Judgments - Moncrieff and another (Respondents) v. Jamieson and others (Appellants) (Scotland)

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    26.  The proposition for which the pursuers contend, that a right of parking may be constituted as a right ancillary to an undoubted right of vehicular access, is easier to accommodate within established principles. The essence of a servitude is that it exists for the reasonable and comfortable enjoyment of the dominant tenement. Whether it originates in writing by means of an express grant or is to be inferred from other provisions not expressly creating a servitude, practical considerations may indicate that it will carry with it other rights which, although they would not qualify on their own as servitudes, are necessary if the dominant proprietor is to make reasonable and comfortable use of the property in favour of which it was granted. This is the principle to which the defenders have given effect by their acknowledgement of the right to turn and to load and unload vehicles on the servient tenement. The question is whether that principle can accommodate a right to park such vehicles there also.

    27.  In Ewart v Cochrane (1861) 4 Macq 117, 122-123, Lord Campbell LC said;

    "My Lords, I consider the law of Scotland as well as the law of England to be, that when two properties are possessed by the same owner, and there has been a severance made of part from the other, anything which was used, and was necessary for the comfortable enjoyment of that part of the property which is granted, shall be considered to follow from the grant, if there are the usual words in the conveyance….When I say it was necessary, I do not mean that it was so essentially necessary that the property could have no value whatever without this easement, but I mean that it was necessary for the convenient and comfortable enjoyment of the property as it existed before the time of the grant."

The defenders rely on this passage for the proposition that the test for creation of both servitude and ancillary rights by implied grant must relate to the circumstances before the time of the severance, which in this case are the circumstances that existed before 1973. But in my opinion that reads too much into what Lord Campbell LC was saying in that case.

    28.  There are three points that may be made. The first is that, while this case too was one of severance of one part of the property of the same owner from the other, the servitude right of access on which the pursuers rely does not depend on the doctrine of implied grant. In Ewart v Cochrane the question was whether a servitude right to drain water by means of a drain from a tanyard into a garden could be implied when the tanyard and the garden came into separate ownership. In this case a right of access to the severed property by the route that then existed would have been implied in any event. Otherwise Da Store would have been left landlocked: McLaren v City of Glasgow Union Railway Co (1878) 5 R 1042, 1047, per Lord Justice Clerk Moncreiff. But it was the subject of an express grant.

    29.  The second point, which follows from the first, is that the issue as to what rights may be claimed as ancillary or accessory to the servitude right did not arise in Ewart v Cochrane. It requires only a slight modification to the words of Lord Campbell LC to identify the test that is to be applied in the case of ancillary rights, where there is an express grant and the question is what ancillary rights are necessary for the convenient and comfortable use and enjoyment of the servitude. In Jones v Pritchard [1908] 1 Ch 630, 638 Parker J said that the grant of an easement is prima facie also the grant of such ancillary rights as are reasonably necessary to its exercise and enjoyment. Cusine and Paisley, Servitudes and Rights of Way (1998), para 12.124 accept this observation as a statement of the position in Scots law too. As they put it in the same paragraph, "Not only does a servitude permit activity falling squarely within its scope but also activities which are ancillary to the primary activity." In Kennedy v Macdonald, 14 November 1988, unreported (1988 GWD 40-1653) Sheriff Principal Caplan said that activities which are reasonably incidental to the enjoyment of the access may be incorporated in the right. It is preferable, however, not to risk diluting the test by expressing it in these terms. The question is whether the ancillary right is necessary for the comfortable use and enjoyment of the servitude. The use of the words "necessary" and "comfortable" strikes the right balance between the interests of the servient and the dominant proprietors.

    30.  The third point is that, while the express grant must be construed in the light of the circumstances that existed in 1973, it is not necessary for it to be shown that all the rights that are later claimed as necessary for the comfortable use and enjoyment of the servitude were actually in use at that date. It is sufficient that they may be considered to have been in contemplation at the time of the grant, having regard to what the dominant proprietor might reasonably be expected to do in the exercise of his right to convenient and comfortable use of the property. In Pwllbach Colliery Company Ltd v Woodman [1915] AC 634, 643 Lord Atkinson said that what must be implied is what is necessary for the use or enjoyment, in the way contemplated by the parties, of the thing or right granted. Activities that may reasonably be expected to take place in the future may be taken into account as well as those that were taking place at the time of the grant. So the fact that very little, if any, use was being made of the servient tenement at that time for the parking of vehicles cannot be taken as an indication that the need to park vehicles there when Da Store became habitable cannot have been in contemplation.

