Public rights of way 6.62 In terms of section 28(1)(g) the right of a member of the public in respect of any public right of way is, in relation to any interest in land, an overriding interest over it. As such, a public right of way can therefore be noted on the title sheet and referenced on the title plan if any of the circumstances detailed in sub-sections (4)(a) and (b) of section 6 apply, and the Keeper receives sufficient evidence as to its constitution and precise location. Evidence of constitution should take the form of a court declarator, proof of entry on a local authority rights of way register or a formal agreement involving the proprietor of the land over which the public right of way exists. In the latter case, the Keeper will also need to be satisfied that the subject matter of the agreement is in fact a public right of way rather than a servitude right of access. On several occasions the Keeper has been presented with evidence of an apparent public right of way which on closer inspection has proved to be no more than a servitude. Whilst servitudes and public rights of way have similar characteristics, they are far from identical. The distinction between them is important not only  in  terms  of  constitution  and  enforcement  of  the  right,  but  also  from  the  point  of  view  of extinguishing the right. Specific requirements exist as to the establishment of a public right of way, viz. public termini, appropriate use for prescriptive period, definite route (see Rhins District Committee of Wigtownshire County Council v. Cuninghame²⁷); and the Keeper will wish to ensure these are met. Similarly, in order for the Keeper subsequently to remove a public right of way from a title sheet he will require either a court declarator stating that the right is no longer extant or evidence that a specific statutory provision, such as occurs under planning and compulsory purchase legislation, has closed the right of way. As with other overriding interests, the fact that a public right of way is not noted in a title sheet does not imply the non-existence of that right. Power Of Attorney 6.63 Where a deed pertinent to an application for registration is executed under power of attorney the Keeper will require to examine the power of attorney or a certified copy. The view of the authorities (for  example  Halliday,  Conveyancing  Law  and  Practice²⁸,  Volume  1,  Chapter  13)  is  that  powers  of attorney  are  construed  strictly  and  that  all  powers  required  should  be  specifically  expressed  since nothing more will be implied. Halliday notes in particular that special powers must be conferred on an  attorney  to  enable  him  to  sell  or  dispose  or  otherwise  transact  with  heritable  property  (e.g.  to execute  a  standard  security  or  a  consent  or  renunciation  under  the  Matrimonial  Homes  (Family Protection)  (Scotland)  Act  1981²⁹,  as  amended).  A  power  of  attorney  submitted  in  support  of  an application for registration must, therefore, contain specific authorisation for the transaction to which the deed executed thereunder relates. Further discussion on powers of attorney in the context of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 can be found at paragraph 6.42. Agreement As To Common Boundary 6.64  Section  19  came  into  operation  on  the  passing  of  the  1979  Act.  Where  the  titles  to  adjoining subjects disclose a discrepancy as to a common boundary, this section provides a simple mechanism for resolving the matter. The expense of a conveyance is avoided. Under the terms of the section, the proprietors  can come  to an agreement  about  the boundary and execute a plan showing its  location

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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