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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Moncrieff & Anor v. Jamieson & Ors [2005] ScotCS CSIH_14 (04 February 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_14.html Cite as: [2005] CSIH 14, 2005 SLT 225, [2005] ScotCS CSIH_14 |
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Moncrieff & Anor v. Jamieson & Ors [2005] ScotCS CSIH_14 (04 February 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Hamilton Lord Philip
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[2005CSIH14] XA113/04 OPINION OF LORD MARNOCH in APPEAL BY DEFENDERS AND APPELLANTS From the Sheriffdom of Grampian, Highland and Islands at Lerwick in the cause JAMES MONCRIEFF and ANOTHER Pursuers and Respondents; against KEITH JAMIESON and OTHERS Defenders and Appellants: _______ |
Act: I.G. Mitchell, Q.C.; Tods Murray (for Inksters, Glasgow) (Pursuers and Respondents)
Alt: Hajducki, Q.C.; Digby Brown (for Anderson & Goodlad, Lerwick) (Defenders and Appellants)
4 February 2005
[1] In the opening paragraph of his Opinion in Lafferty and Another v. Brindley (Ontario Superior Court, 25 July, 2001) the Honourable Mr. Justice J. Donohue said this:"Among its many charms Huron County boasts magnificent sunsets. If you look west from the plaintiffs' right of way along the lake bluff on a summer's evening the spectacle of the fiery orb sinking into the inland sea is sure to instil a sense of calm tranquillity. That feeling is an illusion! The very ground beneath your feet convulses in contending claims of adverse possession, prescriptive easement, and proprietary estoppel. It is a privilege of the people to enjoy sunsets but the lot of lawyers to litigate land disputes."
"consists of a small parcel of ground lying at the foot of a steep escarpment together with what was formerly a shop but is now a dwellinghouse and associated outbuildings erected thereon."
The property is bounded on the west by the sea and on the remaining sides by lands now owned by the third defender. The top of the escarpment forms Da Store's eastern boundary and the only means by which Da Store may be approached from the landward side is through a gate on that eastern boundary and down a steep flight of steps. From Da Store's eastern boundary the lands belonging to the third defender rise fairly steeply to the public road which runs through Sandsound, a fairly remote part of Shetland. It is no longer disputed that there exists in favour of the pursuers' property, as the dominant tenement, a servitude right of vehicular access from the public road just described over the lands owned by the third defender, and the only substantive question now left in the case, like that in the Canadian case, is whether the pursuers have the right to park their vehicles in the immediate vicinity of their own property, albeit on land which belongs to the third defender.
[3] In the Canadian case it appears that the principle of law applied by Mr. Justice Donohue was that the grant of what is there referred to as a "positive easement" included the grant of all such ancillary rights as were reasonably necessary for its exercise and enjoyment. In applying that principle to the facts of the case before him he said this:"I have found as a fact that the plaintiffs' predecessors in title were parking in the disputed location at the brow of the slope long before the deeded right of way was granted or the plan was registered. I have noted that this was the only topographically feasible location at which to park. Access by vehicles was the only realistic means of approach and for the lots to be enjoyed at all, the vehicles had to be left standing until the cottagers chose to depart. In these circumstances, I am satisfied that the parking of vehicles is an ancillary right included within the granted right of way."
"there were no fewer than 39 callings including 10 days of evidence (not to mention evidence and hearings connected with interim interdict and breach thereof) together with 4 days of submissions on sometimes widely separated dates."
Following a By Order hearing on 26 May 2003 at which, in light of the sheriff's provisional findings and Note, "the pursuers moved several final amendments to the Record and suggested with all due and proper deference a number of Findings in Fact and Law and in Law", a final interlocutor was eventually pronounced by the sheriff on 7 July 2003.
[6] I do not, myself, fault the sheriff for the time taken at avizandum. It is abundantly clear that the pursuers' case, as presented to him, proceeded on many fronts, not always clearly distinguished, and that he was from time to time burdened with a great number of authorities which it was not thought necessary or relevant to cite in this court. One of these, it transpires, was "The Twelve Tables"! At the end of the day the sheriff described his task as having been "to find a way through a technical and confusing minefield". [7] It is fair to say that the sheriff does pay tribute to counsel on both sides for the very considerable assistance which he derived from them. Despite this tribute, however, I find it difficult to accept that, if it had been properly focused from the outset, the present dispute should have required anything like the amount of court time which this case has taken up. Even before us the submissions of counsel occupied some six days and it was only in the course of his reply that Mr. Mitchell came finally to clarify the two legal propositions on which he founded his argument. [8] Before, however, I turn to deal with the first of these propositions there is one other remarkable feature of this case which it is necessary to record. After these proceedings had been commenced it was discovered that there was, in fact, an overgrown public road leading from the road running through Sandsound direct to the pursuers' property. This made sense, of course, in the context of that property having formerly been an important shop for the district taking in most of its supplies by sea. We were told that proceedings to "stop up" the line of that road were in course of being taken but that, since the case was before the sheriff, a new public road had in fact been driven to within yards of the pursuers' property with, as part of it, a hollowed out turning circle at its terminus; (see No. 40 of process). When we were apprised of this development I confess that I wondered even more at the continuance before us of this hugely expensive litigation. That said, counsel for the respondents was, I believe, well founded in submitting that the right of the public in a public road or highway was essentially a right of passage - Ferguson on The Law of Roads, Streets, and Rights of Way, Bridges, and Ferries in Scotland (1904) pps. 4 and 7; Waddell v. The Earl of Buchan (1868) 6 M. 690 per Lord Curriehill at p. 699 - and I am accordingly persuaded that, because any de facto parking on a public road can only take place by way of tolerance, the pursuers continue to have an interest to establish that Da Store, as the dominant tenement, enjoys a real right to park vehicles on ground belonging to the third defender. [9] The sheriff, in the end, found for the pursuers but he did so on a number of fronts and on reasoning with much of which I am, with all due respect, unable to agree. It is more convenient, therefore, that I start with Mr. Mitchell's substantive propositions for the pursuers and respondents as finally clarified before this court. In that connection, his primary contention, as I understood it, came to be as follows. There was no dispute that in the original conveyance the pursuers' property had been granted a "right of access" from the public road running through Sandsound. However, what was carried by that right was open to construction in light of the particular geographical location of the dominant and servient tenements. In general, the grant of a right should be construed as including whatever features were necessary to make it effective, in the sense of being reasonably incidental to the enjoyment of the right granted. In the present case, the physical features of the two tenements were such that it was plain, for instance, that there had to be a right to turn in the vicinity of the pursuers' property and a right to unload goods there. So much had, indeed, already been conceded by Mr. Hajducki for the defenders and appellants. By the same process of reasoning it would be unreasonable, said Mr. Mitchell, to deprive the dominant tenement of the right to park vehicles in the vicinity of its boundary. It appeared from Finding in Fact 10 that the overgrown public road had been 150 yards long and, from finding in fact 20, that it had traversed a steep gradient. It was thus quite unreasonable to suppose that either visitors to, or occupiers of, Da Store could park their vehicles other than at, or towards, the end of the access road. Indeed, they would have no right to park them anywhere else. On the question of whether there should be any distinction as between the right of a visitor to park his vehicle and the right of an occupier to do likewise, Mr. Mitchell pointed out that when the two properties were first divided in 1973 Da Store had long since ceased to be used as a shop. Indeed, Finding in Fact 8 was to the effect that, since about 1927, the property had"fallen into multiple occupation with up to four families resident therein and ultimately into semi-dereliction until purchased by the first pursuer's parents who with the pursuers in their turn between 1975 and 1987 gradually brought the whole of Da Store back into a habitable condition."
In these circumstances, as matter of construction, no such distinction could be drawn.
