THE FIRM OF JOHNSON, THOMAS AND THOMAS AND OTHERS AGAINST THOMAS SMITH AND T G & V PROPERTIES LIMITED AND CLYDE GATEWAY DEVELOPMENTS LIMITED
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
[2016] SC GLA 50
A646/15
JUDGMENT OF SHERIFF S. REID, Esq,
in the cause
THE FIRM OF JOHNSON, THOMAS and THOMAS and OTHERS
Pursuers;
against
THOMAS SMITH
First Defender;
and
T G & V PROPERTIES LIMITED
Second Defender;
and
CLYDE GATEWAY DEVELOPMENTS LIMITED
Third Defender:
Act: Mr I G Mitchell QC; Mr D Turner, Advocate, instructed by Inksters, Solicitors, Glasgow
Alt: Mr R Anderson, Advocate instructed by Currie & Co, Glasgow
GLASGOW, 28 July 2016. The sheriff, having resumed consideration of the cause, Repels plea-in-law number 2 for the first and second defenders; Repels plea-in-law number 1 for the pursuer due to want of insistence; thereafter, Allows parties a proof before answer of their respective averments, reserving plea-in-law number 3 for the pursuer and plea-in-law number 1 for the first and second defenders; meantime, Reserves the question of expenses and Appoints parties to be heard thereon and on the issue of further procedure on Friday 5 August 2016 at 9.45 am.
NOTE:
Summary
[1] The pursuers own an area of land on the north east side of Downiebrae Road in Rutherglen. It is used as a residential site for showmen’s caravans. It forms part of a larger area known colloquially as the Cuningar Loop.
[2] On the southern boundary of the pursuers’ land lies a long narrow strip of vacant ground. That strip is owned by the second defender. The pursuers aver that they and their tenants have parked vehicles on that neighbouring strip of ground, openly, peaceably and without judicial interruption, for over 20 years.
[3] The pursuers seek declarator of a servitude right, to park vehicles on the neighbouring strip, together with accessory rights of vehicular and pedestrian access thereto. The servitude is said to have been constituted by prescriptive possession.
[4] The action called before me at a diet of debate on the first and second defenders’ preliminary pleas to relevancy and specification. The case raises a number of interesting issues, specifically (i) whether Scots law recognises a so-called “free-standing” servitude right of vehicular parking, being a servitude that is independent of and not ancillary to a primary right of vehicular access over the servient tenement; and (ii) whether such a supposed servitude right, prima facie unlimited as to the number and type of vehicles to be parked there, and potentially covering the whole of the burdened property at all times, is repugnant with the second defender’s ownership of the alleged servient tenement.
The pleadings
[5] The pertinent pleadings can be summarised as follows. The pursuers aver that they are the owners of an area of land edged in red and coloured pink on plan A (item 5/3/1 of process), being part of the subjects registered in the Land Register for Scotland under Title Number LAN62157. This is the supposed dominant tenement. It comprises a residential area of static caravans.
[6] A long, narrow strip of ground runs along the southern boundary of the supposed dominant tenement. It is shown tinted dark green on plan A. This is the supposed servient tenement. It is owned by the second defender. (Initially, the supposed servient tenement covered a larger area, including the area coloured mauve on plan A. The mauve area has now fallen out of contention as the pursuers recently acquired title to it from the third defender.)
[7] The pursuers aver that their tenants have parked vehicles, including articulated lorries, upon the supposed servient tenement for a continuous period of 20 years, openly, peaceably and without judicial interruption. The parking area is averred to be “integral to the operation of the dominant tenement as a showmen’s residence”; that the supposed servient tenement is the only location upon which the vehicles can be parked due to their size and limited manoeuvrability; that some of the vehicles can only be parked partially upon the subjects; and that vehicles are parked there for the purpose of storing and repairing amusement arcade rides and equipment. A so-called “list of parkers” (item 5/4(1) of process) is lodged in process and its terms adopted into the pleadings. It purports to identify the individual tenants who have parked on the supposed servient tenement; the type of vehicle(s) so parked; the period during which the vehicle(s) were allegedly parked; and the related addresses of the parkers’ static caravans on the dominant tenement. By prescriptive use, the pursuers claim to have acquired a servitude right to park vehicles upon the servient tenement, together with accessory rights of access thereto. The pursuers seek declarator in the following terms (per crave 1(a)):-
“To find and declare that there exists over the heritable subjects… tinted dark green…on the plan number 5/3/1 of process (‘plan A’), which form[s] part of the heritable subjects lying to the north east of Downiebrae Road, Rutherglen, Glasgow registered in the Land Register of Scotland under Title Number LAN195146 (‘the encumbered property’), a heritable and irredeemable servitude right of parking in favour of the heritable subjects edged red in plan A but excluding the land coloured mauve therein, being part of the subjects registered in the Land Register for Scotland under Title Number LAN62157 presently registered in the name of the pursuers (‘the dominant tenement’”), entitling the parking thereon of such number of vehicles as are consistent with the civiliter exercise by the pursuers of their servitude right; together with heritable and irredeemable servitude rights of vehicular and pedestrians access over and egress from that servient tenement so tinted in the exercise of the servitude rights of parking aforesaid, which failing to find and declare that there are accessory rights of such access and egress over the servient tenement so tinted arising as incidents of the servitude right of parking aforesaid”.
