Act: Mr Reid, Solicitor Advocate, Maclay, Murray & Spens, Glasgow
Alt: Mr Buchanan, Advocate instructed by Mathie MacLuckie, Solicitors, Stirling
STIRLING, 1 May 2008. The Sheriff Principal, having resumed consideration of the cause, sustains the appeal for the pursuer and refuses the cross-appeal for the defenders; varies the sheriff's interlocutor of 13 June 2006 as follows:
a) by deleting from the penultimate line of finding in fact 21 the word "years" and by substituting therefor the word "times";
b) by deleting from the penultimate line of finding in fact 36 and the first line of finding in fact 37 the figure "146" and by substituting therefor the figure "140";
c) by deleting the last sentence of finding in fact 28;
d) by deleting finding in fact 35;
e) by inserting a new finding in fact and law as follows: "That the pursuer and his tenants have used the route as of right, openly, peaceably and for a continuous period of at least 20 years between November 1976 and October 2002.";
f) by deleting from the first line of finding in fact and law 1 the words "does not have" and by substituting therefor the word "has"; and
g) by deleting from the first line of finding in fact and law 2 the words "has no right" and by substituting therefor the words "is entitled";
recalls the said interlocutor insofar as it repels the pursuer's pleas in law, sustains the defenders' third and fourth pleas in law, assolizies the defenders from the craves of the initial writ and finds the pursuer liable to the defenders in the expenses of process except insofar as already dealt with; quoad ultra adheres to the said interlocutor; repels the defenders' pleas in law, sustains the pursuer's fifth and seventh pleas in law and grants decree in terms of the first and second craves of the initial writ; finds the defenders liable to the pursuer in the expenses of the action, except insofar as already dealt with, and of the appeal; allows accounts thereof to be given in and remits the same, when lodged, to the auditor of court to tax and report; certifies the appeal as suitable for the employment of junior counsel.
NOTE:
Background
[1] In this case the pursuer is the heritable proprietor of the house known as 146 Main Street, Callander. He has owned this property since November 1976 and has personally resided there with his wife since July 1984. Before that time the property was occupied by tenants.
[2] The house is one of a number of terraced properties lying on the south side of Main Street. The houses to the west of the property are numbered 144 and 142 respectively. To the immediate west of 142 Main Street there is a lane which leads from the Main Street in a generally southerly direction to a yard and buildings to the rear of 142 and 144 Main Street. This is known as 140 Main Street and is the property of the defenders. They acquired ownership of it from Jack McNaught in October 2002. Mr McNaught had owned 140 Main Street since August 1992 and before him it had been owned for many years by Walter Alexander and Son Limited, who had used it as a bus depot.
[3] To the rear of the house at 146 Main Street there is garden ground which extends along the eastern boundary of firstly the garden of 144 Main Street and then the yard and buildings of 140 Main Street. In about 1984 the pursuer laid a concrete hard standing in his garden at a point adjacent to the yard of 140 Main Street and at some time thereafter erected a car port over it. The only vehicular access to this car port is by the lane and across the yard of 140 Main Street and in the present action the pursuer seeks declarator that, as heritable proprietor of 146 Main Street, he has a servitude right of way over this route. The line of the route is defined by reference to a plan attached to the initial writ. The action was commenced in response to attempts by the defenders to block the route and prevent the pursuer gaining access to the car port in about March 2004 and accordingly the pursuer also seeks interdict against the defenders from obstructing his access.
[4] The sole ground upon which the pursuer now contends for the existence of the claimed servitude is possession of the same for the prescriptive period in reliance upon section 3(2) of the Prescription and Limitation (Scotland) Act 1973. Section 3(2) provides as follows:-
"If a positive servitude over land has been possessed for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the servitude as so possessed shall be exempt from challenge."
[5] It is common ground that the possession referred to in section 3(2) must be possession "as of right" and that if the possession was due to permission or tolerance of the proprietor of the putative servient tenement there could be no servitude constituted by this means. It is also agreed that the pursuer has the onus of proving that the possession was taken "as of right." While agreeing these principles however there remains a material divergence between the parties firstly as to what constitutes possession "as of right" and secondly as to the evidence which may properly be taken into account in deciding whether the onus of proof has been discharged by the pursuer.
Sheriff's decision
[6] Following a proof the sheriff concluded that there had been open, peaceable and continuous use of the route for a period in excess of twenty years, namely between November 1976 and October 2002, but that the pursuer had failed to establish that the use was "as of right." He summarised his position at page 104 of his note as follows:-
"For all of the reasons I have explained, although I am prepared to find that there was sufficient use of the route from 1976 onwards until 2002 to have allowed for the establishing of a servitude right by prescription, if other conditions had been fulfilled, I am not satisfied on the evidence that the pursuer has shown that this use which is equally consistent with permission or tolerance on the part of the servient proprietor at the relevant times was in exercise of a right rather than that of permission or tolerance."
[7] In their pleadings the defenders made a positive case that between August 1992 and October 2002 the pursuer was permitted by Mr McNaught to exercise vehicular access over 140 Main Street provided that it did not interfere with the operation of his business. They also aver that, after they took possession of 140 Main Street, the pursuer had sought permission from the first defender to continue taking access and that this had been granted. They also aver that the pursuer had admitted that his use of the access was with the permission of the previous occupiers of 140 Main Street.
[8] The sheriff held (at page 91 of his note) that the defenders had failed to make out that positive case but went on to state that that did not "get the pursuer home." - "It is for the pursuer to prove the negative in this case - ie to prove their use did not result from permission or tolerance. He has clearly not done so for the period 1992 to 2002, when Mr McNaught was the owner, nor was I satisfied that tolerance or permission was excluded during the years from 1976 to 1992."
