EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Clarke Lord Glennie	[2009] CSIH 28 XA199/06 OPINION OF THE COURT delivered by LORD EASSIE in Appeal from the Sheriffdom of Lothian and Borders at Edinburgh in the cause ROBERT ANDREW HOLMS and MRS ANNE CLARK HOLMS Pursuers and Respondents; against ASHFORD ESTATES LIMITED Defenders and Appellants: _______

Act: Martin QC; Hawkes; Shepherd & Wedderburn

Alt: Sandison; Semple Fraser

26 March 2009

Introduction

[1] The pursuers claim damages for breach of warrandice. The dispute relates to the use of a car parking space conveyed by the defenders to the pursuers in 1999 along with the flatted dwellinghouse at 24B Manor Place, Edinburgh. After proof, the sheriff upheld the pursuers' claim and awarded damages of £15,000. The defenders appealed to the sheriff principal, who refused the appeal. The defenders now appeal to this court.

The pursuers' title

[2] By Disposition dated 28 January and 9 June 1999 and registered in the Division of the General Register of Sasines applicable to the County of Midlothian on 21 June 1999 ("the pursuers' Disposition") the defenders sold to the pursuers the flatted dwellinghouse ("the pursuers' flat") known as 24B Manor Place, Edinburgh. The pursuer's flat forms the basement of the tenement building known as 24 Manor Place ("the tenement"). The tenement contains four other flats.

[3] The subjects conveyed to the pursuers by the pursuers' Disposition comprised the pursuers' flat (and certain garden and cellars pertaining thereto)

"Together with (First) the Car Parking Space being the smaller area of ground also shown outlined in red and marked '42' on the said plan annexed and signed as relative hereto; ... TOGETHER ALSO WITH (One) a heritable and irredeemable servitude right of access for both pedestrian and vehicular traffic over the lane known as Bishops Lane from Manor Place and the common Car Parking Area more particularly described in the Deed of Conditions aftermentioned".

[4] The pursuers' Disposition contained a burdens clause in inter alia the following terms:

"BUT the subjects hereby disponed are so disponed ALWAYS WITH AND UNDER the burdens, conditions, reservations and others specified and contained in ... (Five) Deed of Conditions granted by us the said Ashford Estates Limited dated the Twenty fourth day of November, Nineteen hundred and ninety eight and recorded in the said Division of the General Register of Sasines on the Twenty seventh day of the month and year lastmentioned".

[5] The pursuers' Disposition contained a clause of absolute warrandice.

[6] The plan annexed to the pursuers' Disposition shows three car parking spaces associated with the tenement, numbered 40, 41 and 42: see the sheriff's finding-in-fact 8. It does not show any car parking space numbered 43 (as to which, see paragraph [8] below) or any hatched area associated with such a space.

The competing title

[7] By Disposition dated 28 January and 4 February 1999 and registered in the General Register of Sasines on 19 April 1999 ("Ms Mason's Disposition") the defenders disponed to Fenella Mary Mason the flatted dwellinghouse ("Ms Mason's flat") known as 24/4 Manor Place, Edinburgh. Ms Mason's flat is the third or top floor flat within the tenement.

[8] The subjects conveyed by Ms Mason's Disposition comprised Ms Mason's flat

"Together with the Car Parking Space being the smaller area of ground also shown outlined in red and marked '43' on the said plan annexed and signed as relative hereto; TOGETHER ALSO WITH ... (Two) a heritable and irredeemable servitude right of access for both pedestrian and vehicular traffic over the lane known as Bishops Lane from Manor Place and the common Car Parking Area more particularly described in the Deed of Conditions aftermentioned".

[9] Ms Mason's Disposition contained a burdens clause which included a provision in terms identical to the part of the burdens clause in the pursuers' Disposition quoted in paragraph [4] above.

[10] The plan annexed to Ms Mason's Disposition shows the further parking space associated with the tenement, numbered 43, lying perpendicular to the pursuers' car parking space number 42, and separated from it by a hatched area: see the sheriff's finding-in-fact 11.

The Deed of Conditions

[11] The Deed of Conditions referred to in the pursuers' and Ms Mason's Dispositions contained inter alia the following provisions:

	"1.	In this Deed:-
		(a)	"Flatted dwellinghouse" means a basement, ground, first, second or third floor Flat located in the Building ...;
		(b)	"The Building" or "the said Building" shall mean the tenement forming Twenty four Manor Place, aforesaid of which the five Flatted Dwellinghouses form part;
		(c)	"Proprietor" means the owner for the time being of a Flatted Dwellinghouse ...;
		...
		(e)	"Car Parking Area" shall be that area at the rear of the development used for the parking of cars and for access therefrom and thereto and shall be laid out by us as such and comprise inter alia Car Parking Spaces to be conveyed by us to the Proprietors of any individual or all of the Flatted Dwellinghouses. The Car Parking Area shall include the Car Parking Spaces, the access to the said Car Parking Spaces and any road(s), pavement(s), footpath(s) ... serving the same.
		(f)	"Car Parking Space" shall be that part of the Car Parking Area that is designated for the parking of one motor vehicle.
		...
		(h)	"Developers" means us and our successors for the time being in the development or any part thereof as and when sold in whole or in part.
	...
	15.	Reserved Rights
		...
		(d)	There are reserved to the Developers, their successors and any duly appointed tradesmen all necessary rights of access and egress to and from the Car Parking Area for all necessary purposes including inspection, maintenance, repair and renewal of same, together with power to us to grant rights of access and egress and other servitudes or wayleaves over any part of the Car Parking Area, subject always to making good any damage caused thereby.
		(e)	There are reserved to the Proprietors having an interest in the Car Parking Area and their successors and duly authorised tradesmen all necessary rights of access and egress to and from the Car Parking Area for all necessary purposes whenever reasonably required ..."

The sheriff's findings

[12] Reference has already been made to findings-in-fact 8 and 11. The only other findings-in-fact to which it is necessary to make reference are findings 16 and 17, which are, inter alia, in the following terms:

	"16.	In order for a typical or conventional car to be parked on car parking space 42 it is necessary for there to be encroachment on to car parking space 43. If car parking space 43 is occupied it is impossible to drive a typical or conventional car onto or out of car parking space 42 ...
	17.	There is a hatched area between car parking space 43 and spaces 41 and 42. This area is not sufficiently wide to allow a typical or conventional car to be parked in or driven away from space 42 without encroaching on to space 43. If no car parking space 43 existed, in the absence of unauthorised parking, there would be no restriction to the pursuers fully using car parking space 42."

[13] The sheriff made the following findings in fact and law:

	"1.	The pursuers' servitude right of vehicular access and egress cannot be exercised without unencumbered access over parking space 43
	2.	Fenella Mason has a competing title, granted to her by the defenders prior to the pursuers' title, which entitles her to use her property and de facto to prevent third parties, including the pursuers, encroaching on her property.
	3.	The pursuers have been evicted from their car parking space number 42, in the sense necessary to establish a claim for breach of warrandice.
	4.	The defenders are in breach of warrandice.
	5.	The loss and damage suffered by the pursuers as a result of the defenders' breach of warrandice is £15,000.