Submissions for the first and second defenders
[8] For the first and second defenders, reference was made to paragraphs 1 and 2 of the defenders’ note of basis of preliminary pleas (item 15 of process). The defenders did not concede the existence in law of a so-called “free-standing” servitude right of parking, unrelated to a primary right of access, unlimited as to the number and type of vehicle, unlimited as to the duration and extent of parking, and allegedly derived from prescriptive use rather than from express grant. It was said to be for the pursuers to establish that such a servitude right was of a “known type”. Moncrieff v Jamieson 2008 SC (HL) 1 was distinguished.
[9] The servitude sought in crave 1(a) was said to be repugnant with the second defender’s rights of ownership in the land.
[10] Further, it was submitted that the pursuers’ declaratory crave failed to provide sufficient specification of the nature and extent of the parking rights sought to be declared. The defenders complained of a lack of fair notice of the number and identity of persons and vehicles likely to be exercising the supposed right; the type of vehicles involved; the duration and location of the parking; and whether the servitude right attached to the whole of the supposed dominant tenement or only to those static caravans whose tenants had historically exercised the supposed right. It was submitted that the need to provide sufficient specification could not be elided by seeking declarator of the civiliter exercise of the alleged servitude. A crave in those terms was said to be no more than the repetition of a trite proposition of law.
[11] Certain averments in article 4 were said to be confusing and contradictory.
[12] Reference was made to the Prescription and Limitation (Scotland) Act 1973; the Title Conditions (Scotland) Act 2003; Carstairs v Spence 1924 SC 380; Kerr v Brown 1939 SC 140; Alvis v Harrison 1991 SLT 64; and Romano v Standard Commercial Properties Securities Ltd 2008 SLT 859.
[13] The defenders sought dismissal of the action.
Submissions for the pursuers
[14] Counsel for the pursuers submitted that, as a matter of principle, Scots law recognises a “free-standing” servitude right of vehicular parking independent of any primary right of access. There was said to be no need to specify in a declarator of such a servitude the precise number of vehicles involved, the duration of the parking or the like. The pursuers’ crave 1(a) was said to be correctly expressed from the perspective of both legal principle and pragmatism. Detailed reference was made to Moncrieff, supra.
[15] Reference was made to the “list of parkers” and plans of the locus. The list of parkers was said to identify the extent of the alleged prescriptive possession exercised by the pursuers, with sufficient specification provided of the alleged individual users, the vehicles involved, and the duration of the use.
[16] Counsel acknowledged that, at common law, an asserted servitude right must not be repugnant with ownership of the servient tenement but he submitted that the present asserted right did not offend against that principle. The 2003 Act was said to be of no relevance.
[17] The pursuers sought a proof before answer.
Discussion
[18] In essence, the debate raises three issues for determination: (i) first, whether Scots law recognises a so-called “free-standing” servitude right of vehicular parking, being a servitude that is independent of and not ancillary to a primary right of vehicular access over the servient tenement; (ii) second, whether such a supposed servitude right, prima facie unlimited as to the number and type of vehicles to be parked there, and potentially covering the whole of the burdened property at all times, is repugnant with ownership of the servient tenement (or contrary to section 76(2) of the Title Conditions (Scotland) Act 2003); and (iii) third, whether the pursuers’ crave for declarator provides sufficient specification of the nature and extent of the servitude right allegedly constituted in favour of the proprietor of the dominant tenement. To a degree, the issues overlap. I shall seek to address each in turn.
Is a “free-standing” servitude right of vehicular parking “known to” Scots law?
[19] The long-held view is that, as a matter of legal principle, absent registration, for a right to be validly constituted as a servitude binding upon singular successors it requires to be one “known to the law” or at least similar in nature (Patrick v Napier (1867) 5 M 683 at 709; Alexander v Butchart (1875) 3 R 156 at 160; Romano v Standard Commercial Property Securities Ltd 2008 SLT 859). There is a prudent policy rationale for the principle. A degree of cautious restraint in the recognition by the law of new and anomalous servitude rights provides reassurance to bona fide purchasers that their property will not readily be burdened by some unusual and unwritten restraint or obligation not disclosed in the title deeds or otherwise discoverable by reasonable diligence.
[20] The principle has come to be viewed as meaning that, in effect, there is a “fixed list” of servitudes in Scotland, when considered in the context of centuries of judicial reluctance to recognise new servitude rights. Indeed, so entrenched had the “fixed list” view become, and so “unduly restrictive” in its perceived effect (Scottish Law Commission (“SLC”) Report No 181, paragraph 12.23), that the Scottish Parliament legislated specifically to abolish “any rule of law” that a servitude must be “of a type known to the law” – but only in relation to positive servitude rights constituted by express written grant (Title Conditions (Scotland) Act 2003 Act, section 76(1)). Implied servitudes, or servitudes said to be constituted by prescription, remain unaffected by the statutory disapplication of the common law principle.
[21] References to servitudes “known to the law”, and more especially to a supposed “fixed list”, while convenient as a short-hand, may have tended to disguise the more subtle and flexible aspects of the common law principle. There never has been a closed or fixed list of servitudes. The notion finds no place in the original text of Stair’s Institutions (II, vii, 5) or Erskine’s Institute (II, ix, 2). Professor Rankine agrees with these institutional writers, subject to a sensible clarification (Rankine, Landownership, 419). He explicitly acknowledges that there is no definite number of servitudes but clarifies that it is not correct to say that any restriction on the use of property, “however grotesque and unreasonable”, could be “clothed with the privileges of servitude”. Rankine states:-
“There can be no doubt of the accuracy of the remark [in Stair], if it be meant as denying that the Scots law at any period of its history recognised only a definite number of servitude rights, and that this number could not be added to in response to the needs of the neighbourhood. Expansibility or elasticity has been characteristic of the law in this respect from the earliest times.”