[10] Mr. Hajducki's response to the foregoing does not even have to be summarised. It was a simple assertion that a right of "access" could never, as a matter of language, include a right to "park". This was particularly so bearing in mind the well known principle that grants of servitude had to be strictly construed - Cronin v. Sutherland (1899) 2 F. 217; Bell and Another v. Fiddes 2004 (unreported) per Lord McEwan at para. 208. While Mr. Hajducki conceded the right to load and unload and the right to turn as being necessary incidents of the right of access granted, parking for an indefinite period was intrinsically a different matter. The nature and extent of the right claimed were uncertain in the extreme and might well overlap with the concept of "storage", as in the case of a trailer or residential caravan or other vehicle which is broken down or in disuse. [11] I now turn to deal with such authorities as were said by parties to be possibly helpful, although some, I think, are, at best, of only marginal relevance. I take them in chronological order. [12] First, in Lerwick Harbour Trustees v. Moar 1951 S.L.T. (Sh. Ct.) 46, the sheriff's Note concludes with the statement that a right to park was included within "the right of free ish and entry in the titles". For my part, however, I take nothing from this case when I find earlier on in the Report that the right of "free ish and entry" was granted "with all the easements and conveniences which thereto appertain". [13] Next in date was Ayr Burgh Council v. British Transport Commission 1955 S.L.T. 219. In that case, in the context of a claimed acquisition of a private right of way by prescription the court remitted to probation averments anent the loading and unloading of cattle and the parking of vehicles in connection therewith. At best, in my opinion, this case might be taken to support the proposition that what I shall describe as a right of "temporary parking" might be implicit in a right of access. [14] The next case, in chronological order, was Devlin and Another v. Conn and Another 1972 S.L.T. (Lands Tribunal) p. 11, where, at p. 13, the Tribunal states its view that the parking of a heavy oil tanker to off-load oil was not a proper exercise of a right of way or passage over certain garden ground:-"The right is one of passage over the servient tenement in order to enter or leave the dominant tenement. It is not a right to use the ground of the access route for unloading purposes: see Baird v. Ross (1836) 14 S. 528."
In that case, however, as in the case cited by the Lands Tribunal, there appears to have been no difficulty, at least in principle, in vehicles attaining access onto the land of the dominant tenement. In such circumstances - which will, I think, be by far the most usual set of circumstances - it may well be right to construe a right of access or egress as being no more than, quite simply, a right of passage.
[15] Next was the case of Murrayfield Ice Rink Limited v. Scottish Rugby Union Trustees 1973 S.C. 21. All that could be taken from that case, however, was that there was extensive reference in the titles to what was described as "a servitude right and tolerance for use as a car park" and that this phraseology was not adversely commented on by the court. In my opinion, however, it is reasonably clear that what is there described as a "servitude right" was, in truth, simply a real burden and that it was quite unnecessary for the court to involve itself with the matter of car parking at all, let alone with abstruse questions of terminology. Before parting with the case, I note, for myself, that clause (Eleventh) (Primo) of the relevant feu charter provided as follows:"It is hereby declared that the servitude right of use for a Car Park affecting the Car Park Area hereinbefore mentioned is granted to the feuers as a pertinent of the feu and shall be inalienable by them as a separate tenement and shall be held by them only so long as they remain proprietors of the feu...".
In my opinion the terms of that clause strongly suggest that the word "servitude" is not being used in any technical sense since in its proper meaning it can, of course, never be separated from the dominant tenement.
[16] Next was cited the case of Irvine Knitters Limited v. North Ayrshire Co-operative Society Limited 1978 SC 109. The only significance of that case is that at p. 110 the right of access there described expressly excludes any right to park vehicles in the lane or passage forming the subject matter of the right. This was said to reflect an understanding on the part of the profession as at 1964 (when the right of access was granted) that, but for the exclusion, parking might be permitted. Even if that be so, however, it is by no means clear what kind of parking was envisaged and, in particular, whether it was of a temporary or indefinite character. [17] I now pass to a case which was, perhaps, of rather more significance, namely Kennedy v. Macdonald 1988 (unreported) which was decided by Sheriff Principal Caplan following an appeal from the sheriff. The sheriff had found established by prescriptive use a vehicular right of access along a lane albeit, because of a bounding wall, it had never been possible for vehicles to enter from the lane on to the grounds of the dominant tenement. In that situation the Sheriff Principal, as he then was, sums up matters as follows:"The core of the Appeal was that the Pursuers had only offered to set up a servitude right of access and that such a right, particularly in relation to vehicles, was essentially a right of passage. The only right of way or access hitherto recognised by the law was a right to pass over the servient tenement so as to enter the dominant tenement. However, such a right being essentially one of passage alone did not give the dominant proprietor the right to stop or park or load or unload a vehicle on the servient owner's property."
In rejecting that argument Sheriff Principal Caplan says this:
"A servitude right of access is variously described in the authorities as a servitude of access or of way or of road. However, the essence of the right is to permit the dominant owner to enjoy access to his property. Thus in the case of vehicular access the practical objective is to allow the owner of the dominant tenement and authorised visitors to the tenement to reach it by vehicle, not to permit the vehicle itself to enter the lands of the dominant tenement. The extent of the right of access must be derived from the specific grant or in the case of a prescriptive right measured from the actual use and various modes of access are recognised by the Authorities including in particular pedestrian access and vehicular access. However, neither authority nor practical common sense dictates that access must be exclusively by one mode or another. Given that the right of servitude we are considering can properly be described as way or road there are countless roads which enable proprietors to come by vehicle to the entrances to their respective properties and then complete the last few yards of access on foot. Thus even if a vehicle cannot be taken onto the dominant tenement itself, the right to reach the subjects by vehicle is an important and obvious element in the access to the property. It follows in my view that activities which are reasonably incidental to the enjoyment of such access may be incorporated in the right. In the case of domestic premises this would include stopping the vehicle for such reasonable time as would permit passengers to mount or dismount or deliveries to be made to the house."
"If the pursuers were to deviate from the normal and reasonable incidents of access by parking vehicles for extended periods on the Defender's land or by materially obstructing the lane then no doubt the defender would have other remedies, but such questions do not arise in this case."
"It is, accordingly, clear that even in a case where it is determined that the right to park is incidental to a right of access, the right is limited. If what is asserted is so extensive as to deprive the landowner, in practice, of the reasonable use of his own property, it will not be sustained. Determination of the issue will depend on the particular facts and circumstances of each case. Retention of reasonable use of the servient proprietor's own land in the countryside is bound to involve different considerations from those which arise in the urban context. In the present case, it is abundantly clear that the parking right asserted by the defenders would, in effect, deprive the pursuers of virtually all practical use of their property. Space at the rear of their premises is at a premium. Like the defenders, they are a commercial entity which carries on business during normal working hours from Monday to Saturday each week. To suggest that retaining the use of the parking spaces outwith those hours would afford the pursuers reasonable use of their own land is like suggesting that reasonable use could be made of a car that has no petrol tank. The rights retained would, to use Tuckey L.J's expression in Batchelor (Batchelor v. Marlow and Another[2003] 1 WLR 764]), be illusory".
"946 The principle seems to be, that mere acquiescence may, as rei interventus, make an agreement to grant a servitude, or to transfer property, binding, or may bar one from challenging a judicial sentence; but that where there is neither previous contract nor judicial proceeding, there must be something more than mere acquiescence, something capable of being construed as an implied contract or permission, followed by rei interventus. Where great cost is incurred by operations carried on under the eye of one having a right to stop them, or where, under the eye and with the knowledge of him who has the adverse right, something is allowed to be done which manifestly cannot be undone, the law will presume an agreement or conventional permission as a fair ground of right. ...
947 Although it is rightly said that mere acquiescence cannot confer a right of property, it may confer a right of use of property or servitude."
In addition to the foregoing Mr. Mitchell cited a large number of cases which, so far as possibly relevant to servitudes and real as opposed to personal rights, I list as follows:
Aytoun v. Douglas, 1 July 1800, reported as No. 5 in the Appendix to Morison's Dictionary under the heading of "Property";
Aytoun v. Melville, 19 May 1801 Fac. Col. p. 519;
Earl of Kinnoul v. Keir, 18January 1814 Fac. Col. p. 515;
Marquis of Abercorn v. Langmuir, 20 May 1820 Fac. Col. p. 135;
Munro v. Jervey (1821) 1 S. 161;
Melville v. Douglas's Trustees (1828) 7 S. 186;
Melville v. Douglas's Trustees (1830) 8 S. 841;
Muirhead v. Glasgow Highland Society (1864) 2 M. 420;
McGregor v. Balfour (1899) 2 F. 345; and
More v. Boyle 1967 S.L.T. (Sh. Ct.) 38.
"that the extension of rights of servitude or the like may not be challenged, if the party entitled to object has suffered that extension to be made, and operations attended with expense to be carried on, with his knowledge and approbation, without question."
I might add that in every such case the expense incurred was very considerable and in both cases at the instance of Viscount Melville the Inner House cautioned against any further extension of the doctrine in question. Indeed, in McGregor v. Balfour, at p. 352, Lord President Balfour appears to suggest that, in order to affect singular successors, the works in question must not only be substantial but also remain "visible and obvious". So far as the case of Munro v. Jervey is concerned, the report is brief in the extreme and I consider that the decision may well have rested on an implication of personal contract between the two parties to the action.