[14] The key finding by the sheriff was that in his third finding in fact and law, namely that the pursuers had been "evicted" from their car parking space 42, as that term requires to be understood in this context, by the prior grant to Ms Mason of the right to use car parking space 43. In so far as this was a finding if fact, it was amplified in paragraph [39] of the sheriff's Note. If a car were parked in space 43, the pursuers could not park their car in space 42. They could not reasonably be expected to seek out Ms Mason on each occasion on which they found access to their space blocked to ask her to move her car. It might be late at night, or she might be on holiday or, for some other reason, difficult to contact. Further, space 43 might be occupied by a car belonging to someone else to whom Ms Mason had given permission to park there and who might not be easy to contact. Similarly, even if space 43 were empty, the pursuers could not reasonably be expected to park their car in space 42 for fear of it being trapped should a car subsequently be parked in space 43. Ms Mason had the right to use space 43 as and when she chose, and also to let others use it; and her right so to do effectively prevented the pursuers from using their space for parking a car.

Proceedings before the sheriff and sheriff principal

[15] The argument before the sheriff proceeded under reference to the discussion of warrandice in Halliday: Conveyancing Law and Practice in Scotland, Vol. 1 (2^nd Ed) at para.4.29:

"Warrandice in its absolute form is a personal obligation by the granter of a deed that the deed and the right thereby granted shall be effectual to the grantee and that if the grantee suffers loss or damage by reason of reduction of the deed, or eviction, total or partial, from any property conveyed by the deed of the granter or his predecessor in title, or any defect in the title of the granter to the property conveyed by the deed, the granter will make good that loss or damage".

[16] It was argued for the pursuers that, on the facts for which they contended (which were those in fact found by the sheriff), they had been evicted from parking space 42. Eviction, in this context, went beyond actual physical removal. This was made clear in the Opinion of the Lord President (Hope) in Clark v Lindale Homes Limited 1994 S.C. 210 at 216D. That case was to be distinguished on its facts, but the principle applied in the present case. Because of the prior grant to Ms Mason, the pursuers' servitude right of access to their car parking space could not be exercised and was therefore ineffectual. Ms Mason was entitled to prevent encroachment over her space. Her title was unassailable and would prevail in a contest with the pursuers. On this basis the pursuers could properly claim to have suffered eviction.

[17] The main focus of the defenders' argument before the sheriff was on the facts. No more need be said about this aspect since the sheriff's findings in fact are not challenged. The defenders did not dispute the principles to be derived from the authorities. However, they argued that the pursuers had been granted an allocated parking space, space 42, and a servitude right of access over the Car Parking Area, which included the Car Parking Spaces and in particular included Ms Mason's space 43. There was no warranty that they could exercise their right in the way they thought they could exercise it. If the prior grant to Ms Mason gave rise to a defect in the pursuers' title, it was a bare defect without, as yet, any eviction.

[18] The sheriff accepted, on the authority of Clark v Lindale Homes Limited, that in this context eviction had a meaning which went beyond actual eviction. He held that there was no question as to Ms Mason's title to car parking space 43. Nor was there any dispute as to the extent and meaning of the pursuers' title. The problem arose out of the competition between Ms Mason's proprietary rights in relation to space 43 and the effect that had on the pursuers exercising their rights. Were actual physical eviction to be required, it would occur when Ms Mason took steps to exercise her right resulting in the pursuers being unable to use their property. She could do this by physically preventing the pursuers from using their car parking space. She had already done so for a period of time. The threat remained alive and that was enough to constitute eviction. But actual physical eviction was not required. In the circumstances outlined in para.[39] of his Note (as to which see para.[14] above) eviction occurred at the outset, since from the outset the pursuers' ability to use their space was constrained by the prior grant to Ms Mason.

[19] On appeal to the sheriff principal, neither the findings of fact made by the sheriff, nor the general principles applicable to the case, were in dispute. The defenders argued that the sheriff had failed to appreciate that, for it to be held that an eviction had occurred, he had to be satisfied that Ms Mason's title would inevitably prevail in competition with the pursuers' right. But the disposition in favour of Ms Mason did not convey to her an unrestricted right. The right to use space 43 was granted subject to the Deed of Conditions, clause 15(d) of which reserved to the defenders the power to grant rights of access and egress and other servitudes or wayleaves over any part of the Car Parking Area, including parking space 43. The disposition to the pursuers could be seen as the grant to them of rights of access and egress over Car Parking Space 43. Access over that part of the Car Parking Area was reasonably required by the pursuers for their use of space 42. In those circumstances the pursuers had not established that Ms Mason had a competing title which was unquestionable and which would inevitably prevail in competition with the rights conveyed to the pursuers so as to prevent the pursuers using Car Parking Space 42.

[20] The pursuers' arguments before the sheriff principal were similar to those deployed before the sheriff. The only practical solution which enabled the pursuers to have access to space 42 was a prohibition on Ms Mason, or others authorised by her, from parking in space 43. That would amount to an unreasonable deprivation of the rights of ownership conveyed by Ms Mason's title. The sheriff had been entitled to make his second finding in law and fact, that Ms Mason had a competing title, granted to her by the defenders prior to the pursuers' title, which entitled her to use her property and de facto to prevent third parties, including the pursuers, encroaching on her property. The court was entitled to reach this conclusion even in the absence of Ms Mason being a party to the proceedings. Any servitude right of access over Car Parking Space 43, granted to the pursuers, would be unenforceable because it would be repugnant to Ms Mason's right of ownership in that space.

[21] The sheriff principal refused the appeal, holding that the defenders' argument:

"ignores the reality of the situation and fails to distinguish between a right of ownership, and rights which flow from ownership. The reality of the situation is that the pursuers have purchased a car parking space which cannot be used as such so long as Ms Mason or anyone who succeeds her in title, uses spaces 43 as a car parking space. The right of Ms Mason to use her space flows from title. It matters not that she or her successors may use this space for other purposes, or only transiently. If it is used for the purpose for which it is intended for one minute of the day, and that happens to be the moment when the pursuers themselves wish to park, the pursuers' right of access is worthless."

He went on to say that whether or not the pursuers' right of access was worthless was predominantly a question of fact. He was satisfied that the sheriff had been correct in making his second finding in fact and law. He rejected the argument based on clause 15(d) of the Deed of Conditions in these terms (at para.[19] of his judgment):

"I fail to see how the defenders could create a servitude right of access over a car parking space to which title had been transferred if that right meant that the space could not be used for its predominant, and perhaps any, purpose. I accept the submission on behalf of the pursuers that imposition of the servitude upon Ms Mason would amount to eviction and would be regarded as unenforceable. In consequence it appears to me that [in] any competition with Ms Mason and her successors in an attempt to enforce their servitude right the pursuers would be bound to fail."

He therefore held that the pursuers were entitled to succeed on the basis identified by the sheriff.

