SHERIFFDOM OF TAYSIDE, CENTRAL & FIFE AT DUNDEE Case Number: A32/11
	Judgment by JOHN K MUNDY, Esq. Advocate Sheriff of Tayside, Central & Fife in the cause HARTON HOMES LIMITED Pursuers against MRS ANNE DURK Defenders ­­­­­­­­­­­­­­­­­________________

Act: Buchanan

Alt: Dromgoole

DUNDEE, June 2012

The Sheriff, having resumed consideration of the cause

FINDS IN FACT

• The pursuers are a company incorporated under the Companies Acts and have their registered office at 216 West George Street, Glasgow, G2 2PQ. The defender, Mrs Anne Durk, resides at 95 Dundee Road, West Ferry, Dundee.

• The pursuers are the heritable proprietors of subjects comprising an area of ground at Dundee Road, West Ferry, Dundee, extending to 86/1000 of an hectare, and registered in the Land Register of Scotland under Title Number ANG36396 ("the pursuers' ground") conform to the copy Land Certificate lodged and forming 5/1/1 of process.

• The pursuers' ground is the same as that disponed in the Feu Disposition granted by Brian Richard Callison and Mrs Phyllis Joyce Callison in favour of Mrs Kathleen Fulton dated 14 and recorded in the General Register of Sasines for Angus on 25 January 1985 ("the Fulton Feu Disposition"), a copy of the Feu Disposition being lodged and forming 5/1/5 of process.

• The Land Certificate ANG36396 contains no reference to a servitude right of access or egress to and from the pursuer's ground. The only servitude of access referred to is a right of access to existing gas, electricity, sewer and water services serving the defender's subjects hereinafter described.

• The defender is the heritable proprietor of the subjects known as and forming 95 Dundee Road, West Ferry, Dundee extending to 91/1000 of an hectare ("the defender's property") by virtue of a Disposition by Alexander Leslie McLeish Robertson and Mrs Maureen Robertson in favour of the defender and her late husband dated 18 March and recorded in the General Register of Sasines for the County of Angus on 14 April 1992, a copy of the said disposition being lodged and forming 5/1/2 of process ("the 1992 disposition").

• The defender's property is defined in the 1992 disposition as being more particularly described in a Feu Disposition by Brian Richard Callison and Mrs Phyllis Joyce Callison in favour of Mrs Anne Penman dated 14 and recorded in the General Register of Sasines for the County of Angus on 25 both days of January 1985 ("the Penman Feu Disposition"), a copy of which is lodged and forming 5/1/4 of process.

• The pursuers' ground is situated immediately to the west of and is bounded on the east by the defender's property.

• The defender accesses and exits the defender's property using an entrance situated on the south thereof onto Dundee Road. The entrance has been formed by the creation of a break in the wall on the defender's property immediately to the north of the pavement adjacent to Dundee Road. It did not exist at the time of the grant of the Penman and Fulton Dispositions, both being granted on 14 January 1995. It was made at a later date by the defender's said predecessors in title Mr and Mrs Robertson (who acquired title from Penman) and who constructed inter alia a dwellinghouse on the defender's property.

• The pursuers' ground and the defender's property were previously split off from larger subjects (of which the pursuers' ground and the defender's subjects formed part) comprising 351/1000 hectare described in and disponed by a Disposition by Kathleen Dorothy Wright or Parr in favour of Richard Callison dated 5 November 1980 and recorded in the Register of Sasines for the County of Angus on 19 August 1981, a copy of which is lodged and forms 5/1/3 of process ("the 1981 disposition").

• The lands described in the 1981 disposition were disponed together with: "...a servitude right of access to and egress from the subjects hereby disponed over the access roadway leading from Dundee Road, aforesaid and delineated and coloured blue on the said plan...".The plan was annexed to the 1981 disposition.

• The said plan appended to the copy of the 1981 disposition produced is not in colour. However, the roadway mentioned in the disposition is that coloured blue in the plan forming part of the Title Sheet registered under Title Number ANG31498, the Quick Copy forming number 6/1 of process and the Office Copy forming 6/4 of process.

• In 1981, the pursuers' ground and the defender's property did not then exist as separate parcels of land and were not disponed into separate ownership until 1985.

• On or around 1 June 1984, Brian Callison submitted to the City of Dundee Council an application for planning permission for the construction of two private dwelling houses on the larger ground which was subsequently divided into plots representing what is now the pursuers' ground and the defender's property. Outline planning permission was granted on 10 September 1984. A copy of the planning permission and a copy of the grant of consent are lodged and form 5/2/1 and 5/2/2 of process respectively. The plan attached to the plan attached to the consent shows a proposed access to the south of the development site onto Dundee Road in an approximately central position. On that plan, no sub-division of the property is indicated.

• In around December 1984, Jack Fulton prepared applications on behalf of "Fulton" and "Penman" for the supply of water and for a drainage permit. The sketches attached to the applications showed a proposed sub-division of the site and indicate the proposed access as being on the defender's property.

• The titles conferred by the Penman Feu Disposition and the Fulton Feu Disposition were both granted subject to burdens identified by reference to a number of existing deeds including the 1981 Disposition.

• The Penman Disposition and the Fulton Disposition refer to and have annexed and subscribed as relative thereto plans showing the pursuers' ground and the defender's property respectively, which plans indicate an area of ground situated generally to the south of each marked "MUTUAL" which area of ground is hatched and boundary dimensions shown ("the hatched area"). Neither Feu Disposition makes reference to the hatched area.

• The only reference in the Penman Feu Disposition and the Fulton Feu Disposition to access is the right to access existing services as described in the said Land Certificate ANG36396.

• The terms of both the Penman Feu Disposition and Fulton Feu Disposition reflected an anticipation that there would be constructed on each of the pursuers' ground and the defender's property a private detached dwelling house with suitable offices including a garage for not more than two private motor vehicles.

• A private detached dwelling house with suitable offices has been constructed on the defender's property.

• The pursuers' ground remains undeveloped.

• There was no common intention at the time of severance amongst those who were party to the Fulton and Penman Feu Dispositions that the access claimed by the pursuers would be available as a matter of right.

• Strathearn Homes Limited (in administration) are the heritable proprietors of subjects known as 95 Dundee Road, West Ferry, Dundee the title being registered in the Land Register for Scotland under said Title Number ANG31498, the Quick Copy being lodged and forming 6/1 of process. The plan in the said Title Sheet is in colour and shows an access roadway leading east to west from Ellislea Road coloured brown and an access roadway leading from south to north from Dundee Road coloured blue. An Office Copy of the said Title Sheet is also lodged and forms 6/4 of process. It shows the same plan and colouring except that the access roadway leading from Ellislea Road is coloured orange rather than brown.

• Entry number 2 in the Burdens Section of the Title Sheet ANG31498 refers to a Grant of Servitude by James Reginald Parr to Brian Richard Callison and another recorded in the said General Register of Sasines on 19 August 1981 of a servitude right of access for pedestrian and vehicular traffic "over an access roadway tinted brown on the said plan". A copy of the Grant of Servitude is lodged and forms 6/2 of process. That deed refers to the access as being delineated and shown green on an attached plan, but the plan attached to that deed is not coloured and a colour copy of the plan is not recorded in the said Register. The access referred to is that running from Ellislea Road and being tinted brown on the plan attached to the said Quick Copy Land Certificate, the same access being tinted orange in the said Office Copy.

• Entry Number 3 in the Burdens Section of the Title Sheet ANG31498 refers to the 1981 Disposition and in particular the servitude right of access to and egress from the subjects disponed over the access roadway leading from Dundee Road being tinted blue on the plan attached to the said Quick Copy Land Certificate and said Office Copy.

• That the said access from Ellislea Road and the said access from Dundee Road meet at a point to the north or north east of the pursuers' land, the access from Ellislea Road then extending further to the west at which point the Dundee Road access ceases and the Ellislea Road access carries on to the west to a point approximately north of the pursuers' land, that point being indicated by a dotted line on the said plan attached to the Title Sheet ANG31498. That was the position at the time of severance in 1985.

• The said access roads, either individually or together, offer a potential means of physical access to the pursuers' land for pedestrian and vehicular traffic. That was the position at the time of severance in 1985.

• At least one of the access roads meets with the defender's property on the north side thereof.

• That the pursuers' title carries with it ownership of the wall on the south side of their subjects and the pavement adjoining Dundee Road.

• Neither the pursuers, in the person of anybody authorised by them, nor the pursuer's predecessors in title, have at any time used the access sought in this action in order to gain access to or egress from the pursuers' land. Further, it was not in use prior to the severance. Jack Fulton and David Penman accessed the property using the access road leading from Ellislea Road. Mr Fulton regarded it as the easiest route to the pursuers' land.

