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

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    48.  The geography of the dominant land and the servient land is in the present case all-important. The respondents' land, the dominant land, is a small piece of land at Sandsound on the island of Shetland. Its location seems to me likely to be unique. It is bordered on the west by the sea and on the east by a cliff, so the land is sandwiched between the sea and the cliff. A jetty constructed on the land enables access to or egress from it to be obtained by boat. The only access or egress that can be obtained by land is via a stairway that leads to a gate at the top of the cliff. The land is known as "Da Store", a name derived from the retail shop use to which in times past one of the buildings on the land had been put. The buildings on the land included a dwelling and outbuildings. The land at the top of the cliff, pasture land used for the grazing of sheep, rises fairly steeply for about 150 yards to a public road running roughly north/south to Sandsound (I shall refer to this as the Sandsound public road). Between 1899 and 1902 the Zetland County Council, the then local authority, constructed a new public road (which I shall refer to as the "Da Store branch road") leading from the Sandsound public road down to the gate at the top of the Da Store stairway. The purpose of this was no doubt to allow members of the public wishing to make purchases at or deliveries to Da Store to have a land access route as an alternative to the sea access route. The Da Store branch road took a fairly direct, and consequently a fairly steep, line. It was regularly used by customers both with and without vehicles. However in 1927 a new store was built at the junction where the Da Store branch road met the Sandsound public road, the shop business at Da Store faded away and in time the buildings fell into disrepair and became derelict.

    49.  Da Store and the pasture land at the top of the cliff were for many years in common ownership and in 1973 were owned by a Mr Georgeson. The Da Store branch road ran, therefore, through his land. By a Disposition dated 31 August 1973 and duly registered on 3 September 1973 Mr Georgeson sold Da Store to a Mrs Margaret Stuart. The parcels clause described the property sold as "bounded on the East and South by other subjects belonging to me, on the West by the sea and on the North by the croft … belonging to Captain Andrew Thomson …" and as including "(Fourth) a right of access from the branch public road through Sandsound …" There are some odd features of this express grant that it is convenient to draw attention to at once. First, the route of the right of access was not specified. But since there was in existence at the time of the grant an existing roadway, the Da Store branch road, providing access from the Sandsound public road to the Da Store gate, it is in my opinion a compelling and irresistible inference that the intended route for the right of way granted by the 1973 Disposition was along the Da Store branch road. I would so construe the grant. Second, the Da Store branch road was a public road. The grant of a private servitude to the owners of Da Store was not necessary in order to give them the right to use that road for access to Da Store. So what could be the explanation for the grant of the servitude? There seem to me to be two possibilities. One, somewhat improbable, is that the lawyers who had drawn up and approved the Disposition did not know, or had forgotten, that the Da Store branch road was a public road. The other is that the parties wanted to fortify Mrs Stuart's rights of access to Da Store by giving her a private law servitude as an addition to her public law right to use the public road. I must return later to consider the implications of this possibility. It is accepted, although the grant itself is silent on the point, that this 1973 grant of a right of way created a servitude of vehicular access, as well as pedestrian access, to Da Store.

    50.  After 1973 both the dominant land, Da Store, and the servient land passed into different ownership. The parents of the first respondent, Mr James Moncrieff, purchased Da Store in 1975 and disponed the property to him in 1984. In 1995 he placed Da Store in the joint names of himself and his wife, the second respondent. By 1975 the dwelling at Da Store had become semi-derelict but was over a period of twelve years or so after 1975 renovated so that it became once more a habitable dwelling. The respondents live there with their three young children.