What was in contemplation in 1973?

    31.  The situation that existed on the ground in 1973 was very different from that which existed some 25 years later when the dispute arose. Da Store was still semi-derelict. The lower branch public road was no longer being maintained by the local authority. It had become grassed over through lack of use. Nevertheless it can be assumed from the terms of the express grant that it was anticipated that the disponee and her successors in title would need to obtain access to the subjects from the Sandsound public road in connection with the use that they would make of them. As for the use that they would make of them, it must have been in contemplation that once the buildings had been renovated Da Store would be used not as a shop at it had been in the past, but for ordinary domestic purposes. The size of the property indicates that it could reasonably be expected that a family would live there. Among its members might be very young children who could not responsibly be left in the house alone and unsupervised.

    32.  The defenders accept that some ancillary rights have to be implied, having regard to the use that might reasonably have expected to be made of the servitude right of access for the convenient and comfortable use of the property. Rights to stop and turn a vehicle and to load and unload goods and passengers from it on the servient tenement are all conceded as being obviously necessary. But the defenders insist that the driver has no right to park his vehicle on the servient tenement. This is unlikely to cause any problems for tradesmen or other visitors who have no intention of remaining for any length of time on the dominant tenement. The position is otherwise in the case of drivers of a vehicle who happen also to be owners of the dominant tenement. If the defenders are right, they must leave the servient tenement after dropping off any goods or passengers and park their vehicle elsewhere. They must then walk down to Da Store from its parking place and back up again when they want to resume use of the vehicle.

    33.  Could this have been what was contemplated in 1973 when the right of vehicular access was granted? There was no question then, any more than it is now, of it being possible to park a vehicle anywhere on the dominant tenement. It is this highly unusual feature that has created the difficulty. The nearest point where a vehicle could be parked, then as now, was on the Sandsound public road at its junction with the lower branch public road. The effect of the defenders' argument is that, in the circumstances as they were known to be at the time of the grant, the right of vehicular access could be enjoyed by tradesmen and other persons who were invited by its owners to visit the dominant tenement, but not by the owners of the dominant tenement themselves in right of the servitude access to their property when using their own vehicles.

    34.  For the owners, use of their own vehicles would involve walking a distance of about 150 yards, in all weathers and in times of darkness as well as in daylight, over what the sheriff has described as a significantly steep descent or climb in open and exposed country. In the case of a mother with very young children, for example, this would mean leaving them unattended and unsupervised in the house while parking or collecting her vehicle, or alternatively taking her children with her on foot in such conditions to and from the place where she had to park her vehicle. Owners who had no difficulty in driving but found walking difficult because they were disabled or elderly would have to do this too, as the restriction on parking for which the defenders argue applies to everyone. The situation in this case, it need hardly be said, is far removed from the urban situation to which Lord Rodger refers where people who buy flats or houses without adjacent car parking just have to put up with it. In my opinion it is impossible to reconcile such hardships with the use that might reasonably have been expected to be made of the servitude right of vehicular access for the convenient and comfortable use of the property. It would mean, as Lord Philip said in the Extra Division, para 90, that the proprietor's right of vehicular access would effectively be defeated. While a servitude right must be construed in such a way as to minimise the burden on the servient proprietor, it must not be construed so strictly as to defeat the right granted to the dominant proprietor.

    35.  In Kennedy v Macdonald Sheriff Principal Caplan drew a distinction between a right of vehicular access which embraced a right to stop on a lane in the servient tenement to set down persons and goods and parking vehicles there for extended periods. To park vehicles for extended periods on the defenders' land would be to deviate from the normal and reasonable incidents of access. The situation in that case was that, as in the present case, it was not possible for a vehicle to be parked on the dominant tenement. This was because the presence of a bounding wall made it impossible for a vehicle to be driven onto the subjects from the access lane. But I agree with Lord Marnoch in the Extra Division, para 20, that what may not be regarded as normal and reasonable in one set of circumstances may be regarded as normal and reasonable in another, quite different, set of circumstances. The sheriff in this case, who heard all the evidence and made an accompanied visit to the property, held in his 4th finding in fact and law that the dominant tenement was not reasonably capable of comfortable enjoyment without there being a right to park vehicles on the servient tenement adjacent to the dominant tenement. I would distinguish it from Kennedy v Macdonald on those grounds.

