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Caithness Field Club

Rights of Way
Mrs J Campbell

Scotland has a great heritage of rights of way but this heritage can survive only through increasing vigilance on the part of the public.

Trespassing, in the sense of simple passage over the land of another, is not, in itself, an offence or grounds for civil action in Scotland although if a trespasser does any damage he is liable for making that good. But no proprietor may molest or obstruct the path of a user of a right of way.

Formerly, the law of the rights of way was almost entirely governed by common law, but now a number of recent statutes have been passed which more clearly provide for the protecting of public rights of way in the Scottish countryside. The most important of these is the Countryside (Scotland) Act 1967 which. among other things, laid a positive duty on local authorities to safeguard public rights of way.

The definition of a public right of way is a right of passage open to the public at large, over private property by a route, more or less, defined. They can be of various kinds which can be roughly categorised into vehicular routes, drove roads, and footpaths.

Most Scottish rights 'of way have their roots deep in the past, and all have their. origin in the public need for a route from one place to another, whether for vocational, religious, recreational, or other purposes.

There are four essential elements of a public right of way at common law. These are:

  1. it must have been used by the general public for a continuous period of not less than forty years;

  2. the use must be a matter of right and not merely attributable to tolerance on the part of the proprietor;

  3. it must connect two public places or places to which the public habitually and legitimately resort, and

  4. it must follow a more or less defined route.

The use for a period of forty years is known as the prescriptive period. It is not necessary that they be the last; forty years - it is sufficient that the route has been used at any time within the past forty years. The use for the forty years must be uninterrupted and any action by the proprietor which effectively closes the route, even for a short period may, if acquiessed in, prevent the running of the prescription. It is to prevent the running of this prescriptive period that proprietors sometimes make a habit of locking gates across a route for one day each year.

The route must connect public places. Typical examples are public roads, churches, burial grounds, ferries, and harbours. The seashore is public only at places to which the public are in the habit of resorting, although the public have an inalienable right to walk anywhere on the foreshore i.e. below high-water mark.

The route connecting the termini must be reasonably well defined. It is not necessary that there be a visible track or that the route be marked in any way, but it must be shown that the public have followed a more or less consistent and generally defined route. Minor deviations are of no importance. Deviations may be necessitated for example, by a change in the course of a river where the right of way follows the bank, or by a 1andslip where the track is along a cliff edge.

The track must be capable of use from end to end. The fact that a public road is created along the line of an old right of way does not extinguish the right of way as the public road may be closed but the right of way persists. Where, by consent, an alternative route has been substituted for an existing route it is permissible, in calculating the period of prescriptive use, to count the periods for which both routes have been used.

Any member of the public who can show an interest may bring an action to vindicate a public right of way. The interest need not be substantial, and generally speaking any resident in the neighbourhood is entitled to bring an action. The Scottish Rights of Way Society Limited, which exists for the protection and defence of rights of way, has brought a number of actions to vindicate routes threatened with closure. There is also a duty on local authorities to protect public rights of way within their own areas.

The appropriate way of vindicating a right of way is by action of declarator that a right of way exists. Such an action may be raised either in the Court of Session or in the Sheriff Court.

The evidence which is required is evidence that the route in question has been used by the general public without interruption for a continuous period of forty years and that such use continued up to a date not more than forty years previous to the date of the action. It is very unlikely that the existence of a right of way will be recorded in the title deeds of the property. Most rights of way can only be established by the verbal evidence of witnesses who have themselves used the route or know, from their own personal experience, of its use for the required period: When it becomes a matter of reaching back beyond living memory in order to ascertain the more remote history of the route, hearsay evidence will normally be accepted, i.e. the evidence of which persons now dead have told the witnesses concerning it. Old maps, guide books., and records may offer valuable evidence, but the important and indeed essential evidence is that of the "oldest inhabitant".

The proprietor of ground traversed by a right of way is under no obligation to maintain or repair the route. He may, if he wishes, fence it off from his other ground provided he leaves a sufficient track for whatever type of traffic is entitled to use it. The public may, if they wish, repair a right of way though they may not, in so doing, damage the owner’s property. The public right would extend to such operations as cutting back bushes, improving marshy places, bridging streams, erecting stiles and generally to any operations which would improve the right of way.

Under a number of statutes local authorities and, under the Countryside (Scotland) Act, any person with the consent of the local planning authority may erect and maintain guideposts and direction posts upon any right of way. The Scottish Rights of Way Society has, with the co-operation of local .authorities, erected several hundred guideposts throughout the country. The type of signpost now being erected conforms to the pattern laid down by the Scottish Development Department. Obstructions may not be placed across a right of way but the proprietor has the power at any time to erect gates provided they are reasonably necessary and can be opened and shut without difficulty. It is the responsibility of the users of the right of way to see that the gates are shut after use.

The remedy where the proprietor infringes the public right of way is simple. Any member of the public may, without prior notice or protest, remove as much of the obstruction as is necessary in order to restore free passage to the public, the only condition being that the action must be taken within a reasonably short period following the erection of the obstruction.

Other less obvious forms of obstruction are misleading notices such as "private road", "trespassers will be prosecuted", and "no dogs allowed" a walker being entitled to be accompanied by his dog provided it is kept under control and does no damage.

The remedy in such a case is the erection of another signpost supplying the correct information.

Rights of way may be extinguished by the operation of common or statute law. At common law prescription operates to extinguish a right of way when it has fallen into disuse for a period of forty years. The disuse must be with acquiessence of the public. It is important that the public should realise that a right of way need not be considered lost until the lapse of forty years without exercise of the public right and appreciation of this fact followed by resolute action by the public, could save many routes for the walker.

A right of way can be extinguished by statute when it appears to the local authority that a public path in their area should be closed on the grounds that it is not needed for public use.

Scotland, unlike England, has no procedure for the registration of public rights of way which accordingly are not shown on Ordnance Survey maps of Scotland but there are provisions now under the Countryside Act for records to be prepared. Anyone who takes an intelligent interest in his local countryside can help by using at least once a year, all rights of way known to him. This must be from end to end to maintain the whole right. He can also report to his local authority any threatened loss or obstruction of a right of way.

Published April 1974