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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Macfadyen
Lord Philip
Lord Kingarth
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[2007] CSIH 70
XA12/07
OPINION OF THE COURT
delivered by LORD
MACFADYEN
in
APPEAL
in the cause
BARRY PEART and ANOTHER
Pursuers and Appellants;
against
SYMON B. LEGGE
Defender and Respondent:
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Act: Davies; Archibald Campbell & Harley, W.S.
Alt: Clancy, Q.C.; Burness, W.S.
6
September 2007
Introduction
[1] The pursuers are the heritable proprietors
of The Old Golf House, Newbattle, Dalkeith.
They are also heritable proprietors of an adjoining area of woodland
ground extending to 669 square metres or thereby, which they acquired from the
Marquess of Lothian by Disposition dated 21 July 1997. That
area of woodland ground is referred to in the pleadings, and in this Opinion,
as "the pursuers' ground". The defender
is heritable proprietor of The Mill, Newbattle, Dalkeith. That property is referred to in the
pleadings, and in this Opinion, as "the defender's ground". The defender's ground adjoins both The Old
Golf House and the pursuers' ground.
[2] By
the Disposition by which the defender's predecessor in title acquired the
defender's ground from the Marquess of Lothian in 1981 ("the 1981 Disposition")
there was constituted in favour of the heritable proprietor of the defender's
ground a right of access over the area of woodland which is now the pursuers'
ground.
[3] The
pursuers aver that since 1981 neither the defender's predecessor in title nor
the defender has made any attempt to exercise that right of access. The pursuers therefore assert that the right
of access has prescribed in terms of section 8 of the Prescription and
Limitation (Scotland) Act 1973
("the 1973 Act").
[4] The
defender responds with averments of use during the prescriptive period, but in
addition maintains that the right of access created in the 1981 Disposition is res merae facultatis, and therefore
imprescriptible by virtue of section 8(2) of, and paragraph (c) of Schedule 3
to, the 1973 Act.
[5] The
sole issue which was debated before the sheriff, and on appeal before the sheriff
principal, was whether the right of access granted in the 1981 Disposition was
or was not imprescriptible. They both
held that it was properly to be regarded as a res merae facultatis, and was thus imprescriptible. On appeal before this court, that same issue
was reopened.
The legislation
[6] Section 8 of the 1973 Act provides as
follows:
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"(1)
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If, after the date when any right
to which this section applies has become exercisable or enforceable, the
right has subsisted for a continuous period of twenty years unexercised or
unenforced, and without any relevant claim in relation to it having been
made, then as from the expiration of that period the right shall be
extinguished.
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(2)
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This section applies to any right
relating to property, whether heritable or moveable, not being a right
specified in Schedule 3 to this Act as an imprescriptible right or falling
within section 6 or 7 of this Act as being a right correlative to an
obligation to which either of those sections applies."
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[7] Schedule
3 provides inter alia as follows:
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"The following are
imprescriptible rights and obligations for the purposes of sections 7(2) and
8(2) of, and paragraph 2(h) of Schedule 1 to, this Act, namely―
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...
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(c)
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any right exercisable as a res merae facultatis; ..."
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The phrase "res merae facultatis" is not defined in the 1973 Act.
The titles
[8] The
1981 Disposition, having conveyed to the defender's predecessor in title the
piece of ground which is referred to in these proceedings as the defender's
ground, went on to confer a right of access to it in the following terms:
"(Three) a
right of access to said piece of ground by the lane or track leading from the
Eskbank/Newtongrange road to the North-west side of the said piece of ground as
the same is shown coloured blue on said plan [i.e. 'the plan annexed and signed
by me as relative hereto'] but subject to the provision that the disponee shall
be entitled to breach the existing wall on the North-west boundary of the said
piece of ground only subject to the approval of me and my successors as
adjoining proprietors of making good the wall where necessary and inserting
gates or doors of a form and type satisfactory to me and my foresaids all of
which and the maintenance of the same shall be done at the sole expense of the
disponee and his foresaids".
[9] The
present title to the pursuers' ground is a Land Certificate bearing the title
number MID59459. The right of access
constituted by the 1981 Disposition is noted in the burdens section, except
that the words "as the same is shown coloured blue on said plan" are omitted.