    51.  The third appellant, Mr Bruce Jamieson, has been since 1983 and is the owner of the pasture land through which the Da Store branch road passes and from 1989 to 2006 his son and daughter-in-law, the first and second appellants, occupied a house and garden on the farm known, rather confusingly, as The Storehouse. Which of the three appellants was or were the owner or owners of The Storehouse, and from when, is not entirely clear to me but does not much matter. It suffices that in 2006 The Storehouse with its garden was sold to purchasers who, very sensibly, want nothing to do with this litigation and that from 1983 onwards arrangements about the manner of the exercise of the Da Store right of access over the third appellant's land were made between the Moncrieffs and the Jamiesons, or one or other of them. These arrangements involved two matters. There were agreed variations to the route of access in order to reduce the severity of the slope up or down which vehicles had to travel. And there were arrangements about the parking of vehicles in the vicinity of the Da Store gate. Details about these arrangements are to be found in paragraphs 13 to 18 of the opinion prepared by my noble and learned friend Lord Hope of Craighead which I have had the advantage of reading in advance. I gratefully adopt and need not repeat those details but would add that very recently the local authority has constructed a new public road over the third appellant's land in place of the Da Store branch road, and it is this new road that the respondents now use, and, as I would infer, that has become, by implied agreement between the parties, the route now subject to the respondents' private law servitude of access to Da Store. I can now come to the issues in the case.

Did the express grant of a right of access carry with it a right to park?

    52.  The respondents' claim that the express grant did carry with it a right to park has been, in the discussion before your Lordships, considered on two alternative bases: first, that the right to park is a necessary ancillary to the servitudal right of access although not a servitude in its own right; secondly, that the express grant of the servitudal right of access carried with it an implied grant of a servitudal right to park. My Lords, I regard the distinction between these two ways of promoting the respondents' claim to a right to park as, in a case such as the present, illusory. If it is reasonably necessary to the enjoyment of the respondents' vehicular right of access that there should be a right to park at or near to the Da Store gate the vehicles whereby access is obtained, i.e. if the suggested test for the acquisition of a parking right ancillary to the servitudal right of access is satisfied, then, for the same reason, the express grant of that servitudal right would in my opinion justify the implication of a servitudal right to park. Once it is accepted, as it has been throughout, that the 1973 express grant of a right of access to Da Store is to be read as a grant of a vehicular right of access as well as a pedestrian one, it is obvious from the geography that the vehicular right of access cannot be enjoyed without the right to park on the servient land at or near the Da Store gate. It is not that it would be difficult to take a vehicle on to the Da Store land; it would simply not be possible. The appellants have accepted that it is permissible for vehicles to park temporarily on the servient land for the purpose of unloading goods or allowing passengers to alight, or, vice versa, for the purpose of loading vehicles or allowing passengers to enter the vehicles. But a vehicle driver who lives at Da Store is not entitled, it is insisted, to leave the vehicle at or around the Da Store gate but, instead, after unloading any goods and/or passengers at the Da Store gate, must drive back to the Sandsound branch road, leave the vehicle there and walk back to Da Store. If he or she is accompanied by small children who cannot be left alone, they must perforce accompany the driver. If that is what the driver has to do, it cannot be said that he is exercising a right of vehicular access. It seems to me, with all respect to the arguments addressed to your Lordships by counsel for the appellants, plain that the grant of a right to have vehicular access to Da Store must have contemplated that the vehicles by means of which access was obtained by those living at Da Store would have to be left parked at or near the Da Store gate until they were next needed and, accordingly, that a right of parking must accompany the right of vehicular access. Authority for this conclusion is to be found both in Scottish and in English case law (see the cases cited by my noble and learned friend Lord Neuberger of Abbotsbury in paragraphs 108 and 110 of his opinion) but the conclusion is one that, in the absence of any previous authority, would anyway be impelled by the obvious answer to what the parties must, if they had thought about it, have had in mind as to the manner of exercise of a vehicular right of access to dominant land used, or intended for use, for domestic, residential purposes but on to which it would be impossible to take a vehicle.

    Where to park?

    53.  The parking right, as originally granted, would have been a right to park in the vicinity of the Da Store gate. But, as Lord Hope has explained, the parties sensibly agreed that a small portion of land, very close to the Da Store gate and shown coloured pink on some of the plans in evidence ("the pink land"), would be a suitable parking spot for one or two Da Store vehicles. The first respondent, in consequence of this agreement, spent a certain amount of money in rendering the surface of the pink land suitable for the parking of motor vehicles. Arrangements consensually made as to the manner of exercise of servitudes can, of course, be consensually varied, but once made, and particularly if the dominant owner has incurred expenditure pursuant to the arrangements, ought not, in my opinion, to be capable of unilateral variation by the servient owner. In my opinion, therefore, the pink land should be regarded as the primary location for the parking of the Da Store vehicles. But I do not regard this conclusion as necessarily barring the servient owners from parking from time to time one of their own vehicles on the pink land nor from barring the dominant owners or their licensees, if there is no space on the pink land, from parking their vehicles elsewhere on the servient land in the vicinity of the Da Store gate. The principle of civiliter restricts the use that the dominant owners or their licensees can make of the servient land for parking their cars to a reasonable use for the purposes of Da Store as a domestic dwelling. In my opinion, the counterpart of that principle enables the servient owners to use their land, including the pink land, for their own purposes provided they do not interfere with the reasonable exercise by the dominant owners of their rights of access and parking. No one has suggested that the parking of two Da Store cars on the pink land is not a reasonable exercise of the parking right.