    36.  For these reasons I would hold that in this case, in view of its particular and unusual circumstances, the rights ancillary to the express grant of a right of access in favour of the dominant tenement include a right to park vehicles on the servient tenement, in so far as this is reasonably incidental to the enjoyment of the dominant tenement.

Abuse of the right to park vehicles

    37.  It was suggested in the course of the hearing before your Lordships that a decision that there was an accessory right to park vehicles on the servient tenement could mean that very large numbers of vehicles belonging to all manner of people would be parked there, perhaps for long periods, resulting in an unacceptable burden on the servient tenement. There are however three reasons for discounting such an abuse of the right as a realistic possibility.

    38.  The first reason is that the right of access over the servient tenement is granted in favour only of the owner of the dominant tenement and her successors in title, not in favour of the public generally. Of course, as Lord Clyde said in Hogg v Campbell, 2 April 1993, unreported (1993 GWD 27-1712) in a passage quoted by Cusine and Paisley, Servitudes and Rights of Way, para 1.60, the proposition that the dominant proprietors are the only person interested cannot be taken too strictly. The right extends to the proprietors' guests, visitors, employees and others who come there for the purposes to which the land is being put. But, as he also pointed out, that use must be within the intended scope of the servitude and it must not impose an undue burden on the servient tenement. The servitude right of pasturage provides a useful analogy for the determination of the extent of the servitude. As Lord Grieve explained in Ferguson v Tennant , 1978 SC (HL) 19, 25, the number of cattle that may be put on the lands of the servient tenement must not exceed that which is "proper to the dominant" - that, is, that the number that the proprietor of the dominant tenement can support from his own resources.

    39.  The second reason for discounting the possibility of abuse is to be found in the principle that, in Bankton's words, the servitude right must not be used "invidiously to the other's detriment": II, vii, 18. As Lord Marnoch said in the Extra Division, para 24, questions of how and precisely where the right to park is to be exercised are questions that ought to be capable of being resolved by the parties acting sensibly but can, if necessary, be decided under reference to the rule that the servitude right must be used civiliter. This point has been recognised by the terms of the declarator, which refers to the right to park "such vehicles as are reasonably incidental to the enjoyment of said access to the dominant tenement." The right is not to store or warehouse vehicles on the servient tenement. It is a right which is ancillary to the right of access to the dominant tenement. It is available only for the parking of vehicles which are intended to be used in the exercise of that right. I would not limit the phrase to the determination of where the right of parking may be exercised, although it is of course relevant to that issue. It covers all questions that may arise as to how the right to park may be exercised, including the number of vehicles that may be parked on the servient tenement.

    40.  The third reason is that it has not been suggested that an abuse of the kind suggested occurred at any time between 1984 when the first pursuer first began to use the right of access to Da Store by means of vehicles and 1998 when the defenders first disputed the right to park vehicles on the servient tenement. The dispute arose not out of the presence of an excessive number of parked vehicles on the servient tenement. It arose because the first defender wanted to reclaim the pink area as part of the ground for his garden. The experience of all these years indicates that it is reasonable to assume that in practice a decision that there is an ancillary right to park vehicles will not create an undue burden on the servient tenement. So I do not think that it is necessary for the court, at least at this stage, to set a precise limit on the number of vehicles that may be parked there.

The permanent interdict

    41.  Mr Hajducki submitted that a permanent interdict was unnecessary in this case, and that in any event its terms were too uncertain to enable the defenders to know what was prohibited by it. He referred to Lord Hamilton's observations in his dissenting opinion in the Extra Division, para 87, that, while there had been an earlier infringement of the pursuers' legitimate rights, there was no justification in the circumstances that now existed for granting a permanent interdict in relation to such activities and that its terms involved unsatisfactory features of uncertainty which were more likely to promote rather than to avoid future conflict. The particular features which, it was submitted, created uncertainty was the absence of any definition in the declarator of what was reasonably incidental to the exercise of the servitude, such as the number of vehicles that could be parked on the pink area, the time they could remain there and so on. It was submitted also that the effect of the interdict was to deprive the owner of the servient tenement of the use of the pink area for anything at all, even though it was not being used for access to the dominant tenement.