• The defender refuses to allow the pursuers to take access to and exit the pursuers' ground over the hatched area and using the entrance made in the wall on the north side of said pavement adjacent to Dundee Road.

FINDS IN FACT AND LAW

• That there was no common intention at the time of severance amongst those who were party to the Fulton and Penman Feu Dispositions that the access claimed by the pursuers would be available as a matter of right.

• That the access roads running from Ellislea Road and Dundee Road as identified in the plan attached to the Title Sheet Number ANG31498, either individually or together, are potentially available as access to the pursuers' land for pedestrian and vehicular traffic, either by express or implied servitude.

• That there is no, and was not in 1985, any impediment in terms of their title to the pursuers or their predecessors gaining access directly to Dundee Road from the south portion of the pursuers' land.

• That the servitude claimed by the pursuer is not, and was not at the time of severance, reasonably necessary for the comfortable use and enjoyment of the pursuers' land.

• That the servitude claimed was not foreshadowed prior to the severance of the land in 1985 by any exercise of that access.

• That no justification for the interdict sought has been demonstrated.

FINDS IN LAW

• That there is no servitude right of access or egress for pedestrian and vehicular traffic in favour of the pursuers' ground to and from the pursuers' ground and Dundee Road over that part of the defender's property shown hatched and marked "MUTUAL" on the plans annexed to the Fulton and Penman Dispositions.

• That there is no justification for the interdict craved by the pursuers in terms of their second crave.

THEREFORE sustains the second, third and fourth pleas-in-law for the defender and assoilzies the defender from the craves of the initial writ; repels the pursuers' pleas in law; finds the pursuers liable to the defender in the expenses of the cause except in so far as already dealt with, allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and report; certifies Donald Reid of Mitchells Roberton, Solicitors, George House, 36 North Hanover Street, Glasgow, G1 2AD as a skilled witness.

NOTE

Introduction

[1] This is an action at the instance of the pursuers for declarator that a servitude right of access exists to and from their ground over ground owned by the defender. The pursuers also seek interdict against interference with the exercise of access. The ground concerned lies generally to the north of Dundee Road, West Ferry, Dundee. The pursuers' ground lies immediately to the west of the defender's property and both formerly formed part of larger subjects at 95 Dundee Road owned by a Mr and Mrs Callison until simultaneously sold and split off in 1985 when the ground now owned by the pursuers was sold to Mrs Kathleen Fulton and the property now owned by the defender was sold to Mrs Anne Penman. Details of the title position are set out in the findings in fact.

[2] The issue in the case is whether or not there is exists an implied grant of servitude over an area of ground to the south of each of the two plots marked "MUTUAL" and shown hatched in the plans attached to the break off dispositions of 1985. The "mutual" area straddles both the pursuers' and defender's ground. A servitude would enable the pursuers to access their ground from Dundee road through an existing opening in the wall which is situated on the defender's property within the "mutual area". Neither disposition confers an express right of access nor do they mention the "mutual" area. The basis of the parties' positioned is outlined in the pleadings. In their averments the pursuers refer to an application for planning consent on behalf of Callison submitted in 1984 for the building of two dwelling houses, one on the defender's property and one on the pursuers' land. In Article 8 of Condescendence, they aver "The development of a dwellinghouse on each of the pursuers' ground and defender's property was foreseen in 1985 as hereinbefore condescended upon." They also aver that "The Pursuers and their predecessors in title have exercised access to the Pursuer's Ground over the access ground between 1985 and the date of commencement of these proceedings." The pursuers assert that an implied grant of servitude occurred in 1985 at the time of the break off dispositions. They aver that the implied servitude includes "ancillary rights to carry out works to construct the dwellinghouse and to form a road to make access to the dwelling house possible in accordance with the extant planning permission known to the parties in 1985 Dispositions." It is averred that "access to the Pursuers' ground is reasonably necessary for the comfortable enjoyment of the pursuer's ground" (the wording of the averment in being amended to this effect during submissions). The defender asserts that no such implied grant occurred and further that the "...Pursuers are able to access their ground by alternative means. In particular the Pursuers are able to access their ground from the north. There is no necessity to imply a servitude where there is alternative means of access." The parties both have general relevancy and specification pleas (first plea-in-law in each case). In addition the pursuers' second plea in law (on the merits) is in the following terms:

"2. There being in existence by implied grant a servitude right of access to and egress from the Pursuers' Ground over the access ground forming part of the Defender's Property, and the Pursuers being the heritable proprietors of the Pursuers' Ground, decree should be granted as craved."

The defender's pleas on the merits are as follows:

"2. The Pursuers averments so far as material being unfounded in fact the Defender should be assoilzied from the craves of the Initial Writ.

3. There being in existence no servitude right of access to and egress from the Pursuers' ground over the ground forming part of the Defender's property decree of absolvitor should be pronounced."

The pursuers do not have a specific plea relating to interdict. The defender's fourth plea is to the effect that interdict is not justified and the fifth plea is to the effect that interdict ad interim should be refused having regard to the balance of convenience. It appears that no interim order has been sought or granted in this case.

[3] The matter was appointed to debate on the parties' preliminary pleas. The pursuers were content that their preliminary plea could be considered at a proof before answer. At debate, the defender's plea was argued on the footing that the pursuer's case was irrelevant and did not set up a case of implied grant based on necessity or reasonable necessity for comfortable use and enjoyment, particularly where there were alternative means of access. Following debate a proof before answer was allowed by Sheriff Hughes who issued a written judgement. He reserved the defender's preliminary plea, taking the view that the court would require to hear evidence on those issues. He also reserved the pursuer's preliminary plea.

[4] The case came before me for the proof before answer and proceeded over three days. Miss Buchanan appeared on behalf of the pursuers and Miss Dromgoole on behalf of the defender. On day one evidence was led on behalf of the pursuers from Jack Fulton and David Penman. At this stage, before the close of the pursuers' case, evidence was led on behalf of the defender from Donald Reid, solicitor and thereafter the case was adjourned. On day two, evidence was led from the final witness, Professor Roderick Paisley, on behalf of the pursuer. Following the completion of the evidence, a view of the locus took place the next day when I attended at the subjects in issue along with agents for both sides. The parties thereafter made their submissions on the same day (day three). The parties lodged a Joint Minute of Admissions agreeing certain facts, including certain title details. I have incorporated those facts in so far as material into my findings in fact.

Summary of the Evidence

[5] Jack Fulton is a retired architect who until recently had his own business. At the time of the events in question he was a partner in Arkos Design Partnership. He is a director of the pursuers. I assumed, although I have no recollection of any direct evidence on the point, that he was the spouse of Mrs Kathleen Fulton, in whose name the title was taken in the break-off disposition. He spoke to the documents 5/2/1 to 5/2/4 of process - the applications for outline planning permission, the outline consent, the application for supply of water and the application for a drainage permit, all in relation to the land at 95 Dundee Road. On 1 June 1984 Arkos submitted the planning application on behalf of Brian Callison to develop two private dwelling houses on the site which now comprises the pursuers' ground and defender's property. Outline consent was granted subject to various conditions. It was proposed that access to both properties would be available from Dundee Road at a point on the south of the development site. I pause to note that this is shown on the plan attached to the consent lying approximately in a central position at the south end of the plots, with no boundary being shown dividing the plots. However, the sketches attached to the water and drainage applications, which were submitted on behalf of "Fulton" and "Penman" show the proposed access clearly on the defender's property within a "mutual area". This position was, said Mr Fulton, to allow for turning and for more convenient access to Dundee Road. At that time the opening onto Dundee Road was not then created. A stone wall ran along the north side of the pavement and on the south side of the properties. However, he said that the forming of such an opening was the intention of the development. The land was purchased from Callison in 1985 who sold the pursuers' ground to Mrs Kathleen Fulton and the defender's property to Mrs Anne Penman at the same time. Neither plot was developed at that stage. It was only when a Mr and Mrs Robertson purchased from Penman at a later (unspecified) date that a house was constructed on the defender's property and an opening created onto Dundee Road through the existing wall on the defender's property. The pursuer wished to gain access through the opening for the purpose of accessing the ground with the intention that a house may be constructed but this was being resisted by the defender who now owned the Penman plot. The ground had never been developed. Mr Fulton spoke of previously gaining access to the ground from Ellislea Road and coming on to the site from the north including visits for picnics with his wife and friends. He did not use the disputed access. When asked about his use of the route to the north, he indicated that he drove in and parked. Nobody had any objection. He simply accessed the property by the easiest route with no thought to legal entitlements. It was not clear to me whether he had used the access from Dundee Road (the horseshoe shaped access to which reference will be made later). The access now sought was proposed after discussion with the authorities. I took this to be a reference to planning authorities. The title was taken in the name of his wife. It was subsequently transferred to the pursuers.