[28] In the present case, I do not see anything in the Findings in Fact which could bring it, even remotely, into the category of cases referred to above. The most that can be said is that in about 1988 the pursuers expended a sum of around £500 in laying hard-core on the area which was then, de facto, and by tacit agreement, used as a car park. In my opinion, however, that falls far short of the type of major works and expenditure which in the present context has in the past given rise to the equitable plea of acquiescence. [29] The general law is not in doubt and it is stated in a later passage in Bell's Principles under what is perhaps the more apposite heading of "Constitution of Positive Servitudes". After pointing out that a grant normally requires to be constituted in writing it is stated, at para. 992, that "A servitude cannot be constituted rebus ipsis et factis". There is then a reference to the Speeches in the House of Lords in the case of Cochrane v. Ewart 1861 4 Macq. 127 which, when consulted, very clearly vouch the proposition in question. Applying that principle to the present case I am clearly of opinion that there was no merit whatsoever in Mr. Mitchell's "fall-back" submission. [30] I turn, lastly, to the terms of the interlocutor which I suggest should be pronounced by this court. In that connection, counsel were agreed that the sheriff had mistakenly granted craves 2, 3, 4, 5 and 9 of the Initial Writ and, in the course of the Hearing, this court allowed amendment, or further amendment, of Craves 6 and 7 and plea in law 5. These now appear in the following terms:"6. To find and declare:
(a) that there exists over the heritable subjects particularly described and disponed in the Disposition by Rosalie Ward in favour of Bruce Jamieson dated 25th October 1982 and recorded in the General Register of Sasines for the Counties of Orkney and Zetland on 21 February 1983, that is the servient tenement, a servitude right of way for access and egress for pedestrian and vehicular traffic in favour of the heritable subjects particularly described and disponed in a Disposition by Mitchell George Alexander Georgeson in favour of Margaret Stuart dated 31st August 1973 and recorded in the General Register of Sasines for the Counties of Orkney and Zetland on 3rd September 1973, that is the dominant tenement, the route of which access, (save insofar as the same may hereafter come to be varied) falls to be exercised along the road cross hatched black on the Plan (marked 'BARDELL PLAN 2') lodged in process, as it extends from the public road through Sandsound to the steps leading to the subjects known as and forming 'Da Store'(otherwise The Store);
(b) that the said right of access has, as an incident thereof, accessory rights over the servient tenement in favour of the dominant tenement (i) to park, on the servient tenement, such vehicles as are reasonably incidental to the enjoyment of said access to the dominant tenement and (ii) to stop, turn, load and unload goods and to set down and pick up passengers on the servient tenement;
(c) that said accessory rights are presently exercised in the area of the servient tenement shaded pink on the Plan (marked 'BARDELL PLAN 2') lodged in process which plan is demonstrative only and not taxative.
...
7. To interdict the Defenders and their agents, contractors and employees from interfering with the reasonable exercise by the Pursuers of their servitude right of access and accessory rights over the servient tenement, by parking and depositing vehicles, plant and building materials on the said access road and pink area aforesaid or any other area which may come to replace the aforesaid pink area, erecting any fences or walls on or across the said access road and aforesaid pink area or any other area which may come to replace the aforesaid pink area or by otherwise blocking the said access road and aforesaid pink area or any other area which may come to replace the aforesaid pink area.
...
5(a) A servitude right of access for pedestrian and vehicular traffic
over the servient tenement in favour of the dominant tenement, having been created by express grant et separatim having subsequently been varied and extended by agreement, and in any event by acquiescence, decree of declarator should be pronounced as sought in crave 6(a);
(b) There having been impliedly granted a right to park vehicles, and
to stop, turn, load and unload goods and to set down and pick up passengers as specified in Crave 6(b) as a necessary incident of the said servitude right of access all as being reasonably incidental to the enjoyment of the said servitude right of access to the dominant tenement, decree should be pronounced as sought in Crave 6(b) foresaid;
(c) Separatim such servitude right to park vehicles having been
acquired as a result of acquiescence of the Third Defender, as condescended upon, decree should be pronounced as sought in Crave 6(b) aforesaid;
(d) Said accessory rights presently being exercised in the area shaded
pink as referred to in Crave 6(c), declarator should be pronounced in terms of said Crave 6(c)."
Although the wording of Crave 6(b) and plea in law 5(b) is clearly capable of even further improvement I am prepared to assume that in each case it is designed to reflect accurately the submissions advanced by Mr. Mitchell which, as I understood them, were based firmly on the concept that the measure of any implied or ancillary right was what was necessary to the reasonable enjoyment of the express right of access granted in 1973.
[31] So far as the matter of Interdict is concerned, Mr. Hajducki maintained that, even in their amended form, the terms of Crave 7 were too vague to be properly the subject of a court injunction. As the sheriff points out, however, for many years prior to 1998 the parties co-existed as neighbours perfectly amicably, both using the same general area for the parking of their respective vehicles. This suggests to me that if both parties act bona fide (which, of course, the court must assume will be the position) there will be no real difficulty in either the obtempering or, if necessary, the enforcement of interdict granted in the terms now proposed. Accordingly, my motion to your Lordships is that the sheriff's interlocutor should be recalled in so far as sustaining plea in law 5 for the pursuers and granting craves 2, 3, 4, 5, 6, 7 and 9. That having been done, this court should now sustain plea in law 5(a), (b) and (d) for the pursuers, as amended, and grant craves 6 and 7, also in their amended form. Quoad ultra we should adhere to the final interlocutor pronounced by the sheriff dated 7 July 2003.Moncrieff & Anor v. Jamieson & Ors [2005] ScotCS CSIH_14 (04 February 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Hamilton Lord Philip
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[2005CSIH14] XA113/04 OPINION OF LORD HAMILTON in APPEAL BY DEFENDERS AND APPELLANTS From the Sheriffdom of Grampian Highland and Islands at Lerwick in the cause JAMES MONCRIEFF and ANOTHER Pursuers and Respondents; against KEITH JAMIESON and OTHERS Defenders and Appellants: _______ |
Act: I.G. Mitchell, Q.C.; Tods Murray (for Inksters, Glasgow) (Pursuers and Respondents)
Alt: Hajducki, Q.C.; Digby Brown (for Anderson & Goodlad, Lerwick) (Defenders and Appellants)
4 February 2005
Introduction
[32] As I have the misfortune to differ from your Lordships as to the disposal of this appeal, I consider it appropriate to set out the factual and legal bases upon which my views rest.The facts
[33] Immediately prior to the grant of a disposition dated 31 August and recorded in the Division of the Register of Sasines applicable to the Counties of Orkney and Zetland on 3 September 1973 ("the Disposition") Mitchell George Alexander Georgeson was the proprietor of various crofts or holdings at Sandsound in the Parish of Sandsting and Aithsting in the County of Zetland. By the Disposition Mr. Georgeson, in consideration of the sum of £375, conveyed to Mrs. Margaret Stuart a plot or area of ground within specified boundaries together with "(Fourth) a right of access from the branch public road through Sandsound ... ". That plot lay within larger subjects, the remainder of which was retained by Mr. Georgeson. Included within those retained subjects was land lying between the subjects conveyed and the branch public road referred to. [34] The pursuers and respondents in this action are the successors in title to Mrs. Stuart. The third defender and appellant is the successor in title to Mr. Georgeson in respect of the retained subjects (in so far as material for present purposes). The first and second defenders and appellants are husband and wife and live at a property known as "The Storehouse", Sandsound. That property was originally held on leasehold but in 1998 the first appellant acquired the heritable right to it. That property lies a short distance to the east of the respondents' property. [35] The buildings on the respondents' property (referred to in the Shetland dialect and hereinafter as "Da Store") are "B listed". They constitute a former merchant's house and shop and are situated close to the water's edge on Sandsound Voe. The property is bounded on the west by the sea and on the east by property now owned by the third appellant. At that eastern boundary there is a very steep escarpment below which, on an embankment, lie the buildings within the respondents' property. Because of the steepness of that escarpment it is not physically possible to drive a vehicle onto the respondents' property. Access to it from the top of the escarpment is gained on foot through a gate and down a steep flight of stairs. This physical arrangement has existed since prior to 1973. [36] The "B listed" buildings on the respondents' property date from the mid 19th century, or possibly earlier. From about that time until about 1927 the shop formed a principal retail outlet for the Sandsound area. Thereafter it was subject to multiple occupation with up to four families resident there. Later still it fell into semi-dereliction until, having been purchased by the first respondent's parents from Mrs. Stuart in December 1975 and subsequently acquired by the first respondent and then by the respondents together, it was gradually restored over the period from 1975 to 1987 to a habitable condition. It is now occupied as a dwellinghouse by the respondents and their family. [37] The "branch public road through Sandsound" referred to in the Disposition is a single track road maintained by the local roads authority and leading to the settlement of Sandsound. It was first constructed in the latter half of the 19th century. At its closest point to the respondents' property it runs generally north and south at a distance (discussed below) to the east of the eastern boundary of that property. Between that property and that road lies, as I have said, property of the third appellant. Between these points the ground rises relatively steeply towards the road. [38] Historically the main access to Da Store seems to have been by sea, by which access may still be gained. On the landward side access appears to have been initially overland on foot but, between 1899 and 1902, following the construction of various public roads including the branch public road through Sandsound ("the main public road"), the then local authority, Zetland County Council, constructed over property now belonging to the third appellant a further branch public road ("the lower branch public road"), suitable for contemporary vehicular traffic and running down the hill from the main public road to terminate in the general vicinity of the eastern boundary of what is now the respondents' property. The lower branch public road was described in the County Council minutes of 1899 as being 150 yards long. Its track can be seen from various photographs produced in the course of this litigation and is described by the sheriff as having been "slightly boomerang-shaped". The distance in a direct line from the main public road to the eastern boundary of the respondents' property may be taken to be a little less than 150 yards. The lower branch public road was completed in or about 1902. The local authority does not appear to have acquired proprietorship of the solum of that road. It was constructed of hardcore and mortar. It was regularly used until about 1927 by customers, pedestrians and, the sheriff found, "possibly horse-drawn carts" making deliveries to and collecting goods from Da Store. In that year a new shop was created at the top of the slope near the junction between the main public road and the