Presented to the Annual General Meeting of the Association of Law, Property and Society, School of Law, University of Syracuse, USA

1. Colin J Bathgate LLB (Hons), MPhil Land Economy by Thesis Candidate, Wolfson College, University of
Cambridge
cb2037@cam.ac.uk
Supervisor: Professor Martin Dixon
The Evolution of the Right to Exclude and Community
Rights to Land in Scotland
Presented to the Association of Law, Property and Society 10th Annual General Meeting, University of Syracuse

2. Outline
• Historic position
• Through ‘Conservative backlash’ by the courts in the mid nineteenth century
• Up to but not including Land Reform (Scotland) Act 2003
• Conclusions
• Way land was viewed changed
• However misunderstanding developed regarding the law
• Not addressed until the passing of the Land Reform (Scotland) Act 2003
• Section 2 introduces right of responsible access
• Section 6 outlines land over which access rights are not exercisable

3. Historic Sources – Institutional Writers
• James Dalrymple Viscount Stair Institutions of the Law of Scotland (1681): Ownership is the “main real
right.” II, 1, 28.
• John Erskine An Institute of the Law of Scotland (1773): “Scottish concept of ownership necessarily
excludes every other person but the proprietor.” II, 1, 1.
• Sir George Joseph Bell, Principles of the Law of Scotland (4th Edn. 1839): “The chief attribute of property is
the right of deriving from land and its accessories all the uses or services which are capable. This right may
be considered, in relation to others as “exclusive.” 939.
• John Rankine The Law of Land-Ownership in Scotland (1909): “The invasion of his exclusive right of
enjoyment is in itself an injuria which he is entitled to get rid of without proving any actual damage.” 136.

4. Historic Sources – Case Law
• Lord Justice Clerk: “Property is sacred, no man can touch my property without my leave.” Earl of
Breadalbane v Livingstone 1791, 3 Pat 221.
• Viscount Dunedin: Trespasser is as “one who goes on land without invitation of any sort and whose
presence is either unknown to the proprietor or if known, practically objected to.” Drumbreck v Robert
Aidie and Sons (Collieries) Ltd 1928 SC 547
• Lord Trayner: it is “loose and inaccurate” to say that there is no law of trespass in Scotland. Wood v North
British Railway Co 1899 2 F 1.

5. Interdict
• Cameron of Lochiel: An interdict is perfectly useless, as the tourist or botanist does not intend going up a
mountain a second time, and if he did, the expense and trouble attending the application would be out of
all proportion to the advantage gained, seeing that a fresh batch of visitors might be expected the very
next day.” Cameron of Lochiel Letter to The Times, March 10, 1892.
• Lord Young: “appreciable wrong.” Winans v MacRae (1885) 12 R 1051.
• Scottish Natural Heritage: access to hill land “a tradition: it is not a right. It has not basis in law and it is not
observed by all landowners.” Jeremy Rowan-Robinson with W.M. Gordon and Colin T Reid, Public Access to
the Countryside A Guide to the Law, Practice and Procedure in Scotland (Scottish Natural Heritage 1993).

6. Conservative Backlash
• Dyce v Hay (1852) D (H.L) 14
• Lovett: “Conservative backlash against a liberalizing view toward community uses.” John A. Lovett
Progressive Property in Action: The Land Reform (Scotland) Act 2003, 89 Neb.L. Rev. 739, 759.
• Represented a change in the way land was viewed
• Alexander:” Essentially there were no roads either to the highlands or within them, meaning that the
Highlands were virtually inaccessible to outsiders and internal travel was extremely difficult.” Gregory S.
Alexander, ‘The Sporting Life: Democratic Culture and the Historic Origins of the Scottish Right to Roam,’
2016 University of Illinois Law Review 321 (2016) 344.

7. Public Rights of Way
• Access routes over private land
• Stair: They must “go from one public place to another, as from one burgh to another, or from a burgh to a
public port.” Stair, Institutions 2.7.10.
• Sir George Joseph Bell: created “by possession of the prescriptive period of forty years or time
immemorial.” George Joseph Bell Dictionary and Digest of the Law of Scotland (Bell and Bradfute) 926.
• Section 3(3) Prescription and Limitation (Scotland) Act 1973 reduced prescriptive period to 20 years.
• Can be eradicated by negative prescription.

8. Changes in Society
• Way Land was viewed
• Failed Jacobite Rebellion of 1745
• Kolbert and MacKay: Hosting “was finally stamped out after 1745 though it had been declared illegal by an ct of
1716.” C.F. Kolbert and N.A.M MacKay History of Scots and English Land Law (Geographical Publications Limited
1977) 48
• Abolition of Heritable Jurisdictions and Wardholding 1747
• Scottish Enlightenment
• Championed the enclosure of land
• Led to people being removed from land e.g. the Highland Clearances
• Railways
• For the first time people could access the Highlands easily
• Hunting craze
• 2 million acres of deer forests by 1860
• Pandectist movement
• German scholarly group, revisited Roman law and adapted it to the world around them
• Believed in exclusive ownership
• Helped exert Scottish legal independence

9. Conclusions
• Historically Landowners have always had strong ownership rights
• However prior to ‘Conservative backlash’ there was a different understanding of land
• Viewed as a symbol of status and power rather than an economic entity
• Changes in economic and legal thinking couples with the railways changed this
• In order to protect their investment landowners sought legal recourse
• Courts applied institutional writers augmented by Pandectist thinking from Germany
• However the loose law of interdict made it difficult to keep people from accessing private land

