Carstairs v Spence
| Jurisdiction | Scotland |
| Judgment Date | 09 February 1924 |
| Date | 09 February 1924 |
| Docket Number | No. 40. |
| Court | Court of Session |
Lord President (Clyde), Lord Skerrington, Lord Blackburn.
Servitude—Access—Prescription—Access road to agricultural subjects—Evidence of use—Sufficiency of evidence.
Servitude—Access—Prescription—Carting access to agricultural subjects acquired by prescription—Whether access available for all carting purposes—Carting materials for erection of dwelling-houses—Servitudes limited by purposes of traffic.
In an action in which the proprietors of certain lands sought to interdict the proprietor of adjoining lands from carting building materials for dwelling-houses over a roadway or track which traversed their lands, held (1) that, during a period in which the pursuers' lands had been occupied as agricultural subjects and the defender's as agricultural and subsequently market garden subjects, the defender's authors had, in the circumstances, acquired a servitude right of access for cart traffic; (2) that the fact that the carting had been for agricultural or market garden purposes did not limit the servitude to a right of passage for such or similar purposes, but that a right of access by cart for all purposes, including the carting of building materials, had been acquired.
Observed by the Lord President that the only cases in which servitudes of way acquired by prescription are limited by reference to the purposes of the traffic carried by them are those cases in which there is some special feature attached to the terminus to which the roadway leads, as, for example, a way leading to a mill, a kirk, or a peat moss.
In May 1922 Mrs Jessie Lindsay or Carstairs, wife of Alexander Carstairs, builder, residing at 162 South Street, St Andrews, and David Carstairs, joiner, St Andrews, brought an action in the Sheriff Court of Fife and Kinross at Cupar against John Daniel Spence, builder, St Andrews, craving the Court to declare that they were the owners of certain ground lying in the South Haugh of St Andrews and of a road bounding their ground upon the south, and to interdict the defender from using this road or passage as an access to land belonging to him lying to the west of the pursuers' property for the passage of himself, his servants, bestial, and vehicles of any kind, or for carrying or carting building or other material to his land. There was also a conclusion to interdict him from laying drains or gas and water pipes in the roadway.
The defender on record did not dispute that the pursuers were owners of the ground and roadway referred to, but he contended that he was possessed of a prescriptive right to use the road for all the ordinary purposes for which roads are used, including the carting of building materials for buildings which he was erecting on his land.
The pursuers denied that the defender had any right of servitude of access over any part of their property, but, separatim, they contended that, if any right of access had been acquired by the defender or his authors, it was a right of access for agricultural, pastoral, or garden purposes only, and that, accordingly, the defender could not increase the burden on their subjects by the cartage of building materials, or by the conversion of a right of passage into a road for the service of dwelling-houses.
The following facts were established at a proof:—
The tract of land, with which the case was concerned and which included the lands of the pursuers and the defender, was a quadrilateral area of ground situated in the South Haugh of St Andrews. It was bounded on the north by a passage known as Ladebraes Walk, on the east by Melbourne Place, and on the south by the Kinness Burn. The property comprised in this quadrilateral area was originally cut into three portions, the dividing lines running north and south. The westmost portion was originally occupied as agricultural land; the middle portion originally formed part of the glebe of St Leonard's; and the eastmost portion formed the frontage to Melbourne Place. Except for a footpath entrance from Ladebraes Walk on the north giving access to the westmost portion of the area, the westmost portion and the glebe were wholly inaccessible from the west, the north, and the east. The only access for the carts which must have been used in connexion with agricultural operations was from the south. The Ordnance Survey map of 1854 showed a track, of sufficient width for carts, running from the public road at the south end of Melbourne Place along the bottom of the glebe to an opening or gateway at the southeast corner of the westmost portion of the quadrilateral. The fence on the east of the glebe, it was proved, had for upwards of forty years stopped short of the burn at a sufficient distance from the burn to permit of the passage of carts along the bottom of the glebe to the gateway. This opening or gateway also appeared on the Ordnance Map of 1893, but the track was not shown.
