RODGERS & Ors v HARVIE (Court of Session)

This was an action of declarator, at the instance of the pursuers, of a right to a public foot-road, over the lands of the defender, along the banks of the Clyde from Glasgow to Carmyle; in the course of which the following issue was adjusted and tried in the Jury Court, viz. ‘Whether for forty years and upwards prior to the months of March, April, or May 1822, there existed a public foot-path, or foot-road, along the right bank of the River Clyde, from the city of Glasgow, from the place called the Green to the village of Carmyle, situated on the said bank of the said river.’

On the trial, the evidence led for the pursuer (appearing on the bill of exceptions) went back about 70 years; from which time, and downwards, it appeared, by the testimony of several witnesses, that they had been in the constant practice of using the said foot-path as a public road without any interruption, and that it was so considered and used by the public at large.

The defender led evidence to shew that he and his predecessors in the lands had been in the practice of attempting to interrupt the public of late years, and that they had often succeeded in doing so; but the oldest of these alleged acts of interruption did not go further back than thirty-three or thirty-four years from the date mentioned in the issues.

The Court , after hearing counsel, unanimously refused the bill of exceptions, upon the ground that, assuming that it had been proved to the satisfaction of the jury that a public road had existed seventy years ago, or beyond the memory of man, the direction given to the jury was correct in stating that such right could not be defeated except by interruptions either going back beyond the period of forty years, or submitted to, and acquiesced in, by the public.

Act. Jeffrey, Penny. Alt. Dean of Fac. (Moncreiff) Skene. J. C. Wilson, W. S. and M'Millan & Grant, W. S. Agents. M. Clerk.