[6] David Penman talked of the purchase of the defender's property in the 1980's. His wife took title. He spoke of the common intention to access both properties from Dundee Road, with access being on the easiest side (the defender's side) for line of sight. The "mutual" area was to be the car parking area and access for both properties. The property was sold on to a Mr and Mrs Robertson who developed the site and made the opening. He took access to the defender's property via Ellislea Road.

[7] Donald Reid is a solicitor of Mitchells Roberton, Glasgow with substantial experience in conveyancing and property law. He had examined the available titles in this case. He had not visited the site. He spoke of the evidential status of on Office Copy Land Certificate as being generally the equivalent of the Land Certificate itself. A Quick Copy did not have the same evidential status. The relevance of this appeared to relate to the alternative access said to be available from the north under reference to Numbers 6/1, 6/2 and 6/4 of process. These were the Quick Copy Land Certificate, Deed of Servitude and Office Copy Land Certificate and referred to the access road leading from Ellislea Road and running towards the north of the land in question and also the road running to the north of the subjects from Dundee Road. 6/1 was the Quick Copy of the Land Certificate relating to an area of ground owned by Strathearn Homes Ltd (in liquidation) which surrounds the pursuer's ground, the defender property and the property retained by Callison at the time of the break off. The plan showed the access roadway running from Ellislea Road as a burden. The access was coloured brown. It was orange in the Office Copy (6/4) but this was he said a common feature of such plans. The Deed of Servitude referred to the access as green. There was no explanation for that. As for the access from Dundee Road - the half horseshoe shape - this was the roadway coloured blue on the Land Certificate plan, albeit that it was not shown coloured in the 1981 Disposition (as produced) that created it. In cross-examination, Mr Reid was unable to say for certain what the extent of the access road was from Ellislea Road. He said one could plot on the ground and form a view, but I pause to observe that I do not understand this to have been done. He was unable to say what the significance was of the line which delineated the boundary between the blue and brown (or orange) areas. He speculated that it may have been a feature on the ground. However, beyond the dotted line, which marked the western extent of the "brown access" was the excusive property of Strathearn. On the matter of colouring he referred to the Keeper having a "Midas Touch".

[8] Professor Paisley visited the site a week before he gave evidence and was able to describe the physical features on the ground. The site was on a gradient and travelling from the south boundary on Dundee Road, the ground rose and after about halfway, travelling north, it rose sharply where there were shrubs, bushes and trees situated on the north side. He described the access road from Dundee Road and Ellislea Road. On the latter was an archway with old hinges which used to house a gate (now missing). The former roadway was in the shape of a half horseshoe. This was a private road. Professor Paisley had examined the titles and confirmed that the pursuers' title (5/1) did not expressly confer a right of access to the pursuers' ground. He described the conveyancing as being "sloppy" in this respect. Under reference to the 1981 Disposition (5/1/3) he confirmed that the right of access referred to coloured blue (although the available plan was not coloured) would be the half horseshoe access. Without the colouring however, it was difficult to be sure of the extent of that access - in other words - how far it extended on the ground. He did mention the pertinents clause which conveyed the subjects "TOGETHER WITH (One) the dwellinghouse known as and forming Ninety Five Dundee Road..." his suggestion being that the access was restricted to that dwellinghouse and attached ground only. The Deed of Servitude (6/2) described the access from Ellislea Road and Professor Paisley drew attention to the proviso to the grant which states: "But declaring that these presents are granted with and under the following condition namely:- The said right of access should not be exercised so as to materially increase the burden on my [the grantor's] property and the said right shall at all times be exercised reasonably and so as to occasion as little inconvenience as may be to me and my successors." He said that the "no material increase" provision was indicative of a restriction in the servitude to access to a single house and militated against the idea of the access being used for additional houses on the pursuers' ground or defender's property. No right of access were mentioned in the pursuers' title. He stressed that the 1985 Feu Dispositions to Penman and Fulton were granted on the same date and by the same party. They were "to a design" and it was necessary to look at both deeds together. He conceded however that the plans annexed to each of the Feu Dispositions were demonstrative only and not binding and further that the "mutual" area was not referred to in either deed. Professor Paisley referred to access from the north being inadequate. There was an archway on the access from Ellislea Road which was around 9 feet wide and 8 feet high. This would restrict access, particularly for any construction traffic. He referred to clause 8 of the burdens clause on page 4 of the Penman Feu Disposition which provides: "the feuars shall be bound by the provisions of any Tree Preservation Order to the extent that the same affects any trees presently growing on the Feu". There were trees throughout the ground, particularly on the north where there was a sharp incline. The inference was that this would create a legal as well as physical impediment to access. However, I would pause to observe that it was not clear on the evidence that such an order in fact affected the subjects. As regards the half-horseshoe shaped road, he said that this was not included in the pursuers' title, there being no reference to the 1981 Disposition. There was he said a "mild inference" that this was excluded. It was possible that the ground was simply disponed without such servitudes. The reference in the 1981 Disposition to a servitude was in the context of one dwellinghouse and the fact that it was omitted from the Fulton and Penman Dispositions could give rise to a reasonable inference that the servitude was discharged. There was on one view no intention to create a servitude of access for either Fulton or Penman. This pointed to access being through the mutual area. Professor Paisley however emphasised that it was not for him to say whether there was such a servitude in existence, the matter being one for the court. He suggested that the use of colours in the Office Copy Land Certificate (6/4) was baffling and was of no value in trying to ascertain whether there was an alternative access. In cross-examination he ventured that the access point onto Dundee Road (made by the Robertsons) probably depended upon planning considerations. As regards the half-horseshoe access, this was possibly overlooked in the 1985 Feu Dispositions but his view was that it was deliberately left out which conformed with the conveyancing practice of the day when it was sought to discharge such a right.

[9] As indicated, following completion of the evidence I viewed the locus of the dispute in order to properly understand the context of the evidence that had been given and the submissions to follow.

Submissions for pursuers

[10] Miss Buchanan invited me to sustain the pursuers' pleas-in-law, principally the second plea on the merits, and to grant decree as first craved with expenses as taxed. She also invited me to repel the defender's pleas-in-law. The pursuers' position was that by implied grant there exists in favour of the pursuers' ground a servitude right of access for pedestrian and vehicular traffic to and from that ground over that part of the property owned by the defender and shown hatched and marked "mutual" on the plan annexed to the Fulton Feu Disposition, the plan being identical to the plan attached to the Penman Feu Disposition of even date, and that the pursuers, their tenants and servants were entitled to free ish and entry to the pursuers' ground over that "mutual" area. She also "formally" sought interdict in terms of the second crave of the writ to prevent the defender and others from interfering with the exercise of access, although she conceded that hitherto there had been no need to obtain an order ad interim.

[11] Miss Buchanan referred to the evidence of the witnesses. She submitted that the evidence of Mr Fulton and Mr Penman should be accepted as both credible and reliable. In particular they gave evidence that at the time of their purchase of the properties in 1985 it was anticipated by all concerned that access to the plots in question would be taken from Dundee Road. In support of this Mr Fulton gave evidence of his representation of the Callisons in the capacity of architect in 1984 and spoke to the various planning and other permissions sought from the local authority at that time, all of which reflected an intention to access the plots from Dundee Road. This was clearly the outcome that the sellers (the Callisons) had in contemplation and indeed, the outline planning permission for development of the plots was granted on that basis. That access to the plots was to be taken from Dundee Road was also clearly the expectation of the purchasers, and Mr Fulton and Mr Penman gave evidence about that.

[12] She submitted that Mr Donald Reid and Professor Roderick Paisley gave evidence as to matters of title interpretation and conveyancing practice. Mr Reid had not, however, visited the site and his contribution was based on an examination of deeds only. Professor Paisley had attended on site and was able to speak to site features as an aid to interpretation of and understanding the conveyancing history. Professor Paisley, she said, was recognised as one of only a handful of worldwide experts in the field of servitudes having co-authored the principal Scottish text on the subject. Professor Paisley's evidence was comprehensive and was clearly based on a thorough and detailed review of the various titles deeds. He described what he referred to as the "pattern of conveyancing" and explained the basis for his conclusion that access was always intended to be taken over the "mutual" area referred to in the 1985 break-off deed in favour of the Fulton. Indeed, his evidence was substantially unchallenged in cross-examination and insofar as there was any challenge he accepted there could be other explanations for the title position but that the "pattern of conveyancing" was more supportive of his primary view. Miss Buchanan submitted that the evidence of Professor Paisley should be preferred.