Likewise, in Dyce v Hay (1852) 1 Macq. 304, the Lord Chancellor (St Leonards) stated: “The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind.” Lord Ivory expressed similar views in Harvey v Lindsay (1853) 15 D 768. In Patrick v Napier (1867) 5 M 683, Lord Ardmillan acknowledged the possibility of introducing new servitudes having regard to the “habits and requirements of life, varying and extending with advancing civilisation”.
[22] That said, naturally any such use or restraint, if it is to be recognised as a servitude binding upon singular successors, must conform with the essential characteristics of a servitude right. For example, there must at the very least be neighbouring tenements, in separate ownership, and a praedial interest (Cusine & Paisley, Servitudes and Rights of Way, chapter 2).
[23] Against that background, what then is the true scope of the common law principle, so far as extant?
[24] Firstly, when considering whether a particular activity or restriction is to be recognised as a servitude right, it is important to distinguish positive and negative servitudes. Negative servitudes, which are not dependent upon possession by the owner of the dominant tenement, are regarded as a particular anomaly “not to be enhanced” (Rankine, supra, 419). In contrast, positive servitudes “… are usually apparent on inspection, and always require possession… so that there is little danger of surprise to an ordinarily wary purchaser” (Rankine, supra, 419; Bell, supra, 990).
[25] Secondly, subject to that distinction, Bell, supra, 979, confirms that servitude rights should be limited to “…such uses or restraints as are well-established and defined, leaving others as mere personal agreements”. He then offers some guidance on how those “well-established and defined” types are to be identified. He states (supra, at 979):-
“What shall be deemed a servitude of a regular and definite kind is a secondary question, as to which the only description that can be given generally seems to be, that it shall be such a use or restraint as by law or custom is known to be likely and incident to the property in question, and to which the attention of a prudent purchaser will, in the circumstances, naturally be called.”
[26] The exercise does not begin and end by reading down the textbook list of recognised servitudes. A recognised category of servitude is, by definition, “well-established and defined”: it is known “by law” as being likely to occur, and to exist as an incident to the type of property in question; and, therefore, it may be regarded as a use or restraint to which the attention of a prudent purchaser will naturally be called. In addition, these existing recognised categories are flexible. They are adaptable to modern conditions and new forms of technology (North British Railway v Park Yard Co Ltd (1889) 25 R 47; Ferguson v Tennant 1978 SC 19; Cusine & Paisley, supra, 1.31). Therefore, an activity or restriction that is similar in nature to an existing recognised type is more likely to be countenanced. Of course, whether the asserted use or restraint is proved to exist as a servitude right, burdening and benefitting respectively the particular putative servient and dominant tenements in question, will depend upon the facts of each case.
[27] But a use or restraint may also “by custom” (Bell, supra) be “well-established and defined”. While it may not be known “by law” as a servitude right (in the sense that it does not fall within any of the recognised existing categories), and it may not even be similar in nature thereto, nevertheless, the use or restraint may be known “by custom” as being likely to occur, and to exist as an incident to the type of property in question; and, therefore, by this means, it may be regarded as a use or restraint to which the attention of a prudent purchaser will naturally be called. Again, of course, whether the asserted use or restraint is proved to exist as a servitude right, affecting the particular properties in question, will depend upon the facts of each case.
[28] Of the few new servitudes recognised by the court, a number were countenanced not because they were similar in nature to an existing type recognised “by law” but because they were known “by custom” (that is, by long usage and practice: Stair Memorial Encyclopaedia, Volume 22, 377-388). The servitude itself is not constituted by the custom. Rather the custom, if proved, establishes merely that the activity or restraint, as an incident of the property in question, should have been within the contemplation of the parties, thereby satisfying the policy concern protected by the common law principle. Thus, in Earl of Morton v Covingtree (1760) Mor 13528, there is no suggestion in the report that the supposed right to collect wrack and ware was previously “known to the law” as a servitude or similar in nature to an established category. Instead, the use was known “by custom” as an incident of the properties (by virtue of the immemorial use” of the Earl’s tenants). Likewise, Sinclair v The Magistrates and Town Council of Dysart (1779) Mor 14519 is generally cited as the decision which first recognised the existence of a servitude right to wash, dry and bleach clothes and linens (Dyce, supra, at 312-313 per the Lord Chancellor). Recognition of the activity as a servitude was tolerated not from the similarity of the activity with any existing type but, rather, because the use was known as such by custom (“immemorial usage”: Sinclair, supra, at 14519).
[29] That diversion aside, I turn to the concept of a servitude right of vehicular parking. No custom is averred in the present case. Therefore, is such a (positive) servitude one that is “known to the law” or similar in nature – or, to use the more expansive statement of principle in Bell’s Principles, is the asserted activity such a use as by law is known to be likely and incident to the property in question, and to which the attention of a prudent purchaser will, in the circumstances, naturally be called?
[30] Among leading academics, this subject has generated much discussion (Cusine & Paisley, supra, 179-188). It was seen by many as a ripe candidate for recognition as a new servitude. At the debate before me neither party sought to rehearse the competing arguments, or to review the older authorities, in any detail. Instead, both counsel focussed largely upon the decision of the House of Lords in Moncrieff, supra. Counsel for the defenders highlighted points of distinction; counsel for the pursuers highlighted supporting dicta therein.
