Moncrieff v Jamieson and Others

JurisdictionScotland
Judgment Date04 February 2005
Neutral Citation[2005] CSIH 14
Date04 February 2005
Docket NumberNo 23
CourtCourt of Session (Inner House)

Extra Division

Court of Session Outer House

Sheriff Court

No 23
No 22
Moncrieff
and
Jamieson

Heritable property and conveyancing - Servitude right of access - Express grant - Whether right to park a necessary incident of right of vehicular access - Whether right could be created by acquiescence

A servitude right of access to a property for pedestrian and vehicular traffic was created by express grant in 1973 in the disposition whereby the property was first separated from larger subjects. The property was bounded on the west by the sea. The only means of approach by land was by a public road then over adjacent land, through a gate on the eastern boundary and down a steep flight of steps. It was not physically possible to drive a vehicle on to the property. The owners of the property raised an action in the sheriff court for declarator that the right of access carried with it an accessory right to turn vehicles, load and unload them and to park them on the adjacent land. They also craved interdict and damages. After proof, the sheriff granted decree in favour of the pursuers. The defenders appealed to the Court of Session. They conceded that the grant included a right to turn vehicles and to load and unload them. They argued that grants of servitude had to be strictly construed, and that the right to park could not be an incident of a servitude right of access, nor had such a right been created by acquiescence. The pursuers argued that the grant of a right should be construed as including whatever was necessary for the reasonable enjoyment of the right, and that in the circumstances that included parking; and that in any event the actings of the parties over the years had established such a right.

Held that: (1) while a grant of servitude must be strictly construed, the grant of a right carries by implication what is necessary to the reasonable enjoyment of that right, and given the location and geographical features of the properties, to construe the grant so strictly as to prohibit parking would effectively defeat the grant; and any purchaser of the servient tenement in 1973 would have anticipated that rights to turn vehicles, load and unload them and park them were necessary to the reasonable enjoyment of the dominant tenement (paras 24, 89, 90); (2) a right to park could not as a matter of law have been constituted by the actings of the parties over the years, and the pursuers' alternative argument should be rejected (paras 25-29, 80-84, 93); and appeal refused.

Dissenting (Lord Hamilton) that: (1) where the instrument conferring the right is reasonably capable of more than one interpretation, the rule of strict construction requires that the narrower construction be preferred (para 75); (2) that rule must be applied in considering what was 'reasonably incidental' to the right (para 76); and (3) the factual circumstances in the present case were not such as to import a right to park (paras 77, 78).

James Moncrieff and Allison Joan Rendall orMoncrieff raised an action of declarator and interdict in the sheriff court at Lerwick against Keith Jamieson, Eloise Jamieson and Bruce Jamieson. After proof, the sheriff (Scott Mackenzie) found in favour of the pursuers.

The defenders appealed to the Court of Session.

The cause called before an Extra Division, comprising Lord Marnoch, Lord Hamilton and Lord Philip for a hearing on the summar roll, on 12, 13, 14, 15, 23 and 24 October 2004.

Cases referred to:

Abercorn (Marquis of) v Langmuir 20 May 1820, FC 135

Axis West Developments Ltd v Chartwell Land Investments Ltd 1999 SLT 1416

Ayr Burgh Council v British Transport Commission 1955 SLT 219

Aytoun v Douglas (1800) 12 FC 435

Aytoun v Melville (1801) 12 FC 519

Baird v Ross (1832) 6 W & Sh 127

Baird v Ross (1836) 14 S 528; 6 WS 127

Batchelor v Marlow and anrUNKWLRUNK [2001] EWCA Civ 1051; [2003] 1 WLR 764; [2003] 1 All ER 78

Bell v Fiddes, Lord McEwan, 23 Jan 2004, unreported

Buccleugh (Duke of) v Edinburgh MagistratesUNKUNK (1865) 3 M 528; 37 Jur 266

Buchan v Hunter, Sh KA Maclernan, 12 Feb 1993, unreported

Clark & Sons v Perth School BoardUNK (1896) 25 R 919; 35 SLR 716

Colville v Middleton (1817) 19 FC 339

Cronin v SutherlandUNK (1899) 2 F 217; 37 SLR 160

Crown Estates Commissioners v Fairlie Yacht Slip LtdSC1976 SC 161; 1977 SLT 19

Cullens v Cambusbarron Co-operative Society LtdUNK (1895) 23 R 209; (1985) 3 SLT 168