lower branch public road. The line of the lower branch public road passes immediately to the south of The Storehouse and terminates a short distance below it. [39] After 1927 there was decreasing use by the general public of the lower branch public road. It was no longer maintained by the local authority. This led to a gradual grassing over and partial obliteration of the surface of that road. As a result it became gradually less suitable for vehicular traffic, which became progressively more apt to slip on the encroaching turf. By 1975, when the first respondent's parents acquired Da Store, while the lower branch public road could be used by motor vehicles with care and its track remained clearly visible, its condition was such that the first respondent's parents did not use it for vehicular access. When renovating the property they used an ad hoc rope and pulley system and fish boxes to slide materials back and forth between Da Store and the main public road. The lower branch public road remained on the local authority's register of roads but, by the time the present action was raised in 1998, its formal status as a public road appears to have been forgotten. No party to the present action was, at that time, aware of that status. [40] The lower branch public road was relatively narrow. While horse-drawn vehicles may have been able to turn on it in their own length, it was not sufficiently wide to permit motor vehicles to turn on it nor, without blocking the road, to stop on it. Accordingly, in order to load and unload goods, to put down passengers or to turn so as to be able to leave, motor vehicles driven down the lower branch public road would require to manoeuvre on other land now belonging to the third appellant. From at least 1927 until about 1983 the ground to the north of the lower branch public road was separated from it by a fence situated roughly parallel to that road. The ground to the south of the road was, however, unfenced and accessible for such manoeuvring. It was so available in 1973. In about 1983 the third appellant, for the purposes of better stock control, removed the fence on the north side of the road. As a result ground on that side of the road, including ground adjacent to the eastern boundary of what is now the respondents' property, became accessible for such manoeuvring. [41] In about 1984 the first respondent commenced a major scheme of renovation works at Da Store. For that purpose he began to access the property by vehicle. He did so at first intermittently but more regularly after he had obtained a four-wheel drive vehicle. He proceeded by the lower branch public road, on occasions parking at a point at its western end adjacent to the boundary of his own property. He also often turned the vehicle on the third appellant's land, manoeuvring on parts of it beyond the edges of the lower branch public road. In December 1987 the first respondent took up residence in Da Store. Thereafter, on a daily basis, except in icy and very wet conditions, he gained access with a four-wheel drive vehicle along the lower branch public road. He also deposited materials and drove, stopped, parked, loaded and unloaded vehicles on the third appellant's land, including land beyond the edges of the road. He did not seek permission from the third appellant for such use of that land. The third appellant was aware of such use and stated no objection to it until much later. [42] In about the Autumn of 1988 the first respondent engaged a contractor to improve the road. This was done by scraping off the top grass or surface layer to improve grip in wet, slippery and poor weather conditions and thereafter resurfacing the road with hardcore. The third appellant was aware of these works. He took no objection to them, although he did refuse permission for insertion of a cattle grid on the road. [43] At the same time the first respondent asked the contractor to create a small hardcored turning point adjacent to the northern edge of the lower branch public road at a point some 5 metres east of the respondents' eastern boundary. The first respondent told the third appellant that the purpose of these works was to improve vehicular access to Da Store. He did not specifically ask the third appellant for permission to park or turn vehicles on this land ("the additional area of ground") but the third appellant was well aware that these works were being carried out. He took no objection to them. [44] The cost of these whole works (the resurfacing of the road and the hardcoring of the additional area of ground) amounted to £1,012, all of which was met by the first respondent. [45] From about then until 1993 the improved road was used both by the first respondent to gain access to his property and also by the first appellant to gain access to The Storehouse. The first respondent continued to park and to load and unload vehicles on the additional area of ground in its improved condition. He also stored materials there. The third appellant expressed no objection to these activities. [46] In about 1989 the first appellant erected a new fence to the north of part of the lower branch public road. His purpose was to exclude sheep from ground which, lying to the west of The Storehouse and forming part of the third appellant's property, he was making into a garden. These operations were approved of and consented to by the third appellant. The line of this fence was generally along the north edge of the road but, towards the western end of the road, it turned northwards and then again westwards so as to exclude from the fenced garden ground an area comprising (1) the additional area of ground and (2) some contiguous further ground. The total extent of that area was approximately 5.4 square metres (6.8 x 8 metres). That total area has been referred to in the proceedings as "the pink area" (from a depiction in a plan used). Thereafter the pink area was used on a daily basis by the respondents or their visitors for parking. It was also used to gain readier access by vehicle to the gate at the head of the steps leading down to Da Store. The third appellant expressed no objection to such use. [47] Both the second respondent, the first respondent's wife, who took up residence at Da Store in October 1992, and the second appellant, the first appellant's wife, were reluctant, due to the steepness of the road, to drive their respective vehicles on it. Early in 1993 the first appellant, with the consent and concurrence of the third appellant, approached the first respondent with a proposal that the access route across the third appellant's land be improved by creating a new road to run zigzag across the slope rather than straight down it. The first respondent agreed to this proposal, subject to the condition that the hardcored part within the pink area be enlarged so as to allow the second respondent's car to be parked on a hardcore surface beside the first respondent's car. The first appellant accepted that condition. The physical works were carried out by the first appellant with assistance from the third appellant. The total cost was £3,500, met initially by the first appellant but towards which he subsequently sought and obtained from the first respondent a contribution of £600. These works having been completed, the first appellant told the second respondent - "You will be able to get your car down now, Alison". [48] Thereafter both the first and the second respondents used the pink area for turning and for parking vehicles. Although the whole of the pink area was not hardcored, a part remaining grassed, it was in 1994 further improved by the removal by the first appellant from it of a, by then disused, electricity supply pole and the in-filling of the resultant hole with hardcore. In about 1994 a further diversion of the access route across the third appellant's land was carried out. This was proposed by the first appellant, with the consent and concurrence of the third appellant. It was designed partly to bring it on a line which better suited the first appellant's plans for the erection of a garage and partly to improve the gradients. The first respondent agreed to this further diversion, subject to an adjustment which would further facilitate vehicular access to Da Store. [49] The combined effect of all of these works was to render the original (direct) route of the lower branch public road impassable. A short section of that original route ("the stub"), towards its western end, was, however, still used by the respondents for the purpose of manoeuvring vehicles. [50] Thereafter the respondents, their visitors and tradesmen continued to make full use of the pink area and the stub for the various purposes earlier narrated. In particular, the respondents regularly parked two cars and a trailer on the third appellant's land (a) at the very end of the lower branch public road nearest to Da Store either one behind the other or in parallel, (b) on the hardcored turning area, (c) elsewhere in the pink area and (d) on occasions on other parts of the third appellant's land. They also used both the turning point and the stub for turning in. [51] This overt use continued without challenge until events occurred in 1998 which led to a breakdown in the harmonious relations until then enjoyed between the respondents on the one hand and the appellants on the other. [52] The respondents in that year raised an action in the Sheriff Court at Lerwick in which they sought certain remedies. After sundry procedure, including a protracted proof, the sheriff, by interlocutor dated 7 July 2003, made an order by which, among other disposals, he granted decree of declarator of certain servitude rights, pronounced a permanent interdict designed to prohibit interference with those rights, awarded damages in certain sums to each of the respondents and made a finding in respect of expenses. Against that interlocutor the appellants have appealed to this court. The primary issue for determination is whether the sheriff was entitled to grant decree of declarator in the terms in which he did. A secondary issue arises as to whether, if he was so entitled, the permanent interdict pronounced by him is, in its terms, enforceable. The appellants do not challenge the awards of damages made against them (which relate to the consequences of past infringements of what are now conceded to have been rights of the respondents). [53] For completeness - although it does not affect the parties' private rights - it may be added that, since this case was before the sheriff, the local authority (now Shetlands Council) has constructed a new public road, on yet further improved gradients, from the main public road to a point a short distance from the steps leading to the respondents' property, together with a turning bay close to that point; for the purposes of those works it acquired, we were informed, from the third appellant the solum of that new road. [54] The foregoing narrative, apart from the last two paragraphs, essentially summarises the findings of fact made by the sheriff after the proof. No dispute on issues of fact arises in this appeal, which is concerned only with questions of law.The nature of the dispute
[55] In the course of the appeal proceedings the respondents sought and were granted leave to amend the craves of the initial writ. The final form of the amended craves is in the terms set forth by your Lordship in the chair. There is no dispute that the respondents are entitled to a servitude right of access. The dispute concerns the scope of that right, in particular, whether it includes, as an incident of it, a right "to park, on the servient tenement, such vehicles as are reasonably incidental to the enjoyment of said access to the dominant tenement". [56] Although the sheriff in his Note gave detailed consideration to the various issues then before him, the discussion before this court essentially addressed of new the legal issues, in so far as still live, between the parties. In these circumstances it is unnecessary to set out the sheriff's treatment of them.The appellants' submissions
[57] Mr. Hajducki for the appellants advanced, in support of the primary aspect of the appeal, three propositions -(1) that the law of Scotland did not recognise any "free-standing" servitude of
parking;
(2) that a right to park could not, under the law of Scotland, be an incident of a
servitude right of access; and
(3) that, if proposition (1) or proposition (2) was wrong, on the facts of this case
there had been created neither a free-standing servitude right of parking nor a right of parking as an incident of a servitude right of access.
