Scottish Sheriff Court Decisions

Case Reference No: A 5011/04

 

JUDGEMENT OF   SHERIFF J DOUGLAS ALLAN   in the cause   BARRY PEART and SUSAN ANNE PEART, spouses residing together at The Old Golf House, Newbattle, Dalkeith, Midlothian PURSUERS   against   SYMON B LEGGE, residing at The Mill, Newbattle, Midlothian   DEFENDER   ____________

 

Act: Reid

Alt: Clancy QC

 

Edinburgh, 5th April 2006

The Sheriff, having resumed consideration of the cause, Sustains the third Plea-in-law for the Defender; Sustains the first Plea-in-law for the Defender to the extent of Dismissing the Pursuers' first Crave; Excludes from probation in Condescendence 3, firstly, the three sentences, from the sixth last line on page 4 of the Record (No 14 of process) to the second line on page 5 of the Record, as follows: "Since the grant of the 1981 Disposition, neither the Defender nor his predecessor in title have made any attempt to exercise the servitude right of access granted by the 1981 Disposition. The boundary wall has never been breached. There has never been any extension, across the Pursuers' Ground, of the lane or track leading from the Eskbank/Newtongrange Road to the Defender's Ground. Accordingly, any such servitude right of access has therefore prescribed in terms of Section 8 of the Prescription and Limitation (Scotland) Act 1973."; and, secondly, the sentence on the fifth and sixth lines of page 6 of the Record, as follows:" The purported access sought by the Defender is not res merae facultatis."; Repels the second and third pleas-in-law for the Pursuers; Appoints the cause for a procedural Hearing and to deal with any question of expenses, on 20^th April 2006 at 10am.

.

"J Douglas Allan"

 

J DOUGLAS ALLAN

 

 

NOTE:

 

Introduction

 

1. This case called before me on 26 and 27 January 2006 for debate on the preliminary pleas of the Pursuers and the Defender, insofar as these pleas were directed to the question of whether the servitude right contained in the Disposition granted in favour of the Defender's father in 1981 had prescribed or whether it fell within the category of res merae facultatis, which was an exception to the prescription provisions of the Prescription and Limitation (Scotland) Act 1973.

 

2. The Pursuers were represented by Mr Reid, Solicitor, and the Defender was represented by Mr Clancy, QC, instructed on behalf of Messrs Burness, Solicitors.

 

Submissions for Pursuers

 

3. On behalf of the Pursuers, Mr Reid said that, having regard to the construction of the servitude right in question and in the absence of any other relevant averments, it was apparent that the right was not a res merae facultatis, and that it did therefore fall within the prescription provisions of the 1973 Act. He therefore submitted that it was for the Defender to establish that he had acted in a way that had interrupted the 20 year negative prescription which applied.

4. The actual situation on the ground took some time to explain under reference to the different deeds (and accompanying plans) by which the parties came into ownership of the land which they currently occupied. In general terms, the parties occupy neighbouring pieces of land which are irregularly and unusually shaped. Of particular relevance in the current dispute is the fact that, in 1981, the Defender's father had purchased from the Marquis of Lothian a piece of ground (extending to some 0.12 acre) next to a lane or track (which the Marquis also owned) and from which it was separated on its north west boundary by a stone wall ; along with which title came a servitude right of access over a specified piece of ground (extending to some 669 sq.m.) then owned by the Marquis and a right to breach the wall subject to certain provisions about making good the wall and inserting gates or doors. Then, in 1997, the Marquis of Lothian sold to the Pursuers the said (669 sq.m.) specified piece of ground subject to the servitude right of access referred to in the 1981 deed.

 

5. The resulting position is that on the one side of the stone wall is the piece of ground, with the said servitude right of access and the said right to breach that wall, disponed to the Defender's father (and to which title the Defender is the singular successor) in the 1981 deed; and on the other side of the stone wall is the strip of ground, with the burden of the said servitude right of access, sold to the Pursuers in the 1997 deed. Mr Reid said that, since the 1981 Disposition, there had been no attempt to exercise the servitude right and the wall had never been breached. He therefore submitted that the right had prescribed in terms of Section 8 of the 1973 Act.

 

6. The servitude right contained in the 1981 disposition and which is contained in the Defender's title is as follows:-

 

"(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 but subject to the provisions 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 of which and the maintenance of the same shall be done at the sole expense of the disponee and his foresaids...."

 

7. The Burden which is contained in the Pursuers' title is as follows :-

 

" BUT ALWAYS WITH AND UNDER insofar as still valid, subsisting and applicable thereto, the reservations, real burdens, servitudes, conditions, provisions, restrictions and qualifications specified and contained in the Disposition by the Superior dated Fifth May and recorded in the said Division of the General Register of Sasines Twentieth July all dates Nineteen hundred and eighty one; "

 

The disposition therein referred to in is the one in favour of the Defender's father and which was referred to in paragraph 4 above.

