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The Scots Week-End
Rights and Wrongs


It's a kittle bitch, the Law.

Old Saw.

A LEGAL NOTEBOOK FOR THE HOLIDAY

EXORDIUM

THE "week-ender" need not concern himself with the more abstruse aspects of the law. For him let plagium, and, still more, wadset, remain a closed book. He is a holiday-maker, and his pursuit of pleasure or leisure must be assumed to be innocent and free from dole. While every citizen is presumed to know the law, the inadvertent lawbreaker may expect leniency if he has transgressed one of the innumerable statutory rules and regulations which pour out from the Stationery Office each year.

ITER - THE JOURNEY

Though air, light and running water are free and belong to no one, in the words of the ancient Civil Law, it is regrettable, but true, that one cannot step from one's house without impinging upon what is the property of another person. Though the public have a right of passage along public roads the property in the road may belong to the person through whose lands it passes. While it is true that local authorities have duties to keep roads in repair, the traveller has no right of action against the authority for an imperfect road or for not immediately clearing the road of snow, unless, indeed, negligence be proved. The public have only a right of passage which extends over the whole road. Though there be a footpath a foot-passenger is entitled to walk on any part of the road, if he walks with due care. Let it never be forgotten that the negligent use of an admitted right may both deprive the negligent one of any recourse against another by whom he may be hurt, and may also expose him to liability for another's hurt. A private road, which is generally so marked, can only be used by the owner of the road, his servants or his guests, or those with whom he has business. If what appears to be of the nature of a private road, but is not so marked, be the only available via for the traveller, let him take it but at his own risk. It may be a private road to which the public have access; and in this case remember that all users of the road, including the owner, are bound to use the same care in driving thereon as if they were on a public road and, further, that the provisions of the Road Traffic Act apply to the owner of the road as much as to the public. The public have no legal right of access, of course, to a private road, but their presence may be tolerated or at least not expressly prohibited. Should the gate to the road be shut, let the traveller beware and be gone, for his presence on the road would then be trespass if he has no reasonable excuse for being there.

TRESPASS

This word was introduced into our law from England, but may now be taken to mean any "temporary intrusion, entering, or being upon, the lands of another without his consent". It is founded upon an exclusive right of property, which yields, however, where public interest or necessity requires that access be allowed, e.g. for extinguishing a fire, pursuing a criminal, or destroying dangerous or noxious animals. Let not the traveller, however, pursue the wily rabbit, however noxious, on theoretical grounds, in another's lands. Where there has been trespass, the proprietor's only remedy is an action of interdict, and the only penalty to which the trespasser is liable (apart from destruction of property or other malicious mischief) is the expense of the action of interdict. If, however, decree has been granted against the trespasser and he repeats the offence, he will be liable to penalties for breach of interdict. Therefore, if innocently trespassing, hand your card to the person prohibiting your passage and make your way to safer ground. Should this person use violence to you unnecessarily, he will be liable therefor in an action of damages. Spring guns are illegal in unenclosed grounds and probably even in enclosed grounds save for this one purpose, the protection of a dwelling-house between sunset and sunrise. The provisions of the Road Traffic Act, I 930, and the Highway Code-which applies to all users of the road and which the beneficence of Parliament has made available to you-should be studied before journeying on the roads of this country. It is, however, worthy of mention that the leaving of vehicles in dangerous positions is punishable.

RIGHTS OF WAY

The way must run in a definite and ascertained track from one "public place" to another. What the term "public place" means is a question of some difficulty, but let us say that it is "a place to which the public resort for some definite and intelligible purpose". The seashore is not necessarily such a place. The proprietor of the ground through which the right of way passes may erect gates, etc., for the protection of his own property, so long as these do not interfere with the public use. Rights of way have had in the past to be stoutly contended for, and an example of the resentment felt at encroachments on public rights is to be found in the following remarks made by Lord Cockburn, with regard to his youth, about the year 1794.