The ownership of the wall
[10] In the course of the hearing on the summar roll it appeared
that on one view the issue to be determined in the appeal might turn on whether
the existing wall referred to in the right of access conferred by the 1981
Disposition belonged to the pursuers or the defender. We therefore invited submissions on the question
of ownership, so far as it might be resolved by reference to the titles. In the result, however, we have come to the
conclusion that the issue in the appeal can be determined without resolving the
question of the ownership of the existing wall.
We therefore say no more on that subject.
The pursuers' submissions
[11] For the pursuers, Mr Davies submitted that the issue in the
appeal was one of statutory construction.
The 1973 Act, as the language of the long title ("to ... make new
provision ... with respect to the extinction of rights and obligations by
negative prescription") made clear, introduced a new scheme. Authorities decided under the former law
therefore required to be handled with some care. There was no doubt that section 8 applied to
servitudes and rights of access. If a
right fell to be construed as effective from a future date, that postponed the
commencement of the running of the prescriptive period (section 8(1)), but did
not take the right out of the scope of section 8. The issue in the appeal was whether the right
of access conferred by the 1981 Disposition was taken out of the scope of
section 8 by virtue of being a right exercisable as a res merae facultatis and thus imprescriptible. The exception created by section 8(2) and paragraph
(c) of Schedule 3 should be narrowly construed.
The right conferred by the 1981 Disposition did not fall within its
scope. It was therefore not
imprescriptible.
[12] That a servitude right 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 express servitude right of access by operation of the long negative
prescription, there was held to be an implied right of access which was
imprescriptible. Lord Rodger, delivering
the opinion of the court, said (at 561D-F, paragraph [16]):
"In
summary, the institutional writers proceed upon the view that it is of the very
essence of a right of ownership of land that the owner should be able to have
possession of it and that this implies a
right to enter and leave it. The right
to free ish and entry, and the resulting right of access are 'necessary
concomitant[s] of property' and therefore, like the right of property itself,
they do not prescribe. ... The true position is that an owner can choose
not to visit his property and exercise his implied right of access, without
running any risk of losing his right to enjoy his property. In that sense the exercise of the implied
rights of ish and entry and of access may be described as a res merae facultatis."
(See also 564A, paragraph [24];
reference was also made to Duffield
Morgan Ltd v Lord Advocate 2004
SLT 413, per Lady Smith at 421I, paragraph [38]). However, in the present case, no question of
an implied right of access arose, because, as the plan attached to Land
Certificate MID59459 clearly illustrates, the defender's ground is accessible
from the south-east (Inverness Seafield
Development Co Ltd v Mackintosh 2001
SC 406, at 410A, paragraph [9]).
[13] In relation to the nature of rights exercisable as res merae facultatis, Mr Davies
referred to certain Scottish Law Commission documents, and to Hansard.
In the Scottish Law Commission Memorandum No. 9 (1968), "Reform of the Law Relating to Prescription
and Limitation of Actions", at page 12, paragraph 21(2), the following
passage appears in the description of the existing law:
"The [long
negative] prescription also applies to rights to land which are merely personal
and rights to servitudes and rights of way and other public rights. It does not apply to any other rights in
heritable property, to rights which are res
merae facultatis i.e. rights of such a character that their exercise would
be expected only periodically or irregularly ...".
A similar statement appears in the
Scottish Law Commission Report No. 15 (1970), "Reform of the Law Relating to Prescription and Limitation of Actions,
at page 10, paragraph 25. That
explanation of res merae facultatis has
been said to be "not accurate" (Johnston, Prescription
and Limitation, page 33, paragraph 3.08).
At the second reading in the House of Lords of the bill that became the
1973 Act, the Minister (Lord Polwarth), without mentioning the term res merae facultatis, said (Hansard, HL Vol. 341, 5 April 1973,
cols. 421-2):
"For these
obligations which are not caught by the short negative prescription, the long
negative prescription of twenty years is retained, subject to the exclusion of
certain imprescriptible rights and obligations which are listed at Schedule
3. These imprescriptible rights include,
for example, a real right of ownership in land, or the right to exercise the
ordinary uses of property, which the proprietor may assert or not as he
pleases, without the risk of losing the right by failure to assert it."
[14] The law relating to imprescriptible rights and obligations is
discussed in some detail in Chapter 3 of Johnston, Prescription and Limitation.