[In the event, Mr. Mitchell for the respondents did not consider it necessary to challenge the first of these propositions; but as Mr. Hajducki's submissions in support of propositions (1) and (2) were interrelated, it is appropriate to summarise his arguments on both].
[58] Mr. Hajducki emphasised at the outset that these propositions fell to be addressed in accordance with the common law and against the factual circumstances which obtained when the property, together with the right of access, was conveyed to the respondents' predecessor in title in 1973. The appellants, including the third appellant as successor in title to the disponer of the Disposition, conceded, as they had before the sheriff, that the "right of access" conferred by the Disposition included, as incidents of it, the rights (a) to load and unload goods and passengers from a vehicle, including of necessity stopping for that purpose on the third appellant's land, and (b) the right to turn a vehicle on that land. These incidental rights arose by reason of the physical situation which existed in 1973, in particular from the fact that the access route was a "dead end". What was, however, disputed was any right in the respondents beyond that - in particular any right to "park" on the third appellant's land (in the sense of "long-term" parking). [59] A servitude, it was submitted, was of its nature a restriction on the right of the proprietor of the servient tenement. The presumption was for freedom. Reference was made to Nationwide Building Society v. Walter D. Allan Ltd., 4 April 2004 (Lady Smith, unreported); Russell v. Cowpar (1882) 9 R. 660, especially per Lord Mure at page 665, Lord Shand at page 666 and Lord Deas at pages 666-7; Cronin v. Sutherland (1889) 2 F. 217, especially per Lord Justice-Clerk Macdonald at page 219 and Lord Trayner at page 220; Bell v. Fiddes, 23 January 2004 (Lord McEwan, unreported). With one possible exception, a servitude right of parking had never been recognised in Scotland. Reference was made to Ayr Burgh Council v. British Transport Commission 1955 S.L.T. 219; Devine v. Conn 1972 S.L.T. (L.T.) 11; Norcott v. Sanderson 1990 S.C.L.R. 622 and Nationwide Building Society v. Walter D. Allan Ltd.. The possible exception was Murrayfield Ice Rink Ltd. v. Scottish Rugby Union Trustees 1973 S.C. 21, where a right had been described in a deed as a "servitude of parking"; on closer examination, however, the right there described was a real burden. It was not disputed that a right of parking could in Scotland be constituted by that latter mode. English cases (such as Batchelor v. Marlow and Another [2003] 1 WLR 764 and K-Sultana Saad v. Plustrade Ltd. [2001] EWCA Civ 2011) did not assist. Far less did cases from the Commonwealth. While in Scotland the categories of servitudes were not closed, no servitude of the character here claimed had ever been recognised. Its effect would be to deprive the proprietor of the land of effective use of the ground on which the vehicle or vehicles were, on a long-term basis, parked. In relation to the constitution of servitudes and of real burdens, reference was made to the Scottish Law Commission Report on Real Burdens No. 181 (2000), Part 12 and to the Title Conditions (Scotland) Act 2003, sections 76 and 77. The changes there proposed and enacted were subsequent in time to the events which were critical to the present case. [60] A right to park could not be an incident of a right of access. While a right of access might in certain circumstances imply certain incidental rights (the test being one of necessity), it could not imply a right to park which of its nature was distinct from a right of access (viz. the right to go to and from). The distinction drawn by Lord Dunpark between the right of navigation and a right to moor a vessel was analogous (Crown Estates Commissioners v. Fairlie Yacht Slip Ltd. 1976 S.C. 161 at page 166). [61] In any event, in the circumstances of this case, no right of parking, whether free-standing or incidental to the right of access, had been created. There had been no express grant of a right of parking and the respondents did not maintain that such a right had been created by the operation of prescription. That left only an implied grant (as at 1973) or one constituted by acquiescence (subsequent to 1973). In relation to the former, the test, on severance of one part of land from another, was what was necessary for the comfortable enjoyment of the part disponed (Ewart v. Cochrane (1861) 4 Macq 117, per Lord Chancellor Campbell at pages 122-3). Reference was also made to Gow's Trustees v. Mealls (1875) 2 R. 729, especially per Lord Justice-Clerk Moncrieff at pages 734-5, Louttit's Trustees v. Highland Railway Co. (1892) 19 R 791, especially per Lord Adam at page 799, Cullens v. Cambusbarron Co-operative Society Ltd. (1895) 23 R. 209, especially per Lord Trayner at page 217 and Fraser v. Cox 1938 S.C. 506, especially per Lord Carmont at page 521. In Kennedy v. Macdonald (14 November 1988, Sheriff Principal Caplan, unreported), while a right of vehicular access had been established (by prescription), it had been recognised that such a right did not include the right to park vehicles for extended periods on the servient tenement. It was such a right to park which the respondents claimed in the present action. On the facts found there was nothing to show that parking (in the sense claimed) was practised as at 1973. Nor was there anything found as at that time that would justify the inference that such a right was necessary for the reasonable enjoyment of the property then separated and disponed. As to acquiescence, the findings in fact did not justify an inference that a right of servitude had, by subsequent events, been constituted by that mode which, if available at all, required to amount to an implied grant by actings. Reference was made to Robson v. Chalmers Property Investment Company Ltd. 1965 S.L.T. 381. What the respondents sought was declarator of the real right of servitude (such as would be good against singular successors). Whatever the position about any personal right which might arise from the parties' actings, no real right by actings had been established. [62] Mr. Hajducki also criticised the sheriff's interlocutor in respect of permanent interdict.The respondents' submissions
[63] Mr. Mitchell submitted that it was a "simple" case. The Disposition granted a right of access which, it was conceded by the appellants, included a right of vehicular access. It was also conceded that the right to load and unload carried with it a right to stop on the servient tenement in the vicinity of the boundary to the respondents' property. Consideration of the deed against the geographical features existing as at 1973 led to the conclusion that the deed carried the right to park as a necessary ingredient of the right of access expressly conferred. That ancillary right was necessary in order to render the right of (vehicular) access effective. The test of "effectiveness" was, in the context of the construction of an express grant, to be preferred to that of "necessary for the convenient and comfortable enjoyment of the property" enunciated by Lord Chancellor Campbell in Ewart v. Cochrane. The relevant question was - "Is parking reasonably incidental to the enjoyment of the servitude?" (Kennedy v. Macdonald, per Sheriff Principal Caplan at page 4). If the dominant proprietor wished for any reason to go by car from the main public road to his property, he would inevitably (having regard to the geography) require to park that car on the servient tenement, unless he were to drive it immediately back to the main road and, having parked it elsewhere, approach his property on foot. That was a simple negation of his right of vehicular access. The true answer was that the respondents had in the circumstances a right to park on the servient tenement. The control over that right was that it required to be exercised civiliter. Reference was made to Axis West Developments Ltd. v. Chartwell Land Investments Ltd. 1999 S.L.T. 1416, especially per Lord President Hope at page 1418. There was no