[9] In approaching the issue in this way the sheriff was purportedly following the approach of Lady Smith in Nationwide Building Society v Walter D Allan Limited (unreported 4 August 2004) when she observed at para 31:
"It is well established that it is for the party claiming the prescriptive acquisition of servitude to prove that the usage relied on occurred by means of assertion of right rather than by the tolerance or licence of the landowner. Further, if the approach of the Court of Appeal in England is to be followed, it seems that that party must exclude tolerance as an explanation of the use founded upon. If their use of the other party's land is as consistent with toleration or licence on the part of that landowner as it is with user as of right, that is not enough (Patel and Others v W H Smith (Eziot) Limited). Such an approach seems logical and would accord with the principle clearly recognised in Scots law to the effect that the use relied upon requires to be shown by the proprietor relying on it to have been as of right."
Grounds of Appeal
[10] In his amended note of appeal the pursuer challenges the sheriff's approach to the question whether the use of the route was exercised "as of right." He makes three particular points. Firstly, he contends that the sheriff failed to appreciate that, in the absence of sufficient evidence to the contrary, the nature and extent of the use of the access route was such as to justify the inference that it was exercised "as of right." Secondly, he contends that the sheriff misunderstood the meaning of "permission or tolerance" with the consequence that he had imposed on the pursuer an undue burden of proof to exclude the possibility that the use of the access route arose by virtue of tolerance or permission on the part of the defenders and their predecessors in title. Thirdly, he contends that the sheriff erred in law in taking into account the subjective views of the pursuer and the defenders (and their respective predecessors) when seeking to determine whether the use of the access route was "as of right" or attributable to permission or tolerance.
[11] It was suggested in short that, but for the sheriff having misdirected himself in these respects, he would have found in favour of the pursuer. In the course of the appeal hearing it was recognised by the solicitor for the pursuer that, although the sheriff had expressed himself as satisfied that the use was open, peaceable and for a continuous period of at least twenty years, he had failed to translate that conclusion into an appropriate finding in fact and I was invited to make good that deficiency by making such a finding in fact at my own hand. This was described as a mechanical exercise and merely giving effect to what the sheriff had clearly decided.
Grounds of Cross appeal
[12] The defenders lodged a cross appeal which is the foundation for a root and branch attack in respect of each of the constituent parts of the pursuer's proposed new finding in fact. Briefly stated, the defenders contend firstly that the route defined in the pursuer's first crave had not been shown to have been the route used throughout the prescriptive period relied on; secondly, that such use as there was had not been shown to involve an assertion of right; and thirdly, that the use of the route had been neither open nor peaceable nor continuous throughout the period claimed. In large measure the issues raised by the cross appeal are, on the defenders' analysis, bound up with the issues raised by the pursuer's appeal and I have structured this note accordingly.
Submissions for pursuer
[13] In support of his submissions, the solicitor for the pursuer offered an extensive citation of authority, the full extent of which I have noted hereunder. In recording the tenor of his submissions however I have confined myself to identifying in relation to each submission what appear to me to be the principal authorities upon which he relied.
[14] The primary contention for the pursuer was that use of the route for twenty years openly, peaceably and without judicial interruption gave rise to an inference that such use was "as of right" and unless there was sufficient evidence to show that the use should be ascribed to permission or tolerance or some other similar basis that was the inference which the court ought to draw (Grierson v School Board of Sandsting and Aithsting 1882 4R 437 and McGregor v Crieff Co-operative Society Ltd 1915 SC (HL) 93).
[15] It was submitted that the expression "as of right" simply meant nec precario, that is to say without licence or permission (McGregor sup.cit.) and that precarium or permission required some positive act of granting the use of the land as opposed to mere acquiescence in its use (R (Beresford) v Sunderland City Council 2004 1All ER 160 per Lord Rodger of Earlsferry at paras. 55 and 57). The parties' subjective belief as to the basis upon which the route was being used was irrelevant to the character of the use (Rhins District Committee of the County Council of Wigtownshire v Cuninghame (1917) 2 SLT 169 and Marquis of Bute v McKirdy and McMillan Ltd 1937 SLT 241) and what was required was some action on the part of the putative servient proprietor by word or deed which contradicted the inference otherwise to be drawn from long uninterrupted use. In this regard particular reliance was placed on the opinion of the Lord President in Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1992 SLT 1035 (at page 1041G) that "where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware that the route is being used by them only with his permission and not as of right." This statement had been endorsed by Lord Jauncey of Tullichettle when the case was taken on appeal to the House of Lords.
[16] In similar vein it was submitted that the pursuer's view of the basis upon which he was taking access to his property was irrelevant to the character of the use. Bad faith did not preclude a possessor from acquiring a servitude right (Stair Institutions II.xii.19, Erskine Institute III.vii.15, Rankine Land Ownership page 429, Johnston Prescription and Limitation para.16.05 and Duke of Buccleuch v Cunynghame 1826 5 S 57) and accordingly the pursuer's introduction of himself to the defenders as their "resident squatter" was neither here not there, even assuming it had been said within the period of a growing prescriptive right.
[17] It was submitted that the sheriff's decision regarding the character of the use of the route was largely founded on an assessment of the subjective state of mind of the parties and their predecessors in title, including tenants, and to that extent he had fallen into error.