Mr Davies cited first paragraph 3.01 as authority for his submission
that Schedule 3, as a list of exceptions to the rule that rights and
obligations should prescribe, should be narrowly interpreted. As to the meaning of res merae facultatis, he cited paragraph 3.07:
"This Latin
expression is sometimes ― not very helpfully, perhaps ― glossed in
English as 'a mere faculty'. Its ...
essence is that it is a right which a person is at liberty to exercise or not."
At paragraph 3.16, the author says:
"It seems
reasonable therefore to conclude that a res
merae facultatis is a property right which cannot be lost by negative
prescription either (1) because it is a right whose exercise implies no claim
on anyone else or against their rights or (2) because it is a (normal) incident
of ownership which can be lost only as a consequence of the fortification in
some other person of a right inconsistent with it."
At paragraph 7.14(3) he adds:
"Servitudes. Real rights in another's property (jura in re aliena), such as servitudes,
are not imprescriptible. They will
prescribe, in the case of positive servitudes, from the date when they ceased
to be exercised and, in the case of negative servitudes, from the date when the
free exercise of the servitude was obstructed."
[15] As to the older authorities, Mr Davies cited Bell's Dictionary, 7th
edition, s.v. res merae facultatis; Bell's Principles, 10th
edition, § 2017; Erskine, Principles,
21st edition, III, vii, 16; Trayner, Latin Maxims, 4th edition, s.v. res merae facultatis; Crawfurd
v Bethune (1821) 1 S 115; Gibb v Bruce (1837) 16 S 169; and Leck
v Chalmers (1859) 21 D 408. We do not consider it necessary to examine
these in detail. Of more assistance,
perhaps, is Gellatly v Arrol (1863) 1 M 592, in which a
reserved right to re-open a previously existing doorway into a common stair was
held to be part of the pursuer's right of property, and thus res merae facultatis and therefore
imprescriptible (per Lord Justice Clerk Inglis at 599).
[16] Mr Davies turned finally to the case on which the defender
relied, and which formed the foundation of the decisions of the sheriff and the
sheriff principal, namely Smith v Stewart (1884) 11 R 921. In that case a right of access with a power
to open an entry through a wall dividing the dominant tenement from the
servient tenement was held to be res
merae facultatis and therefore not affected by the long negative
prescription. Before turning to the
opinion of Lord President Inglis, with whom the other members of the court
concurred, it is necessary to record the facts of the case in some detail.
(1) In
1824 the Dundee Joint Stock Company ("the Company") acquired in feu certain
subjects in Dundee, being part of Donaldson's
Croft. Another part of Donaldson's Croft
had previously been acquired in feu by John Baxter. The two feus were separated by a stone wall
or dyke, running north and south, built on Baxter's feu. The Company's feu lay to the west of the
wall, and Baxter's lay to the east of it.
The Company's title contained a reservation in its favour of:
"a liberty
and servitude in all time coming to rear and keep fruit trees upon the west
side of the aforesaid dyke".
(2) In
1825 the Company granted a bond of servitude in favour of Baxter. In terms of that bond the Company bound
itself, first, in the following terms:
"We shall
not at any time build or erect any house or any other fabric or building
whatever within twenty feet of the said John Baxter's said garden-wall, nor
upon all or any part of the said piece of ground lying within the said space".
Secondly, the bond contained a
reservation in the following terms:
"reserving
always to us, our feuars, tenants, and successors in said subjects, the right
and privilege to make and use the said piece of ground as a road or street, and
also reserving to us, and our successors in said subjects, the liberty and
servitude in all time coming to rear and keep fruit trees upon the west side of
the foresaid dyke built by the said John Baxter".
Thirdly, the bond contained a grant
in the following terms:
"and further,
we ... hereby grant to the said John Baxter, and his foresaids, full power and
liberty to use the said space of twenty
feet in breadth as a road or entry for carts, carriages, and others, and to
open up a passage or entry, not exceeding ten feet wide, in said dyke, but said
passage or entry last mentioned not to be further north than the north line of
the southmost street to be formed on the ground belonging to the said company
as aforesaid, which servitude we ... bind and oblige us and our foresaids to warrant".
(3) In
1827 the southmost street on the Company's property (George's Place) was
formed. It ran at right angles westwards
from the wall, dividing the twenty foot strip into two parts. The northmost part was later laid out as a
street running north and south (Idvies
Place).