[31] In my judgment, a “free-standing” servitude right of vehicular parking (being a right that is not ancillary or accessory to a primary right of way over the supposed servient tenement) can competently exist in Scots law because it is similar in nature to the type of servitude now “known to the law” by virtue of Moncrieff, supra, and to certain existing types of greater vintage (Moncrieff, supra, paragraphs [23] and 75]).
[32] On the authority of Moncrieff, a servitude right of vehicular parking was recognised as capable of existing in law, albeit ancillary to a primary servitude right of vehicular access. In doing so, none of the law lords was troubled by the “fixed list” principle. Lord Hope explicitly attached no weight to it (paragraph [21]). But the logically-prior question of whether a “free-standing” servitude right of vehicular parking can exist in Scots law, independently of a primary right of access over the servient tenement, was also tackled head-on by the law lords; the preponderance of opinion was plainly that such a right can competently exist in Scots law; and it seems to me that the dicta to that effect are so intimately bound up with the strict ratio of the case, that at times the border between ratio decidendi and mere obiter dicta becomes well-nigh indistinguishable. Of the five law lords in Moncrieff, only two formally reserved their opinion on the existence of a free-standing servitude right of parking in Scots law independent of a primary right of access, though, curiously, obiter dicta in both speeches appear to concede the irresistible logic of such a right being recognised (paragraphs [23] and [24] per Lord Hope; paragraph [102] per Lord Mance); the remaining three law lords evinced no concern in conceding, in principle, the recognition of such an independent servitude right (paragraph [47] per Lord Scott; paragraphs [72] to [75] per Lord Rodger; paragraphs [134] to [143] per Lord Neuberger). It is correct that the owner of land who enjoys a servitude right of vehicular access across neighbouring ground may be said to have a legitimate interest in being on the servient tenement in the first place, making the recognition of an ancillary or accessory right of parking easier to justify in those circumstances. But the inherent illogicality in recognising an ancillary servitude right of parking, if such a servitude could not also exist independently, is undeniable. Each of the law lords acknowledged as much. Besides, I can think of no compelling reason why the servitude right of vehicular parking should be confined to an ancillary status, subordinate to a primary right of access. Other types of onerous servitude right were not dependent for recognition upon a primary entitlement or “pretext” for the dominant proprietor to be present upon the servient tenement. What is required is context, not pretext. A primary right of access may commonly provide a context in which the parking occurs. However, absent that primary right, other facts and circumstances (such as topography or the like) may provide an equally compelling context for the exercise of the supposed servitude right. As Lord Rodger opined (Moncrieff, supra, paragraph [75]), a servitude right of vehicular parking as an accessory to a primary right of access may be “one possible example” of such a servitude, but that merely reinforces that it need not be the only instance.
[33] In summary, while I acknowledge that Moncrieff does not represent a strictly binding judicial recognition of the existence of a free-standing servitude right, in my judgment the debate on this narrow issue is ended for all practical purposes by the overwhelming current of eminent obiter dicta in that case. It is futile to stand Canute-like against it. From Moncreiff, it is but a short skip in logic to conclude, by analogy with the ancillary right recognised in that case, that an independent free-standing servitude right is, at least, similar in nature thereto.
[34] That said, in my judgment it would be premature to dispose of the defenders’ preliminary plea to relevancy at this stage. That is because it cannot be said, without ascertaining the full facts in their proper setting, that the pursuers’ averments necessarily support their pleas and the remedies sought. Among other issues, it is desirable that evidence be led to ascertain (i) the precise nature of the alleged prescriptive use and the surrounding context, (ii) whether the alleged use was and is indeed for the praedial benefit of the supposed dominant tenement, and (iii) the lawful purposes to which the dominant tenement can be put (and, by extension, for which the alleged servitude may be, and may have been, exercised).
[35] To clarify, any servitude, if it exists at all, may be exercised only for the benefit of the dominant tenement and for the lawful purposes to which the dominant tenement can be put (Irvine Knitters Ltd v North Ayrshire Cooperative Society Ltd 1978 SLT 105 at 109 per the Lord President (Emslie); Moncrieff, supra, at [75] per Lord Rodger). The burdens section of the pursuers’ land certificate (number 5/1 of process) provides that the supposed dominant tenement:-“… shall be occupied for use as a residential site for showmen’s caravans and ancillary purposes only and for no other purpose…”. Prima facie the pursuers would not be entitled to use the supposed servitude right to operate, say, a public car park, charging fees to the public for admission. While such a use might benefit the proprietors of the dominant tenement personally, it would not be a use that is for the praedial benefit of the dominant tenement. Nor prima facie would such use of the supposed servitude right be for a purpose to which the dominant tenement could lawfully be put, by virtue of the restriction on use in the title to the dominant tenement. For similar reasons it may be said the pursuers could not exercise the supposed servitude of parking over the servient tenement for the purpose of operating, say, a commercial scrapyard or a storage container facility on the servient tenement.
[36] But the ascertainment of the lawful purposes to which the dominant tenement can be put is not relevant merely to the exercise of the servitude after it has been constituted. By logical extension, any alleged use of the putative servitude during the prescriptive period which was not for a lawful purpose to which the dominant tenement could be put would not be relevant or habile to constitute the asserted servitude right.
