Remedies to establish the existence of a public right of way

The appropriate form of action to establish the existence of a public right of way is usually one declarator, which may be raised in either the Court of Session or the sheriff Court within which the route is located. The action is an actiopopularis and should be raised by or against the owner of the solum and not, for example, by a tenant. The Statute gives the local authority a right to be sisted as a pursuer or defender. If the existence of the right is not in issue, but the case involves only the question whether or not something is an obstruction, the action may be in the form of interim interdict or interdict. Because the issue of whether or not there is a public right of way will usually arise in the context of an alleged obstruction, the action may also have craves for interdict or interim interdict.

The remedies available for interference are as follows:

SELF HELP

The availability of remedy of self-help is not entirely without doubt, but if it is available in the case of obstructions and encroachment of a public right of way, the remedy must be exercised immediately. In Burt vs Barclay Lord President McNeill said:

"No doubt, if an obstruction to be put up on a road, and a party at once breaks it down, he may perhaps be justified, but hear the fences have been up for a considerable time." However, in one case where a landowner had permitted a route to be constructed through his lands and the road had been used for three years, it was held that he was not entitled to set it up ex propiomotu, on an argument that there had been a breach of the conditions upon which he had given his consent.

INTERDICT

Interdict maybe sought on either a possessory or a petitory basis. In a possessory action, the remedy is short on the basis only of possession, whereas in a petitory action the remedy is sought on the basis of right. Interdict may be sought by any member of the public against obstruction of a public right of way by the owner of the solum, or by the owner of the solum against members of the public using a route which is not a public right of way. The remedy ought to be used where there is interference with possession and where there is a threat that the interference will continue or be repeated. While interdict is usually sought in respect of an obstruction of a public right of way, it is also competent to prevent other activities, which amount in law to a nuisance, and Surya enter the use of the public right of way impossible or more dangerous. If a member of the public has suffered loss or has been injured by the obstruction of the public right of way, an action of interdict may be combined with damages.

POSSESSORY REMEDIES

The possessory remedies may be based on an apparent title, or at least a better title than that of the challenger, need not have any regard to the previous state of possession. The possessory remedies to obtain a judgement based on seven years' possession without having to determine title in anyway.

In order to succeed in such a possessory action, it is necessary to prove the following:

• That there has been possession over a seven year period.
• That it has been in good faith, at least as against the challenger
• That it has been continuous, without violence, not clandestine, not precarious and not unlawful
• Not interrupted

It is unnecessary to go into for the detail, except to observe that it is not necessary to show any written title on the part of the pursuer who, if a member of the public, would not have one, and that any degree in a possessory action is generally not res judicata in any process to determine questions of title.

TRESPASSERS COMMITTING OFFENCES 

It is permitted that Senior Police officer present to direct two or more persons, who are reasonably believed to be trespassing on land for the common purpose of residing there for any period, to leave the land. He is entitled to act if the occupier has taken reasonable steps to ask them to leave and

• Any of the persons has caused damage to the land or has used threatening, abusive or insulting words or behaviour towards the occupier.
• The persons on the land have between them six or more vehicles on the land. The police officer may direct the persons to remove vehicles or property from the land.

An occupier of land is the person lawfully entitled to natural possession, while a trespasser is someone who is on the land without lawful authority and without the occupier's consent. Although the term "damage" is not defined, it includes the depositing of any substance which could pollute the land.

So far as rights of way are concerned, if a user fails to comply with a direction, he will be deemed to be trespassing. The mere use of a public right of way will not be a contravention, but use in addition to some unlawful activity would be.

It has been held recently that it is not necessary for the prosecuting authorities to prove the ownership of the land, in a situation in which there were two people who gave evidence that they had not given permission to be there to those on the land. Those on rights of way could therefore be trespassers, not just by being on the route but if they offend against the provisions. The offence of aggravated trespass is committed if a person trespassers on land and does anything which is intended to have the effect of either intimidating those who are engaged in lawful activities on the land or obstructing or disturbing those activities. A constable has the power to arrest anyone whom he reasonably suspects is committing an aggravated trespass. Those using public rights of way should be aware that it creates possibility of increase confrontation between landowners and users of these routes, for example where the owner puts up misleading notice such as "Trespassers Will Be Prosecuted" or indicates that there are periods during which a right of way may not be used, and uses of the right of way persist in using it.

By: Navin Kumar Jaggi & Sayesha Suri