The southmost part of the twenty foot strip was all along used as a
bleaching green and garden ground.
(4) Baxter
never availed himself of the right to open up an entry through the wall. The wall remained in its original condition,
without an opening, when he sold his part of Donaldson's Croft to a Mr
Shiell. Mr Shiell's trustees feued the
subjects to a Mr David Stewart.
(5) The
Company brought a note of suspension and interdict against Stewart seeking
interdict against his entering upon, passing along, interfering with, or using
in any way the strip of ground belonging to them, then used as a bleaching
green, and lying immediately west of the wall.
Their complaint was that Stewart had opened a breach in the wall
opposite the bleaching green, and had commenced to build warehouses on his
property to the east of the wall, and to use the strip of ground as a means of
access to these buildings. They argued inter alia that if the bond of servitude
originally gave a servitude right so to proceed, it had been lost through
non-use for the prescriptive period.
[17] The part of the Lord President's opinion which is material for
present purposes was in the following terms:
"In regard
to the contention that the right which has been conferred has been lost by the
negative prescription, because it was conferred in 1825, and it is not until
lately that it has been proposed to exercise it, I am of opinion that if the
right conferred upon Mr Stewart had been a right of access to his ground by an
existing road or street, and if the right had not been exercised for forty
years, this plea might have been well founded.
But the right which has been conferred is of a different description. No doubt a right of access was included in
the grant, but it was contemplated and implied in the words of the bond that it
was not to be exercised at once. It was
only when the access was required in exercise of the privilege conferred by the
bond that the right came into operation, and the first thing to be done in the
exercise of the privilege was to demolish the dyke. It was by demolishing the dyke that access
was to be got, and therefore until Mr Baxter or his successors found occasion
to use the access on that side they could not be expected to avail themselves
of the privilege which had been conferred upon them. If the respondent had done anything
maliciously or mischievously under their right of servitude, when no advantage
was to be gained, then probably an application for interdict might have been
made in more promising circumstances.
But how is it possible to say that such a right as that conferred under
the bond can be lost by negative prescription?
The right is clearly of the nature of a res merae facultatis ― a right which is to be used in the
future when occasion arises ― and
is of such a nature as has never been held to fall under the negative
prescription."
[18] Mr Davies submitted that Smith
v Stewart was not binding on this
court, since it dealt with the former law, whereas this case turns upon a
construction of the relevant provisions of the 1973 Act. In any event, he submitted that Smith v Stewart was distinguishable.
There the terms of the titles were held to have made it clear that the
right to break open the wall and take access through it was a privilege to be
exercised at some future date as and when the proprietor of the dominant
tenement chose to do so. There were
elements in the bond which supported that view, such as the continuing
obligation on the Company to keep the twenty foot strip clear of
buildings. It was not enough to render
the right a res merae facultatis that
the access required to be established, by breaking open the wall, before it
could be exercised. If that were
sufficient, every servitude of access, other than one by an established road or
way, would be res merae facultatis. Smith v
Stewart did not go as far as
that. A right was res merae facultatis if it was a normal incident of ownership or
involved no claim against the property of others. The right of access in the present case did
not fall into either of those categories.
On the contrary, it was a straightforward servitude right of access, which
was immediately exercisable when granted, and as such was subject to the long
negative prescription.
The defender's submissions
[19] Mr Clancy, for the defender, submitted that the case had been
rightly decided by the sheriff and the sheriff principal, and that the appeal
should accordingly be refused. He began
his submissions by identifying three strands of argument in the pursuers'
grounds of appeal. These were that the
sheriff had erred (i) in holding that he was bound to follow and apply Smith v Stewart, given that the present case involved the interpretation of
the 1973 Act, (ii) in failing to hold that Smith
v Stewart was distinguishable in
that the nature of the rights given in that case differed from those given in
the present case, and (iii) in failing to hold that rights exercisable as res merae facultatis were rights which
were normal incidents of ownership or involved no claim against the property of
others, and did not include servitude rights such as that claimed by the
defender.
[20] Dealing first with the second of those strands, Mr Clancy
submitted that Smith v Stewart was indistinguishable from the
present case in any material respect.
