Moncrieff v Jamieson and Others

The pursuers are husband and wife and live with their three children in subjects known as "Da Store", Sandsound, Shetland, of which they are the heritable proprietors. At the time when these proceedings began the first defender was the heritable proprietor of a nearby dwellinghouse known as "The Storehouse" where he lived with his wife, who is the second defender. The third defender is the father of the first defender. He is the heritable proprietor of lands surrounding The Storehouse lying between Da Store and the Sandsound public road. Da Store is bounded on the west by an arm of the sea known as Sandsound Voe and on its east and south sides by lands owned by the third defender. It is bounded on the north side by lands which are in separate ownership.

Da Store previously formed part of the lands now owned by the third defender. It was separated from those lands by a disposition by Mitchell George Alexander Georgeson in favour of Mrs Margaret Stuart which was recorded in the Division of the General Register of Sasines applicable to the Counties of Orkney and Zetland on 3 September 1973. The situation of "Da Store" is such that it has no direct access to the system of public roads that serves the community in that part of Shetland. So among the rights conveyed by the disposition, to be enjoyed together with the lands on which the subjects are situated, was the following: "(Fourth) a right of access from the branch public road through Sandsound." The branch public road is the road referred to as the Sandsound public road in the previous paragraph.

Da Store lies at the foot of a steep escarpment close to its boundary with the lands owned by the third defender. The buildings are situated between the foot of the escarpment and the foreshore. They are not accessible from the lands which lie to the north side of the property. They are accessible from the lands belonging to the third defender on the east side. But this is possible on foot only, by means of a gate and a stairway. Vehicles cannot be driven onto any part of the land on which Da Store is situated. It is common ground that the effect of clause (Fourth) was to confer a servitude right of access to "Da Store" from the Sandsound public road for both pedestrian and vehicular traffic. It is also common ground that accessory to the right of vehicular access is a right to stop vehicles on the servient tenement in order to turn, load and unload goods from them and set down and pick up passengers: contrast Baird v Ross(1836) 14 S 528, in which it was held that the dominant proprietor was not entitled to load or unload or turn carts unless he could do so on the cart way. The dispute which has given rise to this litigation is whether there is also an accessory right to park vehicles on the servient tenement.

It should be noted that there has recently been a significant change in the situation on the ground. The Storehouse has been sold and the first and second defenders have left the subjects which are now occupied by the new proprietors. They have indicated that they wish to take no part in these proceedings and that they will abide by whatever decision is reached by your Lordships. But, subject to a small adjustment to the boundaries surrounding The Storehouse, the third defender retains his ownership of the servient tenement.

The proceedings

The pursuers raised their action in the sheriff court at Lerwick on 15 September 1998. On 7 July 2003 after many callings, 10 days of evidence and 4 days of submissions by counsel, and after having visited the site himself, Sheriff Scott Mackenzie pronounced an interlocutor in which, among other things, he granted declarator that the pursuers were entitled to park vehicles on the servient tenement in the exercise of rights accessory to the servitude right of access. He also pronounced permanent interdict against the defenders from interfering with the reasonable exercise by the pursuers of their servitude right of access and the accessory rights.

The defenders appealed to the Court of Session. On 4 February 2005 an Extra Division (Lords Marnoch, Hamilton and Philip, Lord Hamilton dissenting) refused the appeal: 2005 SLT 225. Counsel were agreed that the sheriff's interlocutor was in some respects unsatisfactory. The Court of Session allowed the craves which were before the sheriff to be amended to reflect the submissions by the pursuers' counsel which, as Lord Marnoch observed in para 30, were based on the concept that the measure of any implied or ancillary right was what was necessary to the reasonable enjoyment of the express right of access. It granted declarator in terms of an amended crave which stated, among other things, that:

"the said right of access has, as an incident thereof, accessory rights over the servient tenement in favour of the dominant tenement (i) to park, on the servient tenement, such vehicles as are reasonably incidental to the enjoyment of said access to the dominant tenement and (ii) to stop, turn, load and unload goods and to set down and pick up passengers on the servient tenement."

The court also granted declarator that these accessory rights were presently exercised in an area of the servient tenement shaded pink on a plan which had been lodged in process marked as Bardell Plan 2. It adhered to the sheriff's decision to grant permanent interdict against the defenders from interfering with the reasonable exercise by the pursuers of their servitude right of access and its accessory rights.

The facts

(a) at the time of the grant

Consideration of the extent of a servitude right of access and of any rights that are accessory to it must begin, in the case of an express grant, with the terms of the grant itself. In the present case the grant confines itself to a few words only: "a right of access from the branch public road through Sandsound." The meaning and effect of those words must be determined by examining the facts which were observable on the ground at the time of the grant. Account may also be taken of the use to which the dominant tenement might then reasonably have been expected to be put in the future. The sheriff's findings, together with various plans and photographs that were lodged in process, provide the relevant information.

The buildings known as Da Store form part of a former merchant's house and shop. They date from the mid-nineteenth century or possibly earlier. The shop formed a principal retail outlet for the Sandsound area until about 1927 when the shop was closed. The buildings then fell into multiple occupation by up to four families until they became semi-derelict. That was their condition when they were purchased in 1973 by Mrs Stuart. They were still semi-derelict when the first pursuer's parents purchased the subjects in 1975. They were gradually brought back into a habitable condition over the next twelve years. In 1984 they were disponed by his parents to the first pursuer. In 1995 the first pursuer disponed the subjects to himself and the second pursuer in joint names. By 1998 when these proceedings were raised the pursuers were occupying Da Store as their home. When the sheriff pronounced his interlocutor they were living there together with their three children, who were then aged 4, 2 and six months.

The main access to the subjects when they were in use as a shop appears have been by sea. A public ferry which operated in the vicinity connected Sandsound with communities on the other side of Sandsound Voe until the 1940s. On the landward side between 1850 and 1900 a system of public roads was constructed. There is some evidence that as early as 1872 goods were from time to time transported to Da Store overland for up to ten miles. Between 1899 and 1902 the local authority constructed a lower branch public road, suitable for vehicular traffic, which led from the Sandsound public road to the gate on the eastern boundary of Da Store. It ran in a line which the sheriff described as slightly boomerang-shaped down a fairly steep slope from the main public road. It was about 150 yards long and was of hardcore and mortar construction. It was bordered on the north side by a fence. The lands to the south were left unfenced. The lower branch public road was used by pedestrians and possibly by horse-drawn carts making deliveries to and collecting goods from the shop. In 1927 a new shop was erected at the top of the slope where the lower branch public road joined the Sandsound public road.

The sheriff found that it was not possible for any vehicle to gain access beyond the gate onto Da Store by reason of the steep escarpment. Nor was it possible for bulky goods or numerous items to be carried directly from a vehicle into the property. They had to be off-loaded and carried down by hand, piece by piece or bag by bag. Horse-drawn vehicles might, when necessary, turn at the bottom of the road in their own length. But the lower branch public road was not wide enough to permit motor vehicles to turn on it. They had to be driven to some convenient place where they could manoeuvre for this purpose on the servient tenement. It was not possible for the driver of a motor vehicle who wished to enter the dominant tenement from the branch public road to do so without parking his vehicle elsewhere. Parking of vehicles could take place, and had taken place, at the top of the lower branch public road. But a...