[37] In order to ascertain the lawful purposes to which the dominant tenement can be put (and, by extension, to determine whether the supposed servitude has been constituted), it is necessary to undertake a proper construction of the pursuers’ title. Clause (Fourth) of the feu disposition referred to in entry 2 of the burdens section will be relevant, but so too may clauses (Seventh) and (Eleventh) of the same deed which bear to regulate certain uses of the land. The title must be construed as a whole. In any event, a proof before answer is appropriate because evidence is likely to be required properly to ascertain, for example, what purposes are truly “ancillary” to occupation of the pursuers’ land as a “residential site for showmen’s caravans”. Only then can the relevance of the pursuers’ averments anent the alleged prescriptive use be determined.
Is an “unlimited” right to park repugnant with ownership of the servient tenement?
[38] The second issue for determination is whether a supposed servitude right of vehicular parking that is prima facie unlimited as to the number and type of vehicles entitled to park there, and potentially covers, at all times, the whole of the burdened property, is repugnant with ownership of the supposed servient tenement (or contrary to section 76(2) of the Title Conditions (Scotland) Act 2003). This issue is raised most sharply in paragraph 2 of the defenders’ note of basis of preliminary plea (no 18 of process).
[39] As discussed above, the constitution of servitudes (and real burdens) is regulated at common law by considerations of public policy. One such policy-based principle is that the rights afforded to the proprietor of the supposed dominant tenement must not be so extensive or invasive as to be repugnant with the right of property in the supposed servient tenement (Gloag & Henderson, The Law of Scotland, 34.40; Dyce v Hay, supra). Put another way, the rights afforded (or obligations imposed) by the alleged servitude must not be so severe that they negate the idea of ownership of the burdened property (SLC Report No 181, paragraph 2.22). In Earl of Zetland v Hyslop (1881) 8 R 675, Lord Young (at page 681) stated:
“The general rule is that conditions and limitations in a property title which are repugnant to the common legal notion of property and proprietary rights shall be deemed invalid”.
It is this principle that is reiterated in section 76(2) of the Title Conditions (Scotland) Act 2003 in relation to positive servitudes created by express written grant after 28 November 2004.
[40] In short, the defenders submitted that the supposed servitude was repugnant with their ownership of the land because the exercise of the supposed right could result in the entire area of the servient tenement being covered by vehicles, every day and all day, thereby excluding the proprietor from any practical or realistic enjoyment or use of the land.
[41] In my judgment the repugnancy principle is not engaged in the present case. The partial or total exclusion of the second defender from mere physical occupation of the servient tenement does not of itself prevent the asserted right from being a servitude. A similar argument to that advanced for the defenders was roundly dismissed in Moncrieff, supra (per Lord Hope, paragraph [24]; Lord Rodger, paragraph [76]; Lord Scott, paragraphs [57] and [59]; and Lord Neuberger, paragraphs [140] and [144]).
[42] The Scottish law lords were in agreement. Lord Rodger stated (at paragraph [75]):-
“Of course a servitude of parking will involve a car being placed on the neighbour’s land and this would prevent the neighbour using that part of his land when the car was stationed there. But that cannot, in itself, be a conclusive objection to the existence of such a servitude since many well-known servitudes involve structures being erected or objects being placed on the servient land. The most obvious example, perhaps, is the servitude of aquaehaustus and aquaeductus, where the dominant owner may construct a permanent dam on the servient land at the source and lead the water from there through pipes permanently laid over the servient tenement. Another example is the right to erect a hut or bothy on land over which there is a servitude of pasturage. Yet another example is the right of bleaching, referred to by the Lord Chancellor in Dyce v Hay, by virtue of which the cloth would be laid out on the servient land from time to time (Cusine & Paisley, paragraph 3.12). In Roman law Neratius considered that the owner of a quarry could acquire a servitude right to cast rocks and stones onto neighbouring land and to leave them lying there until they could be taken away (D.8.3.3.2, Ulpian 17 ad edictum).”
Lord Hope agreed, stating (at paragraph [24]) that “…that the fact that the servient proprietor is excluded from part of his property is not necessarily inimical to the existence of a servitude”.
[43] Lords Scott and Neuberger approached the issue from the perspective, and with the terminology, of English law. They go further than the Scottish law lords by seeking to introduce some clarity to the definition of the principle of repugnancy (or the “ouster” principle”, as they call it). Lord Scott noted that every servitude will bar some ordinary use of the servient land. A right of way prevents all manner of uses of the land over which the road passes. A viaduct carrying water across the servient land will prevent the same things. There will always be some use, ordinary or otherwise, that is prevented by a servitude. But even the grant of extensive parking rights over land does not preclude the owner of the servient tenement from enjoying proprietorial rights in the land thus burdened. Lord Scott mused that the owner of the servient tenement could:-
“… for example, build above or under the parking area. He could place advertising hoardings on the walls. Other possible uses can be conjured up. And by what yardstick is it to be decided whether the residual uses of the servient land available to its owner are ‘reasonable’ or sufficient to save his ownership from being ‘illusory’?”
Therefore, Lord Scott rejected a test that asks whether the servient owner is left with any reasonable use of his land. Instead, he substituted a test which asks whether the servient owner retains “possession and control” of the servient land” (paragraph [59]). Though he elected to reserve his opinion on the matter, Lord Neuberger saw “considerable force” in Lord Scott’s analysis, and in the test proposed by him.
