First Division of the Court of Session – A claim was made that a railway company, which was a statutory undertaker, was obliged to maintain a railway bridge over which a public right of way.
Held: There was insufficient evidence of public user for 40 years.
Also, the public could not acquire a public right of way over the railway by user because it was incompatible with the statutory purposes of the railway company.
Lord Kinnear stated: ‘I am of opinion, in the first place, that no right of way can be acquired by user over the line of the defenders’ railway, and especially at a point where the railway traffic is so great as on the main line close to Portobello station. It must always be presumed that if people having no statutory right of any kind have been allowed to cross the line, their passage is permitted only so long as it does not interfere with the purposes of the railway traffic. . . I am of opinion that no such right can be maintained, and that on the same principle on which it has been repeatedly held that a railway company cannot voluntarily grant a right inconsistent with the performance of the purposes for which it acquired its land. I assent entirely to the doctrine laid down by Lord Watson that the reference to the prescriptive right of way to an implied grant is a juridical speculation to account for an established rule, and not itself a rule of law. But at the same time I do not think it possible that a right of way which it would be ultra vires to grant can be lawfully acquired by user.’
Lord Kinnear, Lord President (Lord Kinross), Lord Adam and Lord McLaren
(1904) 6 F 620
Scotland
Cited by:
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
Lists of cited by and citing cases may be incomplete.
Land
Leading Case
Updated: 11 November 2021; Ref: scu.562183