logical distinction between (1) stopping for the purposes of loading and unloading and (2) stopping and parking. The observations made by Sheriff Principal Caplan in Kennedy v. Macdonald about parking were obiter; they were also made in the context of a case which depended on prescription, not on grant. There was no Scottish authority to the effect that a right to station vehicles on a servient tenement could not be an incident of a servitude right of access. Reference was made to Lerwick Harbour Trustees v. Moat 1951 S.L.T. (Sh. Ct.) 46 and Ayr Burgh Council v. British Transport Commission. The reference in Murrayfield Ice Rink Ltd. v. Scottish Rugby Union Trustees to a servitude of parking (which had elicited no judicial comment) supported the view that parking could constitute a servitude right. In Irvine Knitters Ltd. v. North Ayrshire Co-operative Society Ltd. 1978 SC 109, there had been, in the deed under discussion, an express exclusion of the right to park from the grant of a servitude of vehicular access; that exclusion implied that, in its absence, such an incidental right might exist. Reference was also made to Harris v. Wishart 1996 S.L.T. 12 and its sequel Harris v. Wishart (23 January 1997, Sheriff Irvine Smith, reported only in Cusine and Paisley - Unreported Property Cases from the Sheriff Courts page 384, especially at pages 397-400). Ferguson v. Tennant 1978 S.C. (H.L.) 19 illustrated how the law might develop a known servitude. Although cases from other jurisdictions could not determine issues of Scots law, two cases from Ontario in Canada (Mackenzie v. Matthews 1 November 1999, Ontario Court of Appeal, unreported and Lafferty and Another v. Brindley, 25 July 2001, Ontario Superior Court, unreported) were remarkably similar on their facts and illustrated the correct solution. Against the factual circumstances of the present case it was an ineluctable conclusion that parking was virtually indispensable for the exercise of the grant of access. [64] In any event, the respondents had acquired a servitude right to park by virtue of actings subsequent to 1973. A number of elements (personal bar, actual agreement and other actings of the parties) combined to constitute that right. Acquiescence might confer a right of servitude (Bell's Principles (10th edition) para. 947); a servitude right might be established or proved by acquiescence inferring a grant (Macgregor v. Balfour (1899) 2 F. 345, per Lord President Balfour at pages 351-2). Mr. Mitchell developed this submission under reference to Bell's Principles (10th edition) at paras. 1100-3; Ayton v. Douglas (1800) M. App. to "Property" No. 5; Ayton v. Melville 19 May 1801, F.C.; Earl of Kinnoul v. Keir 18 January 1814, F.C.; Colville v. Middleton 25 May 1817, F.C.; Marquis of Abercorn v. Langmuir 20 May 1820, F.C.; Munro v. Jervey (1821) 1 S. 161; Melville v. Douglas' Trustees (1828) 7 S. 186 and (1830) 8 S. 841; Johnston v. Scott (1834) 12 S. 492; Muirhead v. Glasgow Highland Society (1864) 2 Macph. 420; Duke of Buccleugh v. Magistrates of Edinburgh (1865) 3 Macph. 528; Sanderson v. Geddes (1874) 1 R. 1198 and Grahame v. Magistrates of Kirkcaldy (1882) 9 R (HL) 91. Of more modern cases he cited Robson v. Chalmers Property Investment Company Ltd., More v. Boyle 1967 S.L.T. (Sh. Ct.) 38 and Buchan v. Hunter, 12 February 1993, reported in Paisley and Cusine - Unreported Property Cases from the Sheriff Court page 311. The sheriff's findings in fact demonstrated that from 1983 onwards there had been use of the pink area for turning, parking and storage (the last with permission of the third appellant); such usage had initially (1983-87) been to allow works to be carried out by the first respondent, then (1987-92) for the first respondent's residential purposes and from 1992 for the residential purposes of both respondents. One looked in vain for any basis for such usage other than by acquiescence on the part of the third appellant. There was also implicit unconditional agreement to parking. The first appellant had expressly acknowledged that the consequence of the later works would be that the second respondent would be enabled to park near her home. Accordingly, if contrary to the primary submission, a right to park was not within the express grant of 1973, that grant had been enlarged by these actings so as to embrace a servitude right to park. [65] It was unnecessary to advance any contention in respect of a "stand-alone" servitude of parking. In response to an enquiry from the court, Mr. Mitchell submitted, under reference to the Roads (Scotland) Act 1984 section 1 and the Road Traffic Regulation Act 1984 section 32, that there was no right to park on a public road. The absence of such a right supported the proposition that a right to park on the third appellant's land had been conferred on the respondents, who otherwise had no right to park their vehicles. [66] Mr. Mitchell further maintained that the respondents were entitled to permanent interdict, albeit in amended terms.Discussion - the primary question
[67] The primary question for determination in this appeal is one of construction - in particular, whether the express grant conferred by Clause (Fourth) of the Disposition by the third appellant's author in favour of the respondents' author embraced a right of parking of the kind claimed by the respondents. Before one endeavours to answer that question, it is necessary to put it into a legal and factual context. [68] The right claimed is a right of servitude - that is, a heritable right good against singular successors of the proprietor of the land over which it constitutes a burden. In its discussion of servitudes in Part 12 of its Report No. 181 the Scottish Law Commission noted at paragraph 12.22 that there was, in effect, a fixed list of positive servitudes in Scotland, derived mainly from Roman law, and that, despite obiter dicta to the contrary, the courts had not generally been willing to add to that list. The authors of the Report doubted whether there was under the existing law a servitude right to park a car (a doubt which I share) and noted that the position was different in other countries. While they regarded the then current rule in Scotland in respect of servitudes as unduly restrictive, they recognised that a right to park could, under existing Scots law, be constituted by the alternative mechanism of creating a real burden. Ultimately they recommended that the fixed list should, in respect of servitudes constituted by appropriate registration, be broken. That recommendation was subsequently given effect to by section 76 (as read with section 75) of the Title Conditions (Scotland) Act 2003; that relaxation, however, applies only to deeds where the servitude is registered against both the benefited and the burdened property. That change in the law has, it is conceded, no application to the present dispute which concerns the effect of a disposition granted in 1973, the servitude right then constituted being made public only by the recording of that deed. Nor is it contended that the stricter conditions required to constitute a real burden were, in the case of this grant, satisfied. [69] The reluctance of the common law readily to admit new forms of servitude rights was no doubt influenced by the fact that a servitude could be validly constituted without the grant appearing in the progress of titles of the burdened proprietor (Rankine on Landownership (4th edition) page 427); a singular successor was put on his enquiry as to certain well-defined burdens (op. cit. page 428). A related rule was that an express grant of a positive servitude fell to be construed strictly (Cronin v. Sutherland). At page 219 Lord Justice-Clerk Macdonald said:"In a case of servitude there must be a strict interpretation of the document constituting it when it depends on a document produced, so as not to make the burden upon the servient tenement more heavy than is the necessary consequence of the grant. The servitude must not be made more burdensome than a strict reading of the words imposing it will reasonably cover".
Lord Trayner (at page 220) was to the same effect.