The ratio of that case was to
be found in the passage in the opinion of the Lord President quoted in
paragraph [17] above. The right in
question in Smith v Stewart was a single right comprising
two elements, namely a right of access with a right to breach the wall. That was exactly the nature of the defender's
right in the present case. As recorded
by the sheriff in paragraph 26 of his Note (Appendix, page 38), the common
elements shared by the right in Smith
v Stewart and the right in the
present case were that each (a) conferred a new right of access by a route not
previously in use; (b) involved passage over neighbouring land; (c) involved
the necessity of breaking through an existing wall in order to enable the
access to be used; and (d) involved the future exercise of the right of access
through the break, to be formed in the future, in the wall. It was the fact that what was conferred was a
future right which could only be exercised when the break in the wall had been
formed that made the right a res merae
facultatis. Mr Clancy further
submitted that the Lord President's analysis of the right in Smith v Stewart did not depend on classifying the right of access as a
servitude. Nor did the analysis depend
on who owned the wall; that factor was not mentioned in the passage quoted from
his opinion. What mattered was the
factual content of the right, and in particular the features that made it clear
that the right was not to be exercised until some future date after the
grant. The critical passage in the Lord
President's opinion was the following:
" ... it was
contemplated and implied in the words of the bond that it was not to be
exercised at once. It was only when the
access was required in exercise of the privilege conferred by the bond that the
right came into operation, and the first thing to be done in the exercise of
the privilege was to demolish the dyke.
It was by demolishing the dyke that access was to be got, and therefore
until Mr Baxter or his successors found occasion to use the access on that
side they could not be expected to avail themselves of the privilege which had
been conferred upon them."
These were the considerations that
led to the conclusion that the right was "clearly of the nature of a res merae facultatis ― a right
which is to be used in the future when occasion arises".
[21] Turning to the third strand of the argument expressed in the
pursuers' grounds of appeal, Mr Clancy noted that it adopted the formulation of
the nature of res merae facultatis proposed
by Johnston (Prescription and Limitation,
paragraph 3.16, quoted in paragraph [14] above). He submitted that there was no clear
authority for that formulation, and that it did not accommodate the decision in
Smith v Stewart, analysed as he sought to analyse it. Smith v
Stewart demonstrated that a right
could be res merae facultatis without
falling into Johnston's
formulation.
[22] Finally, Mr Clancy returned to the first strand expressed in
the grounds of appeal, namely that this court is not bound by Smith v Stewart, because that case was concerned with the former law,
whereas this case turns on the interpretation of the 1973 Act. He submitted that, in the absence of a
definition of res merae facultatis in
the 1973 Act, there was no basis for construing the expression differently now
from the way in which it had been construed before the 1973 Act was
passed. There was a presumption that
Parliament understood the existing law, and did not intend to change it (Craies on Legislation, paragraph
14.1.7). The expression res merae facultatis in Schedule 3,
paragraph (c), could only be understood by reference to its meaning in the
former law.
Discussion
[23] It is clear that the right of access conferred on the defender
in the 1981 Disposition, if it is properly to be regarded as simply a
servitude, falls within the scope of section 8 of the 1973 Act and is subject
to extinction by virtue of the long negative prescription (Bowers v Kennedy at 559C,
paragraph [8]). The question raised in
the appeal is whether, despite conferring on the defender a right of access to
the defender's ground over the pursuers' ground, the right in question is not
simply a servitude, but possesses the character of a res merae facultatis, and is accordingly imprescriptible by virtue
of section 8(2) and Schedule 3, paragraph (c) of the 1973 Act.
[24] It is no doubt correct that the 1973 Act introduced a new
scheme for the law of prescription. We
are, however, unable to accept Mr Davies' submission that because our task may
be regarded as one of interpretation of the provisions of the 1973 Act,
authorities dealing with the concept of res
merae facultatis decided before the passing of that Act are on that account
not binding upon us, or fall to be treated with care. The expression res merae facultatis is not defined in the 1973 Act. It must therefore be taken that its meaning
in the 1973 Act is the same as its meaning was in the former law. Parliament must be taken to have been aware
of that meaning, and the only inference to be drawn from its use in Schedule 3
without definition is that it was intended there to have the same meaning as
before. If, as Johnston suggests,
it is, despite its "extremely fine pedigree in the civil law tradition", a
"deeply obscure term" (Prescription and
Limitation, paragraph 3.07), none of that obscurity is alleviated by its
use in paragraph (c) of Schedule 3 to the 1973 Act. Its meaning must therefore be sought in the
law as it stood before 1973. It follows,
in particular, that Smith v Stewart cannot be dismissed as a case
concerned with the former law. If Smith v Stewart cannot be distinguished, its ratio is binding upon us.