    42.  In my opinion the prolonged and highly regrettable history of this case justifies the granting of interdict. As Burn-Murdoch, Interdict in the Law of Scotland (1933), para 116, explains, the general rule is clear. Where operations complained of have been found to be illegal by court in a final judgment, the pursuer has a right to interdict. It is otherwise where a nuisance or other evil complained of has been removed or where the defender is a responsible authority whom the court can trust to comply with its finding. But that is not the position in this case, in view of the relentless way in which the issues have been litigated. The first and second defenders are no longer resident in The Storehouse, but Mr Hajducki did not ask that interdict should not be pronounced in their case on this ground.

    43.  I also agree with the majority in the Extra Division that there ought in practice to be no real difficulty in giving effect to the declarator or, should it be necessary to do this, in the enforcement of the interdict. Mr Hajducki's complaint in essence was that the details of a right to park ought to have been the subject of an express grant in which all the relevant details were set out. In the circumstances of this case however I would regard any attempt to achieve this by means of a court order as both undesirable and unnecessary. The details, within the limits indicated by what is reasonably incidental to the enjoyment of the access to the dominant tenement, will inevitably vary from time to time. They ought to be capable of being worked out by the parties themselves, given reasonable co-operation on both sides.

Conclusion

    44.  For these reasons, and for substantially the same reasons as those given by Lord Neuberger, I would dismiss the appeal and adhere to the Extra Division's interlocutor.

LORD SCOTT OF FOSCOTE

My Lords,

    45.  This is an interesting case raising some very basic questions about the nature of easements/servitudes - and there seems to me no difference relevant to any issue that arises in this case between the common law in England and Wales relating to easements and the common law in Scotland relating to servitudes. This case is also a very sad one for it evidences a regrettable and surely unnecessary falling out between neighbours who had lived as neighbours in apparent amity for very many years, sorting out questions of mutual concern regarding the respondents' access to their property, Da Store, by sensible arrangements without recourse to the law. The problems that have led to the falling out, to the commencement and conduct of expensive litigation and to their presence now before your Lordships as litigants relate to the right of way over the appellants' land to which the respondents are entitled in order to obtain access to Da Store from the Sandsound public road. The respondents' right of way, the existence of which has never been in dispute, has over the years since 1973 when the right was first granted required arrangements to be settled regarding the manner of its exercise. These are matters that neighbours, having due regard for one another's reasonable requirements and interests, ought to be able to sort out for themselves. But if, for whatever reason, they cannot or do not do so, the law must do so for them and, where the exercise of servitudes, or easements, is in question, will do so by reference to those reasonable requirements and interests. The principle of civiliter, a Scottish law principle which regulates the manner in which a servitude may be exercised (see para 95 of the opinion of my noble and learned friend Lord Rodger of Earlsferry) is, if I have understood the principle correctly, equally applicable, although not so named, under English law and requires the dominant owner, the owner entitled to exercise a servitudal right over the land of his neighbour, to exercise the right reasonably and without undue interference with the servient owner's enjoyment of his own land. The converse of this principle is that an interference by the servient owner with the dominant owner's exercise of the servitude will not be an actionable interference unless it prevents the dominant owner from making a reasonable use of the servitude. Thus, for example, the erection by the servient owner of a building that encroached by, say, one foot on to a ten foot wide domestic driveway would not constitute an actionable interference with a right of way over the driveway (see Pettey v Parsons [1914] 2 Ch 653 and Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204). These principles are well exemplified by the English case of Saint v Jenner [1973] Ch 275, where a dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. This unreasonable use, a use not consistent with the principle of civiliter, entitled the servient owner to erect speed bumps along the drive but did not justify the erection of speed bumps of such severity that a motor car moving at, say, 10 to 15 mph would be unable to cross the bumps without the bumps striking the car's undercarriage. So the servient owner was held to be entitled to erect speed bumps but was required to reduce slightly the severity of the bumps he had erected. As in Saint v Jenner, both the manner of exercise by the respondents of their rights over the servient land and the steps that could lawfully be taken by the appellants that might appear to interfere with those rights are subject to the principle of civiliter, a principle that, as it seems to me, limits the respondents' use of the servient land to a reasonable use but enables the appellants, subject only to an obligation not to interfere with that reasonable use, to make whatever use they wish of their servient land.