Submissions

[22] We should note at the outset that the submissions before us took a slightly different course from those in the courts below, essentially for two reasons. The first is that after the sheriff principal delivered his judgment, and only some two weeks before the opening of the appeal in this court, the House of Lords delivered judgment in Moncrieff v Jamieson 2008 SC (HL) 1. We shall refer to that case in some detail below. The second reason is that, towards the end of the main hearing of the appeal, the court raised a question as to the competency, or continued effectiveness in circumstances where they had parted with ownership or possession of all and any interest in the (potential) dominant tenement, of a reservation by the Developers (such as bore to be contained in clause 15(d) of the Deed of Conditions) of the power to grant a servitude right of access over Car Parking Space 43. This gave rise to written notes of argument and a further brief hearing.

Submissions for the defenders and appellants

[23] In opening the appeal for the defenders and appellants, Mr Sandison made it clear that he accepted the findings-in-fact of the sheriff. That had been his clients' position before the sheriff principal and it remained their position. As to the sheriff's findings in fact and law, he did not dispute findings 1 and 5. However, he contended that findings 2, 3 and 4 should be amended in the following way (as indicated in italics):

"2. Fenella Mason has a competing title, granted to her by the defenders prior to the pursuers' title, which entitles her to use her property so far as that use is not inconsistent with the pursuers' said servitude right of vehicular access and egress.

3. The pursuers have not demonstrated that they have been evicted from their car parking space number 42, in the sense necessary to establish a claim for breach of warrandice.

4. The pursuers have not demonstrated that the defenders are in breach of warrandice."

Counsel accepted the definition of warrandice in the passage set out above from Halliday: Conveyancing Law and Practice in Scotland, Vol. 1 (2^nd Ed) at para.4.29 (see para.[15] above). The question, he submitted, was: what was meant by "eviction"?

[24] The meaning of "eviction" in this context was considered by the Inner House in Clark v Lindale Homes Limited. At p.214B-F, under reference to Erskine II, iii, 25 and ii, 30, the Lord President (Hope) identified the distinction between, on the one hand, warrandice in fact and deed "which gives a right to have the title cleared of incumbrances created by the granter even where there is no eviction" and, on the other, absolute warrandice, "for which no action lies until there has been eviction". According to the first of those passages in Erskine, "the absolute warrandice is a warrandice against defects in the title, not an undertaking to indemnify only in the case of an actual eviction." The Lord President went on to say (at 214G-H):

"The clearest case of eviction will, of course, be where there is such a challenge and the grantee is under an actual threat of being ejected from the property or from some part of it. But the essence of the absolute warrandice appears to be that the granter's title is beyond question at the instance of anybody. It is not obvious that anything more is required, in order to give rise to a claim for indemnity under the absolute warrandice, than that there is a defect in the title which is unquestionable and the grantee has incurred loss as a result."

He then quoted from Bell's Principles (10^th ed), sec.121:

"Eviction is the loss of a thing, in whole or in part, to the buyer, by the judicial establishment of a right in another preferable to the seller's; or by such right being admitted by the seller; or by the emerging of an unquestionable burden on the subject purchased, which the buyer is compelled to discharge."

The ratio of the Lord President's Opinion was to be found in the following passage at p.216B-G:

"As I understand the statement of principle in that paragraph, eviction occurs when there is a loss to the buyer due to the fact that someone else has a competing title which is beyond doubt. This is a fact which can be demonstrated judicially, or by the seller's action admitting that there is such a defect, or by proof that the defect is unquestionable. On this approach it does not seem to me to matter, at least so far as the third alternative is concerned, whether the party in right of the competing title has yet taken steps to challenge the title which has been acquired by the purchaser. A defect in title may be so plain as to be unquestionable, and in the case of heritable property that can be demonstrated by reference to the public register. Where the title to the subjects has been registered in the Land Register the opinion of the keeper is conclusive on the matter, subject only to the right under sec. 25 of the 1979 Act to take his decision to appeal. The only additional factor introduced by the intervention of the party with the competing title is to make it clear that he wishes to assert his right which may otherwise be lost to him by the operation of the positive prescription.

The significance of the warning in sec.895 of Bell's Principles that warrandice is an obligation to indemnify, not to protect, is that the mere possibility that there may be an eviction, where the defect is unclear, will not do. There must be eviction of the subject from the grantee so that the defect in his title is placed beyond doubt. But there seems to me to be no more in this point than that there is no right to an indemnity until there has been a clear breach of the absolute warrandice which has caused loss to the grantee. The warrandice is breached when there is shown to be a competing title which will inevitably prevail in competition with that which has been given to the purchaser. Actual eviction, or the threat of eviction which occurs upon a challenge being made by the party with the competing title, will enable the grantee to make a claim on the warrandice. But it seems to me that neither of these is essential, if it can be demonstrated that the grantee has sustained loss against which he requires to be indemnified because there is a defect in the title which will provide a ground for an actual eviction and it is unquestionable. If these requirements are satisfied it would appear that, in principle, it is open to the grantee to aver that he has suffered eviction within the meaning of the word which is relevant in this context and to claim indemnity for breach of the obligation of absolute warrandice."

Counsel placed some emphasis upon the requirement for the competing title to be "beyond doubt", "unquestionable" or one which would "inevitably prevail". If that could be shown, it did not matter that the party in right of the competing title had not yet taken steps to challenge the purchaser's title. That point was made by the Lord President at p219C-D. The gloss added by Lord Morison, with which the Lord President agreed, that a challenge by the competing title holder was required before the warrandice clause could be invoked, did not give rise to difficulty in this case. But it was worth noting the way in which Lord Morison expresses the requirement for the competing title to be beyond doubt. He said this (at p.223G-H):

"The latter observation [referring to an observation by Stair] is obviously intended to recognise that the warrandice obligation comes into effect if there is a demand by a competing title holder, based on an unquestionable ground, which is voluntarily complied with by the fiar in order to avoid the distress following judicial eviction. In the case of such a demand warrandice will take effect equally as if distress had followed the result of judicial process. ... In the case of a demand based on an unquestionable ground it would be a waste of time and expense if the fiar were compelled to resist it. In this respect Stair precisely reflects the wider meaning attached to the word "eviction" by Pothier as applying not only to eviction in the stricter sense but also to a "demand which is brought to obtain it".

Applying this approach, the pursuers had to demonstrate that, in a contest with Ms Mason, Ms Mason's title would undoubtedly prevail.

[25] Counsel submitted that the sheriff principal had erred in his analysis at para.[19] of his judgment (quoted in para.[21] above). There was no authority for the proposition that a mere right of passage over ground is repugnant to rights of ownership. There were servitudes which wholly excluded the owner from enjoyment of his land, but they had nonetheless been held to be valid. He did not have to establish that the pursuers for certain had a servitude right of access over space 43. It was sufficient to demonstrate that the outcome was not a foregone conclusion. In the present case Ms Mason's title to prevent the pursuers crossing space 43 was not beyond doubt. The appeal should therefore be allowed.