    "Deprivation of ownership"

    54.  It has been argued that the rights of parking claimed by the respondents in respect of the pink land deprive the appellants of any reasonable use of that land, are therefore inconsistent with their ownership of the pink land and should not be recognised as servitudal rights in rem that can bind them and their successors-in-title. This is the so-called "ouster" principle to which I have already referred. There are conflicting decisions and dicta regarding the "ouster" principle. In Dyce v Hay (1852) 1 Macq 305 a prescriptive right for the public at large to use a strip of land for the purpose of recreation was claimed. The case was a Scottish one that reached this House where Lord St Leonards LC said that the right claimed was one that "cannot be maintained" and "ought not to be maintained". The sidenote to the report records that

    "There can be no prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected."

However, the right claimed was a public right not a servitude. But in any event, in my opinion, the proposition stated by the sidenote is unhelpful. Every servitude or easement will bar some ordinary use of the servient land. For example, a right of way prevents all manner of ordinary uses of the land over which the road passes. The servient owner cannot plough up the road. He cannot grow cabbages on it or use it for basketball practice. A viaduct carrying water across the servient land to the dominant land will prevent the same things. Every servitude prevents any use of the servient land, whether ordinary or otherwise, that would interfere with the reasonable exercise of the servitude. There will always be some such use that is prevented. Bearing in mind that any servitude that can be granted can be acquired by prescription and that Dyce v Hay was a case about public rights, not about private law servitudes, the proposition as stated in the sidenote tells us nothing about the essential nature of servitudes. In A G of Southern Nigeria v. John Holt & Company (Liverpool) Limited [1915] AC 599, a case in which the right to use servient land for the purpose of storage was claimed, Lord Shaw of Dunfermline, giving the judgment of the Privy Council, said, at 617, that:

    " … there is nothing in the purposes for which the easement is claimed inconsistent in principle with a right of easement as such."

    55.  In Wright v. Macadam [1949] 2 KB 744 the Court of Appeal had to consider whether the right to use a coal shed could exist as an easement and held that it could (see Jenkins LJ at 752). It has been suggested that the case may have turned on whether the claimant had sole use of the coal shed, but it is difficult to see any difference in principle between a case in which the dominant owner has sole use of a patch of ground for storage purposes, e g a coal shed, and a case in which the dominant owner is the only user of a strip of road for access purposes or of a viaduct for the passage of water. Sole user, as a concept, is quite different from, and fundamentally inferior to, exclusive possession. Sole use of a coal shed for the storage of coal does not prevent the servient owner from using the shed for any purposes of his own that do not interfere with the dominant owner's reasonable use for the storage of coal. The dominant owner entitled to a servitude of way or for the passage of water along a viaduct does not have possession of the land over which the road or the viaduct passes. If the coal shed door had been locked with only the dominant owner possessing a key and entry by the servient owner barred, so that the dominant owner would have been in possession and control of the shed, I would have regarded it as arguable that the right granted was inconsistent with the servient owner's ownership and inconsistent with the nature of a servitude or an easement. But sole use for a limited purpose is not, in my opinion, inconsistent with the servient owner's retention of possession and control or inconsistent with the nature of an easement. This conclusion is supported by Lord Evershed MR's remarks in In re Ellenborough Park [1956] Ch 131 at 176 where the issue was whether the right to use a communal garden could take effect as an easement. He said that:

    " … the right conferred no more amounts to a joint occupation of the park with its owners, no more excludes the proprietorship or possession of the latter, than a right of way granted through a passage, or than the use by the public of the gardens of Lincoln's Inn Fields … amount to joint occupation of that garden with the London County Council, or involve an inconsistency with the possession or proprietorship of the council as lessees."