[44] For my own part, I see much force in Lord Scott’s reasoned articulation of the repugnancy principle. A servitude right of parking may well substantially restrict the rights of the owner of the servient tenement and the uses to which, from time to time, he can put the surface of the land, but his rights as proprietor are not sterilised. He can build over the servient tenement, he can build under it, he can advertise on hoardings around it, or otherwise utilise the boundary walls. Indeed, he can park on it himself, or use it for any other purpose, provided he does not interfere to any material extent with the reasonable exercise of the servitude right by the dominant proprietor. The servient proprietor may not have physical occupation of the surface of the land when the servitude right is being exercised, but he remains the owner of the land, he remains in control of it, he remains in (legal) possession of it, and he is at liberty to exploit its residual uses. This is consistent with Erskine’s statement of the principle (Institute, II, ix, 34):-
“…the owner of the servient tenement may make every use of his property consistent with the purposes of the servitude: he may, notwithstanding the servitude of fuel, or of fuel and divot, to which his common is subjected, open the grounds for minerals, limestone, coal, etc., for the servitude affects the surface only. Nor can he be deprived of his right on pretence that by breaking the ground he makes part of the servient surface unfit for the servitude.”
[45] Lastly in this context, a difference emerged at debate as to the role of section 76(2) of the 2003 Act. The defenders’ counsel submitted that section 76(2) “supersedes” the dicta in Moncrieff (decided under the pre-2003 Act law) as to what might constitute the repugnancy principle (a fortiori the “ouster” principle in terms of English law, so far as it may be different and/or applicable); and that section 76(2) applied to the supposed servitude in the present case. I disagree. The 2003 Act was not intended to be a wholesale codification and restatement of the law regulating servitudes (SLC Report No 181, paragraph 12.24). Section 75 of the 2003 Act introduced a limited statutory innovation. While it liberated express written grants of positive servitudes from the shackles of the supposed “fixed list” rule, section 76 merely reiterated that the common law, policy-based repugnancy principle remained applicable to any such express grant, without amending or (regrettably perhaps) clarifying the content of that principle. Neither section 75 nor 76 alters the law in relation inter alia to positive servitudes constituted by prescriptive possession. In short, the 2003 Act is irrelevant to the issues in dispute in the present case.
Specification of the declaratory crave
[46] The third question for determination is whether the pursuers’ crave for declarator provides sufficient specification of the extent of the servitude right said to have been established. It was submitted that the declaratory crave fails to specify essential matters such as the number and type of vehicles that can be parked on the land; where on the land they can be parked; and when, by whom, and for how long they can be parked there. Specific criticism was also directed at the formulation of the crave to the extent that it incorporated reference to the civiliter principle.
[47] In my judgment the crave is competent and provides adequate specification of the right sought to be declared.
[48] In order to explain my reasoning it may be helpful to consider the position of a servitude right of access (or way). Though it is one of the most commonly encountered servitudes, the servitude right of access may be said to be peculiar in the sense that it can take three discrete forms: pedestrian access, access for horse and cart, and vehicular access. In the absence of evidence to the contrary, the greater form of right will be presumed to include the lesser form or forms. Where the servitude right of access is constituted by prescriptive possession, the particular form of servitude right acquired will be defined by the nature of the possession. So if the use founded upon and established during the prescriptive period is restricted to pedestrian access, the form of servitude right thus constituted is limited to a servitude right of pedestrian access. If the use founded upon and established during the prescriptive period is that of vehicular access, the form of servitude thus constituted is a servitude right of vehicular access (which will be presumed to include the lesser forms). In this way, possession, in the case of a servitude right of access constituted by prescriptive use, is “not merely the badge, but also the measure of the right” (Bell, Principles, 993). This is an uncontroversial application of the maxim tantum praescriptium quantum possessum.
[49] It is often said – and it was repeated in the defenders’ submissions – that prescriptive use not merely establishes the existence of a servitude right but, in some most important ways, defines the extent of the right. This is said to derive from the dictum of the Lord President (Clyde) in Carstairs, supra. But that dictum requires to be read in its proper context. The Lord President was dealing there specifically with a servitude right of access. When he spoke of the prescriptive use defining the “extent” of the right, in my respectful judgment he meant that, as well as establishing the existence of a servitude right of access, the prescriptive use will also determine the particular form of the access right (i.e. pedestrian, equine or vehicular). The Lord President’s precise words (with my italicised emphases) were:-
“It is certain that in the law of Scotland the prescriptive use of a private way not merely establishes the existence of the right, but in some most important ways, defines the extent of the right. Thus, ways are classified, in accordance with the measures of their burdens in this, as footways, horse roads, and carriageways; and prescriptive use determines under which of the fixed categories the way shall be ranked… In short, the use instructs the kind of traffic (foot, horse, or cart) for which the way may be availed of, and limits that traffic to such as finds its source in certain grounds or subjects”.
[50] In Carstairs, the defender enjoyed a prescriptive right of vehicular access over the servient tenement. The prescriptive use, on the basis of which the servitude had been established in the first place, had been for a limited agricultural purpose. The defender then sought to exercise the servitude right for a quite different (industrial) purpose. If the Lord President’s famous dictum is to be applied literally, it might be said that the (limited agricultural) prescriptive use of the road, upon which the servitude was first established, should also define (and confine) the extent and future use of the right (to those same limited agricultural purposes). But that is not the correct reading of the opinion. The Lord President’s dictum is directed at a peculiar feature of the servitude right of way. In that particular context, the prescriptive use does indeed define the “extent” of the servitude right – but only in the limited sense of defining the form or category of the access right (i.e. pedestrian, equine or vehicular).
