The Sun.
London, England, 1852-06-05 00:00:00

bßut3- the law ofwSacsotlnanod, such
themo mode
publicrestablishing
generally.
a r
right
therefore, the question is whether the.
thism be not in ac-
ode adopted in
the
law of no
'Sjeat:t IfaGl : I
I, there was no other
aparhehsee present
with
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c
mode of which he was aware by which a
Person
merely a right generally could try thequestion.Pers who had
admitted that the right of way contendedj r was
fo lt
was
rightas w
in the public generally ; it would, therefore, seern
fellow that every man was entitled to vindicate his right.
It was not denied that he might do so in the case of any
special obstruction, but the question was whether he
could by the law of Scotland do so by action of deele-
rater. Why should he not ? There might bo incon-
venience in doing so, but that would arise from the de-
fect of the law itself in no; having a remedy by indict-
ment ; but that defect could not take away the right.
It was not denied by the appellant that a great many
people can exercise the right, but it was attempted to
limit to certain classes of the public the right of vindi-
citieg. a public right of reed. It would be rather sin-
gular if the law of Scotland had placed any limit on this
right to vindicate. In the course of she argument,
when this was so strongly insisted on, he had
requested the Learned Counsel to hand up in
writing the propositions contended for us based on
the authorities. To this he should presently refer ;
but he would see bow !Wood the authorities. It was
contended that all the canes cited only showed is right
on the part of the public to a certain extent, inasmuch
as in these cases the decisions were in favour of certain
individuals or classes interested, to institute an action of
this sort. Theo the question was, could it he lsgicetly
said that the right could only be -maintained by per sous
having immediate connexion with the road? If there
was to be a limit of the right, then what was to be the
limit? Was it to be a yard or a mile? Where were
you to draw the line? But in the appellant'e argument
on the authorities it was contended that a case could
not be shown in which a man simply as a member of the
public had maintained the right. But he asked, was
there any care in which it had been denied, and the
answer was " No." The authorities, case by case,
showed that the right of vindicating a public right had
been maintained, and they wore all agaiust the appellant.
The authorities cited failed to show that there was any
limit is the right. That the exercise of such a right
might be attendetwith inconvenience he was ready to
admit, but it could hardly be called a practical one—in-
convenience had not resulted in practice. And he really
believed that it never would do so, for men would not
go to try actions of deciarator of this nature who were
not naturally connected with the locality. There could
be little doubt that the application of the law would be
confined to those persons who, according to the admis-
sion at the bar, were clearly entitled to maintain an ac-
tion. Inconvenient, it might, no doubt, be for persona
who had no connexion with a locality to bring actions
of this kind, bat the danger was as great, or greater, on
the other side as shown in Campbell's case (as we under-
stood) cited in the course of the argument, were an
owner of land may maintain an action against the pub-
lic. But a court of law could not be supposed to deal
with extraordinary imaginary cases of this nature—a
nature not very likely to arise. If there was any abuse
of the law it would be sure to be corrected. Suppose,
for instance, that the appellant had brought an action of
deciarator, with some view of obtaining a decision
against the right of the public to we the road in ques-
tion (and were there any persons he would have been
more likely to fix on than the present pursuers?) no very
serious inconvenience could have resulted. An action
might be brought, but the question would come
before a jury, end then there would be very consider-
able damage to the persons who instituted au
improper action. He then came to the question
whether this right of vindicating a public right by action
was one that should be extended to the public generally,
assuming for the moment that the question was
actually belle the House. He thought there could be
very little difficulty in disposing of that point. In the
case of " Tait and Others v. the Earl of Lauderdale"
(5, Shaw, p. 330), a great deal Of discussion arose
whether servants were excluded—that was a case where
a road having been abut by a decree of the justices, a
summons of reduction of the decree was brought by
nineteen persons, of whom ten described themselves as
being " servants " in Lauder and its neighbourhood.
Servants, not householders, were held to have no title.
But be could not see how that case bore on the present
point. It only went to show that a particular class of
servants did not form members of the public, that is to
say, that the public are a more limited class. As re-
garded the question of public right, the question
just stood where he did before. Tait's case, however,
had an important bearing on the general question.
Several of the pursuers there were described as being
merchants in Lauder, and it was impossible to read the
opinions of the Learned Judges without coming to
the conclusion that the right to bring the action
was acknowledged, not simply because the pursuers were
merchants in Lauder, but, being merchants there, that
they:were a part of the public, and. had:a right to sue.
Every case cited was, in his opinion, in favour of the
pursuers right,. and against the appellant. When the
Learned Counsel were asked the question, they said the
right must be either patrimonial or local; and they
seemed very much disposed to contend that it was
a servitude. It was no such thing. A servitude was
one thing, a right of road another. It had nothing to
do with a dominant tenement or a servient tenement;
but the question was whether the road had been dedi-
cated to the use of the public. If it had been so dedi•
sated, why should the public not have the right to sue?
That this was a patrimonial right could not possibly be
maintained. That it was merely local was equAlly un-
tenable, seeing that it was impossible to fix the limit.
When he asked the Learned Counsel at the bar to state
the bearing of the authorities on this question of limit
it was said, in the first place, that these authorities
had not determined the extent of locality
or precise limits, but that the Court had ne-
gatived the right of the subjects of the realm
generally to sue. Now, that was not correct, for
the Court had not negatived the right as stated, and
they had certainly done nothing to show a limit, as
each case was in tatiour of the pursuers. It was next
said that if the limits were now for the first time to be
defined, it must be to persons adjoining the locality (so
we understood his Lordship). It was only necessary to
hear the propositions that were contended for sit the bar
to see that the question of limit was not a matter capa-
ble of being settled into a rule. And indeed why should
such a rule be established? If it it found that the inha-
bitants of a particular town or distract have a right, why
orhow should any limit be placed on the exercise of the
right because some of them may be beyond an imaginary
circle? It seemed to him:quite clear that any attempt
on the part of the appellant to limit the right to sue on
local grounds had failed; that it was a contention that
could not be maintained. He did not apprehend that an
affitmation of the interlocutor of the Court below would
in any way prejudice the question on its merits, for the
question would just stand as it stood when it first came
to the bar of their Lordships' House. The Noble and.
Learned Lord concluded by moving that the interlocu-
tors appealed from be affirmed and the appeal dismissed
with costs.
Judgment accordingly.