SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT ABERDEEN

 

A15/12

 

 

JUDGMENT

 

by

 

SHERIFF PRINCIPAL DEREK C W PYLE

 

in causa

 

 

GARY ALEXANDER GARDEN and CAMELIA JULIA GARDEN, Spouses, residing at 2 Woodstock Road, Aberdeen AB15 5JE

Pursuers and Respondents

 

against

 

EDMOND JOHN ARROWSMITH and JANE CHRISTINE ARROWSMITH, residing at 108 King's Gate, Aberdeen

Defenders and Appellants

 

 

 

[1] This is an appeal against the sheriff's interlocutor in which she repelled the defenders' preliminary plea-in-law insofar as directed at one of the craves in the initial writ, and repelled a further substantive plea-in-law of the defenders. They have appealed that interlocutor.

 

 

[2] The circumstances of this case are complicated although the subject matter of the appeal is a short point. The sheriff sets out the position in detail and for present purposes I find it unnecessary to repeat at length what she accurately records. It is sufficient to summarise the facts germane to the dispute as follows:

1.     The respondents are the heritable proprietors of a dwellinghouse and ground at 2 Woodstock Road, Aberdeen.

2.     The appellants are the heritable proprietors of a dwellinghouse and ground at 108 King's Gate, Aberdeen.

3.     Until 1977, both properties were owned by the same individual, a Robert Sharp.

4.     In that year, he disponed 2 Woodstock Road to his sister, Jessie Sharp.

5.     In 1992, Jessie Sharp disponed to Robert Sharp and his wife a small piece of the ground at 2 Woodstock Road. In the disposition she purported to reserve a right of access over that piece of ground in the following terms:

"And the subjects hereby disponed are so disponed ALWAYS WITH AND UNDER the following additional burden, namely there is reserved to me and my successors as proprietors of Two Woodstock Road, Aberdeen a right of access over the said area of ground to any garage to be erected for Two Woodstock, aforesaid; which burden is declared to be a real and preferable burden affecting the subjects hereby disponed and is appointed to be set forth at full length in any Instrument of Sasine or Notice of Title to follow hereon and to be inserted or validly referred to in terms of law in all future writs, transmissions and investitures thereof or any part thereof, otherwise the same shall be null and void, subject always to Section 9 of the Conveyancing (Scotland) Act 1924;"

 

6. Jessie Sharp did not erect a garage - nor did anyone else, until 2010 when the respondents built one, having become successors in title of Jessie Sharp in 2008 to Two Woodstock Road.

7. A dispute has arisen between the parties about the exercise by the respondents of that purported right of access. The respondents maintain that they have such a right; the appellants maintain that the respondents do not.

 

[3] Before the sheriff and before me, counsel for the appellants submitted that the clause in the disposition created only a personal right among the parties to it, namely Jessie Sharp and Robert Sharp and his wife. The reason for that, said counsel, was because the garage was not built before one of the titles (it did not matter which) had been conveyed to a third party. Counsel conceded that there was no authority directly in favour of his submission, but he sought to draw the necessary inference from certain dicta by Lord Watson in North British Railway Co v Park Yard Co Ltd (1898) 25 R (HL) 47 and the approach the courts had taken in dealing with circumstances where an existing servitude might be said to have been extinguished. In particular, he relied upon the following passage of Lord Watson's opinion (at p 52):

"If the language of the agreement be incapable of raising anything beyond a mere personal obligation upon the feuar, it is idle to speculate whether there was or was not a dominant tenement in existence."

 

Without a garage there cannot be a servitude right because the purpose of the servitude cannot be served. That meant that there was only a personal right among the parties to the disposition. Counsel also referred to Gray v McLeod 1979 SLT (Sh Ct) 17; Winans v Lord Tweedmouth (1888) 15 R 540; and Carstairs v Spence 1924 SC 380.

 

[4] In my opinion, the 1992 disposition did indeed create an heritable and irredeemable servitude right of access. Accordingly, the respondents have a right of access to their garage over the appellants' ground. The clause satisfies many of the common requirements for the creation of an heritable and irredeemable servitude right of access. The word "servitude" is not used (which is not fatal to its creation: Ferguson v Tennant 1978 SC (HL) 19) but there is a reference to successors in title and an obligation to insert in future transmissions. (On the last point, Lord Macfadyen in Moss Bros Group plc v Scottish Mutual Assurance plc 2001 SC 779 (at para [21]) (an authority cited by counsel for the respondents) said that such an obligation is truly neutral as it is unnecessary if a praedial servitude is otherwise created. I agree with that, but it does at least give a further indication of the parties' intention that the right was intended to survive a transmission of one or other of the subjects.) There is an express declaration that it is a real and preferable burden. There is no express exclusion of the constitution of a servitude; nor are there any indications of delectus personae. (Cusine & Paisley, Servitudes and Rights of Way, (paras 2,54 et seq)) I also regard it as significant that the nature of the right (right of access to a construction which is likely to be permanent) was such that it is more likely that the parties contemplated its continuation for the benefit of singular successors than its cessation on transmission - a point made by Lord Macfadyen in Moss Bros Group (at para [22]), albeit on different facts.