[25] In our opinion, it is correct (up to a point) that "the essence
[of a res merae facultatis] is that
it is a right which a person is at liberty to exercise or not" (Johnston, Prescription and Limitation, paragraph
3.07). But, without more, that is not a
satisfactory definition, because there is a sense in which the possessor of any
right may choose to exercise it or not.
The real point is that in the case of a res merae facultatis the choice not to exercise it does not have
the adverse consequence which failure to exercise a right would normally
have. That point is made clearer in the
formulation adopted by the Minister in the House of Lords debate on the second
reading of the 1973 Bill (Hansard, HL
Vol. 341, col. 422) ― a right "which the proprietor may assert or not as
he pleases, without the risk of losing the right by failure to assert it". We agree with Johnston (paragraph
3.08) that that is preferable to the formulation adopted by the Scottish Law
Commission in Memorandum No. 9 and Report No. 15. There is, perhaps, a danger of circularity,
if a res merae facultatis is defined
as a right which may be asserted whenever the proprietor pleases without the
risk of losing it through prescription, and the expression res merae facultatis is then used in statute to define a category
of imprescriptible rights. It seems to
us, however, that the key lies in the nature of the right. If a right is of such a nature that it can be
said to be intended to continue to subsist whether its possessor chooses to
exercise it or not, it can be said that the possessor's election not to
exercise it does not justify an inference of abandonment. To subject such a right to the negative
prescription would be inconsistent with its nature. The expression res merae facultatis is thus the label to be attached to that
category of rights. There remains the
task of identifying whether a particular right falls, or does not fall, into
that category.
[26] Johnston's formulation (Prescription
and Limitation, paragraph 3.16) cited in argument identifies two kinds of
right that can be described as res merae
facultatis, namely (1) "a right whose exercise implies no claim on anyone
else or against their rights", and (2) "a (normal) incident of ownership which
can be lost only as a consequence of the fortification in some other person of
a right inconsistent with it". We do not
consider that it is necessary to examine more closely rights of the first kind:
the present case (like Smith v Stewart) cannot be said to involve a
right whose exercise implies no claim against the rights of another; any right
of access over the property of another implies such a claim. It seems to us, however, that the second kind
of right identified by Johnston is merely
an example of a category that should be more widely expressed. The true scope of the category encompasses
any right the inherent nature of which is that it is intended to continue to
subsist whether its possessor chooses to exercise it or not. The ordinary incidents of ownership are an
example of that category. Their nature,
as rights intended to subsist whether exercised or not, derives from the
general law of property. Another example
of the category can be found, however, in rights which acquire their nature not
from the general law, but from the terms of the instrument by which they are
constituted. Smith v Stewart can be
seen as an illustration of that example; the factors on which Lord President
Inglis founded in characterising the right in that case as a res merae facultatis were to be found
"contemplated and implied in the words of the bond".
[27] The question in this appeal therefore comes to be whether the
right of access conferred on the defender in the 1981 Disposition was expressed
in such a way that it can be held to have conferred a right which was intended
to subsist whether exercised or not. In
view of the reliance placed by the defender on Smith v Stewart, it is necessary to consider whether the answer to
that question is conclusively provided by the ratio of that case. In our
opinion, although the wall in that case belonged to the proprietor of the
dominant tenement, that fact was not critical to the decision. As Mr Clancy pointed out, the Lord President
did not mention that fact as the foundation, or part of the foundation, of his
decision. We do not find that
surprising. Were it otherwise, the
question whether a particular right of access which involved opening a gap in a
wall between the dominant and the servient tenements was a servitude vulnerable
to extinction by the long negative prescription, or a res merae facultatis, would depend on the accident of whether the
wall belonged to the servient or the dominant proprietor (and what would the
position be if the wall was common property?)