[18] Turning to the question of onus of proof, the solicitor for the pursuer submitted that the opinion of Lady Smith in Nationwide Building Society v Walter D Allan Limited that it was for the party claiming the prescriptive acquisition of a servitude to exclude tolerance was inconsistent with prior authority (Marquis of Bute sup.cit. at page 244, and Grierson) and ought not to be followed. The pursuer did not have to exclude the possibility that use was attributable to permission or tolerance although it was accepted that, if there was evidence from which it might be inferred that use was with permission or by tolerance, the pursuer had the onus of persuading the court that the inference to be drawn from the nature of the use should prevail over the inference to be drawn from any contrary evidence. That was part and parcel of the onus on the pursuer to show that the use was "as of right". It was submitted that the sheriff had failed to adopt that approach but instead had relied on the pursuer's failure to exclude a speculative possibility, having already rejected the defenders' positive case of permission or tolerance.
[19] It was also submitted that, in concentrating on the question of whether or not there was permission or tolerance, the sheriff had failed to have regard to the inference to be drawn from the substantial body of evidence concerning the nature and extent of the use of the route, which plainly supported the conclusion that the use taken was "as of right." The defenders' predecessors had slept on their rights and as a result the servitude right had taken root and was beyond challenge by the time of the defenders' ownership.
Submissions for defenders
[20] In responding to these submissions counsel for the defenders submitted that the question whether the use of the route was "as of right" could not be divorced from the question whether the acts of possession were overt, "in the sense that they must be of such a character or be done in such circumstances as to indicate unequivocally to the proprietor of the servient tenement the fact that a right was being asserted and the nature of that right" (McInroy v Duke of Athole 1891 18R (HL) 46 at 48 and McGregor sup. cit. at page 104). It was submitted that the court could not conclude that the use was as of right without first finding some trigger event which would set off an alarm bell in the mind of the putative servient proprietor that someone was challenging his exclusive possession of the servient tenement. The question was whether a reasonable proprietor would have noticed the trigger event and done something about it.
[21] In answering that question it was submitted that the court required to look at the whole circumstances of the case and that events occurring outwith the prescriptive period founded on could have a bearing on the character of the use within that period. This was supported by the approach taken in McInroy and McGregor sup.cit. which it was submitted were the authorities binding on me. Neither had been overruled or even discussed in Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd, which suggested that that case should be distinguished as concerning a public right of way.
[22] Looking to the factual circumstances of the case, counsel submitted that nothing had been done, particularly in the period before the erection of the car port, to alert the proprietor of the putative servient tenement to the fact that there was an assertion of a right contrary to their interest. The assertion of such a right required to be sustained throughout the whole of the prescriptive period relied on and it was submitted that, particularly in relation to the period of occupation by Walter Alexander and Sons Limited, the evidence did not support such an assertion. In the first place, one of the tenants, John Mackay, stated that he had sought permission to cross the yard. In the second place, during the period of occupation by the tenant Campbell, the use of the route was not extensive and often outwith business hours. The only other indication of use during this period was the gap in the hedge but it was pointed out that the sheriff had stated that he could not say on the evidence that Alexanders could have been aware of any relevant gap in the hedge (sheriff's note page 83). Thus there was no basis for attributing to Alexanders even constructive knowledge of the use and the sheriff had excluded actual knowledge. The use of the route could not therefore be said to be "open". Furthermore it was submitted that the waters were muddied by the existence of an express servitude right in favour of 144 Main Street and the question was posed as to how Alexanders were supposed to know that the use made of the route was that of the pursuer and his predecessors rather than that of the proprietors of 144.
[23] Counsel submitted that a further difficulty for the pursuer was to be found in the evidence of John Mackay that, during his occupation of 146 Main Street, the point of entry to the garden of that property was at a different point to that in use thereafter, Mr Mackay speaking to a different gap in the hedge to that spoken to by others. It was submitted therefore that the route in respect of which the pursuer now seeks declarator is different from the route used by Mr Mackay, with the consequence that the claimed servitude had not been possessed continuously throughout the whole period from 1976 to 2002.
[24] So far as concerned the question of the parties' attitude to the use of the route, counsel submitted that evidence of their knowledge and intentions in relation to such use was material which could properly be taken into account in deciding objectively what was to be inferred from the parties' actions and in particular whether there had been some activity which ought to have alerted the putative servient proprietor to the fact that someone was challenging his exclusive right of possession. It was submitted that a key component of the notion of "possession of a servitude right" was the need for the putative dominant proprietor to conduct himself as if he had a completed servitude. It was inconsistent with the assertion of a right that he should seek permission or should have acknowledged to the putative servient proprietor that he was merely a squatter.
[25] Counsel also attached importance to the sheriff's view firstly that Mr McNaught would not have granted in relation to the route any right which could be transmitted to a singular successor (page 89 of note) and secondly that the pursuer did not have a clear understanding of the basis upon which he was using the route (page 88 of note). What this showed was that neither party believed that a right was being asserted and it was submitted that the sheriff was entitled to view that state of affairs as a relevant consideration when looking at what inference was to be drawn from the nature and extent of the use established. The parties' subjective assessment of the prevailing circumstances cast light on the actual events which occurred and also enabled the court to judge whether the putative dominant proprietor was truly asserting a right.
Reply for pursuer
[26] In reply the solicitor for the pursuer submitted that the requirement that use of a way be "as of right" was a feature common to both private and public rights of way and that accordingly the observations on that matter in Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd were equally applicable to a case such as the present. This was clearly the view of Lord Dunedin in McGregor sup.cit. at page 103/104 and was also the approach adopted by the sheriff principal in Webster v Chadburn, (Inverness - unreported 9 May 2003).
