Marquis of Bute v McKirdy [1936] ScotCS CSIH_3 (11 December 1936)

Marquis of Bute v McKirdy [1936] ScotCS CSIH_3 (11 December 1936)

The public acquired a right of way by prescription over the disputed track because the user was continuous, open, and as of right for well over 40 years, and not by mere tolerance; the foreshore at Scalpsie Bay is a public place by reason of long and regular public resort for recreation, satisfying the requirement for public termini.

Citation
[1936] ScotCS CSIH_3
Parties
Pursuer: Marquis of Bute; Defenders: M'Kirdy & M'Millan
Jurisdiction
Scotland
Judgment Date
11 December 1936
Procedural Posture
Civil Declarator and Interdict / Appeal (inner House, After Proof and Additional Evidence on Res Noviter)
Outcome
Declarator granted in part; right of way established; interdict refused.
Legal Topics
Right of Way, Prescription (acquisitive), Foreshore Access, Tolerance Vs. Right, Public Place Definition
Property Law Public Rights of Way Prescription Right of Way Prescription (acquisitive) Foreshore Access Tolerance Vs. Right Public Place Definition

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Parties

Marquis of Bute

Pursuer

M'Kirdy & M'Millan

Defenders

Procedural Posture

Civil Declarator and Interdict / Appeal (inner House, After Proof and Additional Evidence on Res Noviter)

Legal Issues

  1. 1 Whether the public has acquired a right of way by prescription over the disputed track to Scalpsie Bay foreshore
  2. 2 Whether Scalpsie Bay foreshore is a public place capable of being a terminus for a public right of way
  3. 3 Whether public user was as of right or by mere tolerance

Ratio Decidendi

The public acquired a right of way by prescription over the disputed track because the user was continuous, open, and as of right for well over 40 years, and not by mere tolerance; the foreshore at Scalpsie Bay is a public place by reason of long and regular public resort for recreation, satisfying the requirement for public termini.

Court Disposition

Declarator granted in part; right of way established; interdict refused.

Orders

  • Finding that the public has acquired a right of way on foot over the track from the public road to the foreshore at Scalpsie Bay by prescription.
  • Refusing the remaining parts of the declarator not already granted and all the interdict conclusions.