 

8. Mr Reid considered the Defender's pleadings as set out in the Record and identified the parts which he considered to be of particular relevance in support of the Defender's contention, supported by his third plea-in-law, that the grant of access contained in the 1981 Disposition was res merae facultatis and therefore imprescriptible. Mr Reid submitted that this was not so and he invited me to repel that plea and to uphold pro tanto the second and third Pleas-in-law for the Pursuers. He also invited me to refuse to remit to probation the following averments:

 

(a)          In Answer 3 on page 8, the two sentences between lines 33 and 35, viz. " In any event the grant of access contained in the 1981 Disposition is imprescriptible. It is res merae facultatis";

(b)          In Answer 3 on page 9, the last six sentences between lines 15 and 28, viz. "The grounds and building conveyed by the 1981 Disposition comprised part of the former Newbattle Estate yard. The other part of that yard was sold and conveyed at about the same time to Mr Gordon who was then the heritable proprietor of the Old Golf House. Prior to its division the Newbattle Estate yard had a vehicular access through gates. Those gates are located on the part of the yard acquired by Mr Gordon. The purpose of the grant of a servitude right of access in the 1981 Disposition was to give vehicular and pedestrian access to the subjects thereby conveyed equivalent or nearly equivalent to the access enjoyed by the yard before it was divided and sold off by the proprietor of the estate. "

 

9. Mr Reid submitted that the Pursuers said that the right was a servitude, that that right was governed by the prescriptive provisions of the 1973 Act, and that it could prescribe. He said that for the Defender to avoid the right being susceptible to the 20 year negative prescription, the Defender would require to persuade the court that the right fell to be classified as res merae facultatis - and the Pursuers claimed that the Defender's averments did not entitle the court so to hold.

 

10. Mr Reid made reference to the Prescription and Limitation (Scotland) Act 1973, Section 8 and Schedule 3, subparagraph (c). He said that, for the purposes of this debate, the Pursuers' position was that unless the right in question fell within Schedule 3 to the Act ( as a res merae facultatis), then it was a right affected by Section 8(1) and, if it was unexercised or unenforced for a continuous period of twenty years, then it would be extinguished as from the expiration of that period.

 

11. As regards the question whether Section 8 of the 1973 Act applied to servitudes, Mr Reid submitted that it did and that there was no real doubt about this. In support, he made reference to the textbook "Servitudes and Rights of Way" by Cusine and Paisley (1998) at paragraphs 17.33 and 17.34 and to the textbook "Prescription and Limitation" by D Johnston at page 176 and sub-paragraph (3).

 

12. As regards the question as to what was a res merae facultatis, he made reference (including in each, the cases to which reference was there made) to -

 

(a) Bell's Dictionary and Digest of the Law of Scotland (7th Edition) page 917,

(b) Bell's Principles of the Law of Scotland" (10^th Edition) paragraph 2017,

 

(c) Erskine's Principles of the Law of Scotland" (21^st Edition) paragraph 16,

 

(d) Rankine's The Law of Land Ownership in Scotland (4^th Edition) at pages 440 and 441,

 

(e) The Stair Encyclopaedia Volume18, paragraph 473 (the author of which was Professor Reid),

 

(f) The textbook "The Law of Property in Scotland" by Professor K Reid paragraph 473 (which substantially repeated what Professor Reid had said in the Stair Encyclopaedia), and

 

(g) The textbook "Prescription and and Limitation" already referred to by Johnston, at pages 31 to 36, paragraphs 3.01 to 3.17, which Mr Reid said gave the fullest recent commentary on prescription, including res merae facultatis from paragraph 3.07 onwards. After considering all of these paragraphs, Mr Reid drew particular attention to the view which the author expressed in footnote 32 on page 35, to the effect that servitudes prescribed under the 20 year prescription of section 8 [of the 1973 Act] and that they were accordingly not res merae facultatis. Mr Reid said that the Pursuers considered that that view was correct and applied in this present situation.

 

13. Mr Reid then referred to the case of Gibb v Bruce (1837) 16 S 169 and, in particular, to the short judgment of Lord Gillies, with which the Lord President and Lords Mackenzie and Corehouse agreed, which was as follows:

 

" I never saw a case more entirely free from doubt than this. Whether possession of the road, under the agreement of 1833, had ever been had for this precise purpose or not, it is clearly one of the purposes for which the use of the road was reserved by the written agreement of parties. And it was res merae facultatis on the part of Miss Bruce to use it for this purpose whenever she pleased. "

 

14. Mr Reid next referred to the case which he said was the only really relevant case which opened the argument that a servitude could be a res merae facultatis - but which he submitted was a very special case and which did not apply in this present situation - namely the case of Smith and Others v Stewart (1884) 11 R 921. This was a case which involved a bond of servitude which contained a reserved right which Lord President Inglis, with whom Lords Mure and Adam concurred, held to be res merae facultatis and not to be affected by the negative prescription. Mr Reid considered the facts of the case and the Opinion of the Lord President, and stressed that the wording of the bond in that case had been important in that it was not to be exercised at once. Mr Reid considered that it was unfortunate that the Lord President had mentioned res merae facultatis, as it had been the words of the bond that had been crucial in that case. He considered that the logic of the Lord President had turned on the precise wording of the bond and that the words res merae facultatis seemed to have been thrown in by His Lordship as inherent in Mr Baxter; whereas the issue had been very dependent upon the wording of the servitude. Mr Reid submitted that the case should be viewed with great caution and that it very particularly rested upon its own facts.