[26] In support of the proposition that a servitude right of access over space 43 was not repugnant to Ms Mason's rights of ownership, or was not indisputably repugnant to those rights, counsel referred to a number of authorities. In Dyce v Lady James Hay (1852) 1 Macq. 305 the issue was whether the pursuer (appellant) was entitled to use for recreational purposes a strip of land on the defender's estate, running along the River Dee and close to the defender's house, on the ground that that strip of land had been used for such purposes by him and the other inhabitants of Aberdeen from time immemorial. The defender's answered that the pursuer's claim imported a species of servitude unknown and repugnant to law. This answer was upheld by the House of Lords on the basis that "the claim was so large as to be entirely inconsistent with the right of property" (per Lord St. Leonards, LC, at p.315). Applying certain remarks made by Lord Eldon in Dempster v Cleghorn 2 Dow 40, he held that "no such right could be claimed as would be inconsistent with the rights of property".

[27] Counsel submitted that, on a proper analysis, there had been no subsequent decision supporting the proposition that a right of access might be repugnant to rights of ownership. The plaintiff in Copeland v Greenhalf [1952] Ch 488 was the owner of an orchard and an adjoining house. Access to the orchard from the road was had by a narrow strip of land. The plaintiff brought an action against the defendant, a wheelwright whose premises were across the road opposite the strip of land to restrain him from placing and leaving vehicles on the strip. The defendant claimed a prescriptive right to do so on the basis that for 50 years he and his father before him had (with the knowledge of the plaintiff and of her predecessors in title) continuously stored along the strip, except for a space left for access to the orchard, customers' vehicles awaiting and undergoing repair, and awaiting collection after repair. Upjohn J held, as summarised in the headnote, that the right claimed was too extensive to constitute an easement in law, as it amounted practically to a claim to the whole beneficial user of that part of the strip of land over which it had been exercised. At p.498 he said this:

"I think that the right claimed goes wholly outside any normal idea of an easement, that is, the right of the owner or the occupier of a dominant tenement over a servient tenement. This claim (to which no closely related authority has been referred to me) really amounts to a claim to a joint user of the land by the defendant. Practically, the defendant is claiming the whole beneficial user of the strip of land on the south-east side of the track there; he can leave as many or as few lorries there as he likes for as long as he likes; he may enter on it by himself, his servants and agents to do repair work thereon. In my judgment, that is not a claim which can be established as an easement. It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or, at any rate, to a joint user, and no authority has been cited to me which would justify the conclusion that a right of this wide and undefined nature can be the proper subject-matter of an easement. It seems to me that to succeed, this claim must amount to a successful claim of possession by reason of long adverse possession. I say nothing, of course, as to the creation of such rights by deeds or by covenant; I am dealing solely with the question of a right arising by prescription."

Counsel submitted that, properly understood, that decision did not support the notion that an easement or servitude must not to any extent exclude the owner. Rather, it turned upon the lack of definition of the right claimed. This was the principal thrust of the submission made for the pursuer in that case (see p.491). The uncertain extent of the easement claimed made it too wide to be enforceable. He referred to the discussion in that case (at p.494-5) of Attorney-General of Southern Nigeria v. John Holt & Co. (Liverpool) Ltd. [1915] AC 599. The easements claimed there were variously for the purpose of storing coopers' stores, casks, trade goods and produce on the respondents' land. The Privy Council rejected the claim to the easements on the ground "that there cannot be an easement over land of which the claimant is in exclusive possession", though, as Upjohn J pointed out, there was no reason in principle, apart from this, why there should not be a valid easement for the purpose of storing on the land coopers' stores, casks, trade goods and produce. However, the plaintiff's objection before Upjohn J was that the right claimed in that case was too uncertain; and that was the objection which was, in the result, upheld. The passage quoted above from Upjohn J at p.498 was introduced in the judgment, after discussion of other matters, by the words: "I must return to the point of uncertainty". This analysis was supported by Peter Luther, Lecturer in Law at the University of Essex, in an article entitled "Easements and Exclusive Possession" (1996) 16 Legal Studies 51, in which he says that in Copeland v Greenhalf it was clear that "both counsel and judge thought that it was a case about uncertainty and no more". The case did not support the proposition that the claim to an easement would fail if it amounted, in effect, to a claim of exclusive possession of the servient land. Provided the claimed right was sufficiently defined, that was not an objection.

[28] Counsel referred us next to Batchelor v Marlow [2003] 1 WLR 764, a decision of the Court of Appeal in England. In that case the defendants, in connection with their business, parked cars on a strip of land which was in due course acquired by the plaintiff. The defendants entered a caution against first registration of land, which included that strip, claiming that for over 20 years they had regularly parked cars there each day. The plaintiff sought a declaration that the defendants were not entitled to park on the strip. The judge held that the defendants had acquired an exclusive prescriptive right to park up to six cars on the verge on Mondays to Fridays between 8.30 a.m. and 6 p.m. The Court of Appeal allowed the plaintiff's appeal, holding that a right to park cars which would deprive the servient owner of any reasonable use of his land was not capable of subsisting as an easement. That was a matter of degree but, on the facts of the case, an exclusive right to park six cars for 91/2 hours every day of the working week would leave the plaintiff without reasonable use of his land either for parking or for any other purpose; and that, accordingly, the right was not capable of being an easement and so could not have been acquired by prescription. In the course of giving his judgment, with which the other members of the court agreed, Tuckey LJ said that both parties accepted the approach followed by Judge Paul Baker QC in London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278, 1288, namely that

"The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant."

Tuckey LJ noted that authority for the underlying proposition (which he took from Gale on Easements, 17^th Ed at para.1-52) was said to be Dyce v Hay, referred to in Copeland v Greenhalf. Since the parties were agreed what the right question was, he saw no need to say anything about those cases, "other than to say that I think it is clear from his judgment that Upjohn J rejected the claim because the rights asserted were both uncertain and too extravagant." He then returned to ask the factual question: "Does an exclusive right to park six cars for 91/2 hours every day of the working week leave the plaintiff without any reasonable use of his land, whether for parking or anything else?" He answered this in the negative.

[29] Counsel submitted that the conclusion reached by the court on the facts in that case was a reasonable one but it was based on a false premise. The correct question was not whether the servitude interfered with the reasonable use of the land by the servient owner. This test had been applied by the Court of Appeal in the absence of argument to the contrary. The real question was whether the servitude deprived the servient owner of all right of beneficial ownership.

[30] The approach in Batchelor v Marlow was followed by Lady Smith in Nationwide Building Society v Walter D Allan Ltd. (unreported 4 August 2004). It appeared, however, that in this case too there was no dispute between the parties as to the test to be adopted and the court was simply invited to apply that approach. Nothing could be taken from that case.

[31] Counsel submitted that the law had now been put beyond doubt by the decision of the House of Lords in Moncrieff v Jamieson (supra). The brief facts were as follows. In 1973 a break-off disposition separated property subsequently owned by the pursuers from land owned by the defenders. The pursuers' property was bounded by sea to the west and was not accessible from the north. To the east and south it was bounded by lands belonging to the third defender. It had no direct access to any public road. Among the rights conveyed by the disposition was a servitude right of access for pedestrian and vehicular traffic across the third defender's land from the public road. However, vehicles could not be driven onto the pursuers' property, which was accessible from the third defender's land only on foot by means of a gate and a stairway. It was agreed between the parties that, accessory to the right of vehicular access, was a right to stop vehicles on the servient tenement in order to turn, load and unload goods, and set down passengers. The pursuers raised an action for declarator that they were entitled to park vehicles on the servient tenement in the exercise of rights accessory to the servitude right of access; and for interdict of the defenders from interfering with the reasonable exercise by them of their servitude of access and the accessory rights. In the House of Lords the issues were (a) whether a right to park was capable of being constituted as ancillary to a servitude of vehicular access; (b) whether such a right was constituted in the particular circumstances; (c) the application of the principle that any use made of land belonging to the servient tenement must be civiliter; and (d) whether permanent interdict was necessary. The House of Lords dismissed the appeal and found in favour of the pursuers.