In 1872 one Alexander Herd acquired the westmost section of the quadrilateral, which he converted into a market garden, and cultivated as such until his death in 1898. During this period Herd used the road or track, in the assertion of a right and not merely as a matter of tolerance, for carting manure to his market garden. He did not keep a cart himself, the carting being done by the persons who supplied the manure. No objection was ever raised by the proprietor of the glebe or his tenants. After Herd's death the market garden was let to, and occupied by, one MacDougall, and a subtenant, one Chisholm, both of whom continuously, and without objection, used the road in connexion with their market garden, employing carts and lorries of their own.
In 1885 the market garden was cut into two parts by a line of railway running from north to south, a right of access between the two parts being reserved to the proprietor. The east part was subsequently acquired by one Leslie, under burden of a right of access to the west part. The west part was purchased by the defender in 1919, and he proceeded to erect upon it a number of workmen's houses, using the road in question for the cartage of his materials.
As regarded the middle section of the quadrilateral area, originally the glebe, there was ample evidence that the road in question had been continuously used by cattle, carts, and threshing-mills in connexion with its cultivation. It was subsequently acquired by the pursuers, and it was proved that for more than forty years the fences at its southern extremity, ex adverso of the Kinness Burn, had been so placed and maintained as to leave the access or road along the bank of the burn between the westmost section of the quadrilateral area and the public road free and unobstructed.
As regarded the eastmost section of the quadrilateral area, forming the frontage to Melbourne Place, it had been built upon many years ago, and in 1894 a row of houses had been erected on its southern frontage facing Kinness Burn. These houses obtained their sole access from Melbourne Place along the ground forming the northern bank of the burn. This access was not properly completed, and formed the continuation of the road or track under dispute in the present case. No question was raised in this case as to the defender's right to use this portion of the access.
On 13th February 1923 the Sheriff-substitute (Stuart), after a proof, pronounced the following interlocutor:—‘[After findings in fact] Finds in fact and law that the use had by the defender and his authors of undisputed access through the pursuers' lands for more than forty years, as above set forth, is sufficient to infer that the defender has right to a servitude road for the passage of carts, from the gateway at the south-east corner of the land now belonging to Richard Leslie, to the road or street known as Kinnessburn Terrace, but that only for the purposes for which said access had hitherto been used, viz., for the passage of carts for agricultural or market garden purposes; that said use is not sufficient to infer a right to use said access for all cart traffic, and in particular for the carting of building material to the defender's land: Finds in law that the pursuers are entitled to the declarator and interdict craved, in respect of the use by the defender of said access for the carting of building material to his land: Therefore finds and declares accordingly: Interdicts the defender, by himself or his servants or others acting for him or with his leave, from using the passage or roadway upon the southern portion or boundary of said respective subjects belonging to the pursuers, as an access to land belonging to him lying on the west of the pursuers' properties, for carrying or carting building material to the defender's land: Quoad ultra refuses the crave of the writ.’
The defender appealed to the Court of Session, and the case was heard before the First Division (consisting of the Lord President, Lord Skerrington, and Lord Blackburn) on 25th, 29th, 30th, and 31st January 1924.
Argued for the appellant;—A servitude of way must belong to one of the three classes known to the law of Scotland—the footpath, the horse road, or the road for vehicular traffic1—and in the present case a servitude of the last class had been established by the evidence. The Sheriff-substitute was sitting as a jury, and, unless his findings in fact were entirely unsupported by evidence, they ought not to be disturbed. His findings, and the evidence upon which they rested, showed that the proprietors of the dominant tenement during the prescriptive period used the road for every purpose for which they required it, and the use must be presumed, in the absence of evidence to the contrary, to have been of right and not by tolerance.2 The use itself constituted the servitude,
without recourse to the doctrine of presumed grant.1 A similar argument to that which was successful in M'Inroy v. Duke of AthollSC,2 that the use of a footpath across a remote moor had not been...
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