    56.  Copeland v Greenhalf [1952] Ch 488, a case that goes the other way, was a case in which a prescriptive easement to use a strip of land by the side of a private roadway for depositing vehicles and for other purposes connected with a wheelwright's business had been claimed. Upjohn J rejected the claim on the ground that:

    "Practically, the defendant is claiming the whole beneficial user of the strip of land … It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner … "

There may be arguments as to whether the facts of the case justified those remarks but, for my part, I would accept that if they did Upjohn J was right to reject the easement claim and to require the defendant, if he was to succeed in resisting the plaintiff's claim to remove him from the land, to establish a title by adverse possession.

    57.  It has often been commented that Wright v. Macadam was not cited to Upjohn J and the possible inconsistency between the two cases was addressed by Judge Paul Baker QC in London & Blenheim Estates Limited v. Ladbroke Retail Parks Ltd [1992] 1 WLR 1278 where a right of parking had been claimed. He commented (at 1286) that the question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree:

    "A small coal shed in a large property is one thing. The exclusive use of a large part of the alleged servient tenement is another."

I think, with respect, that this attempt to reconcile the two authorities was addressing the wrong point. The servient land in relation to a servitude or easement is surely the land over which the servitude or easement is enjoyed, not the totality of the surrounding land of which the servient owner happens to be the owner. If there is an easement of way over a 100 yard roadway on a 1,000 acre estate, or an easement to use for storage a small shed on the estate access to which is gained via the 100 yard roadway, it would be fairly meaningless in relation to either easement to speak of the whole estate as the servient land. Would the right of way and the storage right fail to qualify as easements if the whole estate bar the actual land over which the roadway ran and on which the shed stood, with or without a narrow surrounding strip, were sold? How could it be open to the servient owner to destroy easements by such a stratagem? In my opinion such a stratagem would fail. It would fail because the servient land was never the whole estate but was the land over which the roadway ran and on which the shed stood. Provided the servient land was land of which the servient owner was in possession, the rights of way and of storage would continue, in my opinion, to qualify as easements.

    58.  As to the right to park and the "ouster" objection, Megarry V-C in Newman v Jones, an unreported case in 1982 concerning the right of lessees of a block of 14 flats to park in the grounds of the block, said:

    "I feel no hesitation in holding that a right for a landowner to park a car anywhere in a defined area is capable of existing as an easement."

But Judge Paul Baker in the London & Blenheim Estates case formulated, and the Court of Appeal in Batchelor v Marlow [2003] 1 WLR 764 applied, a test that disqualified the right to park from existing as an easement if, per Judge Paul Baker:

    " … the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else …"

In Batchelor v Marlow Tuckey LJ posed the question at 768:

    "Does an exclusive right to park six cars for 9½ hours every day of the working week leave the plaintiff without any reasonable use of his land, whether for parking or anything else?"

and gave the answer that:

    "[The plaintiff's] right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory."

For that reason the Court of Appeal rejected the claim to a prescriptive easement to park the six cars for the period mentioned.

    59.  In my respectful opinion the test formulated in the London & Blenheim Estates case and applied by the Court of Appeal in Batchelor v Marlow, a test that would reject the claim to an easement if its exercise would leave the servient owner with no "reasonable use" to which he could put the servient land, needs some qualification. It is impossible to assert that there would be no use that could be made by an owner of land over which he had granted parking rights. He could, for example, build above or under the parking area. He could place advertising hoardings on the walls. Other possible uses can be conjured up. And by what yardstick is it to be decided whether the residual uses of the servient land available to its owner are "reasonable" or sufficient to save his ownership from being "illusory"? It is not the uncertainty of the test that, in my opinion, is the main problem. It is the test itself. I do not see why a landowner should not grant rights of a servitudal character over his land to any extent that he wishes. The claim in Batchelor v Marlow for an easement to park cars was a prescriptive claim based on over 20 years of that use of the strip of land. There is no difference between the characteristics of an easement that can be acquired by grant and the characteristics of an easement that can be acquired by prescription. If an easement can be created by grant it can be acquired by prescription and I can think of no reason why, if an area of land can accommodate 9 cars, the owner of the land should not grant an easement to park 9 cars on the land. The servient owner would remain the owner of the land and in possession and control of it. The dominant owner would have the right to station up to 9 cars there and, of course, to have access to his 9 cars. How could it be said that the law would recognise an easement allowing the dominant owner to park 5 cars or 6 or 7 or 8 but not 9? I would, for my part, reject the test that asks whether the servient owner is left with any reasonable use of his land, and substitute for it a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land.