Devlin and anr v Conn and anr 1972 SLT (Lands Tr) 11

Ewart v CochraneUNK (1861) 4 Macq 117

Ferguson v TennantSC 1978 SC (HL) 19; 1978 SLT 165

Fraser v CoxSC 1938 SC 506; 1938 SLT 374

Gow's Trs v MeallsUNK (1875) 2 R 729; 12 SLR 456

Grahame v Kirkcaldy MagistratesELR (1882) 9 R (HL) 91; (1881-82) LR 7 App Cas 547

Harris v Wishart 1996 SLT 12

Harris v Wishart Sh Irvine Smith, Abroath, 23 Jan 1997, unreported

Irvine Knitters Ltd v North Ayrshire Co-operative Society LtdSC 1978 SC 109; 1978 SLT 105

Johnston v Scott (1834) 12 S 492

K-Sultana Saeed v Plustrade LtdUNKUNK [2001] EWCA Civ 2011; [2002] 2 P & CR 19; [2002] 2 EGLR 19

Kennedy v Macdonald, Sh Prin Caplan, 14 Nov 1988, unreported

Kinnoul (Earl of) v Keir (1814) 17 FC 515

Lafferty and anr v Brindley, Ontario Supreme Court, 25 July 2001, unreported

Lerwick Harbour Trs v Moar 1951 SLT (Sh Ct) 46

Louttit's Trs v Highland Ry CoUNK (1892) 19 R 791; 29 SLR 670

Macgregor v BalfourUNK (1899) 2 F 345; 37 SLR 245; (1899) 7 SLT 273

Mackenzie v Matthews, Ontario Court of Appeal, 1 Nov 1999, unreported

Melville v Douglas' Trs (1828) 7 S 186

Melville v Douglas' Trs (1830) 8 S 841

More v Boyle 1967 SLT (Sh Ct) 38

Muirhead v Glasgow Highland SocietyUNKUNK (1864) 2 M 420; 36 Jur 201

Munro v Jervey (1821) 1 S 161

Murrayfield Ice Rink Ltd v Scottish Rugby Union TrsSC1973 SC 21; 1973 SLT 99

Nationwide Building Society v Allan (Walter D) Ltd,Lady Smith, 4 Aug 2004, unreported

Norcott v SandersonUNK 1990 SCLR 622

Robson v Chalmers Property Investment Co Ltd 1965 SLT 381

Russell v CowparUNK (1882) 9 R 660

Sanderson v GeddesUNK (1874) 1 R 1198

Scotland v Wallace 1964 SLT (Sh Ct) 9

Waddell v Earl of BuchanUNKUNK (1868) 6 M 690; 40 Jur 357

Textbooks etc. referred to:

Bell, GJ, Principles of the Law of Scotland (10th Guthrie ed, Edinburgh, 1899), paras 946, 947, 992 and 1100-1103

Cusine, DJ, and Paisley, RRM, Servitudes and Rights of Way(1998, W Green/Scottish Universities Law Institute, Edinburgh), para 11.02, 11.09-11.17, 11.37-11.45

Cusine, DJ, and Paisley, RRM, Unreported Property Cases from the Sheriff Courts (2000, W Green, Edinburgh), pp 311, 384, 397-400

Duncan, AGM, "Creation by Acquiescence" in Stair Memorial Encyclopaedia: The Laws of Scotland (1987, Butterworths/Law Society of Scotland, Edinburgh), vol 18, para 462

Ferguson, J, The Law of Roads, Streets and Rights of Way, Bridges and Ferries in Scotland (1904, W Green, Edinburgh), pp 4, 7

Gordon, WM, Scottish Land Law (2nd ed, W Green/Scottish Universities Law Institute, 1999), para 24.41

