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Moncrieff and another (Respondents)
Jamieson and others (Appellants) (Scotland)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Moncrieff and another (Respondents) v. Jamieson and others (Appellants) (Scotland)
 UKHL 42
LORD HOPE OF CRAIGHEAD
1. The pursuers are husband and wife and live with their three children in subjects known as "Da Store", Sandsound, Shetland, of which they are the heritable proprietors. At the time when these proceedings began the first defender was the heritable proprietor of a nearby dwellinghouse known as "The Storehouse" where he lived with his wife, who is the second defender. The third defender is the father of the first defender. He is the heritable proprietor of lands surrounding The Storehouse lying between Da Store and the Sandsound public road. Da Store is bounded on the west by an arm of the sea known as Sandsound Voe and on its east and south sides by lands owned by the third defender. It is bounded on the north side by lands which are in separate ownership.
2. Da Store previously formed part of the lands now owned by the third defender. It was separated from those lands by a disposition by Mitchell George Alexander Georgeson in favour of Mrs Margaret Stuart which was recorded in the Division of the General Register of Sasines applicable to the Counties of Orkney and Zetland on 3 September 1973. The situation of "Da Store" is such that it has no direct access to the system of public roads that serves the community in that part of Shetland. So among the rights conveyed by the disposition, to be enjoyed together with the lands on which the subjects are situated, was the following: "(Fourth) a right of access from the branch public road through Sandsound." The branch public road is the road referred to as the Sandsound public road in the previous paragraph.
3. Da Store lies at the foot of a steep escarpment close to its boundary with the lands owned by the third defender. The buildings are situated between the foot of the escarpment and the foreshore. They are not accessible from the lands which lie to the north side of the property. They are accessible from the lands belonging to the third defender on the east side. But this is possible on foot only, by means of a gate and a stairway. Vehicles cannot be driven onto any part of the land on which Da Store is situated. It is common ground that the effect of clause (Fourth) was to confer a servitude right of access to "Da Store" from the Sandsound public road for both pedestrian and vehicular traffic. It is also common ground that accessory to the right of vehicular access is a right to stop vehicles on the servient tenement in order to turn, load and unload goods from them and set down and pick up passengers: contrast Baird v Ross (1836) 14 S 528, in which it was held that the dominant proprietor was not entitled to load or unload or turn carts unless he could do so on the cart way. The dispute which has given rise to this litigation is whether there is also an accessory right to park vehicles on the servient tenement.
4. It should be noted that there has recently been a significant change in the situation on the ground. The Storehouse has been sold and the first and second defenders have left the subjects which are now occupied by the new proprietors. They have indicated that they wish to take no part in these proceedings and that they will abide by whatever decision is reached by your Lordships. But, subject to a small adjustment to the boundaries surrounding The Storehouse, the third defender retains his ownership of the servient tenement.
5. The pursuers raised their action in the sheriff court at Lerwick on 15 September 1998. On 7 July 2003 after many callings, 10 days of evidence and 4 days of submissions by counsel, and after having visited the site himself, Sheriff Scott Mackenzie pronounced an interlocutor in which, among other things, he granted declarator that the pursuers were entitled to park vehicles on the servient tenement in the exercise of rights accessory to the servitude right of access. He also pronounced permanent interdict against the defenders from interfering with the reasonable exercise by the pursuers of their servitude right of access and the accessory rights.
6. The defenders appealed to the Court of Session. On 4 February 2005 an Extra Division (Lords Marnoch, Hamilton and Philip, Lord Hamilton dissenting) refused the appeal: 2005 SLT 225. Counsel were agreed that the sheriff's interlocutor was in some respects unsatisfactory. The Court of Session allowed the craves which were before the sheriff to be amended to reflect the submissions by the pursuers' counsel which, as Lord Marnoch observed in para 30, were based on the concept that the measure of any implied or ancillary right was what was necessary to the reasonable enjoyment of the express right of access. It granted declarator in terms of an amended crave which stated, among other things, that:
The court also granted declarator that these accessory rights were presently exercised in an area of the servient tenement shaded pink on a plan which had been lodged in process marked as Bardell Plan 2. It adhered to the sheriff's decision to grant permanent interdict against the defenders from interfering with the reasonable exercise by the pursuers of their servitude right of access and its accessory rights.
(a) at the time of the grant
7. Consideration of the extent of a servitude right of access and of any rights that are accessory to it must begin, in the case of an express grant, with the terms of the grant itself. In the present case the grant confines itself to a few words only: "a right of access from the branch public road through Sandsound." The meaning and effect of those words must be determined by examining the facts which were observable on the ground at the time of the grant. Account may also be taken of the use to which the dominant tenement might then reasonably have been expected to be put in the future. The sheriff's findings, together with various plans and photographs that were lodged in process, provide the relevant information.