[70] With the possible exception of Murrayfield Ice Rink Ltd. v. Scottish Rugby Union Trustees (where the matter was not in issue) a right to park has not in general been recognised as within the list of acknowledged servitude rights. However, for the purposes of this case, I am prepared to assume that, if by a conveyance of heritage there were conferred on the grantee a servitude right of way over retained subjects, together with a clearly expressed ancillary right to park a vehicle or vehicles on those subjects, that ancillary right would be given effect to at common law as a servitude right, good against singular successors of the grantor. In that hypothetical case the ancillary right is clearly expressed and its intended character as a real, as distinct from a personal, right is plain by association. No such ancillary right was granted expressly by the Disposition. The primary question for decision in this case is whether such a right was, by inference or otherwise, in effect granted. [71] In the Disposition the servitude right granted is a "right of access" from the main public road to the subjects conveyed. As a matter of language, a right of access imports, at least ordinarily, no more, in my view, than a right of approach (and of return) and, where such a right is granted on the separation of a property from larger subjects, a right to pass across the retained property for the purpose of gaining entry to (or egress from) the benefited property. In other words, such an expression primarily suggests transit (of persons or of vehicles) across the burdened property, rather than the use of the latter or any part of it for any more extensive purpose. The right to load or unload vehicles or to turn them would not ordinarily be an incident of a right of ish and entry (Baird v. Ross (1836) 14 S. 528); in that case, while Lord Medwyn appears to accept (at page 532) that such activities might be permitted "on the cart way" (though not on the ground outwith it - see Baird v. Ross (1832) 6 W. & Sh. 127), Lord Glenlee on the same page describes loading and unloading carts as "a right of a very different nature from mere ish and entry". [72] In the present case some extension beyond the narrowest form of a right of passage is, having regard to the physical circumstances, properly to be recognised. Although there is no express grant of access by vehicle, the fact that the track of a road (even if by 1973 much overgrown and neglected) was apparent on the ground carries the implication that the grant carried the right to gain access by vehicle. The location of the separated subjects beyond the escarpment, with these subjects being wholly inaccessible to vehicles, also carries, by necessary implication, a right to turn vehicles on the retained property, even if motor vehicles (which must be assumed to have been in contemplation as at 1973) could not turn within their own length and thus required, for that purpose, to encroach beyond the roadway. Similar physical considerations lead to an implication of the right to put down and uplift passengers and to load and unload vehicles in the vicinity of the terminus of the road. In the above circumstances the concession by the respondents that these incidental rights were granted in 1973 is, in my view, correctly made. [73] However, the further incidental right of "parking" claimed by the appellants gives rise, in my opinion, to greater difficulty. The right claimed imports a right to station a vehicle or vehicles, on some part of the retained subjects in the vicinity of the boundary of the respondents' property, as a matter of general convenience. It is, in my view, different from stationing a vehicle for the purposes of loading or unloading goods or of uplifting or putting down passengers. The length of time and the nature of the vehicles which might be so parked are without restriction - though Mr. Mitchell maintained that control over such matters could be exercised by applying the requirement that a servitude be used civiliter. But that requirement is concerned with the manner of the exercise of a servitude right, not with the prior question of the true extent of it. In Robson v. Chalmers Property Investment Company Ltd. Lord Kissen cited with approval the passage from Rankine on Landownership (4th edition) at page 417 where the learned author states:"The presumption [for freedom] acts in three ways: first, by demanding certain known methods of constitution; next, after proof of the existence of some right of servitude, by presuming in favour of that degree thereof which shall be least burdensome to the servient tenement; and lastly, when the servitude and its degree have been made out, by directing that it shall be exercised civiliter".
Thus, any question of exercise civiliter arises only after the extent of the right has been identified. If "parking" in the sense claimed is truly something distinct from passing to and fro and from stopping to load or unload etc., the first question is whether that distinct element is within the scope of the right of "access" conferred by the Disposition.
[74] In my view parking in that sense is so distinct. In an urban context clear distinctions are, for the purposes of public regulation, recognised between parking on the one hand and each of (1) passing over and (2) stopping to load/unload etc. on the other. These distinctions, in my view, reflect the ordinary use of language. I see no good reason why the same distinctions should not be recognised in a rural context. No doubt, regulation in the countryside may in general be more relaxed - due perhaps to a greater tolerance on the part of roads authorities or of private proprietors. But the distinction remains applicable. In Kennedy v. Macdonald Sheriff Principal Caplan (as he then was), rightly, in my view, distinguished (at page 5) between a right of vehicular access embracing a right to stop on the burdened property for the purpose of setting down persons and goods and that of "parking vehicles for extended periods on the appellants' land ... ". To do the latter would, the sheriff principal held, be "to deviate from the normal and reasonable incidents of access". That case, as this, involved a situation in which a vehicle could not pass onto the property of the benefited proprietor; although the servitude right in issue was claimed upon the basis of prescriptive use rather than of express grant, the distinction which the sheriff principal drew is, in my view, equally applicable to the latter. In different circumstances a distinction between a right of passage and a right to use an access route for unloading purposes was drawn in Devlin v. Conn at page 13. [75] The next matter to identify is the test against which the issue of construction falls to be resolved. Mr. Mitchell submitted at one point that a test of "effectiveness" should be applied. But, in my view, that approach, in a case of this kind, begs the question - "effective for what?". Once the meaning, or scope, of the words of grant has been identified, an issue may arise as to what ancillary rights or facilities are required to make it effectual. But, where the issue for decision is the meaning, or scope, of the words themselves, a test of effectiveness is not, in my view, helpful. Nor does Mr. Mitchell's proposed test give proper recognition to the rule of strict construction. In my view, in circumstances where the instrument conferring the right is reasonably capable of more than one interpretation, the application of the rule of strict construction will have the effect that the narrower construction of the scope of the servitude right will be preferred (Russell v. Cowpar, especially per Lord Deas at page 666; Clark & Sons v. School Board of Perth (1898) 25 R. 919, per Lord Justice-Clerk Macdonald at page 921). Accordingly, on the assumption that the "right of access" conferred by the 1973 Disposition is reasonably capable in the circumstances either of including or of not including a right to park, the latter interpretation is to be preferred. [76] In Kennedy v. Macdonald, in the context of discussing a right of access claimed on the basis of prescription, Sheriff Principal Caplan expressed the view that "activities which are reasonably incidental to the enjoyment of such access may be incorporated in the right". I have no difficulty with that as a view of what is possible. But, in the context of the interpretation of an express grant, use of the concept of "reasonably incidental", if appropriate at all, must always, in my view, be tempered by recognition and application of the rule of strict construction. [77] Deeds do not fall to be construed in a vacuum, but rather in the factual context in which they were granted. It is accordingly necessary to consider the factual circumstances which existed in 1973 and which must be taken to have been in the mutual contemplation of the disponer and the disponee of the deed of that year. The grant in favour of Mrs. Stuart involved the conveyance by Mr. Georgeson of part of the subjects owned by him, that part being accessible by land effectively only over property retained by Mr. Georgeson. The line of a road, probably at some time used by horse-drawn vehicles to carry goods to and from the former store, passed over that retained land. The length of that road was in the order of 150 yards. There are no findings that as at 1973 or at any stage prior thereto the road had in fact been used by motor vehicles for any specific purpose. In particular there is no finding that motor or any other type of vehicle had "parked" (in the relevant sense) at or near the road end prior to 1984 (or that there was, prior to 1988, any specific facility for such parking). Thus no implication in the respondents' favour can, in respect of parking, be drawn from any practice existing at or prior to the date of grant (cf. Ewart v. Cochrane). The property conveyed, although including built structures, was, as at 1973, in a state of semi-dereliction. It had been used for various purposes, commercial and residential. Its prospective use as at 1973 is not identified by any material before the court - though, as the Disposition was for value, some intended beneficial use may be assumed. Its physical situation beyond the escarpment was unusual in that, while vehicles could approach it, they could not, by reason of that feature, enter upon those subjects. Accordingly, any person approaching the property by vehicle along the access route would require to alight from that vehicle before passing into that property. [78] While it would undoubtedly be convenient, in connection with the use of the conveyed property, if the driver of such a vehicle were at liberty to park his vehicle on the retained land, I am not persuaded that, applying the rule of strict construction in the particular circumstances, a servitude right so to do was conferred by the Disposition. As at that date it cannot be said that the law of Scotland acknowledged a servitude of parking either generally or as an ordinary incident of a right of access. The conveyed property was certainly capable of beneficial use without the advantage of such a right. The distance from the main public road (about 150 yards over a relatively steep slope) was modest in contrast with the situation in the Canadian case of Lafferty v. Brindley where the equivalent distance appears to have been about 1 mile (para. [16]) and where there had been a practice of parking prior to the grant and registration of the deed in question (paras [15], [16] and [40]). While the evidence does not disclose whether Mrs. Stuart had any right to park in the vicinity of the junction with the main public road, the circumstance that the disponee had no right to park at any other particular place does not of itself import that she must have acquired a right to park on the retained land. She may, in so far as she contemplated at all the matter of parking, have been prepared to rely on the tolerance and goodwill of others. If a right to park was required, that could have been provided expressly - in terms sufficient to constitute a real burden or, possibly, by express constitution as part of a servitude right. As regards parking elsewhere, it may be noted that during their ownership the first respondent's parents gained access to Da Store without driving to its immediate vicinity and parking there and that the second respondent resided at Da Store for a period during which she was reluctant to drive her vehicle on the road in its then state. Although the sheriff makes no express finding on the point, the natural inference would appear to be that at such times these persons parked their respective vehicles in the vicinity of the main public road. The same may also have been true of the first respondent on at least some occasions prior to his acquisition of a four-wheel drive vehicle. [79] I should add that, although passing reference was made to certain authorities from England, I have not found these cases of assistance in determining the content of Scots law or in applying it to the circumstances of this case.Discussion - the alternative submission
