Scottish Court of Session Decisions

This is a question of right of way, the parties being Mr M'Gregor of Glengyle, on the one hand, and the tenant on the farm of Portnellan and Coil-achra, in the parish of Callander, and his brother and two nephews, all residing there, on the other. Mr M'Gregor sought interdict against the respondents from passing along the private road within the complainer's policies leading up to the mansion-house of Glengyle by themselves, or with horses and cattle; also against their passing through or driving cattle and sheep through the ornamental ground or shrubbery in front of the mansion-house; and against breaking or interfering with a gate placed by him at the entrance to the road in question. The respondents, on the other hand, maintained that the road to which this suspension is directed is part or a continuation of the statute labour road leading from Callander along the north and east side of Loch Katrine, by Portnellan and Glengyle, round the head of the loch to Stronachlachar, and thence to Inversnaid and Aberfoyle.

After a proof, the Lord Ordinary ( Mure) pronounced the following interlocutor:—“The Lord

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Ordinary having heard parties' procurators, and considered the closed record, proof adduced, and whole process, Finds that the respondents have failed to prove that the road through the lands of Glengyle, from tire iron gate situated about two hundred yards to the eastward of the mansion-house of Glengyle, and leading through the complainer's policies past the front of the said mansion-house, and from thence to the ford at the Dow of Glengyle, is a public road or right of way from Callander to Inversnaid and Aberfoyle: Therefore declares the interim interdict perpetual, and decerns, reserving to the respondents to establish in any competent process that they have right to a road or passage for foot passengers, and also for sheep, cattle, and horses round the head of Loch Katrine, through the lands of Glengyle by the ford at Tomnamaun; or from the said ford up to and along the left bank of the water of Glengyle, through the ford at the Dow of Glengyle, and from thence to Stronachlachar, either as a public road or as a servitude road for the use of the respondents' farms, and to the complainer his defence as accords: Finds the complainer entitled to expenses, of which appoints an account to be given in, and remits the same, when lodged, to the auditor to tax and report.

“ Note—It is distinctly established in evidence that the respondents and their servants on two different occasions forced open the iron gate on the road leading into the complainer's policies, and past the front of his residence, notwithstanding the remonstrance of the complainer's family and manager, and of a request on their part that the respondents would in tire meantime make use of the road by the back instead of that leading through the shrubbery by the front of the house; and the ground on which the respondents assert their right so to act is, that the road in question is the continuation of a statute labour road leading along the north and east side of Loch Katrine by Portnellan and Glengyle round the head of the loch to Stronaclilacliar, and thence to Inversnaid and Aberfoyle, so that the main question thus raised for decision upon the proof is, Whether the respondents have established that the road they so forced their way into and used in front of the complainer's house is a public road ¦which had been improperly closed and obstructed by the complainer?

“Parties appear to be agreed that the road from Callander is statute labour up to the March of Glengyle, and there is evidence that it has oeasionally been repaired at the expense of the statute labour funds even after it enters the lands of Glengyle; but there is, on the other hand, no evidence to instruct that any part of the road leading up to the complainer's house, from the fence at which the iron gate in question was erected, and thence down to the Dow of Glengyle, was ever dealt with as a statute labour road, and from that ford to Stronachlachar all the witnesses are agreed that it is at best a mere track or footpath, by which cattle and horses can with difficulty get along. This road, however, though not statute labour, may still be a public road or right of way, and the question is whether there is evidence sufficient to instruct that it is so.

“In dealing with that evidence the Lord Ordinary has not attached much weight to that of parties who occasionally passed to and from Glenfalloch, because there is plainly no acknowledged public road or right of way between Glenfalloch and Glengyle. It is, moreover, not alleged on record that there ever was such a road, and any people who may have come down that way, other than the friends and neighbours of the late proprietor of Glengyle, appear to have been interrupted and directed off the property by the way most convenient for him, so that during his proprietorship the passage to and from Glenfalloch appears to have been completely stopped.

“Apart from that evidence, then, and putting aside that as to smugglers, beggars, and parties travelling from house to house with things to sell, who generally find their way along private as well as public roads, the proof appears to the Lord Ordinary to come to this, that for a long series of years certain farmers on the north side of Loch Katrine, and more especially the tenants of Portnellan and Coilachra, have been in use, as occasion required, when shifting or selling their stock, to send or bring them round by the head of the loch, through the lands of Glengyle; and it is in evidence that the stock so shifted or sold occasionally passed in front of the house of Glengyle. But the great preponderance of the evidence, in the opinion of the Lord Ordinary, goes to show, (1) that this stock belonged either to neighbours or intimate friends of the proprietor of Glengyle, who had his permission to use the road, or to parties dealing with them; and (2) that while those neighbours and friends went past the house, and generally called on their way, the servants and stock were sent down by the Ford of Tomnamaun, or, as some of the witnesses call it, by the Lower Ford or Laigh Koad, which was the nearest way, and so crossed the water at a considerable distance from the house.

“The respondent himself says that “the beasts commonly took the nearest cut,” viz., the track by the ford, and which, besides being nearer, was the road which, in the circumstances, they might naturally be expected to go by instead of the road close in front of the residence of the proprietor, which few proprietors would, it is thought, be inclined to allow.

“The late proprietor of Glengyle accordingly, and his son, are quite distinct to the effect that the place where the river, when in its ordinary state, was crossed was at the lower ford, and that he never allowed any one to use the road by the front of the house to the ford at the Dow of Glengyle except as a favour, or when the river happened to be in flood; and in this their evidence appears to the Lord Ordinary to be corroborated by that of other witnesses, who have for long been acquainted with the localities in question.

“On these grounds the Lord Ordinary has come to the conclusion that the respondents have failed to establish the defence which they have set up against the present complaint, and that the interdict must be continued. Whether they have right to a passage through Glengyle by the ford at Tomnamaun, or by the ford further up the river, cannot in his opinion be competently disposed of in this process, which relates to their claim to pass through the policies and by the front of the house. He has, however, inserted a reservation in the interlocutor in order to keep that question open, and to show that he has dealt exclusively with the more limited question raised in the record.”

The respondents reclaimed.

Shand and Keir for them.

D.-F. Gordon and G. C. Campbell in answer.

The Court (Lord Benholme delivering the leading judgment) were of opinion that, looking to the two classes of evidence that were available in such

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cases, viz., the evidence of parties residing in the immediate neighbourhood of the subject in dispute, and the evidence of the general public, the defender had failed to establish the exclusive right for which he contended. The right of the public, therefore, to use the road in question had been established; but the Court expressed no opinion except as to that particular part of the road passing in front of the suspender's mansion-house through his policies, to which the prayer of the suspension was directed.

The interlocutor of the Lord Ordinary was accordingly recalled, and the note of suspension refused.