Act: Hanretty, Q.C., O'Brien; Digby Brown, SSC (Pursuers and Respondents)

Alt: Woolman, Q.C., Barne; Morisons, LLP (Defenders and Reclaimers)

7 December 2006

[1] This is a reclaiming motion by the defenders from an interlocutor of the Lord Ordinary, Lord Hodge, dated 25 August 2006 by which he varied by extension an interim interdict pronounced by Lord Menzies on 25 January 2006 and granted interim interdict in the extended terms. The reclaimers also seek to bring under review that earlier interlocutor. The Lord Ordinary pronounced interim interdict having formed the view that the pursuers had set out a prima facie case and that the balance of convenience favoured the granting of the order sought.

[2] Before us Mr. Woolman, for the defenders, did not seek to argue that the balance of convenience favoured denial of the order. His submissions were based solely on the proposition that the pursuers had failed to set out a prima facie case.

[3] The circumstances in which the dispute has arisen between the parties are set out in paragraphs [2] to [5] inclusive of the Lord Ordinary's Opinion, the terms of which are to be read as repeated herein brevitatis causa. Mr. Woolman rested his submissions on two interrelated propositions, first, that no public right of way could be constituted in the present case because there were not two public termini by which long vehicles entered into and exited from the driveway and, second, that there was no warrant for holding that there was a right over the driveway which could be classified as an adjunct to the public right of passage over the public road. The Lord Ordinary had, in paragraph [13] of his Opinion rejected a submission that, absent the operation of prescription, a public road could be extended into a private driveway as a matter of right when larger vehicles started to use the road - simply on the basis that it was possible that such vehicles could use the public road, which otherwise would not be passable, by encroaching on to and manoeuvring on the driveway.

[4] The Lord Ordinary later addressed a submission by the defenders that ,even if prescriptive user had taken place (as the pursuers offered to prove), a public right of way could not be established over the driveway because they were not two public termini. At paragraph [18] of his Opinion he said, with reference to that submission:

"There is no doubt as to the rule that in order to set up a route as a public right of way the route must have two public termini ... Nor is there any doubt that one can have a public right of way from one part of a public road to another part of the same road ... It appears to me that the reason for the rule is that the right of the public to go onto private land does not extend to allowing the public to go across the land for recreation".

In respect of these propositions he quoted a number of authorities. He also referred to an observation by Lord Kinloch in the case of Duncan v Lees (1870) 9 Macph. 274 where he said "the legal object [of a public right of way] is transit, not amusement". The Lord Ordinary continued:

"Where, however, there is a public road and the users of that road encroach upon a small area of private land when traversing the road for the prescriptive period, I consider that it is arguable that their so doing could create a public right of way over the area of private land. The right of way would be an adjunct to the public road. In the present case it is not likely that the wheels of large vehicles which enter the driveway to effect the manoeuvre will leave the driveway at exactly the same point as they entered it. Thus, while it is a technical point, the vehicle will usually move from one public place on the public road to another. I am not persuaded, therefore, that it is a legal impossibility for there to be a public right of way over the driveway as an adjunct to the public's right of passage over the public road. I therefore do not accept the defenders' third submission."

[5] Mr. Woolman drew our attention to various passages in Rankine on Land Ownership (4th edition) and Cuisine and Paisley - Servitudes and Rights of Way (published in 1998). These vouch the necessity of public termini for the constitution of a public right of way. If the 11 metre stretch of the driveway was, in association with the public road immediately at the entrance to it, taken in isolation, there would not be two public termini, only one terminus. He acknowledged, however, that, although there was no decision in point, there had been certain obiter opinions expressed to the effect that a public right of way could lead from one public place on a circuitous route to the same place (Cuisine and Paisley para. 20.21; Cuthbertson v Young (1852) 14 D. 300). If the pursuers were correct the proprietor of the private driveway up which members of the public regularly came to view his rhododendrons was at risk of conceding a public right of way. The existence of a public right of way did not give rise to rights in respect of adjuncts to it, even if those rights were necessary in order to give the right of way practical utility (Marquis of Breadalbane v McGregor (1850) 7 Bell's App. 43). It is also of significance that it was not all vehicles using the road which were unable to make the turn without encroaching on the defenders' property.

[6] Mr. Hanretty for the pursuers and respondents reminded the court that the law of Scotland had undergone a fundamental change by the enactment of the Land Reform (Scotland) Act 2003. To succeed in this reclaiming motion the defenders would require to demonstrate that the pursuers' case was fundamentally irrelevant. They had not done so. The authorities did not speak with a single voice and there were a number of issues of fact which required to be resolved by proof. There was no difference in principle between an encroachment of a metre or so and an encroachment of 11 metres. The Lord Ordinary's reasoning was open to two constructions, on either of which the pursuers were entitled to succeed. The reclaiming motion should be refused.

[7] We remind ourselves that this is a reclaiming motion from an interlocutor granting interim interdict. Although the Lord Ordinary's Opinion is detailed and learned he, wholly appropriately, does not seek to reach any concluded view on the interesting legal issues which arise in this case. Likewise, it would be inappropriate for us to express any concluded view on these issues. The Lord Ordinary's decision that the balance of convenience favoured the grant of interim interdict not having been quarrelled with, this court is concerned only with whether the Lord Ordinary was entitled to reach the view that the pursuers had made out a prima facie case.

[8] In our view the Lord Ordinary was well entitled to reach the view that where there was a public road and the users of it encroached for the prescriptive period upon a small area of private land when traversing the road, it was arguable that their doing so could create a public right of way over that area of land. We are less happy with his description of that right of way as an "adjunct" to the public road. Rather, the route involving the traversing of a small area of private land constitutes a variant to the public right of way along the public road. We are also doubtful about the Lord Ordinary's "technical point" in relation to the manoeuvring of a vehicle as it left and as it re-entered the public road. That approach tends to look in isolation at the route across the driveway as a right of way. The better approach is to view the larger picture of the public right of way being the public road as a whole, together with the variant sought to be established as a public right of way by reason of prescriptive user.

[9] For these reasons we shall refuse the reclaiming motion.