    46.  The most important issue in the present case is whether the respondents' admitted right of vehicular access to their land over the appellants' land entitles them and their licensees to park on the appellants' land, at or near to the entrance to the respondents' land, the vehicles by means of which the right is exercised. It is not in dispute that an express grant of a vehicular right of way does not necessarily, or even usually, carry with it a right to park vehicles on the servient land. Whether it does so in this case depends upon two sub-issues: first, whether a servitudal right to park is recognised in law; and, secondly, if such a servitude can in law exist, whether, on the facts of this case, the grant of the express right of way in 1973 carried with it the right to park. Two points need to be made clear at the outset. First, a right to park can always be created by contract. But a contractual right, being a right in personam and not a right in rem, is not a servitude and cannot usually be enforced against a successor in title to the servient land. Second, a servitudal right in rem can be created not only by a grant but also by sufficiently long prescriptive use, or by the servient owner's acquiescence in the dominant owner's use accompanied by some form of associated detriment, usually expenditure, incurred by the dominant owner to the knowledge of the servient owner. There was some indication of an acquiescence based claim when the present case was before the Sheriff. But by the time the case had reached your Lordships' House it had been accepted by the respondents that their claim to a right to park on the appellants' servient land depended on that right having been created in 1973 when the right of access was granted.

The right to park as a servitude

    47.  It is convenient to start with the question whether a servitudal right to park appurtenant to some identifiable dominant land, ie a right in rem and not simply a contractual right, is recognised by law. In my opinion there should be no doubt that it is and, if there is any such doubt, that doubt should be now dispelled. I can see no reason in principle, subject to a few qualifications, why any right of limited use of the land of a neighbour that is of its nature of benefit to the dominant land and its owners from time to time should not be capable of being created as a servitudal right in rem appurtenant to the dominant land (see Gale on Easements 17th Ed para 1-35). An essential qualification of the above stated proposition, a qualification that I would derive from the all-important civiliter principle, is that the right must be such that a reasonable use thereof by the owner of the dominant land would not be inconsistent with the beneficial ownership of the servient land by the servient owner. I must later examine the so-called "ouster" principle, the principle which, it is said, prevents the creation of a servitude if the servitude contended for would prevent any reasonable use being made of the servient land, and some of the authorities relating to that principle. To the extent, however, that the "ouster" principle is asserting that a servitude must not be inconsistent with the continued beneficial ownership of the servient land by the servient owner, I would unreservedly accept it. If, for example, the nature of the purported servitude were to place the dominant owner in such occupation of the servient land as to bar the servient owner from possession or control of the land I would find it very difficult to accept that the right could constitute a servitude. An express grant of such a right might be construed as a grant of the fee simple (see Lopes LJ in Reilly v Booth (1890) 44 Ch D 12 at 26) or might be construed as the grant of a contractual licence, but I do not as at present advised see how it could be the grant of a servitude. A second necessary qualification to the proposition afore-stated would be that the grant of a right that required some positive action to be undertaken by the owner of the servient land in order to enable the right to be enjoyed by the grantee could not, in my opinion, be a servitude. Thus the grant of a right of way over a driveway cannot place on the servient owner the obligation to keep the driveway in repair (see Jones v Pritchard [1908] 1 Ch 630 at 637). The dominant owner would be entitled, although not obliged, as a right ancillary to his right of way to do such repairs to the driveway as were necessary or desirable. On the other hand I doubt whether the grant of a right to use a neighbour's swimming pool could ever qualify as a servitude. The grantor, the swimming pool owner, would be under no obligation to keep the pool full of water and the grantee would be in no position to fill it if the grantor chose not to do so. The right to use the pool would be no more than an in personam contractual right at best. There may be other qualifications than the two I have mentioned but I can think of none that could oppose the recognition as an acceptable servitude of a right to park in convenient proximity to the dominant land. An examination of the applicability of the "ouster" principle to the right to park claimed in this case must await a summary of the relevant facts.

The facts

 
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