 

15. In the Smith case, Mr Reid noted that it had been the Defender's own wall, the Pursuer had the right to grow fruit on the particular strip of ground while the Defender had been given a right of access. By contrast, in this case, the grant of access in 1981 had been in very general and unsophisticated terms, involving no act by the Pursuers or their predecessors in title. He submitted that the averments of the Defender would require to say something different from what they presently did for the Defender to bring this present case into line with the Smith case since there was a wall, consent and approval required from the Pursuers and not until that had been done could the contemplated access commence. In this connection, he drew attention to the averments for the Defender (in Answer 3 at the top of page 8) that the boundary wall was owned by the Defender, (in Answer 4 at the top of page 10) that the defender did not require the approval of the Pursuers to breach the wall under and in terms of the 1981 Disposition, (and in Answer 5 in the middle of page 11) that the defender was entitled to clear topsoil, detritus and vegetation and to lay hard standing in order to exercise the servitude right of access conferred by the 1981 Disposition, and that, in any event, those rights were capable of being exercised without carrying out any work of that kind. Mr Reid said that his primary position was that the very general right in the 1981 Disposition was clearly an entirely different instrument from the one that had been involved in the Smith case, and he said that the court in this case need do no more than look at the title deeds to see that the right was a servitude. He noted that the Defender conceded that the right was a servitude and, in the light of that, Mr Reid submitted that it did not fall within the very narrow band that had been involved in the Smith case.

 

16. If the Court was not with Mr Reid in his submissions, he said that his fallback position was that, on the averments of the Defender, there was nothing stopping the Defender from exercising his rights, and Mr Reid submitted that that did not fall within what the Lord President had said had been within the contemplation of parties. Indeed, he said that the rationale behind the bond of servitude in the Smith case was that it had been a right and not a servitude which was a res merae facultatis. He submitted that the rationale in that case and what had been the contractual contemplation of the parties had been that a right was going to be postponed ; and even if there was a right to be postponed, that right would no longer be a res merae facultatis since prescription would be running on it.

 

17. He referred to the important passage of the Opinion of the Lord President in the Smith case, which is as follows: " I am of opinion that in what Mr Stewart has done he is within the right conferred upon him by the bond of servitude. When the complainers come here and ask an interdict in terms of the prayer in this case, I think they are asking for something from which they are debarred by the terms of their own bond.

 

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 the demolishing of 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 this bond can be lost by the 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. In relation to that passage and the right which had been conferred upon Mr Baxter (who was Mr Stewart's predecessor in title), Mr Reid noted that the option had been open to Mr Baxter at some future time of his choosing. He submitted that that had not been a servitude of access ; but had been more than that. He said that once Mr Baxter breached the wall, if he had not exercised his right for 40 (or now 20) years, it would have prescribed, adding that this was not logical since a res merae facultatis was inherent in the right of ownership. Mr Reid said that the court in this case was faced with the Smith case in which the Lord President had come to the view that the right in that case had been a res merae facultatis, whereas Mr Reid considered that a temporary or suspensive res merae facultatis might have been a better description.

 

Mr Reid submitted that the construction of the 1981 Disposition was crucial, and his authority for that was the case of Alvis v Harrison 1991 SLT 64, per Lord Jauncey of Tullichettle at page 67 G - H.

 

19. He noted that the issue of servitudes and prescription had been considered in the case of Bowers v Kennedy 2000 SLT 1006. This case had involved a land-locked piece of ground in connection with which there had been a servitude right of access. The Court had held that this had been an express grant of a servitude right of access which could prescribe under section 8 of the 1973 Act through non-use, although a right of access was implied in the land-locked situation. Mr Reid drew attention in particular to what was said in the Opinion of the Court on pages 1008 and 1009, in paragraphs 2 to 10. Mr Reid noted that the Court had held that that had not been a res merae facultatis - and there were no such averments by the Defender in this case. Indeed the history of the ground involved here was quite different and the only question was, looking at the express grant, whether this was a servitude or was a res merae facultatis.

 

20. Mr Reid noted that that distinction and the decision in the case of Bowers had been adopted in the decision in the case of Inverness Seafield Development Co Ltd v Macintosh 2002 SLT 118. He noted that this again was a land-locked case in which the court had held that the Defender had not been entitled to insist on the express servitude of access since the law would imply a reservation of a right of access, which would last as long but only as long as necessity required - and was a right fundamentally different in nature from an express grant. While the Bowers and Inverness cases were authorities for an implied right of necessity (even if an express right had prescribed), Mr Reid submitted that that would not give the Defender in these cases a right to insist on access over a road which had been contemplated by the express grant. In this respect, he made reference to page 122 and paragraph 19 of the Opinion in the Inverness case.

