Head 25: Public Rights over water and land

Question 1

Gloag v Perth & Kinross Council 2007 SCLR 530

Answer 1

 Mrs Gloag sought a declarator that 14.5 acres of her estate around her castle were exempt from access rights.
 The local authority as the body which is responsible for upholding access rights, was the defendant in this case.
 The sheriff held in favour of Mrs Gloag and 14.5 acres was held to be exempt.
 It was reasonable for a house of that size to have that level of privacy around it.

Question 2

Tuley v Highland Council 2007 SLT (Sh Ct) 97 rev’d 2009 SC 456

(s.3 and s.14)

Answer 2

 They were happy to allow the public to go through the woodland but they marked certain routes as not suitable for horses, as they were liable to erosion ect,
 This was challenged before highland council who said that horses should be allowed.
 This was overturned in the Court of Session. Court of Session held it was reasonable to restrict access rights to certain routes.

Question 3

Cumbernauld and Kilsyth DC v Dollar Land (Cumbernauld) Ltd 1992 SLT 1035 affd 1993 SLT 1318

(Public right of way - common law)

Answer 3

 Involved an elevated and enclosed heated walk way linking two parts of Cumbernauld separated by a main road.
 The new owners of the walkway decide to lock it at night because of vandalism.
 However much evidence was brought forward of the public using it at all times of the day.
 Held that a public right of way was established so they could not lock it.

Question 4

Aberdeenshire County Council v Lord Glentanar 1999 SLT 1456

exercisiing right of way - common law

Answer 4

 This case was actually from 1930 that was not reported for 70 years,
 The issue was whether a use of a bicycle along a route could establish a vehicular right of access.
 Courts said no.
 Judge said that a bicycle was simply an aid to pedestrianism.

Question 5

Brown v Lee Constructions Ltd 1977 SLT (Notes) 61

Tresspass

Answer 5

 The owner of a house and garden adjacent to a building development petitioned the court for interdict against a firm of contractors who had erected a tower crane on the development site from operating the crane so that any part of it passed over his property.
 The owner of the house had not given the crane operators permission to do such.
 HELD, interim interdict awarded.

*The fact that any trespasses are trivial does not excuse the offence of trespass but it will have an effect on the remedy given.

Question 6

Inverurie Magistrates v Sorrie 1956 SC 175

Tresspass - interdict

Answer 6

 The respondents owned a golf course and two fields and alleged that the appellant had exercised racehorses on their land. The appellant denied the trespass, but claimed that in any event he had a right to exercise his horses on the land. On the taking of the evidence the respondents failed to prove any trespass and the appellant failed to prove his alleged right.
 The court of Session, Inner House, held that in the absence of any actual trespass or explicit threat to trespass the mere claim of a right during an action would not reasonably infer an intention to trepass, so that no interdict against the appellant should be granted.

Question 7

Harvie v Turner (1915) 32 Sh Ct Rep 267.

Answer 7

 2 adjacent fields owned by two different owners.
 1field contained a large group of cows.
 The other field contained a single Bull.
 The owner of the field with the cows on it told the owner of the field with just the bull in it that he had some concerns over the possibility of the Bull entering his property and suggested the Bull owner take necessary steps to avoid this.
 Bull got over the fence and “served the cows” resulting in unwanted cross-bread calves.
 Held that damages were granted.
 The damages were foreseeable and the owner of the Bull was negligent.