Acquiring rights of way by prescription
In Scots law, it is possible to acquire certain rights to land – access, for instance – simply by the passage of time. This process is known as “prescription” and is outlined in the Prescription and Limitation (Scotland) Act 1973.
There are two forms of prescription: positive and negative. Negative prescription extinguishes certain rights after a period of time. Conversely, positive prescription stipulates that, where someone has possessed land “openly, peaceably and without judicial interruption” on the strength of a valid deed for a period of 10 years, they will obtain good title to it. In this way, prescription can make a bad title good. Positive prescription also applies to the creation of servitudes and public rights of way. But in these cases, there must have been use of a servitude or public right of way for a period of 20 years before positive prescription will apply.
Prescriptive servitudes and public rights of way received particular attention earlier in the year in the case of Mr and Mrs B v Mr and Mrs C  SC FORF 27, which underlines the importance of the tests in the 1973 Act and supporting case law.
A right of way or a servitude?
Mr and Mrs B went to court to obtain a declarator that there was an established public right of way across the neighbouring woodland owned by their neighbours Mr and Mrs C, together with Mrs C's father. They claimed that they and others had used the right of way for many years for recreation.
The route of the claimed public right of way comprised a path running from the north to the south of the woodland. At either end of the path, access was taken by a gate. Mr and Mrs B argued that the path was a designated public right of way based on evidence, but Mr and Mrs C disputed this, claiming that permission had been given to Mr and Mrs B to use the path.
How to acquire a right of way
The 1973 Act says that:
“If a public right of way over land has been possessed by the public for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the right of way as so possessed shall be exempt from challenge.”
There are five particular requirements that, in the past, the courts have indicated are necessary to establish a public right of way. Specifically, there must be:
(1) A public place at either end of the way;
(2) A continuous journey from end to end;
(3) A definite route;
(4) A right to continuous use; and
(5) Use for the 20-year prescriptive period.
Mr and Mrs B claimed that both they and their employees used the path regularly from end to end for walking and riding, that this use had been uninterrupted since 1996, and asserted that a path had existed long before that time. They concluded that the path had been, and continued to be, used by members of the general public, and so satisfied the requirements of the 1973 Act and the five tests.
Mr and Mrs C had a different story to tell. It appears that the woods had been used for commercial forestry purposes between 1950 and 1997. During this time, no defined path had existed, sections of the woods were fenced, and the woods were largely impassable and overgrown until 2002.
In addition, they advised that Mrs C's father had specifically granted permission to Mr B allowing him and his wife to use the woodland, so their use of the path had been by tolerance and not as of right. They also advised that they had not seen either Mr B or Mrs B use the path until 2015 and so could not satisfy the requirements under the 1973 Act for prescriptive use. There had been no defined route for the requisite period and so no continuous journey or continuous use could be proven.
Use by the public
For a right of way to be established, it must be used by the general public. Mr and Mrs B could demonstrate only that they, a family member and an employee used the path, which was insufficient to qualify as use by members of the public. Since that use arose from the owner's permission, no public right of way had been created. The owner had not extended the invitation to the general public, and access was granted in general to the woods, not to the path.
Right or tolerance?
It can be quite difficult to establish the existence of a right of way, and this case demonstrates that to do so, the five tests and the requirements of the 1973 Act must be established beyond doubt.
It is also likely that, had Mr and Mrs B sought instead to claim they had acquired a servitude right of access, they would have been unsuccessful in that attempt too, as the fact that the owner had given explicit permission would render prescriptive acquisition impossible.