 

[5] The authorities cited by counsel do not assist the appellants. In North British Railway Co, Lord Watson in fact reached a conclusion which, if anything, favours the respondents. The facts are complicated - and unnecessary to repeat here - but the point of relevance is that the Lord Ordinary, in construing an agreement which provided for the construction of a tramway through an estate, considered that it did not create a servitude right because, inter alia, the tramway was not made at the time of the agreement and indeed at that time the party who intended to build the tramway had not acquired the land upon which the tramway was to be constructed. Thus, said the Lord Ordinary, no dominant tenement could have been created. Lord Watson disagreed with that conclusion. The full passage to which counsel referred is as follows:

"The reasoning of the learned Judge is not to my mind satisfactory. If the language of the agreement be incapable of raising anything beyond a mere personal obligation upon the feuar, it is idle to speculate whether there was or was not a dominant tenement in existence. On the other hand, if the terms of the agreement shew that it was the intention of the feuars to create a right of way over their land whether for a definite period or in perpetuity, in order that it might serve as the means of conveying goods to and from a tenement which, in the contemplation of all, or even some of the parties to the agreement, was to be acquired or constructed, the fact of its not having been so at the date of the agreement could not, after it was actually acquired or constructed, prevent the right of way from becoming a legal accessory to it provided that such a right of way was so used as to give reasonable notice of the burden to any person in whom the property of the feus might subsequently become vested."

 

The proviso at the end of that passage is relevant only because in that case the agreement was not recorded. Thus it was necessary for there to be possession and enjoyment on the part of the owner of the dominant tenement (Lord Watson at p 52). Thus the case is authority for the proposition that a servitude right can be created notwithstanding that at the date of its creation the purpose of the right could not be immediately exercised by the proprietor of the dominant tenement either because he had not acquired the land or had not carried out the construction to which the right referred.

 

[6] As counsel for the respondents noted, if the appellants were right it would mean that a developer acquiring a right of access over land adjoining to the land which he intended to develop by, say, the erection of dwellinghouses would have no such right in the event, unknown to him, the following day the owner of the adjoining land conveyed it to another. Indeed, the law simply would not allow such a right to be created no matter the intention of the parties; the best they could do would be to create a right in favour of the developer to claim damages against the other contracting party, but the right would not impinge on the rights of a third party purchaser in good faith. That would be a startling conclusion for the law to reach.

 

[7] The issue, among others, in Gray v McLeod was not whether a servitude right had been created but whether it was enforceable. On the facts, the sheriff held that it was unenforceable but only so long as the reason for it being granted in the first place no longer applied. In doing so the sheriff followed the decision of the Inner House in Winans v Lord Tweedmouth where the question was whether a servitude right of way to a mill for the purpose of grain being taken there to be ground ceased to exist when the use of the mill was discontinued. Thus, both cases are about something quite different from the instant case. The same can be said of the issue in Carstairs v Spence. The Lord President, in discussing the authorities, including Winans, makes the general point that a servitude can be restricted by the special and restricted character of the destination to which the way gave access in favour of the owner of the dominant tenement. That is nothing to the point in deciding whether the building to which access is granted has been constructed before either owner divests himself of his interest in the tenement, whether dominant or servient.

 

 

 

[8] Counsel for the appellants made two further submissions on the specification of the respondents' averments, but after discussion I detected he had little enthusiasm for either of them. Nevertheless, as he did not formally withdraw them, I require, albeit briefly, to deal with them.

 

[9] The first was that the sheriff was wrong in not excluding from probation certain averments in article 3 of condescendence (para 5.3 of the sheriff's note). The sheriff commented that the averments are light on detail, but I agree with her that there is little likelihood of prejudice to the appellants. Indeed, when pressed, counsel could identify none. Counsel for the respondents said that the averments were merely background information. I do not see that anything particularly turns on the averments even if proved but I think the sheriff was correct not to exclude them.

 

[10] The second was that the terms of the third crave for interdict were imprecise. Again, I consider that the sheriff was right to repel this criticism for the reasons she gave.

 

[11] Expenses follow success. Parties were agreed that the appeal was suitable for the employment of counsel.