Bowers v Kennedy
| Jurisdiction | Scotland |
| Court | Court of Session (Inner House - First Division) |
| Judgment Date | 28 June 2000 |
| Docket Number | No 54 |
| Date | 28 June 2000 |
FIRST DIVISION
Heritable property and conveyancingRes merae facultatisRight of access to landlocked subjects over neighbouring propertyLandlocked subjects and neighbouring property disponed by same owner when splitting up estateWhether right of access to landlocked subjects implied in title to subjectsWhether right of access imprescriptible as res merae facultatisPrescription and Limitation (Scotland) Act 1973 (cap 52), sched 3, para (c)1
A farm was sold in 1945 but under exception of a group of buildings known as Wynton Knackery which was landlocked. The disposition of the farm reserved to the Knackery a right of access and egress by the roads through the farm. Eight days later the Knackery, which was then occupied by a chemical company, was disponed to the company together with the right to use all existing service roads and ways over any other parts of the farm as a means of access and egress. The chemical company stopped using the Knackery by about 1970. The farm was acquired by the pursuers from intermediate owners in 1972 under a disposition which made reference to the burdens created over the farm in 1945. In about 1974 the pursuers constructed a fence without a gate across the access road at a point near the Knackery and at a later date they shut off the access road at its junction with the public road. The defender acquired the Knackery in 1996 and instructed the removal of the fence with a view to reinstating the access road. The pursuers raised an action in the sheriff court and sought interdict against the defender from entering upon or interfering with the farm lands. The defender counterclaimed for declarator that he had a real right of access in terms of the...
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Barry Peart And Another V. Symon B. Legge
...of access falls within the scope of section 8 and is therefore subject to the long negative prescription was settled in Bowers v Kennedy 2000 SC 555 (per Lord President Rodger at 559C, paragraph [8]). That case also illustrated what is meant by res merae facultatis. Despite loss of the expr......
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Land Registration and the Decline of Property Law
...reservation, acquiescence, necessity,1717I.e. a right of access constituted in accordance with the rule identified in Bowers v Kennedy 2000 SC 555. and, perhaps most importantly, by prescription. Before this policy evolved the Keeper did on occasion accept evidence that a servitude had been......
