Thomas And Joyce Mcmillan V. Ahmos Farid Fahmy Ghaly
| Jurisdiction | Scotland |
| Judge | Sheriff R.A. Davidson |
| Court | Sheriff Court |
| Date | 09 September 2002 |
| Docket Number | A1350/99 |
| Published date | 24 September 2002 |
SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT DUNDEE.
JUDGMENT OF SHERIFF R.A. DAVIDSON
In causa
THOMAS AND JOYCE MCMILLAN
PURSUERS
Against
AHMOS FARID FAHMY GHALY
DEFENDER
Act: Fitzpatrick, Advocate; Campbell Boath & Co., Solicitors, Dundee.
Alt: Kennedy, Advocate; Scott (W.R.) & Soutar, Solicitors, Dundee.
A1350/99 Thomas and Joyce McMillan v. Ahmos Farid Fahmy Ghaly
Dundee, 9th. September, 2002. The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-
- The pursuers are Thomas and Joyce McMillan, spouses, who formerly resided at 26E Roseangle, Dundee, and who now reside in a new bungalow situated upon property adjacent to Duncarse House, Perth Road, Dundee.
- The defender is Ahmos Farid Fahmy Ghaly, medical consultant, residing at the West Wing, Duncarse House, 381 Perth Road, Dundee.
- The present proceedings relate to proprietorial rights in heritable property located in or about Duncarse House, Perth Road, Dundee. There are no proceedings before any other court relative to this dispute and no agreement exists prorogating the jurisdiction of any other court. This court accordingly has jurisdiction in the cause. There are, however, proceedings at the instance of the defender against George Reid, referred to in finding-in-fact 4, in this court, which proceedings are to some extent related proceedings, and which have been sisted to await the outcome of the present proceedings. The proceedings against Reid required to commence to avoid the expiry of a contractual time limit.
- The pursuers are heritable proprietors of a plot or area of ground more particularly described in a disposition by George Grant Reid in their favour dated 17th. and recorded in the General Register of Sasines for the County of Angus on 25th. September, 1998.
- The defender is the heritable proprietor of property adjacent to that of the pursuers, his property being known as The West Wing of Duncarse House, 381 Perth Road, Dundee, more particularly described in a disposition by George Grant Reid in favour of the defender dated 14th. September, 1998 and recorded in the General Register of Sasines for the County of Angus on 4th. August, 1999.
- The grant of the disposition in favour of the defender predates the grant of the disposition in favour of the pursuers, but the disposition in favour of the pursuers was registered prior to the registration of the defender's disposition.
- The disposition in favour of the pursuers contained a grant of a heritable and irredeemable servitude right of pedestrian and vehicular access and egress over the access roadway shown coloured blue on Plan 2 annexed to said disposition leading from Perth Road, Dundee towards, but not to, the pursuers' property.
- The defender was already in occupation of his property when the pursuers commenced building operations on their adjacent plot at about the end of August, 1999. The defender's wife, Roslyn Ghaly, allowed the pursuers' builder access to a supply of water from her property.
- Discussions, including an exchange of correspondence between parties' respective solicitors, ensued about the determination of the extent of the foresaid servitude right, that is to say, the extent to which the use of the existing driveway to the defender's property was rendered non-exclusive. There were certain further discussions about extending, by further agreement, the foresaid servitude right.
- Those discussions, which involved each party's then solicitors, culminated in the preparation and engrossment of a Minute of Agreement which was issued for signature on 24th. December, 1999 and which was on that date signed by the defender and by the second pursuer. Defender's production 6/1/10 is said Minute of Agreement. In short, that Minute of Agreement would have provided for an extension to the existing servitude right of access in favour of the pursuers over the defender's driveway to a point on the north edge of the driveway which was 26.5 metres from a fixed point depicted on the plan annexed to said Minute of Agreement as the point where the pursuers' southern boundary met the north edge of the driveway, in respect of which extension the defender would grant the necessary deed. In exchange, the pursuers were to grant a discharge of all claims pertaining to any right of servitude over the remaining portion of the defender's driveway and courtyard proximate to his dwelling house, would make a cash payment of £6,000 by 31st. January, 2000, the first instalment to be paid "upon the last date of signature of this agreement;" for the production of a deed plan at the pursuers' expense "capable of being registered in the Land Register and corresponding to" the plan annexed to the Minute of Agreement; for the payment of £600 towards the defender's legal expenses; for the supply of a stone circle approximately half a metre in radius and to a height of fifty centimetres with a central concrete base; and for the dismissal of the action of interdict at the instance of the pursuers with no expenses due to or by either party. The first pursuer refused to sign this Minute of Agreement on 24th. December without any good reason for his refusal.