[27] The solicitor for the pursuer renewed his submission that there required to be a positive act on the part of the putative servient proprietor asserting his exclusive right of property, thereby making manifest to the putative dominant proprietor the fact that the use was only being permitted at his indulgence. There was no evidence of any such positive act nor was there any suggestion of any permission having been orally given (sheriff's note page 83). It was submitted that the sheriff had only reached the conclusion he had because he equated permission (a positive concept) with acquiescence (a mere negative concept) and in doing so he had misdirected himself as to the proper meaning of that word.
[28] In relation to the submissions of his opponent regarding the meaning of "open" possession, it was accepted that it required to be shown that the putative servient proprietor knew or ought to have known of the possession in question. It was submitted however that the sheriff had approached the matter on that basis and this was confirmed by his reliance upon the passage from McInroy already referred to (sheriff's note at page 78). Absent any misdirection therefore it was not open to an appellate court to interfere with the sheriff's conclusions of fact other than on well established grounds which had not been canvassed by the defenders at all. Reference in this regard was made to Thomas v Thomas 1947 SC (HL) 45 and Hamilton v Allied Domecq plc 2005 SLT 1151 at 1165I et seq.
[29] The solicitor for the pursuer submitted that it was not open to the defenders to offer a selective reading of the evidence. If the sheriff's conclusions were to be challenged it was necessary to look at the whole of the evidence led. It was submitted that, in any event, there was an ample basis upon which the sheriff could conclude that Alexanders ought to have known of the use of the route and he adopted the sheriff's reasoning at pages 77 to 81 of his note. Concerning the passage relied on at page 83 of that note he submitted that the sheriff had not expressed himself very clearly but that what he was referring to was the viewpoint only of those who had made occasional visits.
[30] The solicitor for the pursuer then went on to criticise the defenders' reliance upon an argument that the waters were muddied by the existence of the express servitude right in favour of 144 Main Street, which was an argument which had never been advanced in the court below. In similar vein he criticised the reliance upon any suggestion that John Mackay had sought permission from Alexanders when that suggestion had been expressly disavowed by the solicitor for the defenders at the proof (see notes of evidence vol. 5 page 141). It was pointed out that, in any event, the sheriff had only accepted a small part of John Mackay's evidence and had expressly found that the pursuer and his tenants had not asked for permission to use the route.
[31] So far as concerns the contention that Mr Mackay's use of the route was not along the same line of the route as that used by others it was pointed out that that had never been put in issue nor was it referred to in the grounds of appeal. In any event it was submitted that the sheriff's judgment proceeded on the basis that there was no discrepancy between the evidence which had been accepted and the route of the servitude claimed. This was borne out by finding in fact 10 which identified the location of the gap in the hedge from about November 1976 to the present date. Furthermore, during the period of Mr Mackay's occupation, the route had also been used by the pursuer and his father and their evidence was consistent with the gap being in the position described in finding in fact 10.
[32] Finally, the solicitor for the pursuer renewed his submission that the subjective state of mind of the proprietors of the respective tenements was not relevant unless manifested. What mattered was not what parties thought but what they did.
Further reply for defenders
[33] In a brief final submission counsel drew attention to the sheriff's conclusion (note page 83) that he could not say whether Alexanders could have known of the gap in the hedge and submitted that that conclusion could not be reconciled with the notion that possession was overt. So far as Mackay's evidence was concerned, the sheriff had relied on that evidence to show that the use of the route was as of right and yet his description of the route used did not match the route claimed.
Additional authority
[34] While I had this case at avizandum the Inner House issued its opinion in Aberdeen City Council v Wanchoo 2008 SLT 106, the decision in the Outer House being one of the authorities referred to by the solicitor for the pursuer. Parties were afforded the opportunity of making further submissions relating thereto and a written submission was lodged by the defenders.
Discussion
Was the use of the route "as of right"?
[35] In my view it is important at the outset of this discussion to make clear what is properly to be understood by the words "as of right". In Servitudes and Rights of Way Cusine & Paisley (at para. 10.19) treat the phrase as equivalent to the Latin phrase nec precario and state that it distinguishes use which is with permission of the owner and that which is not. This echoes the words of Lord Dunedin in McGregor v Crieff Co-operative Society Ltd - "Now as to the character of the use. The expression hitherto used has invariably been that it must be "as of right". Sometimes it is put negatively, that it must not be clam vi aut precario." (page 103). The same association was made by Lord Hoffman in R v Oxfordshire CC ex p Sunningwell Parish Council, in which he concluded that "as of right" meant "nec vi, nec clam, nec precario", and this was followed in R (Beresford) v Sunderland City Council. In my view it was also the basis for the court's approach in the other Scottish authorities to which reference has been made.
[36] When looking at the proper meaning of the word precarium I derive considerable assistance from the judgment of Lord Rodger of Earlsferry in R (Beresford) v Sunderland City Council where he explains that in Roman law precarium was the name given to a gratuitous grant of the enjoyment of land or goods which was revocable at will. It was an informal arrangement which involved a positive act of granting the use of the property, as opposed to mere acquiescence in its use. At paragraph 65 of his judgment he states as follows:
"The phrase "nec vi nec clam nec precario", taken over from Roman law, has resounded just as powerfully among Scots lawyers and judges as among their brethren south of the Border. But in reading the Scottish cases a linguistic point must be noted. English judges have tended to use "tolerance" as a synonym for acquiescence. See, for instance Mills v Silver [1991] 1 All ER 449. Scottish judges, on the other hand, have tended to use "tolerance" as a synonym for permission and as a translation of precarium. This is perfectly understandable since an owner who, perhaps somewhat reluctantly, decides to permit the public to walk across his land until further notice may be said to "tolerate" them doing so."