We therefore proceed on the basis that, in seeking the ratio of Smith v Stewart, the fact
that in that case the wall belonged to the dominant proprietor is not
critical. It seems reasonably clear that
the critical feature of the right of access created by the bond was seen to be
that it "was contemplated and implied in the words of the bond that it was not
to be exercised at once". The Lord
President did not, however, expressly identify those "words of the bond" which
yielded that implication. It is
therefore necessary to examine the words of the bond to see which of them
support such an implication. Looking
first at the words of the grant of the right of access, there was nothing in
the principal provision ("we ... hereby grant ... full power and liberty to use the
said space ... as a road or entry") that implied deferred exercise. We do not think that the mere fact that the
creation of the access required the breaking open of a gap in the wall by
itself supported the implication that the right of access was only to be
exercised at some indeterminate date in the future. If that were so, any new right of access
which involved work to make it useable (whether the making of a gap in an
existing wall, or the laying of a suitable surface to bear the contemplated
traffic) would convert a servitude into a res
merae facultatis. On the other hand,
one of the qualifications of the right ("but said passage or entry ... not to be
further north than the north line of the southmost street to be formed on the
ground belonging to the said company") does in our view support an inference
that the formation of the entry was not expected to be immediate, but was to be
delayed at least until the streets had been formed on the servient tenement. The bond contains no indication of when it
was contemplated that that would occur, but George's Place was not formed until
1827. Further, the express undertaking
by the Company to keep the access route over its ground free of buildings may
be seen as implying that it was thought necessary for the company to give such
an undertaking to preserve the access route for future use even if the access
was not immediately formed. Moreover,
the reserved right to keep fruit trees on the Company's side of the wall (which
was originally constituted in the Company's feu contract, but repeated in the
bond of servitude) might be regarded as implying that there would be a period
following the grant of the right of access during which that right to grow
fruit trees against the wall would remain, despite its being potentially
inconsistent with use of the twenty foot strip as an access. It thus seems to
us that the basis for the Lord President's conclusion that the words of the
bond contemplated and implied that the right was not to be exercised at once is
to be found in the detail of the relatively complex framework of reciprocal
rights and obligations contained in the bond.
We do not consider that the ratio of
the decision in Smith v Stewart can be said to be that a
servitude which can only be exercised after a power to create a gap in a wall
between the dominant and the servient tenements has been exercised is on that
account alone to be regarded as a res
merae facultatis.
[28] We conclude, therefore, that Smith v Stewart illustrates
that a right may be regarded as a res
merae facultatis if the terms of the instrument constituting the right,
properly construed, indicate that the right was not to be exercised at once,
but was to subsist until exercised at an indefinite future date to be chosen by
the proprietor of the dominant tenement.
In Smith v Stewart there were features of the terms
of the bond of servitude which contributed to the inference drawn by the court
that the right of access was not intended to be exercised at once, which are
not present in the present case. We
therefore conclude that we are not bound by Smith
v Stewart to hold that the right
of access in the present case is a res
merae facultatis. What we must do is
examine the terms of the right granted in the present case to see whether they
yield the inference that it was intended to subsist whether exercised or not,
and not to be vulnerable to extinction through not being exercised. In interpreting the terms of the grant, it is
in our opinion right in principle to construe the exception to the general rule
in section 8 constituted by paragraph (c) of Schedule 3 narrowly. We are not prepared to hold that every
servitude which, in order to be exercised, requires work to be done to open a
gap in a wall or other boundary structure, or otherwise to render the servient
tenement fit for the exercise of the right, is on that account to be regarded
as indicating that the right is intended to subsist whether exercised or not
until such indefinite future time as the dominant proprietor may choose to
carry out the works. There is nothing
else in the present case to indicate that the right of access conferred on the
defender's predecessor in title by the 1981 Disposition was intended to subsist
indefinitely whether exercised or not.
We are therefore satisfied that the right in question was not a res merae facultatis within the meaning
of Schedule 3, paragraph (c).
Result
[29] We therefore allow the appeal.
We recall the interlocutor of the sheriff principal dated 8 November 2006 and the
interlocutor of the sheriff dated 5 April
2006. We sustain the
pursuers' first plea-in-law to the effect of excluding from probation the
following averments in Answer 3, namely "In any event the grant of access
contained in the 1981 Disposition is imprescriptible. It is res
merae facultatis"; sustain the pursuers' second plea-in-law; repel the
defender's third plea-in-law; and quoad
ultra allow a proof before answer.
