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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scotts v. Drummond & Herriot [1867] ScotLR 4_32_1 (24 May 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0032_1.html Cite as: [1867] ScotLR 4_32_1, [1867] SLR 4_32_1 |
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Page: 32↓
( Ante, p.14.)
Defender in declarator of right of wat assolizied from conclusions of removal of obstructions, and interdict against obstructing. Pursuer found entitled to modified expenses.
The summons in this action had concluded for declarator—(1) That the road from the town of Coldingham on the south, to the public sea-shore at Petticur-Wick or Pettico-Wick on the north, as particularly described (being the road in the first issue), was a public road; (2) That the road from the village of Coldingham Shore to St Abb's Head and Pettico-Wick (being the road in the second issue) was a public road for foot-passengers; (3) That the road from Coldingham Shore to Burnmouth Harbour and Pettico-Wick (being the road from Coldingham shore to Burnmouth Harbour and Pettico-Wick (being the road in the third issue) was a public road for foot-passengers; or otherwise for declarator that the pursuers and the public had a right of way along the road first described, and also a right of way for foot-passengers along the roads second and third described: And farther, it ought and should be found and declared, be decree foresaid, that the pursuers and all others are entitled, in all time coming, to the free and uninterrupted use, possession, and enjoyment of the said road first above described as a public road for foot-passengers, horses, and carriages, or for one or other of these purposes, and to the free and uninterrupted possession of the said roads second and third above described as public roads for foot-passengers, or at least to the foresaid right of way along the said three roads or lines of road respectively, and of all the rights and privileges therewith connected: And farther, the said defenders ought and should be decerned and ordained, by decree aforesaid to remove all walls, gates, palings, and other obstructions tending to obstructions tending to interfere with or prevent the free and lawful use, possession, and enjoyment of the said several public roads, or any of them, or right of Way foresaid, Or any of the rights and privileges there with connected; or at least so to place the gates along said public road and footpaths, or any of them, in such a manner as to leave to the Pursuers and the public the free and uninterrupted use, possession, and enjoyment of said roads: And farther, the defenders, and all others acting in their names or by their authority, ought and should be decerned and ordained, by decree aforesaid, to desist and cease, and ought and should be interdicted and prohibited, from troubling, molesting, or obstructing the Pursuer and all others in the peaceable use, possession, and enjoyment of the foresaid public road or rights of Way.
Asheb, for the Pursuers, now moved the Court to apply the verdict, and find the pursuers entitled to expenses.
Duncan, for the defenders, objected to the motion, so far as it embraced a decerniture against the defenders to remove gales and fences in the line of roads declared to be public by the verdict of the Jury. These gates and fences had existed all along throughout the period during which the right of way had been acquired. He also moved the Court to apply the verdict in the defenders' favour under the second issue, assoilzieing them from the conclusions of the action applicable to the road contained in that issue; and asked the expenses applicable to that branch of the case.
Gifford, for the pursuers, contended that no separate expense had been incurred applicable to the second issue the road in which was spoken to by the witnesses called to speak to the road in the first issue. Besides, the pursuers had in the main gained their case, which was to vindicate a right of way to Pettico-Wick as a public place. Expenses might be modified.
Page: 33↓
The condescendence sets out that there are three roads, with reference to each of which it is distinctly averred, in the 5th, 6th, and 9th articles, that from time immemorial, or at least for forty years and upwards prior to the date of instituting this action, each public right of way has existed. It is therefore the fact, according to the pursuers themselves, that there has been no obstruction to these roads prior to this action. And, to make this still clearer, the reason for this action is also stated: In the 13th article it is said that the defenders have recently attempted to interfere with the pursuers and others of the public in the use and enjoyment of said roads, whereby the present action has become necessary. Now, this interference has been explained to be a suspension and interdict in the Bill Chamber. But that is not an obstruction removeable by any conclusion of the summons. There is therefore no foundation for the conclusion for removal of obstructions. Nor is there any more foundation for the conclusion for interdict; for interdict, whether in the form of a summons or of a suspension and interdict, is only competent in the case of active or threatened interference with rights. While therefore the pursuers obtain decree under their first conclusion, as regards the first and third heads, the defenders should be assoilzied as to the second head; and quoad ultra the action should be dismissed.
As to expenses, the pursuers have substantially gained their case. They have got a cart-road to Pettico-Wick, and also a footpath. They have lost on the second issue; and if they had subjected the defenders to any distinct expenses applicable to their defences under that branch of the case, which could have been the subject of a distinct account, the defenders might have succeeded in their contention; but there is plainly nothing of that kind here. The justice of the case requires that the pursuers should get their expenses, subject to modification.
The other judges concurred.
Agent for Pursuers— T. White. S.S.C.
Agents for defenders— Jardine, Stodart, & Fraser, W.S.