[37] In the same paragraph Lord Rodger refers to a statement of Lord President Inglis that "precarious possession is a possession by tolerance merely" and then goes on to say that it is "in this sense that Lord Kinnear, a recognised authority on Scottish land law, uses the phrase "tolerance or permission" in Folkestone Corp v Brockman."
[38] In my view these observations helpfully point to a distinction between permission, which is essentially a positive concept, and acquiescence, which is a negative one. In seeing the word tolerance as a synonym of permission one is more clearly pointed to the need for something positive to be done in the face of apparently adverse use of a way whereas the word acquiescence points more to silence or inactivity. As I understand the import of Lord Rodger's analysis it is the former which describes the true nature of precarium.
[39] I recognise of course that in McGregor v Crieff Co-operative Society Ltd both Lord Dunedin and Lord Sumner emphasised the point that permission would include tacit permission and this might be thought to run counter to the notion that permission or tolerance could not properly be instructed where there was silence or inactivity. As Cusine and Paisley point out however (Servitudes and Rights of Way para 10.19) what matters is the volume of possession and where the volume is reasonably substantial, and the servient proprietor has done nothing to challenge it, that will be regarded as adverse and as the assertion of a right. Thus the volume of unchallenged possession becomes the primary means by which one distinguishes use as of right from use tacitly permitted.
[40] The approach of Cusine and Paisley was expressly endorsed by the Inner House in Aberdeen City Council v Wanchoo. At paragraph 18 the court states as follows:
"In addressing the question of access "of right", we would observe at the outset the risk of a semantic confusion which appeared on occasion to surface in the discussion before us. In one sense, user which is being taken "of right" is always "tolerated", in respect that the proprietor of the servient tenement acknowledges the right and does not question it. So "toleration" in this context is, in our view, directed not so much to the mind of the proprietor of the servient tenement but to the nature, quality and frequency of the user. As was indicated in McInroy, the test is objective. In the leading speech of Lord Watson in that case, his Lordship stated, (1891) 18 R (HL), p48: "I do not doubt that, in order to found a prescriptive right of servitude according to Scots law, acts of possession must be overt, in the sense that they must in themselves be of such a character or be done in such circumstances as to indicate unequivocally to the proprietor of the servient tenement the fact that a right is asserted, and the nature of the right." Very occasional user in peculiar circumstances may readily be ascribed to a sense of helpfulness or personal obligement on the part of the proprietor of the servient tenement. But as is stated in Gordon on Land Law, para 24-49: "If usage is only occasional the court is likely to infer that the usage was by tolerance rather than as of right. As a matter of good neighbourhood a proprietor is not likely to object to occasional use of his property by a neighbour, and the law does not oblige him to object to such occasional use in order to prevent his neighbour from acquiring a right. But if use is substantial and fairly constant, challenge is necessary to preserve freedom from servitude rights, and the challenge must be successful. Persistence in use in face of an unsuccessful challenge is good evidence of use as of right". To similar effect are Cusine and Paisley at para 10.19 in fine, where they say: "...what matters is the volume of possession. Where the volume is reasonably substantial, taking account of the nature of the right claimed, this will be regarded as adverse and as the assertion of a right."
[41] This approach echoes that of the Lord President in Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd that "where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware that the route is being used by them only with his permission and not as of right."
[42] The sheriff has followed the example of the Lord Ordinary in Nationwide Building Society v Walter D Allan Ltd in thinking that no assistance could be derived from either Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd or R (Beresford) v Sunderland City Council on the question of what amounts to use as of right. It will be evident from what I have already said that I do not agree with that view. In the latter case Lord Bingham considered that the meaning of the phrase "as of right" was one which applied for prescription purposes generally and without distinguishing between public and private rights and in this Lord Rodger appears to agree, expressly founding on Cumbernauld & Kilsyth District Council as part of his analysis. In similar vein the court in Aberdeen City Council v Wanchoo plainly thought that that case afforded an appropriate analogy and that approach is consistent with the opinion of Lord Dunedin in McGregor (at page 104) that in a question of the character of use there is no difference between those cases involving a claimed public right of way and those involving a claimed servitude. Like the sheriff principal in Webster v Chadburn I respectfully adopt that view.
[43] Before seeking to apply the principles which emerge from these cases to the particular circumstances of this case it is necessary to address the argument for the pursuer that the sheriff has misdirected himself on the question of onus of proof, specifically that he has required the pursuer to exclude the possibility of permission or tolerance and, in the sheriff's own words, to prove a negative.
[44] Given the close relationship between possession as of right and the existence or otherwise of permission there is a certain logic in saying that in order to discharge the onus of proving that the use was as of right the pursuer in effect requires to exclude permission or tolerance. Indeed both parties referred to "as of right" and "permission or tolerance" as opposite sides of the same coin. While that may be so, in my opinion it is unhelpful to define the nature of the onus on the pursuer by reference to excluding permission because it is apt to lead one to ignore the inferences to be drawn from the nature, quality and frequency of the user. Furthermore a definition of onus which requires the pursuer to prove a negative is in my view obviously unsatisfactory.
[45] Borrowing the words of Lord Mackay in Marquis of Bute v McKirdy and McMillan Ltd, the task for the sheriff was to address himself to the dual question of whether on the whole evidence the user was exercised as of right or by permission or tolerance. In this regard I note Lord Rodger's opinion in R (Beresford) v Sunderland City Council that, while prudent landowners will often indicate expressly when they are licensing or permitting others to use their land only during their pleasure, he could see no reason why the implied grant of such a revocable licence or permission could not be established by inference from the relevant circumstances. I have no difficulty with that proposition but it is important nevertheless to emphasise the need for evidence which is capable of supporting an inference of permission.