[13] Miss Buchanan made a preliminary submission in relation to the averments. The parties were agreed that there is no express servitude right of access over the defender's property in favour of the pursuers' ground. In Answer 8, the defender averred that no grant of servitude was capable of implication. The defender averred, in what might be described as statements that lacked any specification, that "the Pursuers' are able to access their ground by alternative means" and that "the Pursuers' are able to access their ground from the north". She submitted that the physical ability of access was somewhat different from the legal possibility of access and in the defender's averments there was, firstly, no averment that the pursuers had a legal right to take access by alternative means or from the north nor, secondly, were there any averments supporting any legal foundation for the suggestion that there was an alternative access capable of being exercised from the north. She observed that during the proof some time was spent looking at a Deed of Servitude by James Parr in favour of the Callisons dating back to 1981 and a Land Certificate in the name of Strathern Homes dating from 2007. What were we to make of these documents? What was the significance of them? There were no linking averments on Record. These title deeds were not mentioned anywhere on Record, and in these circumstances, the pursuers did not have fair notice of what the defender intended to make of them. She submitted that these documents should be disregarded by the Court and referred in this connection to Burns v Dixon's Iron Works 1961 SC 102 and MacPhail's Sheriff Court Practice (3^rd Ed), paragraphs 9.27-9.31. However, Miss Buchanan then proceeded with her main submissions on the hypothesis that I may not be with her on her preliminary point.

[14] She submitted, firstly, that the access from Ellislea Road granted in terms of the Deed of Servitude to the Callisons could be regarded as subsidiary to that from Dundee Road granted under the 1981 Disposition. It was and continued to be insufficient for the development of the two areas of ground subsequently sold by the Callisons to the pursuers' and the defender's predecessors in title (Fulton and Penman). The property purchased by the Callisons comprised only one house and there was reference in the Deed of Servitude to the burden of use not being increased. At the time of the grant of the 1981 Deed the parties to the Deed of Servitude foresaw use by the occupiers of a single house. There was no reference to any proposal for development. There was therefore no room for the Court to imply a servitude over that route for a primary access into the split off subjects now owned by the pursuers. It was significant that the Deed of Servitude was not referred to in either the pursuers' or the defender's titles.

[15] Miss Buchanan submitted, secondly, that at the point of sub-division of the property owned by the Callisons, the parties were free to make new arrangements to access their respective sites either expressly (which would have been preferable) or by implication particularly bearing in mind the reference in the 1981 Deed of Servitude by James Parr in favour of the Callisons to the burden of use not being increased. The parties clearly made arrangements to access the two break-off plots from the new entrance to be created to the south from Dundee Road. That was supported by the planning and other permissions sought by Mr and Mrs Callison to which Mr Fulton spoke in his evidence and also, it was submitted, by the detail on the plans attached to the 1985 Feu Dispositions which, on the evidence of Professor Paisley, a conveyancer would not ignore notwithstanding the lack of any express reference in the text of the deeds themselves.

[16] Thirdly, Miss Buchanan submitted that the test for creation of an implied servitude in the circumstances was that of "reasonable necessity". What was "reasonably necessary" for the comfortable enjoyment of the dominant tenement? The point in time at which "reasonable necessity" had to be judged was at the date upon which the site was split, namely 1985. It is for that reason that the Strathearn Land Certificate registered for the first time in 2004 was of no consequence. That was the evidence of Professor Paisley. As at the date of the title split in 1985 the access roadways shown in the plan attached to the Land Certificate that did exist to the entire site owned by the Callisons were not defined and it was only logical I think that a deed prepared almost 20 years later could not assist The Feu Dispositions of the two plots by the Callisons to Fulton and Penman respectively were simultaneous. The extent of the 1981 Deed of Servitude was not known in 1985. Separately, if the 1981 Deed of Servitude was insufficient and inadequate for the development contemplated in 1985 then there was scope for an additional access to be created by implied grant by virtue of being reasonably necessary. Indeed the 1981 Deed of Servitude contained an express condition that "...the said right of access should not be exercised so as to materially increase the burden on my property and the said right shall at all times be exercised reasonably so as to occasion as little inconvenience as may be to me and my successors." In relation to necessity, Miss Buchanan also referred to Development, it was submitted, was clearly in the contemplation of all the parties and reflected a common intention that the plots be developed with one house being constructed on each. The Callisons had applied for planning and other local authority permissions and the Fultons and Penmans had purchased the adjacent plots for the development of them as their own homes. The Feu Dispositions between these parties also made clear provision for the construction of one dwelling house on each plot. From the north, the access from Ellislea Road led through a narrow and shallow stone archway and the gradient of the ground to the north of the plots where it met the access from Ellislea Road was very steep and unsuitable for construction traffic. Other significant factors in 1985 which combined to show an intent to take access from the south onto Dundee Road were (a) the plans attached the 1985 Feu Dispositions to Mrs Kathleen Fulton and Mrs Anne Penman clearly show an area of ground marked "mutual". Whilst that area was not referred to within the text of the Feu Dispositions themselves, the plans were signed and the content was not intended to be meaningless; and (b) there was a Tree Preservation Order affecting the entire site. In support of her submissions under this head, Miss Buchanan referred to Cuisine & Paisley, paragraphs 8.11, 8.13-8.15 and 8.20; Union Heritable Securities Company Limited v John Mathie (1886) 13R 670; Moncrieff v Jamieson 2008 SC(HL) 1; Stafford v Lee (1993) 65 P. & C.R. 172 and Pwylbach Colliery Company Limited v Woodman [1915] AC 634.

[17] Fourthly, it was submitted that another possibility for there being no reference in the 1985 Feu Dispositions to the 1981 Deed of Servitude was an indication of an abandonment of that right at least as regards the parts of the property being disponed to Fulton and Penman.

[18] Fifthly, Miss Buchanan submitted that prima facie, while the general rule was that land split from a larger area would benefit from all servitudes affecting the larger area unless there were indications to the contrary as at the date of splitting up (Alba Homes Ltd v Duell 1993 SLT (Sh Ct) 49). There were, she said, such counter-indications in this case: (1) the terms of the 1981 Deed of Servitude indicated that exercise of the access should not materially affect the burden on the servient property retained by Mr Parr (2) the extent of the access could not be identified as the plan attached to the Deed of Servitude was not coloured (3) there was no reference to the Deed of Servitude in the 1985 Feu Dispositions which reflected the physical inadequacy of that access for the purposes of construction of a dwelling house on each plot (4) there was no reference to the Deed of Servitude in the 1985 Feu Dispositions which may also indicate abandonment (5) there was and continued to be in existence a Tree Preservation Order affecting the subjects (6) the 1985 Feu Disposition by the Callisons in favour of Anne Penman referred to the driveway from Dundee Road over which the Callisons obtained an express servitude right of access on purchasing the property from Kathleen Parr as "... the southwestmost edge of a driveway serving adjacent subjects ..." This tended to suggest there was no intention that the access would serve that plot and therefore it would not serve the pursuers' ground situated further west either and (7) the extent of the access coloured blue on the plan annexed to the 1981 Feu Disposition in favour of the Callisons could not be identified as the plan attached to the Feu Disposition was not coloured.

[19] As her sixth point, Miss Buchanan submitted that the servitude right of access to Ellislea Road granted in terms of the 1981 Deed of Servitude should be strictly construed. The Deed provided for "... a servitude right of access for pedestrian and vehicular traffic over that part of the said access roadway leading from their property to Elliselea Road ..." Reference was made to Carstairs v Spence 1924 S.C. 380. Servitudes were interpreted rigorously and the route of the servitude was therefore from end to end, i.e. Ellieslea Road to and from the property owned by the Callisons. If the defender's suggestion was that by a combination of the driveway from Dundee Road (the "blue" access on the 1981 Feu Disposition) and the access from Ellieslea Road, the Pursuers could, in effect, access their plot from the north down the driveway to Dundee Road then that was not accepted as being a legitimate means of access.

[20] The last point was in relation to the Strathearn Land Certificate ANG 31498. Miss Buchanan said that the property now owned by Strathern Homes Limited (in administration) was first registered in the Land Register on 26 April 2004. The colouring on the plan attached to their Land Certificate numbered ANG31498 may be right or may be wrong. No evidence from the Keeper or his staff was heard and the basis for the colouring was unclear given the lack of colouring on the foundation writs that had previously been examined, such as the Feu Disposition by Mrs Kathleen Parr in favour of the Callisons and the Deed of Servitude granted by James Parr in 1981. Donald Reid's evidence was that the Keeper has a "Midas Touch" and that his decision on such matters was binding. Professor Paisley's evidence was that, in any event, the colouring was irrelevant. The point in time for considering the existence or otherwise of a servitude is 1985 at the date of sub-division and therefore the colouring of the Land Certificate in 2004, 19 years later, could not be utilised to define an access with retrospective effect. I was invited to prefer the evidence of Professor Paisley in that connection.