[32] Mr Sandison referred to the Opinion of Lord Scott of Foscote at paras.47 and 54-61. At para.47 Lord Scott referred to the so-called "ouster" principle, and said that to the extent that it asserted "that a servitude must not be inconsistent with the continued beneficial ownership of the servient land by the servient owner", he would unreservedly accept it. Having then considered the facts, Lord Scott returned to the question at paras.54-60. Referring to the argument that the rights of parking claimed by the respondents in that case deprived the appellants of any reasonable use of the land, were therefore inconsistent with the appellants' ownership of the land and should not therefore be recognised as servitudal rights in rem that can bind them and their successors-in-title (the "ouster principle"), he said that there were conflicting decisions and dicta. The proposition stated by the sidenote in Dyce v Hay was, in his view, unhelpful, since

"Every servitude will bar some ordinary use of the servient land. ... Every servitude prevents any use of the servient land, whether ordinary or otherwise, that would interfere with the reasonable exercise of the servitude."

He remarked (in para.55) that sole user, such as the use of a coal shed for the storage of coal, was "quite different from, and fundamentally inferior to, exclusive possession". It did not prevent the servient owner using the coal shed for other purposes which did not interfere with the dominant owner's reasonable use for the storage of coal. Accordingly,

"sole use for a limited purpose is not, in my opinion, inconsistent with the servient owner's retention of possession and control or inconsistent with the nature of an easement."

Having then analysed cases such as Copeland v Greenhalf and Batchelor v Marlow, Lord Scott set out his conclusions at para.59 in the following terms:

"In my respectful opinion the test formulated in London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd and applied by the Court of Appeal in Batchelor v Marlow, a test that would reject the claim to an easement if its exercise would leave the servient owner with no 'reasonable use' to which he could put the servient land, needs some qualification. It is impossible to assert that there would be no use that could be made by an owner of land over which he had granted parking rights. He could, for example, build above or under the parking area. He could place advertising hoardings on the walls. Other possible uses can be conjured up. And by what yardstick is it to be decided whether the residual uses of the servient land available to its owner are 'reasonable' or sufficient to save his ownership from being 'illusory'? It is not the uncertainty of the test that, in my opinion, is the main problem. It is the test itself. I do not see why a landowner should not grant rights of a servitudal character over his land to any extent that he wishes. ... I would, for my part, reject the test that asks whether the servient owner is left with any reasonable use of his land, and substitute for it a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land."

[34] Mr Sandison drew our attention to the passages in which other members of the House of Lords had touched upon the question, viz. Lord Hope of Craighead at para.24 and Lord Rodger of Earlsferry at paras.75-77. The most extensive discussion was by Lord Neuberger at paras.134-143, in which he tentatively agreed with Lord Scott, though recognising it would not be safe to assume that the law on this issue in England and Scotland will necessarily be the same in every respect. At para.140 he said this:

"At least as at present advised, I am not satisfied that a right is prevented from being a servitude or an easement simply because the right granted would involve the servient owner being effectively excluded from the property."

He concluded his analysis at para.143 in the following terms:

"Accordingly, I see considerable force in the views expressed by Lord Scott in his opinion (paras 57, 59) to the effect that a right can be an easement notwithstanding that the dominant owner effectively enjoys exclusive occupation, on the basis that the essential requirement is that the servient owner retains possession and control. If that were the right test, then it seems likely that Batchelor v Marlow was wrongly decided. However, unless it is necessary to decide the point to dispose of this appeal, I consider that it would be dangerous to try and identify [what] degree of ouster is required to disqualify a right from constituting a servitude or easement, given the very limited argument your Lordships have received on the topic."

[35] On the basis of this authority, and particularly the remarks of Lord Scott, Mr Sandison submitted that the pursuers' servitude right of access over space 43 would prevail in a contest with Ms Mason. At the very least, it could not be said that the pursuers would inevitably fail. In light of the decision of the House of Lords, the reasoning of the sheriff and the sheriff principal could no longer be sustained. The question was not whether the servitude right deprived Ms Mason of all reasonable use of her land. It was whether it deprived her of all possession and control. On the facts as found by the sheriff, this case came nowhere near to reaching that threshold. The space was available to Ms Mason for a whole range of uses which were not inconsistent with the pursuers' servitude right of access. She could park a motorbike there, or have a picnic, or sunbathe. She could use it for storage. She could seek to exclude strangers. She could even erect a bollard, provided that she gave the pursuers a key.

Submissions for the pursuers and respondents

[36] For the pursuers and respondents, Mr Martin began by reminding us of certain features in the findings of the sheriff. The findings in paragraphs 16, 17 and 20 amounted to findings of practical eviction. There were no findings that Ms Mason could make any use of space 43, sufficiently to amount to an act of possession or control, in the absence of her using it as a car parking space. No evidence had been led before the sheriff to suggest that there were other uses to which she could put the space. As the argument had now developed, that was critical. There was no finding in fact to the effect that, despite the pursuers' servitude right of access over space 43, Ms Mason retained "some degree of possession or control". The appellants argue that Ms Mason's right in respect of her use of space 43 is qualified by the reservation in the Deed of Conditions. However, neither in evidence before the sheriff nor in submissions before this court had any explanation been tendered to show how that qualification had come about. The defenders now say that if there is any sort of dispute between the pursuers and Ms Mason over the validity or extent of the pursuers' servitude right, that is enough to allow them to succeed in this appeal. That is quite a different case from that which was argued before the sheriff. The defenders had not explained how the resolution of the dispute between the pursuers and Ms Mason would be achieved in a procedural sense. On the face of it, the defenders clearly granted an antecedent disposition to Ms Mason of an area of land to be used for a specified purpose, but over which they required to grant access to the pursuers, such access being incompatible with the specified purpose. In the absence of findings in fact which identified some elements of possession and control which would remain available to Ms Mason if the servitude prevailed, then the defenders cannot show how the pursuers' right might prevail in a contest with Ms Mason, and therefore cannot disturb the sheriff's finding that eviction has taken place. All the defenders have sought to do is put forward speculative possibilities as to why, in competition with Ms Mason, the pursuers' servitude right might be compatible with ownership; but the existence of no more than speculative possibilities is not enough to disturb the sheriff's finding of eviction on the findings in fact which he has made.