[46] In light of what was said in Aberdeen City Council v Wanchoo and Cumbernauld & Kilsyth District Council, if the user is of such amount and of such a character as would reasonably be regarded as being an assertion of right it will readily be inferred that the use was as of right unless that inference can be displaced by evidence of permission or tolerance as those words are properly to be understood. But if there is no such evidence, or if the evidence is of insufficient weight, there is in my view no justification for refusing to hold that the use was as of right simply because the pursuer has failed to exclude the speculative possibility that the use might be attributable to permission.
[47] In the present case the sheriff was plainly satisfied that for twenty years there had been possession of sufficient volume for the purposes of prescription. His view of the character of that possession is evident from his findings in fact which show that, save on one occasion, the various occupants of the putative dominant tenement were not prevented from using the route and that none had sought or been expressly granted permission to do so. In his note the sheriff states (at page 77) that in using the route the pursuer's tenants were in effect asserting a right and (at page 83 - dealing with the period of Alexander's ownership) that the use of the route began and continued as an assertion of a right of access.
[48] Counsel for the defenders suggests that these statements are contradicted by the evidence of Mr Mackay that he had sought permission from Alexanders to create a gap in the boundary hedge between the dominant and servient tenements and that this was destructive of any suggestion that the access was taken as of right at that time. It was suggested that this permission explained the basis for the use thereafter and was destructive of the pursuer's case which required him to show that access was taken as of right throughout the whole period claimed.
[49] It should be noted that there was no foundation on Record for any suggestion that Mr Mackay had ever sought permission to use the route and when objection was taken to the leading of any such evidence the solicitor for the defenders expressly disavowed any intention to make such a case (notes of evidence vol 5/137-143). In these circumstances I do not think it is open to the defenders to make such a case now. In any event the defenders' position on this matter does not stand up to close scrutiny. In the first place, the sheriff was not impressed by the evidence of John Mackay and it cannot be assumed that the sheriff accepted his evidence in this particular regard, particularly standing his clear statement that the tenants were in effect asserting a right. In the second place, as was said in Aberdeen City Council v Wanchoo (at para.17), what starts out as a personal right of access may with the passage of time and the expiry of the prescriptive period become a real right of servitude by user (see also Rome v Hope Johnstone 1884 11R 653 at 657). In the third place, the period of John Mackay's occupation was over by 1981 and there was accordingly a period of twenty years' use thereafter before the end date of the prescriptive period on which the pursuer relies. In my view therefore there is nothing in the defenders' submission on this matter which undermines the pursuer's case that the access taken was as of right.
[50] In relation to the period when Mr McNaught was owner of the servient tenement there was a single instance of the route being blocked (finding in fact 34) but this instance must be set in the context of a substantial period when the pursuer was not only not prevented from taking access but on one view encouraged in doing so by the activities of Mr McNaught in helping him to construct the car port. If that incident was to be seen as a challenge to the pursuer's adverse use of the route it seems clear that the challenge was unsuccessful since the use continued as before. As the court made clear in Aberdeen City Council v Wanchoo, persistence in use in face of an unsuccessful challenge is good evidence of use as of right and in my view that incident is insufficient to disturb the inference that use throughout the whole period was as of right. In similar vein the fact that during other periods there were occasions when the route was temporarily blocked by parked cars is of no consequence because the evidence clearly showed that the occupiers of the servient tenement would move these cars when requested to do so. Once again I consider that that evidence reinforces the view that the use was as of right rather than, as suggested by the defenders, pointing to use which was neither peaceable nor continuous.
[51] On the sheriff's view of the evidence therefore it is clear that the character of use was such that, in the absence of evidence to the contrary, there was a clear inference to be drawn that the use of the route was as of right. The question therefore is whether there was a sufficient basis in the evidence to justify the view that that inference should not be drawn and that instead the use was by permission or tolerance. Coupled with this is the question, raised by the solicitor for the pursuer, whether the sheriff has properly understood what is meant by permission or tolerance.
[52] In this latter regard, although the sheriff has not expressly addressed that question, it does seem to me that there are clear indications that he thought that mere acquiescence or inactivity on the part of the proprietors of the servient tenement was capable of instructing permission or tolerance. For example, in relation to the period of ownership of the servient tenement by Walter Alexander & Sons Ltd, the sheriff states (at page 83) that the pursuer did not ask for or receive from them "actual or implied permission" (my emphasis) to use the route but then goes on to say that the circumstances were equally consistent with the view that by "doing nothing" the management of Walter Alexander & Sons Ltd were permitting or tolerating the use. In similar vein, in relation to the period of the defenders' ownership after 2002, the sheriff expressly finds in fact (FF 37) that until 2004 the defenders did nothing to restrict or prevent the pursuer's use of the route nor did they even raise the issue with the pursuer and yet he has concluded that there was no continuing undisputed use of the route simply because of the private, unexpressed view of the defenders that no right to use the route existed. It is clear from what he says at page 15 of his note that he equates this unexpressed mental reservation with tolerance of the continued use of the route by the pursuer and his family.
[53] In light of what I have said earlier in this discussion, I consider that, in approaching the matter in this way, the sheriff has misdirected himself and that it is accordingly open to me to consider whether the evidence which the sheriff has relied on is sufficient to warrant an inference that permission or tolerance is in fact the correct explanation for the use which has been taken.
