Re: Who owns all this anyway?


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Posted by Peter Hyland on February 14, 2013 at 02:18:18 user Peter_H.

In Reply to: Re: Who owns all this anyway? posted by Magnus Smith on February 11, 2013 at 09:39:18:

Magnus is right - AR certainly didn’t take a casual/illegal approach to trespassing. In fact you could say that the whole of the plot in ‘Great Northern?’ hinges on the question of trespass. In my view, AR got the Scottish law of trespass exactly right, for the time in which he was writing. It is a bit of a myth that there used to be no trespass law in Scotland – there was, but it was slightly different from the law in England. In Scotland, if you walked in a quiet and orderly way across someone else’s land, the owner could bring no legal action against you. However, it was different if you made attempts to “occupy” that land – “occupy” could mean all sorts of things, which most certainly included worrying cattle or livestock on that land. If you were seen doing that, the owner had a right to ask you to leave the land immediately. Captain Flint summed up the position admirably when he said “Galloping about on someone else’s land doesn’t matter much. But chasing deer’s serious.

You might quibble about the right of the McGinty to imprison the people who he considered to be trespassing. On the mainland, he probably would not have that legal right, but on an island where he is sole ruler, well – who’s going to argue? He might have said that the temporary imprisonment was necessary to prevent more disturbance to his deer, and that he soon released the captives on condition they returned to their ship. At that point, other events intervened . . .

(The Land Reform (Scotland) Act 2003 brought the Scottish law of trespass in line with the rest of the UK.)



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