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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Melfort Pier Holidays Ltd v. The Melfort Club And Others [2006] ScotCS CSOH_1 (25 August 2006) URL: https://www.bailii.org/scot/cases/ScotCS/2006/CSOH_1.html Cite as: [2006] ScotCS CSOH_1, [2006] CSOH 1 |
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OUTER HOUSE, COURT OF SESSION [2006] CSOH 1 |
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A40/06 |
OPINION OF LORD HODGE in the cause MELFORT PIER HOLIDAYS LIMITED Pursuers; against THE MELFORT CLUB AND OTHERS Defender: ญญญญญญญญญญญญญญญญญ________________ |
Pursuers: O'Brien; Digby Brown SSC
Defenders: Barne; Morisons
Background
The motions
[10] In support of his first submission Mr Barne referred me to PIK Facilities Limited v Watson's Ayr Park Limited [2005] CSOH 132, Rankine "Landownership", (4th ed), Chapter 19, McRobert v Reid 1914 SC 633, MacKinnon v Argyll and Bute Council 2002 SLT 1275, and Cusine and Paisley, "Servitudes and Rights of Way", paragraphs 18.03 and 18.05. In support of his second submission he referred me to Forbes v Forbes (above), MacKenzie v Bankes (above), Kenneth Reid's "Law of Property", paragraph 505, Cusine and Paisley (above), paragraph 20.31 and Lord Donington v Mair (1894) 21 R 829. He supported his third submission by referring to PIK Facilities Limited (above), Cusine and Paisley (above), paragraph 20.01, and Magistrates of Edinburgh v North British Railway Company (1904) 6 F 620.
Decision
[15] Against that case Mr Barne advanced the other two of the
three propositions which I set out in paragraph 9 above. In relation to the submission that the public
road was a highway and did not have the rights which a public right of way
entailed, I am not satisfied that the authorities which he cited vouch that
distinction. The case law and textbooks
use expressions such as "highway" and "public road" in contexts which reveal
that the terms have no fixed meaning as to the rights associated with each. In many statutory provisions, cases and texts
a distinction is drawn between a highway or public highway that is maintained
at public expense and a public right of way which is not: see the statutory
provisions referred to in Magistrates of
Perth v Earl of Kinnoull 1909 SC
114, Corporation of Glasgow v Caledonian Railway Co 1908 SC 244 and
1909 SC (HL) 5, and Evans v Magistrates of Edinburgh 1916 SC (HL)
149. Rankine (above), p.329,