Alvis v Harrison (Scotland)
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Oliver of Aylmerton,Lord Jauncey of Tullichettle,Lord Lowry |
| Judgment Date | 15 November 1990 |
| Judgment citation (vLex) | [1990] UKHL J1115-2 |
| Court | House of Lords |
| Date | 15 November 1990 |
[1990] UKHL J1115-2
House of Lords
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Oliver of Aylmerton
Lord Jauncey of Tullichettle
Lord Lowry
My Lords,
I have had the opportunity of considering in draft the speech prepared by my noble and learned friend Lord Jauncey of Tullichettle. I agree with it, and for the reasons he gives would allow the appeal.
My Lords,
For the reasons given in the speech of my noble and learned friend, Lord Jauncey of Tullichettle, I would allow the appeal.
My Lords,
I have had the advantage of reading in draft the speech proposed by my noble and learned friend, Lord Jauncey of Tullichettle. I agree with it and would allow the appeal with costs for the reasons which he has given.
My Lords,
This appeal arises out of a dispute between two adjacent proprietors of parts of the former Lee Castle Estate who derived title from a common author, Effold Properties Ltd. ("Effold"). Lee Castle lies to the west of A73 road from Lanark to Carluke and a driveway leads from the East Lodge on the main road to the castle. The driveway runs initially due south and thereafter turns in a westerly direction towards the castle. At the date of the proof the respondent was the owner of Lee Castle and the driveway with its verges thereto from the East Lodge. The appellant was and is the owner of land on the west side of the driveway where he has a house in the old walled garden and of woodland on the east side of the driveway extending to the A73. The respondent sold the castle and driveway shortly after the proof.
Effold sold the driveway and verges to one of the respondent's predecessors in title, Knowe Properties Ltd., by disposition dated 11 July 1974 which contained the following reservations:
"And Always Reserving to us and our successors in the ownership of any part of the Lee Castle Estate a heritable and irredeemable servitude right of access over the said driveway marked 'A' — 'B' and 'C' on the said plan annexed and subscribed as relative hereto; …".
The appellant's lands abut the verges of the driveway on both sides between points 'A' and 'B' where the driveway runs north and south ("the relevant section"). By disposition dated 11 January 1978 Effold sold land which included that now owned by the appellant to his predecessor in title, Electricity Supply Nominees Ltd. The rights disponed included a servitude right of access over the driveway as described in the disposition of 11 July 1974.
The disposition in favour of the appellant dated 27 July 1978 erroneously purported to convey to him the solum of the driveway with the verges in so far as it ran between his land. It also disponed all existing servitude rights. This conveyancing error has been rectified and it is now a matter of agreement that the appellant is entitled to a right of access over the driveway and verges in terms of the reservation in the disposition of 11 July 1974.
A track leads westwards from the relevant section of the driveway to the appellant's house. In or about 1980 the appellant, being under the mistaken apprehension created by his title, that he owned the driveway and verges constructed a road from the driveway eastwards to the A73. This involved inter alia the formation in the verge at a point more or less opposite the track to his house of a bellmouth which was some few feet deep and extended along the verge for about 15 metres. It was constructed of bottoming covered with red whin chips and a coat of tarmac. The running surface of the driveway was not covered with tarmac. In addition to these works the appellant carried out other operations on the land which did not commend themselves to the respondent.
On 2 December 1982 the respondent raised the present action concluding inter alia for damages and interdict. A number of issues with which this appeal is not concerned were raised by the respondent and a lengthy proof took place before the Lord Ordinary. At the end of the day the respondent was successful only in relation to encroachment by the appellant on the driveway for the purposes of constructing the bellmouth of the new road to the A73. In respect of this encroachment and the loss of amenity resulting therefrom the Lord Ordinary awarded damages of £5,000 together with the expenses of the action to the respondent. The award of expenses was made notwithstanding the fact that the greater part of the proof had been devoted to issues upon which the respondent had been unsuccessful.
In the context of encroachment the Lord Ordinary said:
"Accordingly a right of access over the driveway in the line of the new access road, though over only a small portion of the same area of driveway as his existing right, is a new and separate right of access which neither his title nor Mr Alvis' grant has conferred upon him. As matters stand therefore he has no right or title to it. The other aspect of this new access road, from the driveway proprietor's point of view, is the fact that this new access road has completely subverted the original castle driveway and turned the junctions of the drive with the accesses to Mr Harrison's land into a crossroad." … "I also accept that the new access has subverted and undermined the design and purpose for which the driveway was originally constructed. In this sense it has radically altered its use."
The Lord Ordinary concluded by saying:
"I have little difficulty in finding for the pursuer on this issue. For the reasons I have stated the access which Mr Harrison wishes to exercise over the driveway appears to me to be a legally distinct and separate one from the present access to which he is entitled and it does materially affect Mr Alvis' legitimate use. The only direct remedy which the law provides for a proprietor. in Mr Alvis' position is that of permanent interdict. Mr Alvis, in my view, is entitled to that remedy."
The Lord Ordinary did not grant permanent interdict but continued the matter to enable parties to address him on the precise terms in which such interdict should be granted.
The appellant reclaimed but by the time the case was heard in the Summar Roll interdict had ceased to be a live issue since the respondent's disponee had no objection to the appellant's new access road. The second division upheld the Lord Ordinary's award of damages but modified the award of expenses against the appellant to one half.
In the course of his opinion the Lord Justice Clerk expressed the view that the pursuer was not bound to suffer access being taken from the driveway to the woodland on the east at more than one place. After concluding that the point where the bellmouth had been constructed was a suitable place at which access could be taken he continued:
"What is more important, however, in my opinion, is to recognise the purpose for which access could be taken at this point. It is plain that at this point the defender was entitled to take access to the woodland to the east for any proper purposes connected with that area of ground. Thus, in my opinion, he would be entitled to take access at this point for the purposes of normal estate uses in connection with his trees. So if trees required to be felled he could enter the woodland at this point in order to do so. If he wished to obtain wood from the woodland for firewood, he could enter the woodland at this point for that purpose. The question which arises in this case however is whether he was entitled at point 7 to take access in to the woodland to the east of the road not for purposes in connection with the woodland but in order to traverse the woodland so as to obtain access to the A73. In my opinion, this was something which the defender was not entitled to do.
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