10. Thank you very much for listening
I will happily answer any questions you may have
Contact Details: Colin John Bathgate LLB (Hons), MPhil Land Economy by Thesis Candidate, Wolfson College,
University of Cambridge
Email: cb2037@cam.ac.uk

11. Bibliography
Table of Legislation
Land Reform (Scotland) Act 2003
Prescription and Limitation (Scotland) Act 1973
Table of Cases
Bell v Shand (1870) 7 S.L.R 267
Drumbreck v Robert Aidie and Sons (Collieries) Ltd 1928 SC 547
Earl of Breadalbane v Livingstone 1791, 3 Pat 221
Hozier v Hawthorne 1884 11 R 767
MacFarlane v Morton 1865 4 M 257
Mann v Brodie (1885) 12 R 52
Moncrieffe v Perth Habour Trustees 1842, 5 D 289
Scottish Parliamentary Corporate Body v Sovereign Indigenous Peoples of Scotland 2016 SLT 761
Smith v Saxton 1927 SN 98
Winans v MacRae (1885) 12 R 1051
Wood v North British Railway Co 1899 2 F 1

12. Bibliography (2)
Institutional Writers
Bell G J Principles of the Law of Scotland (1899 10th ed 1989 Reprint Law Society of Scotland Butterworths)
Bell G J Dictionary and Digest of the Law of Scotland (Bell and Bradfute)
Dalrymple J Institutions of the Law of Scotland (1681)
Erskine J An Institute of the Law of Scotland, 1st ed (Edinburgh 1773; reprintd as Old Studies in Scots Law, Vol 5, Edinburgh Legal Education Trust 2014)
Books
Aitchison P and Cassell A The Lowland Clearances Scotland’s Silent Revolution 1760 – 1830 (Birlinn 2017).
Combe M Law of Access to Land in Scotland (Scotways 2018)
Devine T The Scottish Clearances A History of the Dispossessed (Allen Lane 2018
Gordon W and Wortley S Scottish Land Law Volume 1 (W Green 2009)
Haldane A Drove Roads of Scotland (Birlinn 2008
Ilganus K This Land is Our Land How we Lost the Right to Roam and How to Take it Back (Plume 2018)
Johnstone T The History of the Working Classes in Scotland (E.P. Publishing 1974)
Kolbert C and MacKay N History of Scots and English Land Law (Geographical Publications 1977)
Morton G Ourselves and Others Scotland 1832 – 1914 (Edinburgh University Press 2012)
Rankine J The Law of Land-Ownership in Scotland (W Green & Sons 1909)
Rowan-Robinson J with Gordon W and Reid C, Public Access to the Countryside A Guide to the Law, Practice and Procedure in Scotland (Scottish Natural
Heritage 1993)

13. Bibliography (3)
Chapters in Books
Cairns J Historic Introduction in Zimmermann R and Reid K A History of Private Law in Scotland (Oxford University Press 2000)
Combe M Exclusion Erosion – Scots Property Law and the Right to Exclude in Bain D, Paisley R, Simpson A and Tait N eds Northern Lights: Essays in Private Law in Memory of Professor David Carey
Miller (Aberdeen University Press 2018)
Menzies G Preface in R.R.M Paisley Access and Rights of Way A Guide to the Law in Scotland (Scotways 2006)
Watkin T Can the Law Ensure Proper Stewardship of Land in Paul Beaumont ed Christian Perspective on the Limits of the Law (Paternoster Press 2002)
Journal Articles
I.H. Adams, ‘The Legal Geography of Scotland’s Common Lands’ 2 Revue de l’institute de Sociologie (1973) 259 – 323
Gregory S. Alexander, ‘The Sporting Life: Democratic Culture and the Historic Origins of the Scottish Right to Roam,’ 2016 University of Illinois Law Review 321 (2016)
John Bryden and Charles Geisler, ‘Community-based land reform: Lessons from Scotland’ Land Use Policy 24 (2007) 24 – 34
John W. Cairns, ‘The Influence of the German Historical School in Early Nineteenth Century Edinburgh, 20 Syracuse J. Int’l L & Com. 191 (1994)
Febrica Furfaro, ‘The Revival of Romanistic Scholarship Between the 19th and 20th Centuries as a ‘Centralizing Force’ in European Legal History’ 19 MJ 2 (2012)
Matthew Hoffmann, ‘Why Community Ownership? Understanding Land Reforms in Scotland’ Land Use Policy 31 (2013) 289 – 297,
Jonathan Klick and Gideon Parchomovsky, ‘The Value of the Right to Exclude: An Empirical Assessment’ University of Pennsylvania Law School Faculty Scholarship (2017) 942
John A Lovett, ‘Progressive Property in Action: The Land Reform (Scotland) Act 2003, 89 Nebraska Law Review 739 (2011)
John W. Mackay, ‘New Legislation for Outdoor Access: A Review of Party 1 of the Land Reform (Scotland) Act 2003’ Scottish Affaris No 59 (2007) 1 – 29
Lord Rodger of Earlsferry, ‘Scottish Advocates in the Nineteenth Century: the German Connection’ (1994) 101 LQR 563
A.J. Van Der Walt, ‘The South African Law of Ownership: A Historical and Philosophical Perspective, 25 De Jure 446 (1992) 454
Reports
Enjoying the Outdoors: A Programme for Action A Scottish Natural Heritage Policy Paper October 1994