 

21. From these cases, Mr Reid said that there was no suggestion that an implied right of access was a res merae facultatis. In this case, the Defender was saying that there was an express grant and Mr Reid therefore submitted that the Defender's case on this should not be allowed to go to probation. He therefore invited the court to uphold the second and third Pleas-in-law for the Pursuers, to repel the third Plea-in-law for the Defender, and to exclude from probation the averments which he had specified (see paragraph 8 above).

 

Submissions for Defender

 

22. Mr Clancy began his submissions by noting that the essential facts focused on the northwest boundary, immediately to the north and west of which was a strip of ground which now belonged to the Pursuers. This was the servient tenement, and the point of access involved crossing that somewhere along the 21.6 m boundary, with the route crossing the strip of the Pursuers' ground. He noted that as of 1981 when the grant was confirmed, the wall along the boundary was then in place - and remains in place. Accordingly, to enable the right of access to be exercised into the Defender's property, it was the position then and remains the position now that the wall would require to be breached and partly demolished so that gates or a door can be formed. He said that that remains the de facto situation or requirement, and that this clearly had been in mind at the time of the grant could be seen from the approvals needed from the proprietor of the servient tenement.

 

23. He said that, as would be apparent, the only issue being debated at this stage was the Defender's contention that the right was imprescriptible. In the light of the Notes of the Basis of the Preliminary Pleas, he submitted that, if the court was with the Defender, the appropriate course would be to sustain the Defender's third Plea-in-law, to sustain his first Plea-in-law to the extent of dismissing the first Crave, to exclude from probation the following passages;

 

(a) In Condescendence 3, the four sentences from line 32 on page 4 to line 2 on page 5 of the Record, viz. "Since the grant of the 1981 Disposition, neither the Defender nor his predecessor in title have made any attempt to exercise the servitude right of access granted by the 1981 Disposition. The boundary wall has never been breached. There has never been any extension, across the Pursuers Ground, of the lane or track leading from the Eskbank/Newtongrange Road to the Defender's Ground. Accordingly, any such servitude right of access has therefore prescribed in terms of section 8 of the Prescription and Limitation (Scotland) Act 1973";

 

(b) In Condescendence 3, the sentence on lines 5 and 6 on page 6 of the Record, "The purported access sought by the Defender is not res merae facultatis"; and to repel the second and third Pleas-in-law for the Pursuers.

 

24. Mr Clancy noted that it was common ground that the relevant statutory provision was the 1973 Act, and in particular Section 8 and Schedule 3(c), in terms of which any right exercisable as a res merae facultatis was imprescriptible. He said that this brought one to the critical issue, which was whether or not this grant was res merae facultatis. The Defender said that it clearly was, having regard to the clear and binding authority of the case of Smith & Others v Stewart (already referred to). Mr Clancy said that there was no material distinction between the right concerned in this present case and the right concerned in the Smith case. While the language of the two grants might differ, he said that they were entirely the same as regards the nature and content of the grants.

 

25. He then considered the circumstances of the Smith case, and noted that the question had been whether Stewart (who was the successor of Baxter) could exercise the right of access over the feu of the predecessors of Smith, which involved crossing the servient tenement and breaching the existing wall to obtain access. He submitted that the other differences which had been highlighted by Mr Reid were peripheral and inconsequential. In the Smith case, the wall had not actually been breached by the time of the case - it had simply been a proposal. Mr Clancy had obtained the pleadings in the Smith case and produced them to the Court for the purpose of illustrating that the wall to the south of George's place had not been breached, but that it had only been a proposal to demolish it ( Stat. X on page 12). Accordingly, since this showed that the right had never been exercised for 40 years and that the exercise of the right had been about to take place, the Smith case was a direct parallel with this present case. He noted also that, in the Smith case, the dispute had been between the singular successors of each party, which was a clear indication that it was a servitude right that was in question.

 

26. The right had been conferred in the bond of servitude executed in 1825 and, to demonstrate that the rights in the Smith case were indistinguishable from those in the present case, he directed attention to the beginning of the Opinion of the Lord President at page 923 and the top of page 924. He invited comparison with the Record in this case and to Condescendence 3 concerning the grant of the servitude. He submitted that both the grants had the same elements.

 

(a)           Both were to confer a new access route into the property of the dominant tenement. In the 1981 scenario, the wall was complete, there was no suggestion that there was an existing route, and so this had been a new route - the same being true in the case of Smith;

 

(b) Both grants involved passage over neighbouring land, being the servient tenement;

 

(c) Both involved the necessity of breaking through an existing wall to enable access to be used and, thus, to enable the grant to be exercised. [Mr Clancy submitted that the word "only" in the phrase "only subject to the approval of me and my successors as adjoining proprietors" referred only to the right of the granter to approve the arrangements ; and did not amount to an unqualified right of veto.];

 

(d) Both involved the future exercise of the right through an aperture - to be formed in the future - in the wall.

 

He submitted that it was the combination of these elements - that is the future right which could be exercised only when the opening had been formed - which made this right a res merae facultatis.

