Robertson and Others v. Duke of Atholl and Others [1905] ScotLR 43_173 (23 November 1905)

Robertson and Others v. Duke of Atholl and Others [1905] ScotLR 43_173 (23 November 1905)

With the abandonment of the alternative conclusion regarding Santa Crux Well, the remaining issues are questions of fact as to the existence of public rights-of-way, which according to settled practice should be tried by jury. There is no sufficient complexity or legal difficulty to justify deviation from this...

Source-derived case information.

Citation
[1905] ScotLR 43_173
Parties
Pursuers (reclaimers): Robert Robertson, Reverend John White Hamilton, John Murray; Defenders (respondents): Duke of Atholl, Charles Edward Stuart Chambers of Cardney, Frank Balfour of Kindrogan, Trustees of the late Charles Trotter of Woodhill
Jurisdiction
Scotland
Judgment Date
23 November 1905
Procedural Posture
Action of Declarator of Right of Way / Reclaiming Motion (appeal) Against Interlocutor Refusing Jury Trial and Allowing Proof Before Answer
Outcome
Interlocutor of 4th July 1905 recalled; defenders assoilzied from alternative conclusion; pursuers appointed to lodge issues for jury trial; no expenses due to or by either party since 4th July last.
Legal Topics
Right of Way, Declarator, Jury Trial Versus Proof Before Answer, Public Rights Over Private Land
Property Law Civil Procedure Right of Way Declarator Jury Trial Versus Proof Before Answer Public Rights Over Private Land

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Robert Robertson, Reverend John White Hamilton, John Murray

Pursuers (reclaimers)

Duke of Atholl, Charles Edward Stuart Chambers of Cardney, Frank Balfour of Kindrogan, Trustees of the late Charles Trotter of Woodhill

Defenders (respondents)

Procedural Posture

Action of Declarator of Right of Way / Reclaiming Motion (appeal) Against Interlocutor Refusing Jury Trial and Allowing Proof Before Answer

Legal Issues

  1. 1 Whether the case should be tried by jury or by proof before answer
  2. 2 Whether the right-of-way claimed is sufficiently identified and suitable for jury trial
  3. 3 Whether the complexity of the routes or the nature of the evidence justifies deviation from settled practice

Ratio Decidendi

With the abandonment of the alternative conclusion regarding Santa Crux Well, the remaining issues are questions of fact as to the existence of public rights-of-way, which according to settled practice should be tried by jury. There is no sufficient complexity or legal difficulty to justify deviation from this practice.

Court Disposition

Interlocutor of 4th July 1905 recalled; defenders assoilzied from alternative conclusion; pursuers appointed to lodge issues for jury trial; no expenses due to or by either party since 4th July last.

Orders

  • Recall interlocutor reclaimed against
  • Assoilzie defenders from alternative conclusions of the action