Rankine, J, Law of Land Ownership: A treatise on the rights and burdens incident to the ownership of land and other heritages in Scotland (4th ed, W Green, Edinburgh, 1909), pp 417, 427, 428

Scottish Law Commission, Report on Real Burdens (Scot Law Com no 181, 2000), para 12.22

At advising, on 4 February 2005-

Lord Marnoch- [1] In the opening paragraph of his opinion in Lafferty and anr v Brindley the Honourable Mr Justice J Donohue said this: 'Among its many charms Huron County boasts magnificent sunsets. If you look west from the plaintiffs' right of way along the lake bluff on a summer's evening the spectacle of the fiery orb sinking into the inland sea is sure to instil a sense of calm tranquillity. That feeling is an illusion! The very ground beneath your feet convulses in contending claims of adverse possession, prescriptive easement, and proprietary estoppel. It is a privilege of the people to enjoy sunsets but the lot of lawyers to litigate land disputes.'

[2] I pay sincere tribute to the poetic quality of that opening paragraph and, with very little adjustment, it would precisely echo my own sentiments in the present case. As it happens, however, there is also a remarkable similarity between the factual situation considered by the Ontario court and that with which this court is presently confronted. In the Canadian case the plaintiffs were the owners of small land holdings on the face of the bluff of a lake. They had a right of vehicular access to these holdings over lands owned by Mr Brindley and, because they were physically unable to take their vehicles onto their own property, they sought declarator that they had a right to park them at the end of the access track. In the present case the pursuers are the proprietors of Da Store which the sheriff tells us 'consists of a small parcel of ground lying at the foot of a steep escarpment together with what was formerly a shop but is now a dwellinghouse and associated outbuildings erected thereon.' The property is bounded on the west by the sea and on the remaining sides by lands now owned by the third defender. The top of the escarpment forms Da Store's eastern boundary and the only means by which Da Store may be approached from the landward side is through a gate on that eastern boundary and down a steep flight of steps. From Da Store's eastern boundary the lands belonging to the third defender rise fairly steeply to the public road which runs through Sandsound, a fairly remote part of Shetland. It is no longer disputed that there exists in favour of the pursuers' property, as the dominant tenement, a servitude right of vehicular access from the public road just described over the lands owned by the third defender, and the only substantive question now left in the case, like that in the Canadian case, is whether the pursuers have the right to park their vehicles in the immediate vicinity of their own property, albeit on land which belongs to the third defender.

[3] In the Canadian case...

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4 cases
  • Moncrieff v Jamieson and Others
    • United Kingdom
    • House of Lords
    • 17 October 2007
    ...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 wer......
  • The Firm Of Johnson, Thomas And Thomas And Others Against Thomas Smith And T G & V Properties Limited And Clyde Gateway Developments Limited
    • United Kingdom
    • Sheriff Court
    • 28 July 2016
    ...“is concerned with the manner of the exercise of a servitude right, not the prior question of the true extent of it” (Moncrieff v Jamieson 2005 SC 281 (IH) per Lord Hamilton at paragraph [73], cited with approval by Lord Rodger in the House of Lords). Thus, any question of exercise civilite......
  • James Moncrieff And Another V. Keith Jamieson And Others
    • United Kingdom
    • Court of Session
    • 4 February 2005
    ...--> EXTRA DIVISION, INNER HOUSE, COURT OF SESSION Lord Marnoch Lord Hamilton Lord Philip [2005CSIH14] XA113/04 OPINION OF LORD MARNOCH in APPEAL BY DEFENDERS AND APPELLANTS From the Sheriffdom of Grampian, Highland and Islands at Lerwick in the cause JAMES MONCRIEFF and ANOTHER Pursuers and......
  • Lothian Amusements Limited Against The Kiln's Development Limited
    • United Kingdom
    • Court of Session
    • 2 July 2019
    ...with the manner of the exercise of a servitude right, not with the prior question of the extent of the right (Moncrieff v Jamieson 2005 1 SC 281, per Lord Hamilton at para 73; 2008 SC (HL)1, per Lord Rodger of Earlsferry at para 95; Cusine and Paisley, supra, para 12-183). [53] In the resul......

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