[51] At first blush, Kerr v Brown 1939 SC 140 may seem difficult to reconcile with Carstairs. On a first reading, Kerr looks like a decision in which the court has indeed had regard to the historic prescriptive use in order to “define” or limit the purposes for which the servitude right could be deployed. But that would be a misunderstanding of the decision. Firstly, Kerr did not involve a servitude right of way (with its peculiar three forms). Instead, it involved a servitude right to discharge waste water through a channel on the defender’s land. Secondly, Mr Kerr was seeking to argue that his recent use of the neighbouring land to channel sewage (including human solid waste) was (like Carstairs, supra) merely a different purpose for which the existing servitude (of channeling waste water) was being used. The Inner House disagreed. The Court held that what the pursuer was trying to do in Kerr was to establish an entirely new and different type of servitude from the servitude right to which the prescriptive use related.
[52] Moving on, once a type or category of servitude is constituted by reference to the prescriptive use (and, in the case of a servitude right of access, once its particular form is also so established), it has never been necessary to specify, as a prerequisite of its definition or constitution, the precise (or maximum) number of, say, pedestrians or horse carts entitled to use the path; or the number, type or model of vehicles entitled to pass over the road; or at what times of the day or night access may be exercised; or (per Carstairs, supra) the purposes for which the access is to be used (aside from a handful of somewhat exceptional and now antiquated types of servitude: Cusine & Paisley, Servitudes, page 328); or, say, the maximum volume of waste water to be discharged through a conduit on a neighbour’s land. These issues of detail are regulated by other means. Once the type (and, where appropriate, the form) of servitude is established by reference to the prescriptive use, the precise manner in which that servitude can be exercised is a matter to be determined by the civiliter principle and the other common law principles conveniently summarised by the House of Lords in Alvis v Harrison 1991 SLT 64 at 67 & 68 per Lord Jauncey.
[53] That brings me to the servitude right of vehicular parking. In contrast with a servitude right of access, a servitude right of vehicular parking does not exist in different forms. It is not strictly correct to define this type or category of servitude as, for example, a servitude right to park one car, or a servitude right to park two lorries, or a servitude right to park three motorcycles. The type of servitude recognised by law is simply a servitude right of vehicular parking. The precise manner in which, from case to case, that servitude right is to be exercised is regulated by other means.
[54] By analogy with other servitude rights (see paragraph [52], above), it is not necessary, in the context of a crave for declarator of a servitude right of vehicular parking constituted by prescriptive possession, to specify the precise (or maximum) number, type or model of vehicles to be parked on the servient tenement; or where on the land they can be parked; or when, by whom, and for how long they can be parked there. Naturally, specification of the extent of the historic possession is required within the articles of condescendence in order to give the defenders fair notice of the case sought to be established against them. But that is a different matter from the degree of specification required to support a competent declaratory crave.
[55] Besides, even on a practical level, over-specification of the manner in which a servitude right to park is to be exercised is itself at risk of causing uncertainty and confusion. Would declarator of a servitude right to park five motor vehicles permit the parking of, say, three motor vehicles and a transit van; or four vehicles and a motorcycle; or two small cars and a stretch limousine? The dilemma caused by over-specification is at risk of spiraling into absurdity. These details are best left to be regulated by the common law principles (including the civiliter principle) referred to in paragraph [52], above.
[56] On that logic, I would concede that it is perhaps a little incongruous that reference is made to the civiliter principle within the pursuers’ crave. The civiliter requirement “is concerned with the manner of the exercise of a servitude right, not the prior question of the true extent of it” (Moncrieff v Jamieson 2005 SC 281 (IH) per Lord Hamilton at paragraph [73], cited with approval by Lord Rodger in the House of Lords). Thus, any question of exercise civiliter arises, logically, only after the extent of the right has been identified. However, in my judgment the inclusion of a reference to the civiliter principle in the formulation of the crave is, at worst, superfluous. It would be implied in any event. It does not invalidate the crave.
[57] The defenders complained that, absent further specification in the crave, the alleged servitude right of parking would be “unlimited”. That is not correct. In law, the servitude is not truly unlimited. No servitude is unlimited. The supposed servitude in the present case, if constituted, would be limited by, for example, the civiliter principle and the other principles summarised in Alvis, supra.
[58] In closing, I should note that the defenders’ counsel placed some reliance upon passages in Moncrieff, supra (at paragraphs [53] & [60] per Lord Scott and paragraph [131] per Lord Neuberger) to the effect that the accessory servitude right to park in that case was envisaged to be limited to two, or at most three, motor cars on the servient tenement. It seems to me that those passages merely reflect, at its highest, an understanding that the civiliter exercise of that particular accessory servitude right might be limited to two or three cars, reflecting certain informal non-binding parking arrangements that were entered into between the parties’ predecessors in title. More importantly though, the interlocutor of the Inner House, to which the House of Lords adhered, contained no express limit on the number of vehicles permitted to park upon the servient tenement. While the pursuers in Moncrieff did initially specify the precise number of cars sought to be parked on the servient tenement, the wording of the declarator was amended, four years into the action when the cause was before the Inner House, to remove all references to a precise or maximum number of vehicles. The result was that a declarator that was formerly specific and limited was amended into a general form of declarator; and it was the general wording (unlimited as to the number of vehicles entitled to park) that was pronounced by the Inner House and affirmed by the House of Lords.