27. Mr Clancy referred in the Opinion of the Lord President to the paragraph immediately preceding the passage already quoted in paragraph 16 above. The paragraph concerned (on page 924) is in the following terms:

 

"The case which is made for the complainers is this: They say that the respondent has opened out a breach in the wall opposite to the washing-green, and that he has commenced to build warehouses upon his property to the east of the wall, and to use the strip of ground as a mode of access to these buildings. The complainers say that that is not the nature of the right conferred upon the respondent, and that if the right was originally one of servitude in Mr Baxter's favour, it has never been exercised."

 

With reference to that passage, Mr Clancy said that if the right had been for access only and had not been exercised, then the situation would be different - and that would be the general rule. But when the Lord President said later that it had been contemplated and implied in the words of the bond that the right of access which had been included in the grant was not to be exercised at once, Mr Clancy said that that must come from the circumstance that, firstly, it involved a new access and, secondly, to exercise the right, work would have to be done to breach the wall - and he said that that was exactly the same in this present case.

 

He said that if one could imply in the Smith case that it had been in contemplation that the right was to be exercised in the future, then one had to be able to draw the same inference in this present case.

 

28. He noted that that at a point some nine lines from the foot of page 924, the Lord President linked contemplation of future exercise of the right with the breaching of the wall, when he said:

 

"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 the demolishing of 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."

 

Mr Clancy submitted that much the same as had been said there by the Lord President could be said in this present case. He said that the Lord President could not have been clearer that what critically informed the position was the future exercise of the right when the occasion arose. He submitted that this was clear and binding authority that the grant in this case was a res merae facultatis.

 

29. Mr Clancy noted that the 1973 Act did not say what res merae facultatis was; but he submitted that Parliament was presumed to know the common law and the cases thereon. Further, none of the commentators had criticised the decision in the case of Smith; none had said that it had been wrongly decided; and all cited it as an example of res merae facultatis. None of the commentators had come up with a comprehensive definition of res merae facultatis, and so Mr Clancy submitted that there clearly were certain rights which, although ill-defined around the edges, had clearly and authoritively been placed within a class - and that this was one such case. He noted that the Lord President had treated the grant in the Smith case as a single entity, which seemed reasonable and appropriate and which was the same as in this present case. Further, he noted that there had been a requirement for there to be a future use contemplated - and in this connection, he noted that in Condescendence 3 in this case, the grant referred to a lane or track which then existed, but which the granter recognised was a new grant involving breaching the existing wall. He also noted that the Pursuers' pleadings put this point beyond doubt by stating;

 

"Notwithstanding that description of the servitude right, the said lane or track leading from the Eskbank/Newtongrange Road did not at the time of the grant of the 1981 Disposition, nor since, lead directly to the existing wall on the northwest boundary of the Defenders Ground. To gain the boundary wall from the lane or track it was and remains necessary to cross the Pursuers' Ground. From there, in order to access the Defenders Ground, it was and remains necessary to breach the boundary wall.

30. Responding to Mr Reid's submissions regarding the Smith case, Mr Clancy thought that Mr Reid had been arguing that case could be distinguished since the Lord President had been referring to the use of the strip of ground rather than the breaching of the wall. But he said that that could not be correct and was not what the Lord President had said. His Lordship had been treating it as a single entity and treating it as a future exercise by the breaching of the wall. This was along with the right to rear fruit trees and he had therefore been in a position to say that the respondent could be legally constrained because of that unless he had been given the specific right to breach the wall. The second attempted distinction by Mr Reid was that there had been "quid pro quo's" by virtue of various aspects of the contract. Mr Clancy said that, while that was true as far as it went, it was not a material distinction. He said that it was clear that the Lord President had been dealing only with the right of access over the strip of ground and the breaching of the wall. There had been no indication in the Opinion that any other aspects or rights had had any bearing on the classification of the servitude as a res merae facultatis. Putting the matter and other way, Mr Clancy said that the reasoning of the Lord President was entirely clear and intelligible without reference to any of the content of the bond of servitude other than the grant of the future servitude right in favour of the respondent.

 

31. Mr Clancy noted that Mr Reid had also suggested that the Smith decision had been entirely dependent on the terms of the particular bond ; but Mr Clancy said that that was an incomplete analysis. The Lord President had identified the essential feature of the grant as contemplating a future exercise and Mr Clancy said that it was that which gave to it the classification of a res merae facultatis.. Mr Reid had said that it had been a pity that the Lord President had mentioned res merae facultatis as he could have reached his conclusion by reference to the terms of the bond. Mr Clancy said that that could not be correct - the Lord President had said that it was that feature which made it res merae facultatis. Putting the matter and other way, Mr Clancy said that that step in His Lordship's reasoning was an essential feature of the decision in that case - and it was not obiter. In the Smith case, the question had been whether the right had prescribed - and the answer had been in the negative, that the grant had contemplated future use and that that had made the right a res merae facultatis.

 

32. Turning to the other authorities referred to by Mr Reid, Mr Clancy submitted that paragraph 17.33 of Cusine and Paisley was the proper analysis. The general rule was that servitudes were subject to the long negative prescription unless they came within res merae facultatis.

