BASIS OF PUBLIC RIGHTS OF WAY
In Mann vs Brodie, Lord Watson suggested that the basis for the constitution of a public right of way by prescription was nothing other than continuous user over the prescriptive period. In doing so, he dismissed the views of others that the basis is presumed consent, or presumed grant, and we respectfully agree with the view which Lord Watson expressed and it is one of which we adopted in the context of servitude rights.
In examining the basis for constitution of public rights of way, it is strange that Ferguson considers only two possible methods for constituting one, namely express dedication and prescription. He does not mention the approach taken by Napier, namely that rights of way (or possibly only public rights of highway) are part of the jus coronae, or indeed Mann vs Brodie, but rather espouses the view of Lord Justice-Clerk Hope in Napier's Trustees vs Morrison that the basis is possession, leading to an interference that a grant had been made at some time. This approach is inconsistent with that of Lord Watson in Mann vs Brodie that is more representation of the law of Scotland. However, as Ferguson accepted, express dedication is unlikely, but it has been recognised in reported cases as one method of constitution, and something akin to it can be seen in the constitution of routes such as the West Highland and Southern Upland Ways.
Until the eighteenth century, the most frequently used roads were drove roads, but in the late seventeenth century a series of acts were passed requiring tenants, cottars and servants to contribute labour for the maintenance of roads - "statute labour roads".
So far as rights of way are concerned, it is difficult to identify these as distinct from highways in earlier times but, according to the Scottish Rights of Way Society Limited, reporting in 1995 after 150 years in existence, there are now 9584 public rights of way in Scotland.
HIGHWAYS AND PUBLIC RIGHTS OF WAY
Each is used by the public to go from one public place to another and the solum of the road or public right of way remains with the original proprietor.
Use by Public: The institutional writers mention highways, or the king's highway, and make it clear that these routes are open to all. They are mentioned by institutional writers in the context of other public rights, which are part of the regalia majora. Stair gives two examples of a right of way, only a route from one burgh to a public port, and Brankton mentions highways leading to and from market towns tuition and sea ports.
Public Termini: It is clear from what has been said that highways, lead from one public place to another and this is also one of the requisites of a public right of way.
Solum: So far as the ownership of the solum of highways and public rights of way is concerned, at one time, the sola of both were thought to belong to the public, as can be seen in passages from the institutional writers and reported cases. It remains possible that land for a road has been acquired by a road authority buy modern procedures such as compulsory purchase, in which case the right of dominium will belong to the roads authority.
Acquisition- several of the institutional writers have classified the right of highway as being within the regalia majora or as res publica. There are judicial dicta to similar effect. The exact meanings of these terms are unclear but both relates to the basic notion that the right of Highway is held by the Crown in some form of trust for the general public. In Mann vs Brodie, Lord Watson seemed to indicate that a right off highway could be acquired by prescription. As the ownership of the solum vests in the co-terminous proprietors, provided they have habile title right of highway can presumably be acquired by Express grant.
Termination- right of way may be lost by non-use over the prescriptive period of 20 years. The view that can be taken is that a right may be lost bye abandonment, as maybe the case where the land subject to a public right of highway has been altered to such an extent that physical exercise of the right is impossible.
Ancillary right- while there is authority in England for the view that anyone using the highway for anything other than passing and repassing is trespassing, this is not the position in Scots law. However, a public right of way is limited to passing and repassing and, thus, the right to place stances for cattle on rights of way is not recognised in Scots law.
Obstruction- while the public right of way is for passing and repassing, it is nevertheless recognise that the owner of the solum may erect gates, or stiles, provided that they do not interfere unduly with entitlement of the public to access and egress. Where there is an obstruction, the onus is on the owner of the land to justify its presence and there is authority for the proposition that an obstruction may be pulled down if it obstructs a public right of way.
SERVITUDES OF WAY AND PUBLIC RIGHTS OF WAY
Public rights of way resemble servitudes of way in that the function of both is similar, i.e. providing access. However, it would be a mistake not to recognise the essential differences between the two, which are as numerous as the similarities. We have touched on this point in relation to servitudes, but it is useful to restate the position here. In Thomson vs Murdoch, Lord Deas mention five points of distinction, and fifo Only four of which remain. These are:
1. The title to sue in a right of way lies with every member of the public; in the case of a servitude, it lies only with the proprietors of the dominant and servient tenements;
2. The effect of the action is different in that in the case of a public right of way, the degree granted is res judicata for or against the whole public; in the case of servitude, it is res judicata as between the owners of the dominant and the servient tenements and their successors and is not binding on anyone who was not party to the cause;
3. The public right of way is for the public; a servitude is not; and
4. In the case of a public right of way both termini must be public places; in the case of a servitude, neither need to be a public place. (The Fifth distinction related to the jurisdiction of the sheriff.)
In addition, a public right of way only a servient tenement whereas a servitude right has both a dominant and servient tenement. Lord Curriehill also commented on the differences. He mentioned two others, namely proof and remedies. As Rankine observed, however, Lord Curriehill is not to be taken to mean that visitors cannot use a servitude of way, nor that the owner of the solum of a public right of way is under any obligation to ensure that the route is fit for all public purposes.
Navin Kumar Jaggi