8. The buildings known as Da Store form part of a former merchant's house and shop. They date from the mid-nineteenth century or possibly earlier. The shop formed a principal retail outlet for the Sandsound area until about 1927 when the shop was closed. The buildings then fell into multiple occupation by up to four families until they became semi-derelict. That was their condition when they were purchased in 1973 by Mrs Stuart. They were still semi-derelict when the first pursuer's parents purchased the subjects in 1975. They were gradually brought back into a habitable condition over the next twelve years. In 1984 they were disponed by his parents to the first pursuer. In 1995 the first pursuer disponed the subjects to himself and the second pursuer in joint names. By 1998 when these proceedings were raised the pursuers were occupying Da Store as their home. When the sheriff pronounced his interlocutor they were living there together with their three children, who were then aged 4, 2 and six months.
9. The main access to the subjects when they were in use as a shop appears have been by sea. A public ferry which operated in the vicinity connected Sandsound with communities on the other side of Sandsound Voe until the 1940s. On the landward side between 1850 and 1900 a system of public roads was constructed. There is some evidence that as early as 1872 goods were from time to time transported to Da Store overland for up to ten miles. Between 1899 and 1902 the local authority constructed a lower branch public road, suitable for vehicular traffic, which led from the Sandsound public road to the gate on the eastern boundary of Da Store. It ran in a line which the sheriff described as slightly boomerang-shaped down a fairly steep slope from the main public road. It was about 150 yards long and was of hardcore and mortar construction. It was bordered on the north side by a fence. The lands to the south were left unfenced. The lower branch public road was used by pedestrians and possibly by horse-drawn carts making deliveries to and collecting goods from the shop. In 1927 a new shop was erected at the top of the slope where the lower branch public road joined the Sandsound public road.
10. The sheriff found that it was not possible for any vehicle to gain access beyond the gate onto Da Store by reason of the steep escarpment. Nor was it possible for bulky goods or numerous items to be carried directly from a vehicle into the property. They had to be off-loaded and carried down by hand, piece by piece or bag by bag. Horse-drawn vehicles might, when necessary, turn at the bottom of the road in their own length. But the lower branch public road was not wide enough to permit motor vehicles to turn on it. They had to be driven to some convenient place where they could manoeuvre for this purpose on the servient tenement. It was not possible for the driver of a motor vehicle who wished to enter the dominant tenement from the branch public road to do so without parking his vehicle elsewhere. Parking of vehicles could take place, and had taken place, at the top of the lower branch public road. But a driver who chose to do this would have to make what the sheriff described as a significantly steep pedestrian descent and climb back up again in open and exposed country. Parking of vehicles had also taken place on the lower branch public road itself or on unfenced land bordering the lower branch public road belonging to the servient tenement.
11. Use of the lower branch public road by the general public decreased between 1927 and 1973, and it had ceased to be maintained by the local authority. Its surface was gradually grassed over and obliterated. As a result it became less suitable for vehicular traffic, which became progressively more apt to slip on the grassy surface. When the first pursuer's parents purchased the property in 1975 they used an ad hoc rope and pulley system and fish boxes to slide materials back and forth between the Sandsound public road and the property. Nevertheless the route of the lower branch public road was still clearly visible and it could still be used with care by motor vehicles.
12. The grant was silent as to the route by which access was to be obtained to Da Store from the Sandsound public road. As Cusine and Paisley, Servitudes and Rights of Way (1998), para 12.131 point out, there is institutional authority to the effect that where a grant of servitude is indefinite as to the exact route, the dominant proprietor may chose the route over which the servitude is exercisable "in any place most commodious for him, but not invidiously to the other's detriment": Bankton, An Institute of the Laws of Scotland (1752), II, vii, 18. In the present case however it can be assumed that it was the intention of both parties that it was to be obtained by means of the lower branch public road, which was still clearly visible on the ground and available.
(b) subsequent actings
13. In about 1983 the third defender removed the fence which ran along the north side of the lower branch public road. As a result the whole of the way over the servient tenement was now unfenced. In about 1984 the first pursuer started to use vehicles to gain access to his property. He often turned his vehicle on land belonging to the servient tenement. On occasions he parked his vehicle at the western end of the lower branch public road close to the gate leading into his property. On 24 December 1987 he took up residence in Da Store. From that day onwards he used his vehicle daily, except in icy and very wet conditions, to gain access from the Sandsound public road. He also used the servient tenement for stopping, parking, loading and unloading and the turning of vehicles. He did this without seeking permission from the third defender. The third defender was aware that he was doing so. It was not until much later that the defenders objected to this use of his property.
