon the subaltern property title, the charge must nevertheless be available to be asserted equally without regard to the circumstances of a grant of the property having been made to a subject.

A "public place," in my opinion, is one to which the public have right of access, which the public have right to occupy, and which in fact the public do occupy by a practice of resort. It was not disputed, nor could it, in my opinion, be disputed, that, subject to avoiding trespass through lands, the public have a general right of access to the shore. In view of their right to ascribe acts of occupation of the shore to a practice supported by the title of the Crown, it follows that, in any view of the law, a right of public occupation of the shore may develop out of a sufficient practice of occupation and resort. In the case of Duncan v. Lees it was decided that a quite exiguous practice of resort by fishing boats and pleasure boats to a natural creek or harbour had been sufficient to stamp that area of the foreshore with the character of a public place. In the earlier chapter of the same case, which is reported in the same volume at page 274, it was, however, decided that a much more general practice of resort to "the place" which was then in question had been exercised without any similar operation or effect. This earlier chapter of the case was, however, concerned with a local landmark known as the Spindle Rock, which does not appear to have been regarded as forming part of the shore. Upon this view, as I have already noted, the most persistent resort by the public would be without operative effect, and the distinction is readily explained accordingly. The case was decided at this earlier stage by five judges. Of these judges Lord Deas definitely expressed the opinion that the place in question was not part of the beach, but was part of the private property of the proprietor of the adjoining grounds. Lord Mure regarded the

case as ruled by Jenkins v. Murray, which, as his Lordship stated, was concerned with lands near the Field of Bannockburn. Lord Mure must, accordingly, have regarded the question, as Lord Deas regarded it, as having arisen with reference to inland property and not to property on the foreshore. The Lord President said in terms that it seemed to him the rock was not part of the seashore; and, although he went on to say that, even if it had been part of the shore, he did not know "that that would make much difference," I cannot regard such a case as containing any useful authority to regulate the measure of resort which is required to make a "public place" out of an area on the shore. Had this case purported to deal with an area on the shore, I might have found it difficult to understand why a practice of resort by sightseers and geologists and men of science, with the frequency with which it appears to have been exercised, should have proved less effective towards constituting "a public place" than the very limited practice of resort which proved effective in the later chapter of the case. In such circumstances I should have had only the greater difficulty in view of the Lord President's expression of opinion in the second chapter of the case that "great resort" was not required, and that it was sufficient that the public resort should be for "some definite and intelligible purpose." These difficulties do not, however, arise, and the case is of interest (as already noted) as recording a recognition of the relevancy of public resort to the shore for purposes of pleasure or recreation. It was argued for the reclaimer that, in referring to such purposes, the Lord President was only considering resort from the sea. I cannot see how a distinction arising from the avenue of access, as having been by land on the one hand or on the other hand from the sea, can have any bearing on a decision of the single question whether the resort of those who used either method of access has been sufficient to fix a public character upon a place. I am accordingly of opinion (determining a question which I reserved in the case of Rainsford Hannay) that the measure of the resort by the public to any particular part of the foreshore is the only relevant consideration in determining whether that part of the shore has become a public place; and that there is no materiality in distinguishing between the purposes, whether for boating, bathing or fishing—whether for the exercise of its major or its minor rights—which have attracted the public towards the shore.

With regard to the requisite period of resort, I am of opinion that, while a point on the shore which is the terminus of a road of access requires to have been made "public" before any public user of the road can be reckoned towards constituting a right of way, a sufficient public character can be stamped upon any definite area of the shore by evidence which, apart from any minimum requirement of the endurance of the practice, is sufficient to show an established practice and purpose of public resort. Each case must be determined upon consideration of its particular circumstances, and it is obvious that in most cases

some period of endurance of resort will be required; but I should suppose it would at least be only on rare occasions that the period need begin to approach the forty years required for prescription. It is an antecedent feature of the stamping of a public character on an area of the shore, if I may again refer to the case of Rainsford Hannay in place of repeating the two last of the seven propositions of law which are there formulated and affirmed, that the whole shore is already facultatively a public place. In order to constitute a public place de facto on the shore, an unmistakable demonstration of a purpose of public resort is accordingly all that can be required. If I may refer to examples of contrasted cases, an area of the shore becomes a public place from the first moment when a harbour is there opened to the public; in circumstances in which the public character of the place depends solely on continued resort by the public on the other hand (more especially where the practice of resort is not accompanied, as in recent days at Scalpsie Bay, by the installation of facilities professing to promote the public enjoyment), a considerable period of resort may be required. In my opinion, the Lord Ordinary was amply justified in finding, in the history of public resort to Scalpsie Bay between 1865 and 1894 as described by the older witnesses, material which was entirely adequate to stamp the bay as being already a public place before the expiry of that period. The picture of Scalpsie Bay in 1894, as it maybe drawn from the evidence, is in sharp and vivid contrast with the impression I gathered of Dalavan Bay from the evidence in the case of Rainsford Hannay.The latter impression satisfied me that at the critical period Dalavan Bay had remained "almost if not quite as secluded a reach of shore as was any part of the seaboard in this very secluded neighbourhood"; and it was in this view that I refused to hold that it had become a public place. Per contra, in the present case I am of opinion that the long continued selection by indiscriminate frequenters of Scalpsie Bay as a favourite place of resort had already in 1894, as regards publicity, broken its continuity with the neighbouring shore, and had before 1894 made it available to play the part it in fact has played of a constituting terminus of a public right of way.