United Kingdom House of Lords Decisions

Now, I ask myself this question, whether in the first place I can infer from that state of facts that the proprietor was aware of what took place, I cannot doubt that dealing with such public rights and such public matters as the markets which persons in the neighbourhood were in the habit of going to and coming from, it would be almost impossible but that the proprietors would become acquainted with that practice. And the second question immediately follows, 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. My Lords, I have come to the conclusion that it would be impossible to sustain that contention. However goodnatured 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; but I look in vain throughout the whole of this evidence for the least intimation of any effort on the part of the proprietor to impose upon those persons who were using this road, which was a wild mountain road, and one unfrequented no doubt on ordinary occasions, any kind of hindrance which could be removed by his permission.

Under these circumstances, my Lords, I cannot but feel that the observations made by the Lord Justice-Clerk and Lord Craighill are well founded; and apart altogether from what I should certainly regard as absolutely insufficient to establish any such right, namely, the evidence of the occasional and rare use of this road by travellers passing through, or botanist excursions, or the use by friends and neighbours, who are clearly proved to have used part of the road, and might very well be supposed to use that part of the road without any supposed right to traverse it from end to end, apart from all that class of evidence, to which I think Lord Young's observations apply with great force, I cannot reconcile this market user, which was of necessity from one end to the other, because it was from one market to the other, and which was continuous from year to year on the particular occasions whenever a market was held, with anything but the existence of a public right, and under those circumstances I move your Lordships that the judgment of the Court below be affirmed, and that the appeal be dismissed with costs.

Earl of Selborne—My Lords, I entirely agree, and I am so well satisfied with the reasons given by the majority of the Judges in the Court below and by the Lord Ordinary that I do not think it necessary to say more than a very few words.

It appears to me, in the first place, that the evidence is as great in quantity and as cogent in its effect as could be expected under the circumstances of the place and of the country if the right did exist and had existed from a very remote period, and that being so, I think it would be rather alarming if without evidence of some kind to counterbalance the impression so made the evidence given were held insufficient, because it would follow from that that practically under such circumstances no amount of evidence at all would establish such a right. Well, is there evidence to counterbalance it? I own that I think there is none.

Now, when you have the fact of user of a road of this description in the manner and to the extent which would be the natural consequence of its being a matter of public right, and that fact proved by a sufficient amount of evidence, how is that to be met? According to the well-known text of the civil law a claim of right of this kind will be repelled if it is shown to have been enjoyed either vi (which is out of the question here, for certainly there has been no force) or clam (which I think is equally out of the question, for whatever use there was was so public that it must have been known) or precario; and that is the real question here. What is suggested by Lord Young is that it is consistent with the evidence in this case that what was done should have been done precario—that is, by sufferance, by virtue of leave and licence from time to time on each particular occasion, to those who would otherwise have been trespassers. Now, I confess that upon such evidence as we have here I think that is a strong proposition unless there are some definite facts brought forward in support of it. When I speak of “such evidence as we have here,” I refer more particularly to those things which are most unequivocal, that this passage has taken place along a definite track (I think the evidence shows that even at the point where it is least definite, namely, towards the summit at Jock's Road, the boulders have been cleared away, and there is a sort of ladder or staircase in the rock, such as most people are familiar with in very mountainous districts and countries) from one public terminus to the other public terminus, there is a known line of passage and a definite track. It is not as if people make their own way, one in one direction and one in another; but the evidence appears to me to show without controversy or contradiction that this is a definite passage between one public terminus and another, which according to the law of Scotland is necessary to make a public way; it must be a sufficiently definite track. Then, in the next place, although except at certain periods and for certain purposes the use of it may be so casual that if that had

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