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On the 12th of
December 1611, King James VI created the Royal Burgh of Kinghorn,
detailing it, and “the Loch of Kinghorn” as part of it.
On 30 September 1824 the
Council sold the Loch and Lochans to James Stuart, without provision
of right of way or any other amenities for public recreation.
In 1905 Whinneyhall Estate
tried to deny public access to the loch, and the Kinghorn people
resisted.
On 8th January 1906
Whinnyhall Estate offered access to the Loch for £30 per annum. The
Council refused to pay.
This is an abstract from
one of the surviving documents of the time .
It is a fascinating, but incomplete copy of a 16-page document which
Cecilia Fernie obtained from the Fife Council Archives at Markinch.
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A “MEMORITAL“ from the “Memorialists” for Kinghorn Provost,
Magistrates and Councillors, to an Edinburgh QC
The Town Council decided
to take legal advice from Counsel about a disputed right of way
alongside Kinghorn Loch, and prepared this “Memorital” to set out
the situation, and pose queries to him.
It is not known whether
the matter ever went to Court, and the history trail then went cold.
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Opens
with saying they want advice on a right of way, and refer to Sec 42
of Local Government (Scotland) Act 1894. They go on to give history
up until 1824 when the Town Council sold Kinghorn Loch with the
lochands, and Gallahill. The Council reserved rights to coal, and
access to erect and operate sluices, but no right of way. The land
and the solum of the loch from then on belonged to the Whinneyhall
Estate Co. Ltd
(However we understand
that the solum of the loch now belongs to the Common Good. It would
be interesting, but would probably take a lot of work, and probably
too much time, to find out when and how that changed, and whether
there were other changes which might relate to KCLA’s interests at
the same time.) |
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Says
there is a path alongside a stream leading from the loch,
interrupted by the Burntisland Road. Says that “from time
immemorial” the path has continued from the other side of the road
across the sluice, round the eastern margin of the loch to the farm
road to Craigencalt Farm, then through the farm and onwards to the
“old road” to Kirkcaldy. |
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Says
the bit of the path from Kinghorn up to the road is not in dispute,
but the right to go from there alongside the loch has been
challenged. The angle of ground from road to sluice is believed to
be included in the feu contract and belongs to Whinneyhall Estate,
but the bit beyond it belongs to “the Governors of Philp’s Trust”. |
So, who were Philp’s
Trust and were they then the owners of the land KCLA wants ? If so
where were the Whinneyhall lands ? Were they on the town side of the
road ? |
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Whinneyhall erected a
barbed wire fence across the entrance from the road to the sluice in
March 1904. The Memorialists objected. The townspeople took down the
fence and the estate put it back up. The estate were asked to
desist. |
It seems that they had
only a slight interest in the land to the North of the road. Why did
they bother ? |
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Whinneyhall refused and
said they would put up a locked gate, and said that “no right of way
had been claimed”
A key was to be provided
to the town officials to allow access to the sluice, but otherwise
it would be kept locked. |
What was this actually
all about ? |
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The gate was put up. The
“Battle of Kinghorn Loch” ensued, and the gate was torn down. It
doesn’t seem to have been replaced. |
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In what follows only the
queries and Counsel’s responses are listed. Copies of the original
documents have been scanned and preserved as “.tif” image files
which can be opened and viewed by most graphics programs. These are
available if wanted on a CD. Queries and answers have been
shortened and heavily paraphrased. |
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Query |
Counsel’s Opinion |
Comment |
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1 Assuming that the
right of way claimed existed at the date of the feu contract in
1824, were the interests of the public prejudiced by the granting of
that deed ? |
If a right of way
existed before 1824, the interests of the public would have been
prejudiced. This right of way would not have been one in the
ordinary sense of the Law , but a reservation of the rights of the
public to walk from Kinghorn to the Loch and around its shores. One
could understand that such a right would be a valuable privilege,
(lost through) failure to make this reservation in the 1824 feu
contract |
It seems from this that
there probably was a right of way to, and around the Loch, prior to
1824 when the Council sold the Loch and the lands around it, but
these rights were not legally preserved at the time.
“Blame the Council at
the time” |
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2 Assuming the right of
way did not exist in 1824, (on the basis of the facts stated)
does a right of way now exist and should steps be taken to vindicate
that right ? |
No right of way exists.
According to the Law, a
right of way can only exist from one public place to another.
Unfortunately the Loch does not fall within that definition, no
matter how much it was used by the public. Nor does Craigencalt
which is a private farm.
My real difficulty is
the road through Craigencalt in both directions allowed the public
to do a “round trip” from Kinghorn, round the Loch and back via the
public road, and it seems a hardship that such a practice “should
not give legal grounds” for a right of way, but not so in my
opinion.
Firstly, going in a
circle for one public place, back to the same public place doesn’t
make it a right of way.
Secondly the right of
way was never exercised in the course of ordinary business.
So I can’t advise the
Council to take legal action. |
It seems here that he
sympathises, but can’t help.
Part of the reason is
that one could get from Kinghorn to Craigencalf farm and beyond by
using the public road, and going along the lochside was just a
shortcut used for leisure purposes.
Also it was not a
shortcut used in the course of “ordinary business”.
(If it was a cart track
with folk carting stuff along it, it probably would have been, but
that would have meant a bridge or a ford at the sluice area) |
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3 If it can be
established that if the public used the shores of the loch for more
than 40 years for recreation, would that make them a “public place”,
irrespective of the right of way ? |
I don’t think so. |
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4 Would the Council be
bound to take a key for the gate from the Estate to adjust the
sluice ? |
Probably yes |
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5 If the Estate were to
admit a right of way existed, would they be entitled to put up a
swing gate or turnstyle, or can the public insist on the entrance
being left open ? |
In these circumstances
the Estate would be entitled to do this provided it would be
possible to get through it easily. |
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6 Would the Council be
entitled to pay the cost of an action on this matter from the Common
Good ? |
Yes |
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In January the following
year, 1906, Whinnyhall Estate offered access to the Loch for £30 per
annum, but this offer was declined by the Council.
Nothing more is recorded
and the historical “trail” went cold.. Both sides probably realised
the costs likely to be involved and backed off from a confrontation
in Court.
However the gap in what
was a hedge is still there, and there seems to be some sort of tacit
“right of way” along the lochside. Whether or not that is legally a
right of way might be interesting to know.
With the possibility of
housing development around the loch, this old argument might well
re-emerge. |