[54] The evidence is discussed by the sheriff at pages 82 to 92 of his note from which it appears that the following factors were in his view pertinent to the question whether permission or tolerance had been excluded. In the first place he apparently attached significance to the fact that from 1976 until at least 1990 the pursuer did not believe that he had any right which he could protect or assert in court and that if challenged in his use of the route he would have had to have stopped. Of course such a belief would accurately reflect the legal position until the full period of the prescriptive period had elapsed, but in my view that does not detract from the inference to be drawn from the nature, quality and frequency of the user, unless perhaps expression is given to that belief by word or deed in such a way that the proprietor of the putative servient tenement might reasonably be expected to assume that no right was being asserted and accordingly to refrain from taking any step to challenge the use.
[55] The position is I think well expressed by Lord Hoffman in R v Oxfordshire CC ex p Sunningwell Parish Council (at page 356) as follows:
"A person who believes he has the right to use a footpath will use it in the way in which a person having such a right would use it. But user which is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not. Where Parliament has provided for the creation of rights by 20 years' user, it is almost inevitable that user in the earlier years will have been without any very confident belief in the existence of a legal right. But that does not mean that it must be ignored."
[56] This echoes what was said by Lord Sands in Rhins District Committee of the County Council of Wigtownshire v Cuninghame (at page 171) and by Lord Mackay in Marquis of Bute v McKirdy and McMillan Ltd (at page 243). The opinion of Lord Mackay is particularly in point - ".... in selecting between tolerance on the one hand and user as of right on the other it is not what the parties thought or said in their private minds, it is what they did." (See also Lord President Normand at page 251).
[57] This approach is also consistent with the view that bad faith does not preclude the acquisition of a servitude right, which in my opinion is a proposition well vouched by the authorities to which reference has been made. It is also consistent with the view of the Inner House in Aberdeen City Council v Wanchoo that "toleration" is directed not so much to the mind of the proprietor of the servient tenement but to the nature, quality and frequency of the user.
[58] In dealing with this aspect of the sheriff's judgment it is necessary to address two particular pieces of evidence, which counsel for the defenders submitted involved a manifestation of the pursuer's belief and which were destructive of the pursuer's claim. The first is encompassed by finding in fact 28, which relates to the pursuer approaching Alexanders at the time that 140 Main Street was being offered for sale and asking whether a formal right of access over the route could be obtained. The sheriff referred to this evidence in addressing the question whether the access was open and apparently discarded it as having any significance. Suffice it to say that in my view the submission for the pursuer on this matter is to be preferred. The pursuer was merely seeking the formalisation of the existing position and in my view the evidence does nothing to support a case for permission or tolerance nor does it afford any basis upon which Alexanders could reasonably be entitled to assume that no right was being asserted against them. In any event, what matters is that the pursuer's use of the route continued thereafter unabated and without challenge.
[59] The second piece of evidence which was relied on by the defenders was the pursuer's statement to the defenders that he was their "resident squatter". While that may have been an important adminicle of evidence if that had been said before the prescriptive period had elapsed in my view it is irrelevant when, as is the case, it was said after that period has elapsed. That was the sheriff's view (at page 82) and I think he was correct.
[60] So far as the sheriff's narrative of the remaining parts of the evidence goes there was nothing to show that the pursuer's belief was manifested in any conduct which might suggest to the owner of the servient tenement that, contrary to appearances, a right was not being asserted and in the absence of such evidence it does not seem to me that the pursuer's belief by itself assists at all in the question whether there was permission or tolerance by the defenders and their predecessors of his use of the route.
[61] The second factor to which the sheriff has had regard is the evidence of Mr McNaught which was tendered in an affidavit. It is clear from the sheriff's analysis of that affidavit however that, beyond acknowledging the frequency and quantity of use, he does not think that it sheds any material light on the question whether the pursuer's use of the route was or was not by permission or tolerance. Indeed he expressly points up the fact that the affidavit is silent on that matter and accordingly on that view there is nothing in it to counter the inference to be drawn from the nature and extent of the use. It is difficult to see therefore how it can assist a resolution of the issue between the parties unless, as suggested by the sheriff, it was for the pursuer to prove a negative. As I have already indicated however I am not persuaded that that is the correct way of looking at the question of onus of proof. Counsel for the defenders drew attention to the sheriff's view that Mr McNaught was not a person who would have granted a right of use transmissible to singular successors. I am not entirely clear upon what basis the sheriff made that assessment but in any event I am unable to see how that assists the defenders unless Mr McNaught had manifested that attitude in such a way as to make it clear that the pursuer's use was by permission only.
[62] The third and final factor to which the sheriff has had regard was the evidence of the pursuer regarding a change to his pleadings at an earlier stage of the proceedings. At one stage the pleadings apparently conceded that the pursuer's use of the route was permitted. He was allowed by amendment to excise any reference to permission but this change of front was the subject of cross-examination, the suggestion being that his pleadings as originally drawn betrayed the true position. The sheriff did not find the pursuer's explanation for how the word "permission" had come to be used in the pleadings very credible but tellingly, in my view, he did not reach the view that there had in fact been permission. The most that he could say was that there was a fundamental confusion as to the basis upon which the route was being used and that the pursuer himself had never excluded the prospect that use was more a result of permission or tolerance rather than anything else. He thought "permission" in this context was simply another way of setting out what was an uncertain position.
[63] When the sheriff refers to confusion it seems to me that he is referring to confusion in the minds of the parties. The difficulty with this approach however is that one is again dealing with the beliefs or subjective state of mind of the various parties and at no stage does one find these beliefs translated into action by word or deed. In my view there is nothing in this evidence and the sheriff's assessment of it which justifies an inference that, confronted with the nature, quality and frequency of the use of the route made by the pursuer, the defenders or their predecessors had done anything to make the pursuer aware that that use was only with their permission and not as of right.