[37] Counsel referred to the pursuers' Disposition. The Disposition included a Disposition of the Car Parking Space 42. That was not only a reference to the defined expression in the Deed of Conditions but it was also a description of the property being conveyed. It was not a label without substance. The implication was that the defenders had disponed title to, and the right to use, a dwellinghouse and a Car Parking Space. The same applied to the other Car Parking Spaces. Every Car Parking Space was granted precariously because of the Reserved Rights in clause 15(d) of the Deed of Conditions. All such spaces would have equal rights, subject to considerations of geography. The difference, however, was that Ms Mason was granted her title before the pursuers were granted theirs. If the pursuers wanted to enforce the servitude right of access, it was questionable whether their claim would be against the defenders or against Ms Mason. That had not been explored in the courts below. This court should be very cautious in assuming that there was a competition between the pursuers and Ms Mason and that in such competition the pursuers would be entitled to succeed. Based on the sheriff's findings, if Ms Mason remains entitled to use her space for parking, the finding of eviction cannot be disputed. The court should not allow the defenders to develop in this court a completely new argument in the absence of proof, pleadings and legal analysis in the courts below.

[38] Counsel referred to Bell's Principles at sec.895. There must be eviction. That meant judicial eviction "unless the ground of demand be unquestionable, and proceeding from the fault of the seller". He submitted that there were four important factors to be noted. First, Ms Mason was unquestionably the heritable proprietor of Car Parking Space 43. Second, she was ex facie entitled to use space 43 to park a car - it was her own property. Third, a car parked on space 43 prevents the pursuers obtaining access to their own car parking space 42. Fourth, the sheriff had found, in a finding in fact and law, that the pursuers had been "evicted" from the property (the Car Parking Space) disponed to them by the defenders. The test formulated by the defenders was: must the pursuers inevitably fail in enforcing their right against Ms Mason? Counsel did not accept that he needed to go that far, but in any event, he submitted, it was not clear how the pursuers could bring about a competition with Ms Mason in which they might prevail or not; and in any event the law did not support the validity of a servitude in this situation. Counsel referred in passing to section 76 of the Title Conditions (Scotland) Act 2003 which came into force at the end of 2004, but which in terms of its subsection (2) did not allow the creation of a servitude which was repugnant to ownership. However, counsel submitted that it had no application to the present case where any servitude that was created was created in 1999.

[39] Senior counsel proceeded to make certain submissions on the authorities to which we had been referred. Dealing with Clark v Lindale Homes Limited, and in particular the passage in the Opinion of the Lord President at p.216E-F in which it is said that the mere possibility that there may be a eviction where the defect is unclear will not do, counsel submitted that here any parking by Ms Mason amounted to eviction in a practical sense and therefore gave rise to a clear breach of the absolute warrandice. The passage at p.219C-D suggested that it might be sufficient for eviction to be established that the party with the prevailing title had "challenged" the pursuers' title. A physical challenge would be sufficient if based upon the assertion of a sufficient right. If the eviction found by the sheriff was physical eviction, Ms Mason did not need to raise the legal challenge to the pursuers' rights of access over her space. Simply by parking a car there, the pursuers are evicted. This was not a case of a "mere deficiency" in title (c.f. p.220B-C). Counsel referred also to Lord Morison's Opinion at pp.223-224. He submitted that the case had been decided on the hypothesis that there had been no "challenge" or physical eviction in that case. Counsel relied upon Dyce v Hay. In that case Lady Jane Hay was not "excluded" from her property in any sense. She was still able to use the area for some purposes, however limited. Nonetheless, the servitude claimed by the defenders was held to be incompatible with her right of ownership. Counsel relied also upon the Opinion of Lady Smith in Nationwide Building Society v Walter D Allan Ltd at para.[20]. This supported the proposition that there could be no valid servitude unless the owner of the land retained some "real and practical" use of his land. This was a matter of fact and degree.

[40] Counsel submitted that this could be reconciled with the approach of Lord Scott in Moncrieff v Jamieson. However, counsel invited us to view that case with caution, for three reasons. First, because the discussion on this point was obiter. The issue before the House of Lords was quite different. That case was about whether or not a right of car parking could be constituted as a servitude right ancillary to a right of access. No issue arose in that case as to whether or not there could be a servitude right which excluded the servient owner from any reasonable use of his land. Secondly, Lord Neuberger was at pains, in para.136, to emphasise that his and Lord Scott's Opinions were based on English case law and that it would not be safe to assume that the law in this issue in the two jurisdictions would necessarily be the same in every respect. He also expressed concern, at para.143, that it would be "dangerous" to try to identify what degree of ouster is required to disqualify a right from constituting a servitude, "given the very limited argument your Lordships have received on the topic". Thirdly, counsel pointed out that in considering the question whether or not a right of servitude to park a car could be created in its own right other than as ancillary to the right of access, the House of Lords did not proceed upon any general evidence as to how the owner of the servient tenement could retain a sufficient degree of possession and control such that the servitude right would be lawful. The case was decided on its own facts. It was notable that Lord Rodger reached the view that he did with considerable hesitation but basing himself on the particular findings of the sheriff (see para.97). The principle relied upon by the defenders found support only in the Opinion of Lord Scott with somewhat tentative support from Lord Neuberger. In paragraph 59 of his Opinion, Lord Scott rejected a test that asks whether the servient owner is left with "any reasonable use of his land", but posed instead a question as to whether the servient owner retains possession and "subject to the reasonable exercise of the right in question" control of the servient land. Counsel asked rhetorically whether there was any real distinction between that and the test of reasonable use. Lord Hope put the point more restrictively, concluding simply "that the fact that the servient party is excluded from part of his property is not necessarily inimical to the existence of a servitude".

[41] Counsel repeated that there was no finding as to what Ms Mason could do with the space other than park a car in it. That was the obvious use of the space having regard to its description in the Disposition as a "Car Park Space". If Lord Scott's test were to be applied, the defenders would require to demonstrate that, notwithstanding the existence of the servitude, Ms Mason retained possession and control of the servient land. That would be a matter of fact in the particular circumstances. Counsel submitted that this court, on the basis of the evidence and arguments to the sheriff and on the basis of the sheriff's findings, had no basis for identifying any retention of possession if Ms Mason were required to leave space 43 vacant of parked vehicles at all times; and, although it was possible to conceive of some degree of control (such as keeping others out), even that had not been examined properly in this case. Accordingly, this court as an appellate court would have no basis for holding that Ms Mason did as a matter of fact retain a sufficient degree of possession and control such that the "ouster principle" would not require the servitude to yield to ownership. The appeal, therefore, should fail.

Further submissions

[42] At the end of the hearing, and before hearing Mr Sandison in reply, the court raised a question as to whether a vendor in the position of the defenders could competently and effectively reserve the right to create in the future a servitude right of access over land which was being disponed; and whether the question was affected by the fact that the land which might benefit from that servitude right of access was itself not being retained. At the invitation of the court, counsel helpfully submitted written notes of argument and a further short hearing was convened.