Miscellaneous issues
[59] A number of miscellaneous issues arose in debate that I shall now address.
[60] Firstly, the defenders challenged the relevancy of the following averment in article 4:-
“The pursuers, including their employees and tenants, have parked their vehicles on [the area of land tinted dark green on Plan A] for the purposes of storing and repairing their amusement arcade and amusement ride equipment”.
A number of criticisms were made of this averment. It was said to disclose the alleged use of the servient tenement, not for parking, but for storage. It was said to disclose that items other than “vehicles” were being stationed upon the servient tenement. It was said to disclose that the supposed servitude right was being used to station “commercial” vehicles or equipment, an activity which could confer no lawful praedial benefit upon the dominant tenement as its use was said to be restricted to “residential” purposes only.
[61] In my judgment, a servitude right of vehicular parking, by its nature, comprises the right to station a vehicle temporarily upon the servient tenement. The component elements of this definition may give rise to factual subtleties and questions of degree, varying from case to case. A vehicle is a moveable conveyance. The temporary or transitory nature of its presence on the servient tenement distinguishes the activity from permanent storage. But the parking need not be brief. A vehicle may quite legitimately be parked for a few minutes or hours, or for a much longer period of days, weeks or many months (Moncrieff v Jamieson 2005 SC 281 at 289 per Lord Marnoch). It is only if, in nature, the supposed “parking” constitutes at inception (or evolves into) permanent storage or deposit, then such an activity would not be justified by the servitude right (Moncrieff, supra, at paragraph [39] per Lord Hope). To take a simple example, a servitude right of vehicular parking would not allow the servient tenement to be used to store freight containers, commercial stock or household appliances. Such use would comprise the storage of items that are plainly not vehicles. Likewise, a servitude right to park cannot be used to store, stock-pile or dump scrap vehicles. That use would amount to storage, not parking. The essential transitory nature of the servitude right would be absent. Besides, a scrap vehicle may be said to have lost its essential character as a movable conveyance. Lastly, the same may be said of a vehicle which, though initially parked in the legitimate exercise of the servitude right, has through vandalism or otherwise, lost its wheels, engine and steering wheel. In that event, there comes a point where it also loses its essential character as a moveable conveyance (a vehicle) and may more properly be described as a permanent fixture on the ground. The servitude right to park would no longer justify the continued presence of such an item on the servient tenement. Such issues are likely to be fact-sensitive.
[62] I have concluded that the relevancy of the pursuers’ averment in article 4 cannot be determined until after proof. The precise nature of the “equipment”, the use that is being made of it, and its relationship both to the vehicles and the “parking” itself may involve issues of factual and legal subtlety, making it desirable to ascertain the facts in their proper setting before the law can be determined and applied with precision. It may be that the “equipment” referred to forms part of the vehicles; or it may be that the equipment does not form part of the vehicles, but remains on the vehicles at all times; or it may be that the equipment does not form part of the vehicles, and is unloaded, but that the unloading is itself temporary and remains properly ancillary to the legitimate exercise of the primary right of vehicular parking; or it may be that the averred purpose of the parking (for “storing and repairing” the equipment) is not intended to be an exhaustive statement of the purpose of the parking, but rather merely illustrative of a purpose for which some vehicles may have been parked; or, indeed, it may be that the purported servitude use of the servient tenement, for the purpose of parking of showmen’s vehicles and/or the “storage and repair” of arcade and ride equipment (whether or not the latter is ancillary to the parking), is not a use or purpose to which the dominant tenement can lawfully be put at all (an issue that is likely to turn upon the proper construction of the land certificate as a whole, as discussed in paragraphs [35] to [37] above ) (Irvine Knitters Ltd, supra, at page 109 per the Lord President (Emslie); at page 112 per Lord Cameron). These issues cannot be determined without a fuller appreciation of the facts. Accordingly, a proof before answer is appropriate.
[63] Secondly, it was submitted that there is a lack specification in the averments of the prescriptive use that the pursuer offers to prove. I disagree. In my judgment, the pursuers’ averments (principally in article 4) provide adequate specification of the nature of the alleged use during the prescriptive period (specifically, by whom, when and how). Reference is made to the parking of vehicles on the supposed servient tenement since in or around 1989. A list (entitled “List of Parkers”) (item 5/4(1) of process), the terms of which are incorporated into the pleadings, identifies the names and (for the most part) addresses of the individual tenants (including the second named pursuer) who have so parked, the dates during which they parked, and the number of vehicles so parked. This gives fair notice to the defenders of the case sought to be proved against them.
[64] Thirdly, the pursuers’ averments in article 4 were said to be confusing and self-contradictory in certain respects. In my judgment, while certain averments do contain some ambiguities, they are not so material, unclear or inconsistent as to merit exclusion from probation. Sufficient notice has been given of the issues in dispute to justify a proof before answer.
Decision
[65] For the foregoing reasons, I shall allow a proof before answer of the parties’ respective averments, reserving the first plea-in-law for the first and second defenders. I shall repel the second plea-in-law for the first and second defenders and, due to want of insistence, I shall also repel the first plea-in-law for the pursuers.
[66] The question of expenses will be reserved meantime. I shall appoint parties to be heard at a separate hearing on the question of expenses and on further procedure (notably to determine the scope of the proof, the potential for agreement of evidence, the number of days likely to be required, and identification of unsuitable dates).