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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomas & Anor v. Allan & Anor [2003] ScotCS 312 (16 December 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/312.html Cite as: [2003] ScotCS 312 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Kirkwood Lord Johnston Lord McCluskey
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XA87/02 OPINION OF LORD KIRKWOOD in the cause JOSEPH LLOYDS THOMAS AND ANOTHER Pursuers and Appellants; against CHARLES ALLAN AND ANOTHER Defenders and Respondents:
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Pursuers and Appellants: Sandison; Drummond Miller, W.S.
Defenders and Respondents: Joughlin; Beveridge & Kellas
16 December 2003
[1] I agree with Lord Johnston that the 1992 disposition did not innovate on the right of access to which the pursuers originally became entitled when they purchased 5 Moor of Balvack in 1983, and that their right of access is confined to the existing track and does not include the verges on either side of the track. In my opinion, the sheriff reached the correct conclusion as to the extent of the right of access. That issue having been decided in favour of the defenders, counsel for the pursuers and appellants conceded that the question as to whether the alleged obstructions constituted a material interference with the pursuers' right of access does not now arise for our determination. It follows that the appeal must be refused. Thomas & Anor v. Allan & Anor [2003] ScotCS 312 (16 December 2003)
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Kirkwood Lord Johnston Lord McCluskey
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XA87/02 OPINION OF LORD JOHNSTON in the cause JOSEPH LLOYDS THOMAS AND ANOTHER Pursuers and Appellants; against CHARLES ALLAN AND ANOTHER Defenders and Respondents:
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Pursuers and Appellants: Sandison; Drummond Miller, W.S.
Defenders and Respondents: Joughlin; Beveridge & Kellas
16 December 2003
[2] This case is concerned with a dispute with regard to the extent of a right of access admittedly granted in favour of the pursuers by the Secretary of State for Scotland, representing the Forestry Commission, by a Disposition dated 30 April 1992 and registered in the General Register of Sasines for the County of Aberdeen on 18 November 1992 ("the 1992 Disposition"). The defenders do not dispute a right of access, but contest its extent. The physical features of the ground are that the parties' properties lie adjacent to a track, some 100 yards apart, in the countryside of Aberdeenshire, near Inverurie. Access in fact is gained from the main road by a service track which then diverts onto the track which passes both properties. Over the years the defenders, claiming the right to the verges on each side of the track, have placed various items thereon, including stones, metal posts, chicken feeders and some plants and shrubs. It is an unfortunate fact that the extent of the dispute in this case goes no further, nor any less, than the right of the defenders so to have acted. At the proof held by the sheriff the two principal items of contention were the extent of the right of access with regard to the ground on both sides of the actual track and also whether or not the items in question, to which I have referred, amounted to unreasonable obstructions. This latter issue only arises if the grant of access in favour of the pursuers extends to the verges. Physically the track has verges on each side being bounded originally by walls and now by, on the one side, a fence and wall and on the other side, the pre-existing wall. As a matter of history, the track was slightly realigned in order to allow the defenders to extend their building and the provision for this was granted in a Disposition by the Secretary of State in favour of the pursuers dated 24 April 1992 and registered in the General Register of Sasines for the County of Aberdeen on 1 May 1992 ("the realignment Dispositon"). At the proof there was an issue as to whether or not acquiescence had operated, in this respect, as against the pursuers with regard to the extension, but this point was not taken on appeal and, indeed, counsel for the pursuers sought to amend his crave to reflect that concession. The issue of amendment was opposed by the defenders, but only becomes relevant once the essential issue of construction and interpretation of the original grant in favour of the pursuers is determined. Historically, the original grant of access was conveyed by the Secretary of State in favour of a William Dow, by a Disposition dated 22 February 1961, and recorded in the Register of Sasines in the County of Aberdeen on 2 March 1961. The pursuers' title to their property derives from a Disposition from the executors of the said Dow, dated 17 June 1983, recorded in the same Register on 6 July 1983. The pursuers' title in that latter Disposition mirrored the original grant of access in the original 1961 Disposition in favour of William Dow which was in the following terms:"(One) a right of access to the subjects hereby disponed from the main Kintore-Alford road by the existing service road which serves inter alia other subjects belonging to me, my said disponee and his foresaids being bound to pay a proportion of the cost of upkeep of the said service road with the parties using same according to user....".
In the realignment Disposition in 1992 the access is defined as follows:
"All and whole a heritable and irredeemable servitude right of access and egress for pedestrian and vehicular traffic over that part of the access roadway formerly forming part of the southmost verge of the access roadway leading from the subjects known as Five Moor of Balvack...".
"All and whole the area or piece of ground lying in the Parish of Monymusk in Gordon District of Grampian Region and for the purposes of Registration of Writs in the County of Aberdeen extending to nought point one nought six hectare or thereby being the piece of ground mostly comprising of the track between the two areas of ground already owned by our said disponees and their foresaids known as Four Moor of Balvack, aforesaid as shown delineated by and including the red verge on the plan annexed and signed as relative thereto...".
That Disposition contains the relevant burden in the following terms:
"And also with and under the following additional burdens, namely (one) the subjects hereby disponed are so disponed subject to all existing rights of way; and in particular there is reserved in favour of the proprietor of the adjoining subjects, 5 Moor of Balvack, a pedestrian and vehicular right of access for all purposes and at all times over the said subjects hereby disponed and declaring that the said proprietor shall contribute to the cost of maintenance, repair and renewal of said track and that according to user."
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Kirkwood Lord Johnston Lord McCluskey
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XA87/02 OPINION OF LORD McCLUSKEY in the cause JOSEPH LLOYDS THOMAS AND ANOTHER Pursuers and Appellants; against CHARLES ALLAN AND ANOTHER Defenders and Respondents:
_______ |
Pursuers and Appellants: Sandison; Drummond Miller, W.S.
Defenders and Respondents: Joughlin; Beveridge & Kellas
16 December 2003
[22] I agree with your Lordships that the Sheriff reached the right conclusion, and that the appeal should be refused.