Midlothian Council v. Corolla [2004] ScotCS 256 (26 November 2004)

Midlothian Council v. Corolla [2004] ScotCS 256 (26 November 2004)

The pursuers failed to establish a prima facie case that a public right of way existed because Cortleferry Park was not a public place in law, being privately owned and leased for a restricted purpose, and the presence of a fence indicated no open and peaceable exercise of a right for the prescriptive period. Therefore, interim removal of the fences was refused.

Citation
[2004] ScotCS 256
Parties
Pursuer: Midlothian Council; Defender: George Crolla
Jurisdiction
Scotland
Judgment Date
26 November 2004
Procedural Posture
Interim Motion in Civil Action / Interim Hearing on Motion for Removal of Fences and Interdict
Outcome
Motion for interim removal of fences refused
Legal Topics
Public Right of Way, Interdict, Prescription, Access to Land
Property Law Civil Procedure Public Right of Way Interdict Prescription Access to Land

Case Brief

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Parties

Midlothian Council

Pursuer

George Crolla

Defender

Procedural Posture

Interim Motion in Civil Action / Interim Hearing on Motion for Removal of Fences and Interdict

Legal Issues

  1. 1 Whether a public right of way exists over the defender's land between Bonnyrigg Road and Cortleferry Park
  2. 2 Whether the pursuers have established a prima facie case for interim removal of fences obstructing alleged right of way
  3. 3 Whether Cortleferry Park is a 'public place' for the purposes of establishing a right of way

Ratio Decidendi

The pursuers failed to establish a prima facie case that a public right of way existed because Cortleferry Park was not a public place in law, being privately owned and leased for a restricted purpose, and the presence of a fence indicated no open and peaceable exercise of a right for the prescriptive period. Therefore, interim removal of the fences was refused.

Court Disposition

Motion for interim removal of fences refused