[21] Miss Buchanan concluded by submitting the balance of probabilities rested in the pursuers' favour and the weight of evidence supported the pursuers' contention as to the access position. In summary, I should conclude that by implied grant there exists as sought in the first crave. That implied grant was created in 1985 at the time of severance of the pursuers' ground from the larger subjects and passed as a pertinent of the dominant tenement since. The implied grant was at that time reasonably necessary for the comfortable enjoyment of the pursuers' ground. The wording on the plans attached to the two 1985 Feu Dispositions when taken with other attendant factors as described was indicative of a servitude even although there is no reference to the "mutual" area in the written narratives of the deeds themselves.

Submissions for defender

[22] Miss Dromgoole opened her submissions by responding to the pursuers' preliminary point on the averments. She submitted that there was sufficient notice of the defender's case as to alternative means of access on record. It was not a question of determining whether or not there was such an access as a matter of legal right. The proper question was whether the access sought by the pursuers was absolutely necessary or alternatively reasonably necessary for the comfortable use and enjoyment of their property. She distinguished Burns v Dixon Iron Works where there had been a failure on the part of the pursuer to aver a ground of fault upon which a verdict proceeded. The burden was on the pursuer as here. It was not incumbent upon the defender to prove alternative means of access. He averments made on behalf of the defender merely enabled the issue to be explored. She submitted that evidence had been led of particulars which was essentially a development of the averments on record. There was no undue prejudice as the productions had been lodged well in advance of the proof and indeed before the debate at which time the pursuers were content merely to have their preliminary plea reserved. A proof had been allowed on inter alia the question of alternative means of access and it was clear to that the pursuers were aware of the issue.

[23] Turning to her substantive submissions, Miss Dromgoole submitted that the pursuer had failed to establish a servitude right of access and egress from the pursuer's ground over the ground forming part of the defender's property. There was no express right of access over the defender's property. The pursuer had failed to satisfy the test required to imply a servitude. Decree of absolvitor should therefore be pronounced together with expenses. She also had what was in effect a preliminary submission having regard to the averments.

[24] She indicated that it was a matter of admission that there exists no express right of access or egress in the pursuers' title. A servitude could only be implied in particular circumstances and where it was necessary to do so. The pursuer had failed to make sufficient averments nor lead any evidence to support the proposition of necessity. Similarly, the pursuer made certain averments regarding an implied servitude right of access and implied ancillary rights (to carry out works to construct a dwellinghouse and to form a road to enable access in terms of the planning permission). The pursuer made no averments as to how any ancillary rights could be implied in the circumstances. There was also no evidence led in support of this. She submitted that the situation was quite different now and that it was not appropriate to take account of outline planning consent obtained in 1984. The pursuer's averments anent ancillary rights were lacking in essential specification. There was no crave related to any order regarding ancillary rights. Miss Dromgoole submitted, harking back to the arguments at debate, that the deficiencies in the pursuers' averments regarding the necessity of implying a servitude resulted in their failure to make a competent case in law when applied to the facts of the case.

[25] Miss Dromgoole submitted that as a matter of fact, the pursuers had failed to establish any degree of necessity. She submitted that it was possible for a servitude to be implied, although this represented a departure from the basic presumption against encroachment on the inherent rights of property owners (Stair Memorial Encyclopaedia (AGM Duncan) Vol. 18, para 452, page 379). She indicated that the law was not very favourable towards such claims, as to imply a servitude for the benefit of one property was to imply a burden on another and implied burdens were looked upon with disfavour as being inconsistent with the presumption in favour of freedom of property (Gordon Scottish Land Law ((1989), para 24-34, page 764). The case proceeded, she submitted, on the basis of implication of servitude where the properties belonging to each of the pursuers and defender had at one time been held together as part of larger subjects. She referred to the analysis in Bell's Principles (10^th Ed, Rev) at para 992, page 408 where it is stated:

"...servitudes may be created by implied grant upon the severance of two tenements previously possessed together. When an owner conveys a part of his tenement as it has been possessed by himself, all such uses or easements over the portion retained, which are necessary for the comfortable enjoyment of the part granted and have been and are at the time of the grant used by the owner of the whole for the benefit of the part granted, pass to the grantee..."

She submitted that the analysis in Bell envisaged a situation where an owner of a large plot sells of a part of that plot retaining the remainder. That is not what happened here. In this case the owner of the large plot split it in two and transferred ownership, by the 1985 dispositions to the pursuers and the defender's predecessors in title. The transfers effecting the severance of the original property were executed and registered on the same days in 1985 namely 14 and 25 January. There was no property retained by the transferor (by which I took Miss Dromgoole to mean no property retained which included the access sought). To that end the legal authority that the proprietor acquiring ownership was entitled to all rights afforded to the retaining owner was of little assistance to the pursuer.

[26] However, she referred to the later passage in the same paragraph of Bell's Principles which provides as follows:

"When the severance occurs by simultaneous conveyances to third parties the presumption is in favour of the constitution into a servitude of a benefit enjoyed in the manner above stated during the unity of possession, at least where the two grantees have notice of the two transactions."

This passage was not, she submitted, of assistance to the pursuer. The language "in the manner above stated" indicated that the passage needed to be read alongside the earlier passage and referred to an implied servitude in the circumstances where the uses "have been and are at the time of the grant used by the owner of the whole for the benefit of the part granted." The evidence of Mr Fulton and Mr Penman was that, at the time of their purchase of their respective properties (now owned by the pursuers and the defender) there was no direct means of access from Dundee Road to either plot. Mr Fulton gave evidence that the Robertsons, who purchased the right hand plot from Mrs Penman and developed it, building a house which is now the defender's home, created the break in the wall by which the defender can take access to her property. There was therefore at the time of the division, in 1985, no use by the owner of the servitude which the pursuers sought to imply, there being no physical prospect of that use being exercised.

[27] Miss Dromgoole referred to one of the pre-requisites of an implied servitude - that it must be absolutely necessary, or at least reasonably necessary, for the comfortable enjoyment of the tenement first disponed by the common author (Gordon para 24-35). She submitted that the pursuers' Land Certificate clearly showed potential alternative means of access over roadways leading from Ellislea Road and Dundee Road, rather than through the private garden owned by the defender. It was unreasonable to imply a servitude through private ground where other more conventional means existed. She submitted that it was not for the defender to prove alternative means of access, rather it was for the pursuers to prove that the servitude was necessary or reasonably necessary for the comfortable use and enjoyment of their property, which entailed the pursuers requiring to prove that in the absence of the servitude sought there would either be no access to its property or that the property could not be comfortably enjoyed without it.

[28] With regard to the alternative means of access, Miss Dromgoole referred to the evidence of Mr Fulton. When the planning applications were made in 1984 the opening onto Dundee Road at the south end of the defender's property was not there and that was the position in 1985. Penman sold on to the Robertsons. They constructed the house on the plot and created the access within their property. By his own admission Mr Fulton accessed the bare plot (owned by his wife) at weekends and for picnics. When the Robertsons arrived, he accessed the plot from the north. He "went round the top of the original road that went with the main house, parked up there and walked down". That was the road that arced down to Dundee Road. He accepted that there were other means of access from Ellislea Road which he referred to as the "original estate road". He used both roads. Coming onto the plot from the north was the "easiest physical route". Miss Dromgoole therefore submitted that there could be no implication of a servitude as being necessary or reasonably necessary where there was such an alternative route. Further, the access sought did not, according to the evidence of Mr Fulton and Mr Penman, exist in 1985.

[29] Miss Dromgoole referred to the conditions which must exist for the creation of a servitude by implication and referred to a passage in Cusine & Paisley, para 8.10 at page 291, as follows

"The authorities indicate that there are a number of conditions for the creation of a servitude by grant or reservation implied from the facts and circumstances. As we shall see, the conditions are not all absolute and are as follows:

(1) the servitude claimed must generally be positive.

(2) The servitude claimed must be reasonably necessary for the comfortable enjoyment of the benefited tenement.

(3) The dominant and servient tenements must have been owned at the same time by the same party in the same capacity ("the common author") and then severed.

