Scottish Court of Session Decisions

Sir Robert Menzies of that Ilk, Baronet, raised an action of declarator against the Marquis of Breadalbane, in which he concluded first for declarator “that the pursuer, as heritable proprietor of the northern half of the lands known as Farleyer Island, in the parish of Dull and county of Perth, is entitled to a right of access to and egress from his said half of Farleyer Island through the defender's lands to the public road leading from Kenmore to Aberfeldy;” and second for declarator that he had right to such access by means of a gate at the west end of the march fence which separated his half of said island from the defender's, and thence by a roadway or track leading through the defender's lands to a gate opening upon the said road from Kenmore to Aberfeldy.

The pursuer, whose lands at this point lay on the north bank of the Tay, was proprietor of the northern part of Farleyer “Island,” a piece of land about 18 acres in extent, which apparently was at one time in fact an island, but was now, except in time of high flood, united to the south bank of the river. The southern half of the “island,” together with Bolfracks Haugh by which it was bounded on the south side, belonged to the defender.

A march fence running east and west separated the pursuer's from the defender's half of the “island.”

The pursuer averred that the only available access to Farleyer Island was from the Bolfracks side through the defender's lands, and that said access was necessary for the reasonable enjoyment of his property. In particular, he claimed the right to use a gateway situated towards the west end of the said march fence, and a road leading therefrom to a gate at the west end of Bolfracks Haugh and opening upon the said public road, and averred that this was the only safe and constant access available to his half of Farleyer Island, and that it was necessary for the reasonable enjoyment of his property.

The defender denied that the only available access to Farleyer Island was from the Bolfracks side, and averred that the pursuer could obtain access to his portion of the island by crossing the Tay.

The pursuer averred further that the access claimed by him was part and pertinent of his lands, or otherwise that he had acquired right to it by prescription. The defender denied these averments.

The defender, while denying the pursuer's right to the access claimed by the west end of the march fence, offered to the pursuer an access by the east end of the line of march, which he explained would be less burdensome to the defender. He further offered ex gratia to give a gate at the west end for egress in times of emergency, to be used only for live stock, and on payment of 1s. a-year if asked.

The pursuer refused these offers, and thereafter raised the present action.

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The pursuer pleaded, inter alia—“(1) The pursuer, as proprietor of the subjects described in the summons, being entitled to access to and egress from his said half of Farleyer Island as part and pertinent thereof through the defender's lands, he is entitled to decree in terms of the first conclusion of the summons. (5) The access claimed being necessary for the reasonable use of the pursuer's property, he is entitled to decree.”

The defender pleaded—“(1) The pursuer's averments are irrelevant. (2) The defender ought to be assoilzied, in respect ( a) that the pursuer has no right to the access claimed by him, either in virtue of his titles or of any possession or servitude use had by him or his predecessors, or on any other ground; ( b) that the pursuer's averments, so far as material, are unfounded in fact.”

The Lord Ordinary ( Low) before answer allowed a proof. The import of the evidence, so far as is necessary for the purpose of this report, is set forth in his Lordship's opinion infra.

On 17th January 1901 the Lord Ordinary pronounced this interlocutor:—“Finds (1) that the pursuer has not established that he has acquired right to an access to the portion of Farleyer Island belonging to him along the west side of Bolfracks Haugh, belonging to the defender; (2) that the defender has formed a road at the east end of said haugh connecting the pursuer's portion of Farleyer Island with the public road leading from Kenmore to Aberfeldy, for the purpose of being used as an access to the said portion of Farleyer Island, and that the defender has further offered, and has undertaken on payment of one shilling a year, if asked, for the privilege, to consent to a gate being put in at the west end of the march fence by which Farleyer Island is divided, for the purpose of being used by the pursuer for the removal of live stock from his portion of Farleyer Island when by reason of a flood in the river Tay it is impossible with safety to remove such stock by the said road at the east end of Bolfracks Haugh; and (3) that the said road, with a gate at the west end of the march fence to be used as aforesaid, will constitute a reasonably sufficient access to the pursuer's said lands: Therefore, in respect of the construction by the defender of said road and his offer and undertaking in regard to the said gate, finds that it is unnecessary to dispose of the first declaratory conclusion of the summons, and dismisses the same, and assoilzies the defender from the remaining conclusions of the summons, and decerns: Finds the pursuer liable in expenses,” &c.

Opinion.—“I think that it is not doubtful that at one time Farleyer Island was, as its name implies, truly an island. The course of the channel which divided it from the lands of Bolfracks can still be traced throughout the greater part of its length. It must, however, have been silted up a very long time ago, because the earliest plan which has been produced, and which is dated in 1769, shows that Farleyer was at that date no longer an island, although it was only connected with the south bank of the river by a narrow neck.

The old island of Farleyer was divided in practically equal parts between the Menzies estate on the north and the Bolfracks estate on the south—the northern half of the island belonging to Menzies and the southern half to Bolfracks. So long as Farleyer remained an island, the probability is that no question could arise as to a right of access by either proprietor over the lands of the other, because each proprietor would reach his portion of the island by crossing the branch of the river which lay between it and his lands. When, therefore, the southern branch of the river became silted up, and what had formerly been an island became part of the south bank, no right of access from that bank would necessarily arise to the proprietor of the northern part of the old island. If such a right exists upon a definite line, it must have been acquired subsequent to the silting up of the south channel.

[ His Lordship examined the evidence as to the use alleged by the pursuer, and expressed the opinion that he had failed to establish a right of access by prescription.]

The pursuer contends alternatively that he is entitled to the access which he claims as a way of necessity. The argument is, that although Farleyer may at one time have been an island, it has ceased to be so for at least a century and a half, and during that period has been used for pasture, or for hay crop, and indeed at one time seems to have been ploughed. The pursuer contends that he is entitled to continue such use of the lands, and that to enable him to do so it is absolutely necessary that he should have an access by land.

The defender has recognised the force of that view to this extent, that while denying any absolute right on the pursuer's part, he has offered to him an access to the nearest point of the adjacent public road—that is, at the east end of the island.… [ After examining the evidence as to the reasonableness of the defender's offer, his Lordship proceeded]—“It seems to me that the access offered by the defender will enable the pursuer to continue to use his lands for the purposes to which they are suited, and for which they have been used in the past, and that the small additional benefit which the pursuer would derive from having a road to the west would not justify the imposition upon the defender's lands of the burden which such a road would involve.

I am therefore of opinion that the pursuer is not entitled to declarator that he has right to a road running along the west side of Bolfracks Haugh.”

The pursuer reclaimed, and maintained, in addition to the pleas disposed of by the Lord Ordinary, that the defender was bound to afford him a reasonable and safe access through his lands, in respect that this was necessary to the reasonable enjoyment of the pursuer's lands, and cited Stair ii. 7, 10; Erskine, ii. 6, 9; ii. 9, 12— M'Laren v. City of Glasgow Union Railway Company, July 10, 1878,

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5 R. 1042, 15 S.L.R. 697. The pursuer maintained that the access offered by the defender was not such as he was bound to accept, and that he was entitled to the particular line of access which he claimed.

Argued for the defender—In the absence of some relation between the parties other than neighbourhood, the defender was under no legal obligation to provide the pursuer with an access through his lands. There was no authority in the law of Scotland for such a contention.—Stair ii. 3, 79; ii. 7, 10; Erskine ii. 9, 12. Even if the law were as maintained by the pursuer, he was not, in fact, shut out from his own property. His own lands lay immediately on the other side of the river, and he could obtain access by a ford or a bridge.

At advising—