[43] The arguments on the particular point raised by the court were brief. For the defenders, counsel submitted that the Deed of Conditions did provide a competent basis for the grant. The disposition to Ms Mason was made subject to the burdens, conditions and reservations in the Deed of Conditions. In accepting and recording that grant, Ms Mason is in law deemed to have accepted its terms and has become personally bound by them as a matter of the law of obligations, quite apart from the law of property. She, as owner of space 43, is deemed to have consented to the defenders granting to the pursuers a servitude right of access over it. The grant of the servitude, being regarded in law as having been made with her consent, remains effective against successors to her title as any other servitude right granted by her or with her consent. Furthermore, s.32 of the Conveyancing (Scotland) Act 1874 permitted the use of Deeds of Conditions. The reservation of the power to grant servitudes was a real condition of the right granted to Ms Mason in the disposition - there was no reason why a real condition may not oblige a disponee to suffer a future act at the discretion and on the part of the disponer. Reference was made to B&C Group Management Ltd. v Haren (OH unreported 4 December 1992) and Cusine & Paisley, Servitudes and Rights of Way, at paras.4.10 and 4.11.

[44] For the pursuers, senior counsel accepted that s.32 of the Conveyancing (Scotland) Act 1874 permitted the importation of such a reservation into a subsequent deed, provided that the deed containing the reservation was referred to in that subsequent deed. Professor McDonald's Conveyancing Manual (7^th Ed) at para.9.1 supported the view that it was competent to do this. However, counsel questioned whether the particular wording used here achieved that purpose. At the time the Deed of Conditions was constituted, only three Car Parking Spaces (Nos.40-42) were designated. The definition of a Car Parking Space in the Deed of Conditions referred to spaces which were by then designated, and therefore did not include the space subsequently numbered 43. At the date of Ms Mason's Disposition, space 43 was not a Car Parking Space within the definition of such in the Deed of Conditions and therefore not part of the Car Parking Area as a Car Parking Space. It was therefore not an area of land over which the Developer (the defenders) could create a valid servitude right of access by virtue of the reservation in clause 15(d) of the Deed of Conditions. If at the time of the grant of the disposition to Ms Mason a servitude was not reserved - i.e. created - it could not competently be done later.

[45] At the end of these arguments, we heard a reply from counsel for the defenders and appellants. Responding to the argument for the pursuers that there were no fact findings to support the argument based upon the decision of the House of Lords in Moncrieff v Jamieson, counsel submitted that the question was a question of law, not fact; and that it was, in any event, for the pursuers to establish that the servitude right over space 43 was inconsistent with Ms Mason's retention of possession and control. There was no concept in Scots law of "practical eviction". There might be physical eviction, but before that could found a claim for breach of warrandice it would have to be shown and that the physical eviction was lawful. The question was whether Ms Mason was entitled to do it. The short answer to the present problem was that the pursuers, in bringing these proceedings against these defenders, had mistaken their remedy. The authorities all said that a pursuer suing for breach of warrandice must show either that there had been judicial eviction, or that the defenders had admitted the defect in title of which complaint was made or that the factual interference with their right was done by the person interfering on the basis of an unquestionable right. The pursuers had not even attempted to bring their case within these categories. All they had shown was that it raised, or might raise, difficult legal questions. The defenders said it was clear that Ms Mason was not entitled to interfere with the pursuers' right of access; but it was enough that a serious question was raised. The pursuers' remedy lay against Ms Mason for declarator and interdict.

Discussion

[46] It is of course not in dispute that an action based on a grant of absolute warrandice requires, as its foundation, that the grantee have been evicted from a right of property (including in that expression ancillary rights such as servitude rights) granted to him by the warrantor. Parties were also not at variance in treating Clark v Lindale as setting out the current state of the authorities respecting what is required to vouch or establish "eviction" for the purposes of an action of breach of warrandice. In the passage in his opinion recorded at page 216 B-G in the report of Clark v Lindale, which we have quoted above in paragraph [24] of our narration of the defenders' submissions, the Lord President (Hope) indicated in effect three possibilities whereby eviction may be established in such an action. The first is where prior litigation between the grantee of the deed containing the grant of warrandice and the person claiming the competing right has resulted in a judicial determination in favour of the latter. The second is where, in the action for breach of warrandice, the party granting warrandice accepts the deficiency of the title which he granted. The third is where it can be shown in the action for breach of warrandice that the defect in title is unquestionable. In the present case neither the first nor the second alternative can apply. So one is concerned with the third position, whether the defect in title of which the pursuers claim can be said to be unquestionable. No doubt other equivalent expressions to "unquestionable" may equally be deployed, but in our view one way of putting the matter is by posing the question whether, were proceedings by way of action of declarator or interdict to take place between the party to whom warrandice had been granted and the competing proprietor to be contemplated, it could immediately be affirmed that the title of the competing proprietor was so plainly preferable as to render the position of the party claiming warrandice unstateable. In other words, there would be nothing that could properly be disputed or argued in such a hypothetical action on behalf of the person to whom the warrandice has been granted.

[47] The essential contention of the defenders is that, far from the title of the competing proprietor, Ms Mason, being so plainly preferable that the pursuers had no stateable argument, the pursuers would on the contrary prevail in such a litigation with her. At all events, the pursuers would at the least have a highly arguable case. The basis upon which that contention for the defenders proceeds may be summarised by saying that:

(i) They conveyed the area of ground described as car parking space 42 to the pursuers with a vehicular right of access to it over the Car Parking Area (which in terms of the Deed of Conditions includes, as a matter of definition, the area of ground which was conveyed to Ms Mason as car parking space 43);

(ii) The pursuers thus enjoy, on the face of matters, a right of vehicular access over the area of ground conveyed to Ms Mason as car parking space 43;

(iii) It matters not that, in terms of its date of final execution and recording in the Sasine Register, Ms Mason's disposition had temporal priority, because (a) the conveyance to Ms Mason was subject to the Deed of Conditions, which included, in clause 15, a reservation to the defenders of a power to grant "rights of access and egress and other servitudes or wayleaves over any part of the Car Parking Area, subject always to making good any damage caused thereby" and (b) that reservation of the power to grant rights of access survived the defenders' having conveyed away, without the actual reservation of any servitude in Ms Mason's title, the area described as car parking space 43; and

(iv) The existence of a servitude right of vehicular access over the area of ground described as car parking space 43 is not struck at by any "ouster" principle, since although the existence of any vehicular right of access would obviously limit the owner of the servient tenement in his use of the land subject to particular right of access it will not deprive him of possession and control of it.

[48] While the Court did raise the issue whether the reservation in the Deed of Conditions of a power to grant servitude rights of access over the car park area was sufficient to validate a grant of servitude over a part of the car park area which was no longer in the ownership of the grantor of the Deed of Conditions (the defenders) at the time of its purported grant, it was not submitted to us that by the defenders' parting with ownership of the area of ground described as car parking space 43 to Ms Mason prior to conveying car parking space 42 to the pursuers it became incompetent for the defenders to grant any access rights over car parking space 43, to which they lacked any title of ownership. It was, in particular, not submitted that there was such clear authority to that effect as would produce the result that this court could hold the defenders' reasoning in head (iii) supra to be plainly flawed, with the consequence that it could then be said that Ms Mason's title to car parking space 43 would unquestionably prevail since it contained no actual reservation of any servitude right of access to space 42. In other words, it was not part of the argument for the pursuers that the defenders lacked title to give to the pursuers any right of vehicular access over car parking space 43.