(4) The servitude must generally have been foreshadowed prior to the severance by some exercise of the activity which is now claimed to be justified in terms of the servitude;

(5) Claims to an implied reservation of a servitude over lands disponed are regarded with less favour than claims to an implied grant of a servitude over retained lands

(6) The terms of the deed effecting the severance of the tenements will require to be examined to ensure that it does not exclude the implication of a grant of reservation of a servitude

(7) The common author usually requires to have both title and capacity to create a servitude at the time of the implied grant or reservation"

It was submitted that the pursuers had failed to make relevant averments in relation to conditions (2) and (4) and in any event there was no evidence to support those propositions. In particular, there were alternatives means of access and it would not have been possible to access the pursuers' property by the means sought at the time of severance and not until the development undertaken by the Robertsons. It was reasonable imply that in 1985, the predecessor in title to both parties exercised access to his property by the access routes from Dundee Road and Ellislea Road respectively described as coloured blue on the 1981 Disposition and green in the Deed of Servitude. The evidence from Mr Reid was that sometimes the colours in Sasine titles were changed by the Keeper when a Land Certificate is prepared. Land Certificate ANG31498 made reference to both deeds in the Burdens Section being Burden 2 and 3 respectively. Within Burdens Detail 2 the access roadway over which a servitude right of access is granted in accordance with the Grant of Servitude was defined as being "a servitude right if access for pedestrian and vehicular traffic over that part of the access roadway tinted brown." The Deed of Servitude used the same words other than the access roadway being tinted green. It was reasonable to imply that the access roadway tinted brown on the Land Certificate was the same access roadway referred to in the Deed of Servitude as representing the Keeper's interpretation of the prior deeds. Burdens Detail 3 recorded a "servitude right of access to and egress from the subjects hereby disponed over the access roadway leading from Dundee Road aforesaid tinted blue on the title plan" with reference to the 1981 Disposition. There was no reference within the Land Certificate ANG31498 (Strathearn) to any other area coloured brown or blue other than in the Burdens section. The plan contained within Land Certificate was in colour and showed two roadways coloured brown and blue respectively. It was reasonable to imply that those roadways are those referred to in the Grant of Servitude and the 1981 Disposition. It was therefore submitted that in 1985 the pursuers' predecessor in title had the benefit of two servitude rights of access which are coloured brown and blue respectively on Land Certificate ANG31498. Express servitude rights of access ran with the land (Land Registration (Scotland) Act 1979 section 3) and therefore any servitude rights created in favour of the pursuers' predecessor in title now vested in the pursuers.

[30] The pursuer having alternative means of access, it was submitted that the test of necessity was not met. It was submitted that even if those (express) servitudes did not in fact exist, there was the possibility of implied servitudes over those routes and this would have less impact in the sense of encroachment than the proposed route through the defender's garden ground.

[31] Miss Dromgoole submitted that the pursuers in this case sought to imply a servitude based purely on the proposition that the absence of the servitude would inhibit them personally and that this was not relevant (Cusine & Paisley at para 8.11, page 292). The pursuers sought to develop their property, which they were entitled to do, and the purpose of the servitude which they sought to imply was to their benefit only. The lack of the servitude which they sought to imply would not in fact inhibit them personally having, as they do, an alternative means of access from Ellislea Road and Dundee Road and even if it did, this would not satisfy the test of necessity.

[32] It was submitted that any party seeking to imply a servitude requires to show that the right was necessary at the time of the severance, in this case 1985, rather than at some later stage (Cusine & Paisley, at para 8.13). At no point in the Record did the pursuer make any averments to support the necessity to imply a servitude at the time of the severance. No evidence was lead to that effect either. The Deed of Servitude and 1981 Disposition both created alternative servitude rights of access in favour of the pursuer's predecessor in title over roadways in 1981. It could be reasonably inferred from the circumstances that these were the means by which the pursuers' predecessor in title accessed the property. The servitude which the pursuer seeks to imply now cannot have been necessary at the time of the severance in 1985. In fact, by Mr Fulton and Mr Penman's evidence the access direct from Dundee Road as sought was not available to either plot in 1985 and was constructed by the defender's predecessors in title, the Robertsons at some point following Mr Penman's sale to Mr & Mrs Robertson.

[33] She said that in the leading case on servitudes implied from facts and circumstances, Ewart v Cochrane (1861) 4 Macq. 117 HL, Lord Campbell's dictum on page 4 provides as follows:

"when two properties are possessed by the same owner, and there has been a severance made of one 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 be the usual words of conveyance.

When I say necessary, I do not mean so essentially necessary that the property could have no value without it; but necessary for the comfortable enjoyment as it existed at the time of the grant."

It was submitted that there were no averments on record to support any suggestion of necessity in 1985. The pursuers incorporated their Land Certificate brevitatis causa which clearly showed potential alternative means of access to the pursuers' property by way of roadways from Ellislea Road and Dundee Road respectively. It was submitted that the pursuers had failed to address the fact that in 1985, there were two alternative means of access and that the means of access sought was not possible at that time there being no break in the wall on the south of the defender's property adjacent to Dundee Road. Miss Dromgoole also referred to Stair Memorial Encyclopaedia (AGM Duncan) para 453 at page 380 in this connection.

[34] Miss Dromgoole submitted that the pursuers did not seek to aver that the area of ground marked "mutual" on the 1985 Dispositions was a roadway and it would in any event be illogical there being no road or other pathway over the particular area. The words "mutual" and the area hatched on the plans attached to the 1985 dispositions had no meaning.

[35] She also referred to Menzies v The Marquess of Breadalbane (1901) 4 F 59 and McEachen v Lister 1976 SLT (Sh Ct) 38 as demonstrating the relevance of alternative means of access. The Menzies case concerned an attempt to imply a servitude over an area of land. The court found that the pursuer had alternative means of access although it appears that those alternative means were significantly less convenient requiring as they did access by boat rather than land. However, alternative means of access existed and therefore the pursuer's case failed due to his inability to satisfy the requirement of necessity or necessity for the reasonable enjoyment of his property. In the Menzies case the pursuer failed to establish an implied servitude on the basis that it could take access by boat, ford or bridge. In this case, even if the pursuer were unable to access its property from the north (which was denied) the test of necessity may also fail on the basis that access could be taken through the wall to the south of the pursuer's property. The case law confirmed that access need not be convenient to exist. Miss Dromgoole also referred to McLaren v City of Glasgow Union Railway Company (1878) 5R 1042.

[36] As to what was foreseen in 1985, it was submitted that the predecessor in title of both pursuers and defenders having access over two roadways, it is unlikely that he would have foreseen any other access being required, particularly to the detriment of one of the plots he was disponing.

[37] In conclusion it was submitted that the pursuers had failed to discharge the burden of proving an implied servitude. Miss Dromgoole invited me to repel the pursuers' pleas-in-law and grant decree of absolvitor with expenses and to certify Mr Reid as a skilled witness.

Discussion

Preliminary Arguments

[38] First dealing with the preliminary arguments on both sides, I am not persuaded that I should disregard the Deed of Servitude or the Strathearn Land Certificate because of a lack of averment on the part of the defender. As noted there is an averment about the pursuers having an alternative means of access from the north. Evidence was led, without objection, under reference to both documents as also the 1981 Disposition on the issue of alternative access. The documents had been lodged prior to the debate, let alone the proof, and the issue ventilated then in the context of the defender's submissions. I cannot help but conclude that the pursuers' were well aware of the defender's arguments in this regard. In any event I consider the evidence led to be a development of that theme. The situation in Burns v Dixon's Iron Works was quite different. In that case the jury had returned a verdict on a ground of fault not advanced on record, the onus being on the pursuer to prove his case. In this case, I do not consider that there is an onus upon the defender to prove that there are alternative means of access, the averment simply entitling them to explore the issue in evidence in the context of whether the pursuers' have established a case of reasonable necessity. In any event, as I have said, I consider the evidence relating to the access roadways from Dundee Road and Ellislea Road to be a development of what appears on record.

[39] As regards the preliminary argument for the defender and the proposition that the pursuers' averment as to necessity are deficient, it seems to me that the real issue at this stage is whether the facts established by the evidence are sufficient in law to amount to a case of servitude by implication being established. In relation to the point about ancillary rights, while there is (as noted earlier) an averment about this in the pursuers' pleadings, the crave does not encompass such rights and there is no plea in law. Further, Miss Buchanan made no submissions on the matter. I do not therefore consider that the matter is before me for the purposes of decision.

The principal issue

[40] The principal issue in this case, and that which the pursuers offer to prove on record is whether the access claimed is reasonably necessary for the comfortable use and enjoyment of the pursuers' land. As noted, the main argument deployed by the defender is that alternative means of access exist, which, it is said, would preclude the pursuers from satisfying the necessity test. The pursuers spent some time dealing with this argument both in evidence and submission but the main thrust of their substantive argument was predicated upon what might be called a "common intention" among the parties to the development in 1984/5 that access be exercised as sought. Before dealing with the particular issues, it is pertinent to note, briefly, the legal backdrop.