 

Bell's Dictionary did not really progress the matter since it simply referred to the 10^th Edition of Bell's Principles. This, Mr Clancy noted, was known as the "Guthrie" edition, which was a late edition of the book, indeed after the Smith case had been decided. He noted that the final sentence of paragraph 2017 noted that the negative prescription would not extinguish a right merae facultatis, and the footnote gave various cases in support of that proposition, including the case of Smith.

 

The reference to Erskine at paragraph 16, dealing with certain rights being incapable of prescription, mentioned as one such res merae facultatis, and cited the case of Smith as one of the authorities for that proposition. In this connection, Mr Clancy noted that this Edition of Erskine also post-dated the case of Smith and the learned author drew the same conclusion as Mr Clancy sought to do in this present case.

 

As regards the reference to Rankine, Mr Clancy noted that, near the foot of page 441, was the following sentence: "Where the right is of the nature of a 'res merae facultatis' - which is to be used in the future when occasion arises - it cannot of course be lost non utendo." The authority for that was given as the Smith case, which Rankine described as a "narrow case" ; but he nevertheless picked up the same point from the Lord President's Opinion as did Mr Clancy. Mr Reid had suggested that this was confined to the true ownership of property; but Mr Clancy submitted that that would contradict the Smith case which had involved a servitude and would also contradict Rankine which itself included rights other than true ownership, and the exception to the rule was mentioned in that context. As regards the reference to the Stair Encyclopaedia at paragraph 473, Mr Clancy noted that the text was very close to what was said in Professor Reid's book ; but in any event this said much the same also under the authority of the Smith case. As regards the reference to Prescription and Limitation by Johnston, Mr Clancy noted that this interpreted Schedule 3 to the 1973 Act narrowly. While that might or might not be correct, he made the point that, firstly, the case of Smith and Others v Stewart formed part of the law on the long negative prescription at the time the 1973 Act was promulgated and that Parliament was presumed to know the content of the law when it legislated. Secondly, in discussing res merae facultatis at paragraph 3.13, Mr Johnston cited the case of Smith as an example of a case involving res merae (see footnote 29 and the sentence to which it refers). Mr Clancy said that Mr Johnston then attempted (at paragraph 3,16) to come up with a definition to include all elements. Mr Clancy said that, however authoritative, the views of Mr Johnston did not negative the high authority of the Opinion of Lord President Inglis. In any event, Mr Clancy said that Mr Johnston's analysis broke down since there were adverse rights in the Smith case in respect that, firstly, the complainers had rights of use of the strip of ground and, secondly, they stood to lose the right to place trees where the wall could be broken to allow access to Stewart's feu. In a sense, Mr Clancy said that this took him back to the point which he had made earlier, that here was a class of rights, hazy as to its limits, but in respect of which one could say, as a matter of law, that certain rights had been authoritatively placed within the class.

 

33. Turning to the case of Gibb v Bruce, Mr Clancy said that this case was not of assistance because, firstly, it predated the case of Smith, secondly, there was nothing in the rights under discussion there about the formation of a new door or gate, nor of future exercise, giving rise to an implication that this was a right which was to be used immediately, and, thirdly, in any event there was nothing in the Opinion to contradict the Opinion of the Lord President in the case of Smith.

 

34. Of the more modern cases, Mr Clancy made reference to the case of Bowers v Kennedy and noted that it concerned existing service roads and that there was no suggestion of conferring rights to be exercised in the future. Accordingly, he submitted that the case was of no assistance in dealing with the questions in the present case, and that support for that view could be seen from the fact that, in it, the Smith case was neither commented on nor referred to. Mr Clancy said that that was because the Defender in the present case had not suggested that a landlocked situation was involved here. While it would be very convenient for the Defender to have this access, he did not suggest that any implied right arose out of necessity.

 

35. Finally, Mr Clancy referred to the Inverness Seafield Development case and noted that it was not concerned with the exception to the general rule on account of res merae facultatis and again noted that, in it, the Smith case had neither been cited nor discussed.

 

36. Reverting to his formal motion to the Court, Mr Clancy accepted that, if the Court was with the submissions for the Pursuers, some of the averments of the defender would have to be removed, namely those specified in paragraph 7 above.

 

Further Submissions for Pursuers

 

37. In his further submissions, Mr Reid conceded that, at first blush, the Smith case did pose a difficulty since it went against his arguments; but he said that there could be an explanation if the case was examined that in more depth. He suggested that the phrase res merae facultatis was used in two different ways : firstly in the sense of property rights such as an entitlement to build and, secondly, as in the Gibb v Smith case where there was a right which could be exercised later but which was part of a bundle of rights granted by a servitude. There still required to be a valid and subsisting servitude but one which from time to time could be exercised at the choosing of the dominant tenement. However, if the servitude as a matter of general right was not used, it would prescribe and each of the parts of that general servitude which might individually have been classed as res merae facultatis would be extinguished. He suggested that the Gibb case was an example of that. No question of prescription had arisen in that case and he suggested that the bundle of rights there were the different types of carriage which the dominant tenement might use. And he submitted that the Smith case also fell into that category.