    60.  If, which as at present advised I regard as doubtful, Batchelor v Marlow was correctly decided, I can see some force in the appellants' arguments regarding the pink land. The use that the servient owner can still make of the pink land, if two cars are parked there, is very limited. But it is the servient owner, not the respondents, who is in possession and control of the pink land and entitled to remain so. The respondents are entitled to do nothing with the pink land other than park vehicles on it, while the appellants are entitled to do what they like with the pink land provided they do not interfere with the respondents' right to park two cars there. For the reasons I have given I regard the "ouster" principle as inapplicable to this case.

    61.  The views I have expressed regarding the ouster principle owe a great deal to Alexander Hill-Smith's article "Rights of Parking and the Ouster Principle after Batchelor v Marlow" published in the Conveyancer, May-June 2007, at 223. I am in agreement with the conclusions expressed by Mr Hill-Smith at 231 to 234 and must record my indebtedness to him.

    The scope of the Da Store parking rights

    62.  One of the points made on behalf of the appellants was that there is no apparent limit to the number of vehicles that might, in purported exercise of the Da Store parking rights, come to be parked on the servient land. It must be borne in mind, however, that the parking rights are rights appurtenant to Da Store. The respondents, or their successors in title to Da Store, are the only persons with servitudal rights of access and of parking. Their rights permit them to allow others, their guests, licensees, tradesmen and the like, to have vehicular access to Da Store. These persons, however, have no rights of access other than such as the dominant owners can grant them. And the dominant owners' ability to authorise others to use the servitudal rights to which they, the dominant owners, are entitled is limited to authorisations given for the purposes of their ownership of Da Store; their rights are appurtenant to Da Store and are not rights in gross. The dominant owners' manner of exercise of their servitudal rights is limited also by the civiliter principle. If the exercise of those rights, whether by them or by others under their authority, goes beyond what is reasonable for the purposes of their ownership of Da Store, their exercise of their rights would be excessive, a trespass and amenable to restraint by interdict.

    The issues

    63.  The agreed Statement of Facts and Issues identified five issues for your Lordships to consider. My response, shortly stated, to those issues would be as follows:

    (a)  A right to park is capable of being constituted as an accessory right incidental to a servitudal right of vehicular access or as a servitude in its own right appurtenant to some identifiable dominant land.

    (b)  In the circumstances of the present case such a right appurtenant to Da Store was created by the grant in 1973 of a vehicular right of access.

    (c)  The rights of parking sought by the respondents are not inconsistent with the nature of servitudes and were validly created.

    (d)  The manner of exercise of the rights of parking to which the respondents as owners of Da Store are entitled is limited by the principle of civiliter. The lower courts were correct to leave matters of detail regarding the exercise of those rights to be determined from time to time in accordance with that principle.

    (e)  The terms of the Sheriff's Interlocutor as varied by the Extra Division were, in my opinion, sufficiently specific and clear.

    64.  Accordingly, and in agreement with the reasons given by my noble and learned friends Lord Hope of Craighead and Lord Neuberger of Abbotsbury for coming to the same conclusion, I would dismiss this appeal.


My Lords,

    65.  This appeal raises an important and difficult issue in the law of servitudes. The essential question can be stated very shortly. A, the owner of land, sells off part of the land to B, together with a building that is likely to be used for residential purposes. In the disposition A grants B a servitude of vehicular access to the subjects over the neighbouring land which A retains. Due to the location of the dominant tenement, no car or other vehicle can enter or park on it. It is accepted that B can stop on the servient tenement for a short time near the entrance to the dominant tenement, e g, to let off or pick up passengers and to load and unload goods. Has B, as the proprietor of the tenement with the servitude of access, the right to park a car or other vehicle on the servient tenement retained by A?

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