[41] There is a presumption against encroachment on the inherent rights of property owners (Stair Memorial Encyclopaedia, Vol. 18, para 452) and also a presumption in favour of freedom of property which is inconsistent with imposition of implied burdens, such being generally looked upon with disfavour as being inconsistent with that presumption (Gordon, 24-34). It is also relevant to note the premise upon which the case is made - that the servitude was created by implied grant at the time of severance in 1985 - the grant of the Fulton Feu Disposition. The law relating to the creation of servitudes by implied grant has been referred to above but it is neatly summarised in a passage from Rankine on Land-Ownership (4^th Ed.) at page 430, where the author refers to a grant being implied in only two cases arising in similar circumstances:

"The circumstances are - that the owner of two neighbouring tenements conveys away one while retaining the other, or conveys or bequeaths both to different grantees. And the two cases are - (1) that a servitude over one of the tenements is absolutely necessary to the enjoyment of the other; and (2) that such a servitude is necessary for the comfortable enjoyment of the latter."

[42] It is the second case which is advanced here. As to whether it is established that the servitude is necessary for the comfortable enjoyment of the grantee's property is clearly a matter to be determined having regard to the circumstances of each case. It is accepted on both sides that the issue of necessity has to be judged at the time of severance. It is suggested by Cusine & Paisley (at para. 8.13) under reference to Finlay & Co v Bain 1949 SLT (Sh. Ct.) 2 and Gordon (para. 24.39) that there may be cases where the necessity becomes apparent only after severance. That seems to me to be closely connected to the issue of use at the time of severance and I will return to that. In this case, as indicated, the issue was argued mainly under reference to common intention and alternative access. It is perhaps obvious that if an alternative access is available or potentially available, then this is relevant as to the issue of necessity in the sense described. The cases of Menzies and McEachen demonstrate this. I do not think that it in necessarily incumbent upon the defender in this case to establish alternative means, any finding of alternative means or possibility of such being a matter to weigh with the other facts in determining whether the issue. As for common intention, while it may be relevant as potentially throwing light on whether the parties considered the access to be necessary at the time of severance, it should be recognised that it could not per se be a distinct ground for setting up an implied servitude. In that respect the position appears be different in England and so the cases of Stafford v Lee and Pwylbach Colliery Company Limited v Woodman which refer to a class of cases (where easements may be implied where necessary to give effect to the common intention of the parties) should be regarded with a degree of caution in the present context. Those cases in any event appear to have been concerned with the extent of an easement rather than its existence. Similarly, the cases involving ancillary rights to a servitude should be distinguished, such as Moncrieff v Jamieson 2008 SC 1, to which I will return.

[43] The grant is said to have derived from the break off disposition to Fulton which occurred at the same time has the break off to Penman and so ostensibly comes within the category of implied grants by simultaneous conveyances of the tenements to third parties alluded to by Rankine (above) and spoken of in Bell's Principles at para 992. In this regard the author in the Stair Memorial Encyclopaedia, (at para 455) states:

"In Scotland, judicial authority on this particular situation is lacking, but in England there is some authority in Scotland, but that in England there is authority that the following approach should be taken:

"The doctrine that upon a severance of the quasi-dominant quasi-servient tenements continuous and apparent accommodations become easements applies to cases where the severance is effected by a simultaneous disposition of both tenements, as well as to cases where the common owner disposes of the quasi-dominant tenement and retains the quasi-servient tenement. (14 Halsbury's Laws of England (4^th Ed.) Vol.14, para 68, citing a series of cases including Nicholls v Nicholls (1899) 81 LT 811."

The circumstances here are a little more unusual in that they involves the simultaneous grants by a common author of the two prospective tenements, where the access sought over the quasi-servient tenement did not physically exist at the time of severance. This leads on to the issue of prior use. It is clear that what is envisaged in Bell's Principles and the passage from Stair Memorial Encyclopaedia that prior use is envisaged. Cusine & Paisley (at para.8.09) refer to the requirement more in terms of a general rule that "the servitude sought must have been foreshadowed prior to severance by some exercise of the activity which is now claimed to be justified in terms of the servitude". Lord Kinnear in Shearer v Peddie (1899) 1 F 1201, at 1210 said:

"The one indispensable condition, as Lord Campbell expounds the doctrine, is previous possession and enjoyment by the grantors; and when a piece of vacant ground is parcelled out for building, there can be no previous enjoyment by the owner of the unoccupied sites of a servitude for the benefit of dwelling-houses not yet erected."

Cusine & Paisley disagree. They suggest (at para. 8.18,) under reference to Finlay & Co v Bain and Gordon (para. 24.39) that this is not an essential pre-condition and that whether usage is necessary prior to severance is a matter of circumstances. In the relevant passage of Gordon, the author states:

"It is a circumstance strongly in favour of a servitude that the use should have existed before severance, as in Cochranes v Ewart. In Shearer v Peddie it was stated that usage was necessary, but this too may be a matter of circumstances, as is made clear by Finlay & Co Ltd v Bain. It may be the case that the need for a servitude only becomes apparent after severance, and it is going too far to restrict the doctrine of implied grant to cases where the use has already existed at the time of the grant."

The same passage occurs in the second edition of Gordon (1999) at para. 24.39.

[44] The case of Finlay involved a claim by a defender to a right of access for the purpose of inspecting and repairing exterior parts of his property where access was otherwise difficult. That case involved an appeal to the Sheriff from the judgement of the sheriff-substitute in which Sheriff Cameron reversed that judgement and observed:

"The learned Sheriff Substitute has founded on the absence of the existence of such a right at the date of severance. I do not think that evidence of the existence of a separate and recognisable 'right' at the date of severance could be expected. The existence would be implicit and merged in the right of property in the still unsevered subjects, and a separate and identifiable existence would be perceptible only after and because of the severance itself."

Clearly, there could be no "right" until severance. Cusine & Paisley state at para.8.18 (echoing their earlier observations at 8.13 regarding timing of necessity):

"Prior usage will not always be in evidence and its absence should not categorically bar the claim of an implied grant. A typical example where such a right should be admitted, in our view, is where a development site is split up and boundary structures erected to separate the various plots. In the absence of express provision permitting access on to a neighbouring plot for the purposes of repair of the outward facing side of the boundary structures the law will imply the grant and reservation of mutual servitudes of access for that purpose."

[45] Cases involving ancillary rights, such as Moncrieff v Jamieson, should be distinguished. That case involved an issue of whether a right to park was capable of being constituted as ancillary to a servitude of vehicular access. It was held that the necessity test applied and that while the express grant had to be construed as at the date grant, it was not necessary for it to be shown that all the rights all the rights that were later claimed as necessary were actually in use at that date, it being sufficient that they may have been considered to be 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 comfortable and convenient use of the property. We are not concerned with ancillary rights in this case.

[46] These authorities suggest that, in seeking to set up an implied servitude, prior use is, as a general rule, necessary, but that there may be special cases where it is not, for example when the need for the servitude only becomes apparent following severance or in the situation postulated by Cusine & Paisley above which seems to me to be verging on absolute necessity. Clearly, the circumstances prevailing at severance need to be examined to determine the matter.

[47] As a general point, it is also to be noted in terms of section 3(1) of the Land Registration (Scotland) Act 1979 that registration has the effect of:

"vesting in the person registered as entitled to the registered interest in land a real right in and to the interest in and to any right, pertinent or servitude, express or implied, forming part of the interest..."

This would have the effect of vesting in the pursuers, as registered proprietors, the right to the implied servitude sought (if established) as forming part of their interest. It would also operate to vest in the pursuers any other servitude forming part of their interest, for example the servitudes in the Deed of Servitude and 1981 Disposition or any other implied servitude, if those servitudes formed part of that interest. Also, where it is evident that there is an unrestricted right of vehicular and pedestrian access, the proprietors of divided parts of the dominant tenement might continue to exercise the servitude unless excluded by a consideration such as an increase in the burden on the servient tenement (Alba Homes Ltd v Duell). I now turn to the particular issues arising in this case.