 

38. He referred to the pleadings in the Smith case which Mr Clancy had produced and suggested that they did provide more factual background than emerged from the case report. Having referred to various part of the pleadings, he drew attention to the report at page 923 where, some one-quarter way down the page, it was noted that Stewart, the respondent, had reclaimed and, in the summary of his argument, it was noted:

 

"The Lord Ordinary had gone wrong, and had not distinguished between a servitude and a res merae facultatis. The right conferred by the bond in this case was of the latter kind, and could not be lost non utendo. In any view, the deed conferred a complex right, partly servitude, partly faculty. If it was so, there was no room for the presumption of abandonment by non-use. The non-user of a small portion was not enough."

 

Under particular reference to the last sentence of that quotation, Mr Reid submitted that if at a later date the holder of the right chose to exercise it in another manner, in a way that, if viewed in isolation, had never been used previously, then the right to exercise it in that manner could be classed as res merae if it could be exercised in that way having regard to the deed of servitude.

 

Mr Clancy had said that the breach in the wall was required in order to obtain access. However, Mr Reid said that if the trigger to make the right res merae facultatis was the postponement until access was required, then that would affect all servitudes. He noted that the grant in the Smith case had laid down no time period. The breaching of the wall was something that had to be done in order to exercise access; whereas the right to use the bleaching green was unconnected with the right to open up the wall. Accordingly, if it was the case that the dominant tenement could say that there had never been a need to use the right to break through the wall and thus create a res merae, then he said that would affect all servitudes. Mr Reid therefore submitted that the present case could clearly be distinguished from what had applied in the Smith case.

 

Further Submissions for Defender

 

39. In response, Mr Clancy noted that Mr Reid was now adopting a very different tack concerning the bundle of rights. In so far as Mr Reid had argued for a bundle of rights with some not being used for the prescriptive period, Mr Clancy said that was not consistent with what the Lord President had said in the Smith case. He said that there was no hint that that was the basis for what the Lord President had been saying. There was no mention in the Smith case that access not being exercised over the 20 foot strip had been a relevant factor - indeed it had not been established that the wall had been breached. When the Lord President, at some two-thirds of the way down page 924, spoke of the "right" which had been conferred, it was clear that His Lordship was viewing that as a single right. He stressed that the Appeal Court in that case had been proceeding on the basis that this had been a recent proposal to exercise the right and there had been no question of a partial exercise of the right. Mr Clancy said that it was clear that that was the way the Lord President saw it and had said that the right was to be a new access to the feu by going across the strip of ground and through the wall.

 

40. Mr Clancy stressed that he had brought the pleadings in order to illustrate that the wall to the south of George's Place had not been breached - and he stood by that. He said that the other parts of the pleadings were nothing to the point. He stressed that, by the time the case reached the Appeal Court, the issue had been crystallised on the single grant of a right and what the true nature was of that right. He therefore submitted that the Opinion of the Lord President, with which the other two Judges had concurred, required to be considered for what it said, and said clearly concerning res merae facultatis.

 

My decision

 

41. I have set out in some detail the submissions which I heard since they were central to my decision in this case. Since ultimately, I accepted both the authority and the applicability of the Smith case and the Opinion of the Lord President to the circumstances of this present case, this means that I have preferred the submissions of Mr Clancy to those of Mr Reid. I am entirely in agreement with the submissions made by Mr Clancy and I have been prepared to adopt his reasoning as my own.

 

42. In particular, I agree that the Smith case is a direct parallel to the present case and that the essential features are common to each. I was satisfied that the grants in each case

 

(a)           were to confer a new access route into the property of the dominant tenement ; with the wall at the time of the 1981 Disposition being completed and with there being no suggestion that this was an existing route;

 

(b)          involved passage over neighbouring land of the servient tenement;

 

(c)           involved the necessity of breaking through an existing wall to enable access to be used and, thus, to enable the grant to be exercised ; [I should add here in passing that I also agreed with Mr Clancy that the word "only" in the phrase "only subject to the approval of me and my successors as adjoining proprietors" refers only to the right of the granter to approve the arrangements - and that it does not amount to an unqualified right of veto;

 

(d)          involved the future exercise of the right through an aperture to be formed in the future in the wall in question.

 

I was fully satisfied that it was the combination of these elements - that is the future right which could be exercised only when the opening had been formed which made this right a res merae facultatis.

 

43. I was also satisfied that what was said by the Lord President had direct application to this case and that I was bound by it since I did not consider that it could be distinguished from the circumstances of this case.