14. In the autumn of 1988 the first pursuer engaged a contractor to improve the surface of the lower branch public road by scraping its top surface and resurfacing it with hardcore. He also asked the contractor to create a small hardcore turning point adjacent to the northern edge of the lower branch public road about 5 metres from the gate leading into his property. He had already been using this area, which was unfenced, for stopping, parking, loading and unloading and turning his vehicle. The third defender saw what was being done and did not object to it. The cost of these improvements, which was borne by the first pursuer, was £1,012. The first pursuer continued to use this area of the servient tenement without objection until 1993.
15. From about 1988 the first defender began to use the lower branch public road to visit and carry out works to The Storehouse. In the summer of 1989 he erected a wooden fence to keep sheep out of a garden area which he was in the course of creating near his property. This fence ran from the boundary of The Storehouse in a westerly direction along the north edge of the lower branch public road following the line of the previous fence until it reached a point close to where the first pursuer was regularly turning his vehicle. At that point it turned north and then west to exclude the area which had been surfaced with hardcore together with a larger area of rough grass and area which was partially obstructed by an old hydro-electric pole. This the area which is shaded pink on Bardell Plan 2 mentioned in the declarator referred to in the Extra Division's interlocutor.
16. In 1993 the first defender, with the agreement of the third defender, asked the first pursuer to agree to a diversion of the access route from that of the lower branch public road to lessen its slope. He proposed angling the route a short distance after it left the Sandsound public road and creating a new road running in a south-easterly direction and then west until it joined the lower branch public road east, or uphill, of where he intended to erect a new garage south of The Storehouse for use with that property. The first pursuer agreed to the change of route on condition that the first defender extended the area of hardcore on the pink area to enable the second pursuer, who had been reluctant to drive her car down the access road due to its steepness, to park her car there alongside the vehicle parked by the first pursuer. The first defender agreed to this, and the work was done with the help of the third defender at an overall cost of £3,500.
17. In 1994 the first defender removed the old hydro-electric pole and filled the hole with hardcore. This increased the utility of the pink area for parking and turning vehicles. In January 1994 the first defender sought and obtained from the first pursuer a financial contribution of £600 towards the cost of the 1993 access improvements. In August 1994 the first defender, with the agreement of the third defender, sought the consent of the first pursuer to a further diversion of the access route to bring it back to join the lower branch public road to the west, or downhill, of the proposed garage and to improve the gradients. The first pursuer agreed to this further diversion on condition that a small triangle was added to the route to make it easier for him to turn downhill towards Da Store.
18. The first and second pursuers, their visitors and tradesmen continued to use the pink area for parking their vehicles and an area in front of The Storehouse for reversing into when turning them without objection by any of the defenders until August 1998 when the first defender proposed replacing the wooden fence which he had erected in 1989 with a stone wall. On 25 August 1998 the pursuers' vehicles were removed from the pink area to a place some distance away on other land belonging to the third defender. A large consignment of stone was deposited in the pink area. This prevented the pursuers from parking there. Meetings were held between the pursuers and the first and second defenders in an attempt to resolve the matter, but without success. The pursuers refused to agree to any part of the pink area being enclosed, while the defenders wanted to enclose the greater part of it for inclusion in the garden area. By September 1998, when the proceedings began, the parties were communicating only through their solicitors.
19. The issues in this unfortunate case have narrowed since the case was before the sheriff. The defenders do not, as has been said, dispute that the servitude right of access which was constituted by the express grant is a right of both pedestrian and vehicular access from the Sandsound public road to the dominant tenement. Before any evidence was led they conceded that it included rights to turn vehicles and to load and unload both goods and passengers from them on land belonging to the third defender adjacent to the dominant tenement. But they continue to dispute the pursuers' right to park vehicles on the servient tenement and the necessity for a permanent interdict. The pursuers, for their part, no longer insist on their alternative case that they acquired a right to park vehicles on the third defender's land as a real right by acquiescence.
20. The first issue is whether a right to park is ever capable of being constituted as ancillary to an admitted servitude of vehicular access. The second issue is whether such a right was constituted in the particular circumstances of this case. Subsidiary issues are raised about the application to this case of the principle that any use made of land belonging to the servient tenement must be civiliter, as to the necessity for a permanent interdict and as to whether the Extra Division's interlocutor was sufficiently clear to give the defenders notice of the rights that were exercisable by the owners of the dominant tenement.