"When I was a boy nearly the whole vicinity of Edinburgh was open. Beyond the Causeway it was almost Highland. Corstorphine Hill, Craiglockhart Hill, the Pentland Hills, the seaside from Leith to Queensferry, the riverside from Penicuik by Roslin and Hawthornden to Lasswade, the valley of Habbie's Howe and innumerable other places, now closed and fast closing, were all free. Much of this was the indulgence of private owners certainly, but much more of it was because, by the long usage of an unenclosed and very ill-ploughed country, the people had acquired prescriptive rights. But when improvement began ways were taken in, the obstructed blustered; but law was dear and the owner was constantly on the spot to enlarge and defend his usurpations. Scotland has very few individuals with heavy purses and dogged obstinacy to stand up, as in England, for their rights. The interest of the gentry was in favour of private property and all public agitation or resistance was discouraged. The Scotch are not gregarious in their pleasures. Each Justice protected his brother, knowing that he would shortly require a job for himself. Thus everything was favourable to the way-thief, and the poor were laughed at. The public was gradually mantrapped off everything beyond the high road. This Society [i.e. the predecessor of the Scottish Rights of Way Society, Limited, Edinburgh] may still do some good, but it is about fifty years too late. The true thing to humanise the people, and save property, is to have a footpath through every field. The alleged mischievousness of the Scotch, when they are trusted and have an interest in preserving what they are allowed to enjoy, all my experience induces me to deny. ..."

In conclusion, it is wise, before presuming that there is a right of way, to ascertain the facts from a responsible source. The Scottish Rights of Way Society have caused boards, with relevant notices, to be erected in certain localities.

PARKING

The general law is that a vehicle may not be left on a public road longer than is necessary to take up or put down passengers or goods. This law has never been rigorously enforced everywhere-otherwise modern vehicular traffic would become impossible-but the law is by no means in desuetude. The fact is that the traveller must ascertain as best he can, before he travels, what are the local rules as to reasonable grounds for interference by the police. In some localities latitude is allowed. Diagonal parking may be prohibited or allowed at the discretion of the local authority, which is now empowered to make authorised parking places, where again sweet confusion exists; for in some no lights may be left on a car, in others, at certain times, lights must be lit. The same irrational disorder applies to rules as to locking of cars. There is but one advice. Seek out the necessary information and in every place leave the vehicle - whatever its type may be - in such a position that it cannot cause danger to reasonable users of the road. The infringement of rules and regulations - particularly local ones-cannot always be guarded against. Act, however, as a reasonable and careful traveller, and your punishment will be negligible.

TRAIN TRAVEL

The contract between the traveller and the railway company is determined by the company's regulations and bills. The terms of these regulations, etc., are embodied, by reference, in the ordinary railway ticket. It therefore behoves the traveller to make himself acquainted with them. The issue of a ticket is no guarantee that any particular train will run, or that, if the passenger is abnormal in size or any other way, a safe access to a railway carriage is a certainty. As in other spheres of activity the passenger can have recourse to negligence on the company's part, as a ground of liability, though this may be difficult to prove. The railway company does not guarantee immunity from accident, only reasonable care. Expense incurred by passengers, consequent on breach of contract, may be recovered to the extent of what is reasonable in the circumstances. If you put luggage in your compartment, the company are not liable as common carriers but only for negligence. The porter who labels your luggage is an agent of the company. Luggage deposited is in a different category. A railway company's obligations as regards passengers and luggage are determined both by statute and by common law.

WIFE AND CHILDREN

Should the traveller be coupled in wedlock, and have issue, note these points. Should a wife be injured by the negligence of her husband she cannot sue him for damages. A child, on the other hand, may recover damages against its parent, if injured by the parent's negligence and vice versa. Your wife may pledge your credit up to a reasonable amount but no further. What is reasonable is a matter of fact. You may be living beyond your means; if so you should not indulge in week-ends without adequate control of the spending partner. This may be considered to be impossible. Further, you must keep your younger children under control. Let this not deter you from a week-end. A reasonable control is, as elsewhere in the realm of liability, a safeguard. Until majority of the child the parent has a duty of control, not well-defined but subject to reasonable construction. It is the ambition of some children to light fires. Let these be under control. By the Trespass (Scotland) Act, 1865, lighting a fire on or near any private or public road or enclosed or cultivated ground, or camping on private property is punishable by fine or imprisonment, unless the consent of the owner or occupier is first obtained.