[49] Rather, the argument for the pursuers stressed the factual findings made by the sheriff. Put shortly, as narrated earlier in this Opinion, the sheriff found that if Ms Mason were to use car parking space 43 for parking a car, that would in practical terms make it very difficult, if not impossible, for the pursuers to exercise their right of vehicular access to their space - car parking space 42. On that view of matters, it was said that the pursuers had suffered practical eviction from their vehicular right of access. This, essentially, was the basis upon which both the sheriff and the sheriff principal, found for the pursuers.

[50] But in our opinion this approach proceeds upon the view that the conveyance to Ms Mason of an area of ground described as a "car parking space" carries with it a right to use it for the purpose of parking a car which must necessarily override any servitude right of access constituted over that area of ground. For our part we have difficulty with the proposition that the description of the area of land can carry any warranty of its fitness and availability for a purpose inferred from the description. Thus were the area of ground comprised within space 43 purchased by Ms Mason to be in fact of a size insufficient to accommodate what was described in the proof as a "normal" car, it is hard to see that she would have any claim against the seller; no warranty of fitness for purpose is generally implied in the sale of heritage, the rule being that of caveat emptor. Likewise, if an area of land is purchased for a particular purpose but is in fact burdened with a servitude rendering the carrying out of that purpose difficult or impossible, the person in right of the servitude is not to be defeated by the fact that the seller sold, and the purchaser bought, for the particular practical purpose which they had in mind.

[51] In the course of the argument before us there was discussion of the so called "ouster" principle developed principally in the English cases relating to easements to which we were referred. In the event, we do not regard it as necessary for us to embark upon an extensive examination of this particular area of the discussion. Servitude rights of vehicular access have long been recognised not only in Roman law and our law, but also in most legal systems. Naturally, the need to allow such access impedes the use to which the owner of the servient tenement may make of the land over which the access route lies. He may only make transient use of it while it is not required for access by the proprietor of the dominant tenement. The argument for the pursuers on the "ouster" issue is, in our view, essentially predicated on the contention to which we have already referred that by conveying to Ms Mason the area of ground described as car parking space 43 the defenders effectively warranted to her that the area of ground was fit for the purpose of parking a motor vehicle and could not be subject to any servitude right which might interfere with that particular user.

[52] This appears to form an important part of the reasoning of the sheriff principal. Thus, in the course of paragraph 17 of his Note, the sheriff principal says:-

"The right of Ms Mason to use her space flows from title. It matters not that she or her successors may use this space for other purposes, or only transiently. If it is used for the purpose for which it is intended for one minute of the day, and that happens to be the moment when the pursuers themselves wish to park, the pursuers' right of access is worthless."

In the course of the succeeding paragraph of his note the sheriff principal sets out the, in many respects crucial, finding in fact and law made by the sheriff namely finding in fact and law 2:

"Fenella Mason has a competing title, granted to her by the defenders prior to the pursuers' title, which entitles her to use her property and de facto prevent third parties, including the pursuers, encroaching upon her property."

The sheriff principal then observes:

"Whilst it might have been more appropriate to have specifically found that Ms Mason's use of her property effectively prohibited the pursuers from gaining access to theirs, that finding was in my judgment fundamentally correct."

In paragraph 19 of his note the sheriff principal says:

"As to the effect of the Deed of Conditions, notwithstanding the terms of Clauses 15(d) and (e) I fail to see how the defenders could create a servitude right of access over a car parking space to which title had been transferred if that right meant that the space could not be used for its predominant, and perhaps any, purpose. I accept the submission on behalf of the pursuers that imposition of the servitude upon Ms Mason would amount to eviction and would be regarded as unenforceable. In consequence it appears to me that any competition with Ms Mason and her successors in an attempt to enforce their servitude right the pursuers would be bound to fail."

[53] The sheriff principal thus appears to dismiss the existence of any servitude right of access to the pursuers' area of ground in car parking space 42, not on the basis of absence of title to grant such a servitude, but on the view that the existence of such a servitude right would mean that the area of ground conveyed to Ms Mason as car parking space could not be used for the purpose to be inferred from its description as a car parking space.

[54] For our part, we are not persuaded that this reasoning is so obviously sound and indisputable that one can conclude that Ms Mason's right to deny access to the pursuers over the area of ground described in her title as car parking space 43 is unquestionable. The "ouster" authorities decided before the decision of the House of Lords in Moncrieff v Jamieson to which we were referred are not concerned with impeding or preventing a particular use but rather with impeding or preventing any use. They were concerned with what might be described as claims to unusual easements, not forming part of the canon of accepted servitude rights such as right of access. As was submitted by counsel for the defenders, it is not evident that the existence of a servitude right of access over Ms Mason's area of ground prevents use of that area for all purposes. As counsel pointed out, it might accommodate the parking of a motorcycle or a pedal cycle, or the setting out of potted plants and a seat whereby to enjoy the fresh air and sunshine, all compatibly with the pursuers' right of vehicular access. Further we do not think that what was said in Moncrieff v Jamieson assists the approach of the sheriff principal or the pursuers. On any view, even given the existence of a servitude right of vehicular access over car parking space 43, Ms Mason and her successors retain possession and control of that area of ground. For example, she, or they, would unquestionably have the power to ward off third parties who might choose to position a motor vehicle on the space or decide to have a barbecue on it.

[55] For these reasons we have come to the conclusion that accepting, as the defenders do, all the sheriff's findings in fact it nonetheless cannot be said that the defect in title of which the pursuers complain, the presence of which the defenders contest, is "unquestionable". There has been no judicial "battle of the parking spaces" between the pursuers and Ms Mason, or her successors in title, and in light of the submissions advanced to us we are not able to say that such a battle would be so obviously one sided and incontestable that Ms Mason or her successors in title would unquestionably succeed. There are evidently issues which would require to be resolved in appropriate proceedings to which the competing proprietor - Ms Mason or her successor - should be a party. We are thus persuaded that, as the defenders effectively contend, the action for damages for breach of warrandice, if not unfounded, is at least premature.

[56] Counsel for the defenders moved us to amend the sheriff's findings in fact and law in the manner which we have recorded in paragraph [23] above. Counsel no doubt had in view, responsibly, the terms of s.32 of the Court of Session Act 1988. It follows from what we have said in this Opinion that the amendments proposed to those findings should be allowed subject to the qualification that the amendment to finding in fact and law 2 which is proposed should be further altered (the further alteration being italicised) to read:

"...so far as that use is not inconsistent with the pursuers' servitude right of vehicular access and egress in so far as that servitude right of access and egress may have been validly constituted."

[57] It occurs to us that, while the logical outcome of our conclusion should be dismissal of the action, there may be practical considerations, given that the court below assessed the damages for breach of warrandice, making expedient the sisting of the current action to await the outcome of any further, or contemplated proceedings. We are not immediately persuaded of the desirability of this course of action, but recognising its possibility we have decided that we should put the case out By Order for the purpose of discussing whether the present action should be dismissed, or sisted to await the outcome of further proceedings.

[58] We shall therefore put the case out By Order for that purpose.