Parking as a right ancillary to a right of access
21. It has yet to be decided whether a right to park vehicles can be said in Scots law to exist as a servitude in its own right. In Murrayfield Ice Rink Ltd v Scottish Rugby Union Trustees, 1973 SC 21, 31, Lord Justice Clerk Grant referred to a clause in the feu charter which described a right of use of an area of ground as a car park as a servitude right as "a mere servitude right." But the question whether the express grant of a right to park in a feu grant was properly described as a servitude was not in issue in that case. It is important to bear in mind that feudal conditions are fundamentally different from servitudes, as also are real burdens in dispositions: Stair Memorial Encyclopaedia, vol 18, Property, para 381. I would not attach any weight, at least in the present context, to the fact that servitudes are generally regarded as restricted to certain known types. As Lord Ivory observed Harvey v Lindsay (1853) 15 D 768, 775, new servitudes may arise as alterations take place in the progress of society. But there is no escape from the fact that servitudes require a neighbouring piece of land to act as a dominant tenement. It is hard to envisage a situation, other than where the right is constituted expressly by a feuing condition or as a real burden, where it would be necessary to rely on a servitude right to park on someone else's land which was not ancillary to a right of access over it in favour of the dominant tenement. In Nationwide Building Society v Walter D Allan Ltd (OH) 4 August 2004, unreported (2004 GWD 25-539), para 26 Lady Smith said that she could not conclude that Scots law recognises, in principle, a servitude right of parking independent of any right of access: see also Cusine and Paisley, Servitudes and Rights of Way, paras 3.45 to 3.52, where a similar conclusion is reached after a survey of the authorities. This question, then, has not been resolved hitherto one way or the other by authority.
22. I doubt whether it is necessary for the purposes of this case to decide whether a right simply to park vehicles on someone else's land can be said to constitute a servitude in its own right, independently of a servitude right of way over that land by means of vehicles. So I would prefer to reserve my opinion on this point. While they did not seek to argue positively that such a servitude right could exist, the pursuers were unwilling to accept the converse proposition for which the defenders contended that it was not possible in the law of Scotland for there to be a servitude of parking. This point does indeed need to be addressed because, as my noble and learned friend Lord Neuberger of Abbotsbury points out, a right to park as an ancillary to a servitude of access would be difficult to accept if a right to park as a servitude in its own right was in principle unacceptable. It is on the objection in principle, therefore, on which a decision certainly is required in this case, that I wish to concentrate.
23. In his title on Servitudes in the Stair Memorial Encyclopaedia, Vol 18, para 487, A G M Duncan said that authority for the view that a drove road or similar right of passage may include stances where animals may be pastured prompts the question whether, under modern conditions, a right to park vehicles might qualify as a servitude. In my opinion there is much force in this analogy. When droving was commonplace in Scotland, prior to the development of roads and later railways which enabled sheep and cattle to be transported in vehicles, it involved the passage on foot of very large numbers of animals. Stances used by drovers had the inevitable effect of excluding the servient proprietor, at least partially, from pasturing his own animals on those areas. Pasturage is, in itself, a well-recognised servitude: Ferguson v Tennant, 1978 SC (HL) 19, 65-66, per Lord Fraser of Tullybelton. Having analysed the authorities, the Lord Ordinary, Lord Grieve, said at p 25 that the number of stock that may be put on the lands of the servient tenement must be "proper to the dominant tenement" but that this may be such as to require all the grasses on the servient, so that the servient owner may not use any of them. It "sometimes reacheth to the full benefit of the grass": Stair, Institutions of the Law of Scotland (1693), 2.7.14. Huts or shielings in which the shepherds might shelter were commonplace where animals were put on the ground for pasturage in high or remote areas.
24. These examples tend to show, as in the case of aqueduct or drainage and the decision of Maecianus to which my noble and learned friend Lord Rodger of Earlsferry refers, that the fact that the servient proprietor is excluded from part of his property is not necessarily inimical to the existence of a servitude. I am not aware of any authority in Scotland which indicates the contrary. In principle therefore there seems to me to be no fundamental objection to the right which the pursuers seek to establish. I am fortified in this view by Lord Neuberger's valuable analysis of the English authorities.
25. The express grant in this case made no mention of any servitude right other than a right of access. In Cronin v Sutherland (1899) 2 F 217, where the issue was whether a servitude right of passage which had been limited to the use of the road by carts drawn by horses and laden with fuel or manure could be used by the owners of the dominant tenement as a means of egress from their property for vehicles containing the contents of an ashpit, Lord Trayner said at p 220 that the servitude right was the subject of a positive grant and must be strictly construed. That will be so where the servitude is constituted for particular purposes. At p 219 Lord Justice Clerk Macdonald said that there must be a strict interpretation of the document produced, so as not to make the burden upon the servient tenement more heavy than is the necessary consequence of the grant. It is obviously not possible to spell out of the words of the express grant in this case a self-standing servitude right to park vehicles on land belonging to the owner of the servient tenement.