FISHING

Fish caught become at common law the property of him who catches them, with the exception of whales of a large size, over six-power draught. This applies even to salmon fishing, which is inter regalia. The catching of the fish may, however, be punishable under statute, or under common law, and, under statute, the fish and the thing in which they are contained may be confiscated. The container may be a cart (including a motor vehicle) and it, along with a package containing the fish, may also be confiscated if the fishing was illegal. (There are special rules for whale fishing.) As regards normal waters care is necessary before fishing. Sea-fishing within the three-mile limit is free to any subject of the realm, and may be exercised in any way not prohibited by statute. Outside the limit, international law or custom prevails. He who first harpoons a whale will, if he retains a hold, be entitled to the mammal. It is, however, difficult to get access to the sea except through somebody else's property. This is a matter for inquiry beforehand. Though the public may have a right to navigate tidal, or even non-tidal navigable waters, this does not include a right to moor boats on private ground, and you land at your own risk. You may travel by boat up a navigable river and enter a loch from which it flows and yet find yourself in trouble. The sea, from the three-mile limit to low-water mark, belongs to the Crown. The foreshore is vested in the Crown or in those to whom the Crown has conveyed it. It is not inter regalia, but the Crown has, in addition to right of property, a responsibility, in connection therewith, as guardian of the public uses of navigation and fishing. While the public may use the sea for navigation or fishing this confers no right to approach the sea save by access open to all, and confers no right of wharfage. With regard to rivers, the right of fishing may be vested in someone other than the ostensible proprietor. If so, notices usually warn one of the fact. There is no public right of fishing, other than sea fishing.

FLYING

The old lawyers, who dreamed not of flying, laid it down that the owner of land owns everything within his boundaries, a coelo usque ad centrum. Legislation has, however, empowered those flying aircraft to invade the property of private persons, and, while telegraph or telephone lines may cross the middle air above your property only by your leave, upon payment of compensation, aircraft may fly through the middle air, subject only to statutory provisions, national and international, and the liability to make good damage where it is caused to other persons' property through negligence. Questions of liability between colliding aircraft are determined by maritime precedent; damage to persons and property carried by aircraft are determined by statute, but the question of liability towards persons and property on the surface of the earth is a difficult one. Damages for trespass over your property are not recoverable. Damages for injury done to you or your property by an aircraft in flight, taking off, or landing, are recoverable, and negligence need not be proved. The danger of flying is an apparent one and he who flies must, like the owner of the wild animal, abide by the consequences. Should the accident be due to your negligence, although on the surface of the earth, you cannot recover damages.

HIRE OF THE MEANS OF LOCOMOTION

This does not include hire of services such as are involved in train, bus or aeroplane travel where the traveller hires the services of those exploiting these means of locomotion for commercial ends, but is intended to cover the hire of a horse, a bicycle, a motor car, an aeroplane, or any other form of vehicle. The hirer guarantees only a reasonably suitable form of locomotion, and if it is unsatisfactory the hirer has no remedy short of alleging negligence. Circumstances alter cases, and one who proposed a lightweight motor bicycle as suitable for a 24-stone passenger might well be held to have taken the risk. If the hirer chooses the particular vehicle or animal he takes the risk of unsuitability. The hirer is liable for damage only if he puts the thing to an unreasonable use. In hiring a motor vehicle remember that it is illegal to drive with indifferent brakes and worn tyres.

DRINK AND INNS

The requirements of the traveller cannot be estimated in advance, but it is as well to remember that, by the Tippling Acts, no person can recover at law a debt due for spirituous liquor, or upon a security given therefor, unless the debt was incurred bona fide, at one time, to the amount of 1 at least. This does not apply to lodgers at an inn. The hours during which liquor may be obtained in different places are set forth in various handbooks. Remember that if resident in an hotel you may not stand your guests drinks after licensing hours. Local authorities may introduce their own variations in the licensing hours for inns, public houses and clubs, and these are approved by the Sheriff, so far as each establishment is concerned, within the limits set down by the local authorities. The consumption of liquor within licensed premises, but without the permitted hours, is illegal, although the liquor may have been ordered within those hours. Liquor may be supplied at any time to a bona fide traveller. The distance travelled by the bona fide traveller, before he seeks his refreshment, is immaterial in Scotland, provided he may be said to have materially begun his journey. The person supplying liquor is entitled to satisfy himself, by legitimate means, as to bona fides.