Common intention

[48] I have been unable to conclude on the evidence that there was a common intention amongst the parties, the Callisons, Mrs Fulton and Mrs Penman to the effect that the access sought would be made available to the pursuers' land. None of those persons gave evidence. Accepting that Mr Fulton and Mr Penman were able to speak to an understanding held by Mrs Fulton and Mrs Penman, the high point of the evidence is that there was an anticipation on their part that the access would be available at around the time of the application for outline planning consent in 1984. I should pause to observe that the access is only shown clearly to be on the defender's side of the "mutual area" in the application for the supply of water and drainage submitted on behalf of Fulton and Penman (5/2/3 and 5/2/4 of process). The application for outline consent on behalf of Callison and grant (5/2/1 and 5/2/2) show an access on the south in an approximately central position and not clearly on the defender's side. Against that, we have the fact that there was no mention of the access at all in the Fulton and Penman Feu Dispositions, despite the fact that there was mention of a servitude in respect of services. The area marked "mutual" in the plans attached to the 1985 Feu Dispositions is not referred to the body of either deed. It is in any event expressly demonstrative only and not taxative. There is no "mutual area" as such and it is not being claimed to be mutual. The conclusion to be drawn from this is either this was a case of sloppy conveyancing as suggested by Professor Paisley or the servitudes were deliberately left out in light of alternative access routes being available. Quite apart from the alternatives argued for by the defender, there is the obvious fact that both properties own the portions of the wall and also pavement on the south side of their properties and meeting with the public road - Dundee Road - so that access can and could in 1985 have been taken directly onto the road. The successors to Penman did so by creating a gap in the wall, presumably on the basis of the planning consent, although the evidence as to the works was vague. It was therefore open to the pursuers' predecessors to do so, no doubt subject to planning. While there was an indication that the access onto Dundee Road was located by reference to line of sight and after discussions with the authorities, I was not satisfied on the evidence that there was a planning impediment which would have precluded the pursuers' predecessors or the pursuers from making a similar opening from their own property. There is no impediment in the title. The fact that there was an obligation in the Fulton Disposition to build a house and garage on each plot and therefore an anticipation that this would be done is, I think, a neutral factor. Mr Fulton and Mr Penman, both of whom I accepted as credible and reliable witnesses, accessed the properties using Ellislea Road. Mr Fulton considered that to be the easiest route and gave no thought to legal entitlements. The circumstances are at least equally suggestive that there was no common intention to have use of the access sought as a matter of right.

Alternative means of access

[49] There is no reference in the Fulton Feu Disposition to any servitude right of access and consequently no mention in the pursuers' title as represented in their Land Certificate, other that a right in relation to services. However, a servitude is in the nature of a real right and runs with the land. This is confirmed by section 3 of the 1979 Act as far as registered interests are concerned. The pursuers' is a registered interest. The evidence from Mr Fulton was that he used the access road from Ellislea Road conferred by the 1981 Deed of Servitude. It was not clear to me that he used the access road from Dundee Road conferred by the 1981 Disposition. He did do to visit the plot and have picnics and the like with family and friends. There was no evidence that he used the access now sought either then or at any time thereafter. Indeed that access was not created until his neighbour Penman sold the property on and the purchasers, the Robertsons, developed the ground by building a house and making an opening in the wall onto Dundee Road, the route the pursuers wish to use. There is no evidence as to when that occurred although clearly it can only have occurred subsequent to severance. It appears that there was an anticipation on the part of Mr Fulton and also Mr Penman that such an access would be made available to the pursuers' land, but there is no evidence that the pursuers used it at any time and of course they could not have used it at the time of severance as it did not physically exist. The averment of use by the pursuers and their predecessors is therefore not made out. The evidence from Professor Paisley has already been noted. He spoke to an interpretation of the titles and also the physical aspects of the site, having visited it himself. He spoke of the physical difficulties with access from the north and his interpretation of the title suggesting a common intention to utilise the access sought rather than a retention of servitudes conferred on the Callison subjects. This involved a consideration of alternative means upon a consideration of the titles. He also spoke of a Tree Preservation Order which would create difficulties.

[50] I am not persuaded on the evidence that physical difficulties exist to the extent that access could not be exercised to the site from the north. Mr Fulton obtained access. There was no satisfactory evidence that a Tree Preservation Order actually existed at the time of the severance or at present, the only documented reference being in clause 8 of the burdens clause in the Penman Feu Disposition which refers to the existence of "...any Tree Preservation Order to the extent that the same affects the subjects...". There is no mention in the Fulton Feu Disposition. As to availability of any other access in terms of the title, I do no think that I am at variance with Professor Paisley or indeed Mr Reid in concluding that the position as to how far the access roads extends is not clear. However, it seems entirely possible that access extends to the pursuer's land and that the land has the benefit of the servitudes constituted in the 1981 Disposition and Deed of Servitude. I am reluctant to draw an inference, as Professor Paisley did, that the rights conferred in favour of the Callison land in 1981 were discharged or abandoned in so far as they affected the break off plots to Fulton and Penman. It seems to me that there was no convincing foundation in his evidence for such a conclusion. Mere omission from the 1985 Feu Dispositions would not have this effect. The reference in the Deed of Servitude to there being no material increase in the burden would not of itself preclude access to another property. The additional burden would require to be measured having regard to the circumstances. The fact that the 1981 Disposition was in the context of there being one house would not in my view advance the argument. Further, I do not consider that the reference in the Penman Feu Disposition to "the southwestmost edge of a driveway serving adjacent subjects" as being a boundary is a counter indication. I notice that a similar description is given in the Fulton Feu Disposition. I regard those facts as neutral, but they do at least indicates that both the pursuer's land and the defender's property adjoin a driveway. Professor Paisley indicated that a conveyancer would not ignore the plan attached to the 1985 Dispositions, but there is no satisfactory evidence of what a conveyancer would actually make of it.

[51] As for the Strathearn Land Certificate, I do not see why I should not have regard to it or attach weight to it in so far as it identifies the access roadways from Dundee Road and Ellislea Road. The fact that the plan was created at a later date on registration in the Land Register is in my view of no moment considering that it would have been drawn under reference to original deeds including the Deed of Servitude and 1981 Disposition. The Keeper would clearly have had regard to these documents when the plan was coloured. The Office Copy (6/4) has evidential status generally equivalent to the Land Certificate itself. I accept Mr Reid's evidence on the point. The plan demonstrates that the access from Dundee Road (the area tinted blue) merges with the orange area (access from Ellislea Road) at the north or north east of the pursuers' land and that the orange area carries on westward, stopping at the dotted line and that on a comparison with the pursuers' title, it is eminently possible that the orange tinted access meets with the pursuers' land. It is also possible that the blue area does so. Clearly, if one or both servitudes, either on their own or taken together physically serve the pursuer's land, then such would continue to benefit the divided parts in the absence of considerations such as increase in burden (Alba Homes) the latter being a matter of circumstances. I accept that the extent of the servitudes should be strictly construed but I see no difficulty in postulating a situation where both could be used, the one running onto the other. Further, if it be the situation that neither access physically meets with the pursuers' land there is again the potential for an implied servitude or servitudes to exist through the defender's land on the north or north east side as it appears from the plan attached to the Penman Feu Disposition (5/1/4) and a comparison with the plan attached to the Strathearn Land Certificate that at least one, if not both, of the access roads meets with the defender's property.

[52] My conclusion on this issue is that there may be alternative means of access to the pursuers' land. In assessing the physical availability of the alternative routes, I have not taken account of any special requirement for such as construction traffic, the question of any ancillary order not being before me as earlier indicated. The potential for alternative access points away from a conclusion of necessity.

[53] I have concluded that in the circumstances, that the pursuers have failed to discharge the burden upon them of establishing that the servitude claimed is necessary (or reasonably necessary) for the comfortable use and enjoyment of the pursuer's land. That would be sufficient for disposal of the case, but there is another issue which should be dealt with and which I have concluded goes against the pursuers.

Use at the time of severance

[54] As indicated, there is no evidence of use by the pursuers (in the person of persons authorised by them) or their predecessors. The question then arises as to whether this can be regarded as one of those special cases where prior use may be excused. It could not be said that the supposed need only emerged after severance. As also indicated, the evidence of Mr Fulton and Mr Penman was that there was an anticipation by them that it would be used. Accordingly, the premise mentioned in Gordon (at 24-39) is absent on the evidence. Further, it is not in my view the sort of case postulated by Cusine & Paisley where access is required for repairs to external surfaces which may be otherwise impossible or difficult too get at. I am not suggesting the category of such exceptions is closed, but it does not seem to me in the circumstances that this is a case where proof of prior use is unnecessary. As noted above, the pursuers have offered to prove use by them and their predecessors in title between 1985 and the commencement of these proceedings. There is therefore a tacit recognition of the requirement to establish use, whether or not the averment can be taken to encompass prior use. In the situation here, it seems to me that prior use is a critical component in this case for the constitution of an implied grant. The absence of use is in my view is fatal to the pursuers' case and represents a separate ground for decision.

Interdict

[55] If am right, it would follow that interdict to protect the exercise of access would be inappropriate. In any event, if I am wrong in relation to the principal issue, there has been no evidence as to the justification for such an interdict in the circumstances. I have also previously noted that there is no plea-in-law. As also noted, the interdict was "formally" moved for.

Conclusion

[56] I have accordingly concluded that the pursuers have not succeeded in establishing an implied grant, nor any justification for interdict, and have granted decree of absolvitor. Both parties were content that I should deal with expenses in such an event. The defender has been substantially successful and so I have awarded expenses in her favour in so far as not already dealt with. Miss Buchanan indicated that she did not have any objection to the certification of Mr Reid as a skilled witness and I am satisfied that it is appropriate to do so. I have pronounced an interlocutor reflecting the above.