44. On the question of what constituted a res merae facultatis, having regard to the writers and authorities to which I was referred, I was satisfied that there was no significant disagreement in what was said by Bell, Erskine, Rankine, Professor Reid (in both the Stair Encyclopaedia and in his book "The Law of Property in Scotland") and by Cusine and Paisley. The only writer who took a different view was a modern one, namely Mr Johnston in his book on Prescription and Limitation. Having considered what he had to say at pages 31 to 36, paragraphs 3.01 to 3.17, I noted his view that Schedule 3 to the 1973 Act should probably be interpreted narrowly; but I considered that Mr Clancy was correct when he observed that the Smith case formed part of the law on the long negative prescription at the time the 1973 Act was promulgated, and that Parliament was presumed to know the content of the law when it legislated. I also considered that Mr Clancy was correct in drawing attention to paragraph 3.13 and footnote 29 where Mr Johnston cited the case of Smith as one example of a case involving res merae facultatis. Although Mr Johnson stated in paragraph 3.14, footnote 32, that servitudes did prescribe under the 20-year prescription of section 8 of the 1973 Act and that they were accordingly not res merae facultatis, and although at paragraph 3.16, he attempted to formulate a definition which would include all elements, I considered that Mr Clancy was correct when he said that, however authoritative, the views of Mr Johnston had to be seen against the views of all the other authorities and writers, and they did not negative the high authority of the Opinion of Lord President Inglis in a case which I considered to be indistinguishable from the grant being considered in this present case. I also considered that Mr Johnston's analysis did break down since there were adverse rights in the Smith case in respect that, firstly, the complainers had rights of use of the strip of ground and, secondly, they stood to lose the right to rear and keep fruit trees where the wall could be broken in order to allow access to Stewart's feu. I therefore felt unable to accept the views expressed by Mr Johnson, preferring to follow the other authorities, writers and cases which followed the contrary view.

 

45. I did not find the case of Gibb v Bruce to be of particular assistance in this case. It seemed to me that it involved the interpretation of an agreement and whether not the actings fell within or outwith the terms of what had been agreed. Nevertheless, I noted that Cusine and Paisley (in "Servitudes and Rights of Way" at the end of paragraph 17.33 on page 703) used the case as an example in the following passage : "By contrast, if a servitude right exists to facilitate all lawful purposes to which the dominant tenement may be put or for a limited class of purposes, but during the prescriptive period it has only been exercised for a single purpose, the right to use the servitude is not restricted to that single purpose. The right to use it for the other purposes remains as a res merae facultatis." I considered that this was most unhelpful to Mr Reid's argument and submissions about the "bundle of rights" to which I refer in the next paragraph.

 

The case of Bowers v Kennedy also was not of great assistance since the circumstances were quite different from the present case. The Bowers case involved a straightforward servitude right of access and, as such and with nothing more, that could prescribe through non-use. In that case, although there was the addition of the landlocked situation, there was no suggestion that rights had been conferred to be exercised in the future, such as there was in the Smith case and such as there is in this present case. I also did regard as significant that, despite the original decision by the Sheriff that the right of access was a res merae facultatis, the Smith case and the Opinion of the Lord President had neither been commented on nor referred to.

 

Similarly, the Inverness Seafield Development case involved a question of whether or not a defender was entitled to insist on a servitude right of access, again in a landlocked situation where the law would imply a reservation of a right of access. I was satisfied that, because that case was not concerned with the exception to the general rule as to prescription because of res merae facultatis, once again the Smith case had neither been cited nor commented upon. That case was therefore not of assistance in this present case.

 

46. Turning to the pleadings in the Smith case and the submissions which I heard thereanent, I was conscious that they had been produced by Mr Clancy in order to illustrate that the wall to the south of George's Place had not been breached. I was unhappy with the detailed reference to the pleadings which was made by Mr Reid in an attempt to support his argument as to the future right being one of a bundle of rights. As I observed to Mr Reid in the course of the debate, by the time the Smith case came before the Appeal Court, there had been a proof before the Lord Ordinary which had dealt with other parts of the case which were not considered necessary to be referred to in the case report. I considered that the attempt by Mr Reid to reconcile the Opinion of the Lord President by reference to a bundle or set of rights and obligations falling upon each side, was not only a departure from Mr Reid's earlier submissions but also failed to take account of and give effect to the plain expression of view by the Lord President on the facts which were at issue before him. I agreed with Mr Clancy that, by the time the case reached the Appeal Court, the issue had been crystallised and focussed upon the single grant of a right and what the true nature was of that right.

 

Conclusion

 

47. Finally, having preferred the submissions made by Mr Clancy on behalf of the Defender to those of Mr Reid on behalf of the Pursuers, I have concluded that the servitude right contained in the Disposition granted in favour of the Defender's predecessor in title in 1981 fell within the category of res merae facultatis which, being an exception to the prescription provisions of the 1973 Act, was imprescriptible. That was the only issue debated before me and I have therefore given effect to that decision by sustaining the third Plea-in-law for the Defender and by sustaining the first Plea-in-law for the Defender to the extent of dismissing the Pursuers' first Crave, and excluding from probation the two passages set out in detail in the Interlocutor. In addition, I repelled the second and third Pleas-in-law for the Pursuers.

 

48. Both Mr Reid and Mr Clancy invited me thereafter to appoint the cause for a procedural Hearing to deal with future procedure and also with any question of expenses. I have accordingly done so.