[80] I agree with your Lordship in the chair that Mr. Mitchell's alternative submission fails. It was to the effect that a servitude right of parking had been constituted in favour of the respondents' property by events occurring after 1973. [81] It is important to recognise at the outset that the right thus claimed is not merely a personal right acquired by the respondents against the third appellant but a right which would subsist for the benefit of any proprietor of Da Store against any proprietor of the subjects currently owned by the third appellant. Mr. Mitchell, having initially referred to paragraph 947 of Bell's Principles and to certain observations by Lord President Balfour in Macgregor v. Balfour, then took us chronologically through a tract of authority concerned with the acquisition of rights by acquiescence or on similar principles. Some of the citations were more helpful than others. I do not find it necessary or appropriate to attempt a comprehensive analysis of them. It should be noticed, however, that, in some instances at least, the word "servitude" appears to have been used in a loose and wider sense, importing a merely personal right, rather than in the narrower sense of a real right. [82] In their description of "less frequently encountered" methods of constitution of servitude rights the authors of Cusine and Paisley - Servitudes and Rights of Way include constitution (a) rebus ipsis et factis (paragraphs 11.09-.17) and (b) by acquiescence (paragraphs 11.37-.45). At paragraph 11.2 they observe that to a certain extent constitution by the former resembles constitution by the latter. Mr. Mitchell did not, as I understood him, expressly rely on constitution by the former mode. Lest I have misunderstood him, it suffices to note that in Ewart v. Cochrane the House of Lords (reversing on this aspect the Court of Session) roundly rejected that as a competent mode of constitution (see especially Lord Chancellor Campbell at pages 120-1 and Lord Chelmsford at page 124). That rejection appears to have been accepted by most modern academic authors as well justified (see Gordon - Scottish Land Law (2nd ed.) paragraph 24.41; Cusine and Paisley op. cit. at paragraph 11.17). [83] At paragraph 11.37 of Servitudes and Rights of Way the authors refer to the doctrine of acquiescence as, in the context of real rights, a doctrine of "last resort". They note, however, that the author of paragraph 462 of volume 18 of the Stair Society Encyclopaedia (the late Professor Duncan) appears, under the heading "Creation by Acquiescence", to find some support for it in the authorities. Although Mr. Mitchell's formulation of the mode of constitution relied by him was (perhaps inevitably) somewhat imprecise, it was essentially, as I understood him, constitution by acquiescence on which he based his alternative case. But the legal basis for the constitution of a real right of servitude by this mode is, in my view, very uncertain. The older cases relied on by Mr. Mitchell appear to have depended either, at least in part, on acquiescence or "homologation" by the complainer personally or on the fact of infringement being obvious to the successor in title at the time of his acquisition of the property. The observations made by Lord President Balfour in Macgregor v. Balfour were obiter and, in so far as his Lordship contemplates"a servitude being established or proved by acquiescence inferring a grant and creating a bar against its exercise being challenged ... even in some cases by [the acquiescer's] singular successor in the lands" (page 351),
that passage is, in light of the cases thereafter mentioned by his Lordship, at least open to interpretation. Colville v. Middleton was not concerned with a servitude at all but with acquiescence in a nuisance, the complainer having purchased the property in the knowledge that the offending salt-work had long been in operation in the vicinity; it was based, at least in part, on acquiescence on the part of the complainer personally. Likewise Muirhead v. Glasgow Highland Society was concerned with a complainer who had acquired a property in the knowledge of an established contravention of the servitude thereafter sought to be enforced. Thus, while each of the complainers was in fact a "singular successor", his complaint was essentially barred by his own conduct. So far as concerns more modern authorities, Robson v. Chalmers Property Investment Company Ltd. was, as regards acquiescence, concerned with an issue between the grantor and the grantee of the right, albeit it may have involved rights which were "permanent" (that is, irrevocable) as between them. More v. Boyle involved no determination of the issue; nor did Buchan v. Hunter.
[84] The right which the respondents sought declared (and which the sheriff declared) is one which, if soundly based, would be good against singular successors of the third appellant even if, at the time of purchase, there was nothing on the ground or otherwise to alert such a purchaser to the existence of it. In my view, there is no sound basis in law for such a declaration. It is accordingly unnecessary to discuss further the particular factual circumstances. [85] I should add that, on the facts found, I would have been strongly sympathetic to a contention that, as a matter of personal rights, the third appellant was personally barred from denying to the respondents as individuals a right to park upon his land in association with their use of Da Store as a domestic residence. But that issue is not before this court for decision and it is unnecessary to express any concluded view on it. [86] In the foregoing circumstances I would allow the appeal in relation to the substantive issue.Interdict
[87] As I am unable to accept that the respondents are entitled to a servitude accessory right of parking, I am unable to concur in the pronouncement of a permanent interdict in the terms now sought by them. While there was admittedly earlier infringement by the appellants of the respondents' legitimate rights (which ultimately gave rise to their liability in damages, a liability no longer disputed), I see no justification in the circumstances as they now exist for granting a permanent interdict in relation to such activities, which are no longer persisted in or threatened. If such activities were to be resumed, the respondents would, in light of the concessions made on behalf of the appellants in this process, have a ready remedy in a fresh interdict. The formulation of the present proposed interdict, which in my view involves unsatisfactory features of uncertainty (into which it is, in the event, unnecessary to enter), appears to me to be more likely to promote than to avoid future conflict. I would recall simpliciter the sheriff's order.Moncrieff & Anor v. Jamieson & Ors [2005] ScotCS CSIH_14 (04 February 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Hamilton Lord Philip
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[2005CSIH14] XA113/04 OPINION OF LORD PHILIP in APPEAL BY DEFENDERS AND APPELLANTS From the Sheriffdom of Grampian, Highland and Islands at Lerwick in the cause JAMES MONCRIEFF and ANOTHER Pursuers and Respondents; against KEITH JAMIESON and OTHERS Defenders and Appellants: _______ |
Act: I.G. Mitchell, Q.C.; Tods Murray (for Inksters, Glasgow) (Pursuers and Respondents)
Alt: Hajducki, Q.C.; Digby Brown (for Anderson & Goodlad, Lerwick) (Defenders and Appellants)
4 February 2005
[88] I am indebted to Lord Hamilton for his summary of the facts of this case and of the arguments of counsel. I, however, find myself in agreement with your Lordship in the Chair that the right of access granted by the Disposition of 3 September 1973 includes a right to park. I accordingly agree, for the reasons stated by your Lordship, that declarator and interdict should be pronounced in terms of the amended craves 6 and 7 of the writ and that plea in law 5(a), (b) and (d) for the pursuer should be sustained. [89] I would add this. It was conceded by the appellants that the right of access granted by the Disposition of 1973 included a right of vehicular access, and, because of the very unusual physical features of the dominant tenement as described by your Lordships, that it also included the right to load and unload passengers from a vehicle, including stopping for that purpose on the third appellant's land, and the right to turn a vehicle on that land. That concession was made, as I understand it, on the basis that such rights were necessary for the convenient and comfortable enjoyment of the servitude right, the test enunciated by Lord Chancellor Campbell in Ewart v. Cochrane (1861) 4 Macq 117. [90] The respondents contended that, in addition, a right to park was necessary in order to render the right of vehicular access effective. In advancing this submission, counsel for the respondents urged us to prefer the test of effectiveness to Lord Chancellor Campbell's test of "necessary for a convenient and comfortable enjoyment of the property". It is not, in my view, necessary to depart from Lord Chancellor Campbell's formulation of the test in order to give effect to the respondents' submission. I consider that the right to park is necessary for the convenient and comfortable enjoyment of the right of access. I come to that conclusion for this reason. It would constitute a legitimate exercise of the right of access for the proprietor of the dominant tenement to drive himself in a motor vehicle to the end of the access road adjacent to the steps leading down to Da Store with a view to gaining personal access to his property. If, as the appellants contended, he was prohibited from parking his vehicle there until he wished to leave again (whenever that might be) he would be obliged to remove it to a place beyond the third defender's land and to gain ultimate access to his property on foot. In those circumstances he could not gain personal access to his property in a vehicle of a kind permitted by the grant. His right of vehicular access would therefore, in my view, effectively be defeated. While it is well settled that a grant of a servitude right falls to be construed strictly in order to minimise the burden on the servient tenement, the grant cannot be construed so strictly as to defeat the right granted. It follows that even if a more stringent test than that of convenience is applicable, it also would be satisfied in the circumstances of this case. [91] In relation to the question of how and where the right to park is to be exercised, I agree with your Lordship in the Chair that it is to be hoped that the parties may achieve a reasonable accommodation. In the absence of agreement, however, the right will fall to be exercised civiliter. The situation, it seems to me, is analogous to that applicable to servitudes of way in respect of which no detailed route or width of road is specified in the grant. [92] I also agree with both your Lordships that the respondents' alternative argument falls to be rejected.