- The earlier recorded disposition by George Grant Reid in favour of the pursuers
- Notwithstanding the terms of the foregoing bounding description of the pursuers'
- In the disposition by said George Grant Reid in favour of the pursuers, the servitude
- Plan 2 annexed to said disposition depicts the driveway of the defender's property,
- Also annexed to said disposition is Plan 1...
contained the following description of the property, and, in particular, its boundaries
viz:-
" ALL and WHOLE that Plot or area of ground lying to the west of Hazel Drive,
Dundee in the County of Angus and being the subjects shown delineated and
outlined in red on Plan 1 annexed and executed as relative hereto which Plan is
demonstrative only and not taxative and a duplicate thereof duly docquetted and
authenticated is in terms of Section 48 of the Conveyancing (Scotland) Act 1924
to be ingiven to the Keeper of the General Register of Sasines along with these
presents for retention and which subjects are bounded as follows, videlicet:- On or
towards the north partly by the southmost face of an existing wall with railings
above and partly by the southmost face of a new masonry wall separating the
subjects belonging to Harrington Construction Limited incorporated under the
Companies Acts and having their registered office at Harrington House, Craichie,
by Forfar, along which it extends a total distance of sixty one metres and ten
centimetres or thereby; On or towards the west by an existing chain link fence
along which it extends a distance of forty eight metres and ninety centimetres or
thereby; On or towards the south partly by an undefined boundary along which it
extends a distance of eleven metres and forty five centimetres or thereby, partly by
the access driveway leading to the subjects hereby disponed and partly by the
southmost face of a new Beech Hedge along which it extends following the curves
thereof a distance of sixty two metres or thereby and on or towards the east firstly
by an undefined boundary along which it extends a distance of fifteen metres and
thirty centimetres or thereby then again by an undefined boundary along which it
extends following the curves distances of six metres and thirty centimetres and
four metres and eighty centimetres or thereby and finally by an undefined
boundary along which it extends a distance of sixteen metres and seventy
centimetres or thereby."
property, there was no 'new masonry wall' from which the line of the north boundary
of the property could be deduced. Consequently, the point from which the west boundary, consisting of the chain link fence, commenced could not be deduced i.e. there was no clear physical definition of the north west corner of the property. Since the west boundary was defined as running southwards along the chain link fence to 'an undefined' south boundary, it was not possible accurately to determine either the south west corner of the property or the line of the southern boundary. It was, in turn, not possible to define the point at which that southern boundary met the northernmost edge of the driveway nor the point at which the sixty two metres along the curve came to an end to enable the undefined eastern boundary or the south east corner of the property to be established.
right of access is defined as follows:-
"(One) a heritable and irredeemable servitude right of pedestrian and vehicular access
to and egress from in all time coming over the access roadway shown coloured blue
on Plan 2 annexed hereto leading from the subjects hereby disponed to Perth Road,
Dundee, which plan is demonstrative only and not taxative and a duplicate thereof
duly docquetted and authenticated is in terms of Section 48 of the Conveyancing
(Scotland) Act 1924 to be ingiven to the Keeper of the Register of Sasines along
with these presents for retention;"
It is further provided in said disposition that the
pursuers "will be responsible for an equal share in all time coming along with the
proprietor or proprietors of the subjects currently known as The West Wing,
Duncarse House, Perth Road, Dundee, for the maintenance, repair and renewal of the
said access roadway shown coloured blue on the Plan annexed and executed as
relative hereto; Which additional burden is hereby declared to be a real burden upon
and affecting the subjects hereby disponed or any part thereof under pain of nullity
subject always to the provisions of Section 9 of the Conveyancing (Scotland) Act
1984."
coloured in blue, running north from the lodge at Perth Road and through the
defender's property. At no point does that plan depict any part of the pursuers'
property despite the provisions of the disposition narrated at finding-in-fact 13.
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