HIRE OF LODGINGS

When booking rooms at an inn remember that in such a contract, where the amount to be paid is not fixed, it is, in the event of dispute, to be settled at a reasonable amount; and further, that when rooms are booked and are thereafter cancelled by the traveller, his liability therefor may be likewise cancelled by consent of the prospective landlord. This cancellation of liability depends on commercial usage. Some landlords insist on a deposit beforehand, when rooms are booked. If the cancellation by the traveller is based on a well-founded objection to the rooms, as being unreasonable accommodation, the traveller may cancel with a clear purse; but it must be said that reasonable accommodation is a question of fact.

NUDITY

Indecent exposure of the person is an offence and, in certain circumstances, a crime-if the place is a public one and it is stated in the charge that the lieges were annoyed in a particular way. This mode of behaviour is best performed in private. Wear a bathing-suit of proportions suitable to the customs of the locality. The point about the offence is that annoyance must be caused to someone. Whether it is reasonable to be annoyed is a question of fact. It is not advisable to be annoyed by means of binoculars.

PERORATION

Finally, remember Lex semper intendit quod convenit rationi: the intendment of a law is always in accordance with reason, e.g. if everybody did that sort of thing what would the world come to?

APPENDIX

THE TOURIST'S MATRIMONIAL GUIDE THROUGH SCOTLAND

[As marriage is not in any proper point of view a desirable week-end activity, we have not discussed it in the foregoing notes; but lest we should be charged with omitting all reference to the most celebrated peculiarity of our legal institutions we subjoin the admirable statement of the law by Lord Neaves.]

Ye tourists, who Scotland would enter,
The summer and autumn to pass,
I'll tell you how far you may venture
To flirt with your lad or your lass;
How close you may come upon marriage,
Still keeping the wind of the law,
And not, by some foolish miscarriage,
Get woo'd and married an' a'.

Woo'd and married an' a',
Married and woo'd an' a';
And not by some foolish miscarriage
Get woo'd and married and a'.

This maxim itself might content ye,
The marriage is made - by consent,
Provided it's done de praesenti,
And marriage is really what's meant.
Suppose that young Jocky or Jenny
Say "We two are husband and wife",
The witnesses needn't be many
They're instantly buckled for life.

Woo'd and married an' a',
Married and woo'd an' a';
It isn't with us a hard thing
To get woo'd and married an' a'.

If people are drunk or delirious,
The marriage of course will be bad,
Of if they're not sober and serious,
But acting a play or charade.
It's bad if it's only a cover
For cloaking a scandal or sin,
And talking a landlady over
To let the folks lodge at her inn.

Woo'd and married an' a',
Married and woo'd an' a';
It isn't the mere use of words
Makes you woo'd and married an' a'.

You'd better keep clear of love-letters
Or write them with caution and care;
For, faith they may fasten your fetters,
If wearing a conjugal air.
Unless you're a knowing old stager,
'Tis here you'll most likely be lost;
As a certain much-talked-about Major
Had very near found to his cost.

Woo'd and married an' a'
Married and woo'd an' a';
They are perilous things pen and ink,
To get woo'd and married an' a'.

I ought now to tell the unwary
That into the noose they'll be led,
By giving a promise to marry,
And acting as if they were wed.
But if, when the promise you're plighting,
To keep it you think you'd be loath,
Just see that it isn't in writing,
And then it must come to your oath.

Woo'd and married an' a'
Married and woo'd an' a';
I've shown you a dodge to avoid
Being woo'd and married an' a'.

A third way of tying the tether,
Which sometimes may happen to suit,
Is living a good while together,
And getting a married repute,
But you who are here as a stranger,
And don't mean to stay with us long,
Are little exposed to that danger;
So here I may finish my song.

Woo'd and married an' a',
Married and woo'd an' a';
You're taught now to seek or to shun
Being woo'd and married an' a'.


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