[64] I have already drawn attention to the fact that the sheriff had rejected the defenders' positive case that there was permission or tolerance and also to his view as to the character of the use throughout the prescriptive period. In the evidence which I have just discussed I do not consider that there is any support, let alone sufficient support, for the existence of permission or tolerance and in my view that evidence has little significance unless perhaps one were approaching the matter from the point of view of requiring the pursuer to exclude a speculative possibility. In my view however that is not the proper approach. What one is left with therefore is the volume and character of use and the inference to be drawn from that, which, as I have said, clearly points to the use being "as of right."
Was the use of the route "open"?
[65] I now turn to consider the defenders' contention that, during the period of Alexanders' ownership of the servient tenement, the use of the route was not "open". The first thing to observe is that the sheriff correctly identified the requirement for proof that the servient proprietor knew or ought to have known of the access being taken. He quotes from Lord Watson in McInroy v Duke of Athole:
"The proprietor who seeks to establish the right cannot in my opinion avail himself of any acts of possession in alieno solo, unless he is able to show that they were either known or ought to have been known to its owner or the person to whom he entrusted the charge of his property."
[66] Cuisine and Paisley (Servitude and Rights of Way para 10.16) define openly as meaning nec clam, that is to say without stealth, and make the point that it is the openness of the possession which demonstrates to the servient proprietor that there is potential for a right to be created. There is of course the further requirement that the acts of possession must be of such a character as to indicate to the servient proprietor that a right is asserted but Cuisine and Paisley emphasise (para 10.19), correctly in my view, that that is a separate requirement from that of "openness", although the overlap is obvious.
[67] Accordingly the questions which the sheriff was addressing at pages 77 to 81 of his note were whether the evidence demonstrated that the use was open in the sense that it was nec clam and whether it was known to Alexanders or ought to have been known to them. By contrast the passage at page 83 of his note forms part of his consideration of the question whether there was permission or tolerance. I am bound to say that I have some difficulty understanding what exactly the sheriff is saying in this passage, particularly when read together with the last sentence in that section (at the top of page 84) which relates that state of affairs to a situation which the sheriff describes as equally consistent with the defenders permitting or tolerating the use. Furthermore, if it has the meaning attributed to it by counsel for the defenders, it is contradictory of the conclusion expressed by the sheriff at page 80. Since it is at that part of his judgment that he directly addresses the question of whether the access is open, it seems to me that that is the part of his note that one should look to for his conclusion on this matter and the reasoning behind it.
[68] It is clear from the sheriff's findings in fact 20, 21, 22 and 23, which together cover the period from 1976 to 1992, that the use of the route was known to those working at 140 Main Street. Throughout this period there was a gap in the hedge and from 1984 a hard standing and gate posts in line with the gap. I did not understand these aspects of the sheriff's findings to be challenged but in any event at least some of the evidence referred to by counsel for the defenders is consistent with them and, on the view of the evidence presented to me, I am far from satisfied that I could properly alter these findings.
[69] The sheriff's view of these circumstances is apparent from the following passages in his note (at pages 77 and 80):
"Nothing that the tenants and, after them, the Pursuer did was intended or in reality was covert. Alexander Limited could have known of the use if anyone of relevant authority had been present at a time when the use was taking place - or perhaps just by viewing the gap and later the gates. It seems that no-one did."
"I have no sufficient evidence .... to suggest that W Alexander & Sons Limited at any management level knew about the use of the route, although there was nothing to stop them realising what was happening had they chosen to look. The use was known to the persons whom W Alexander & Sons Limited employed at the property for daily business activities and they certainly raised no objection. Mr McPherson could have raised objection or could at least have sought instructions as to whether to block or impede the access. Neither he nor anyone else did so far as I know. All that was done by W Alexander & Sons Limited was to erect a notice forbidding the general public from parking in the yard ...."
[70] In my opinion this assessment of the circumstances seems entirely justified and, in the context of an urban setting, adequately supports the conclusion that W Alexander & Sons Limited ought to have known of the use of the route. It follows therefore that in my opinion the sheriff's conclusion that the access was "open" was one which he was entitled to reach.
Was access taken over the route now claimed?
[71] The defenders' argument on this matter depends on the evidence of Mr Mackay. I have already referred to the sheriff's assessment of the reliability of Mr Mackay's evidence and I think it is plain that, on the matter of the precise location of the gap in the hedge, he has not accepted that evidence. This is clear from the fact that he expressly accepts the evidence of Morag Foote (page 66 of his note) that the gap in the hedge evident from a photograph taken in 1984 was in the same position as the gap through which she took access during her tenancy from 1976 to 1978, that is in the period immediately preceding Mr Mackay's tenancy. In addition the evidence of Mr Campbell, the tenant succeeding Mr Mackay, was to similar effect. Thus there was an ample basis for the sheriff making finding in fact 10 and in my view that is destructive of the defenders' contention on this matter.
[72] In any event, even were Mr Mackay to have been accepted in his evidence, I am not persuaded that that would have fatally undermined the pursuer's case. In the first place, as I have already noted, there was continuous use of the precise route claimed for twenty years after Mr Mackay's occupation. In the second place, I doubt whether the difference in Mr Mackay's evidence as to the position of the gap would result in a sufficiently material deviation from the use of the route made by others as to justify the conclusion that it was not in substance the same servitude which was being possessed by all (see Lord Sands in Rhins sup.cit. at page 171). No doubt that matter might have been explored more closely in the evidence had the precise line of the route been put in issue but as it was not I am content to adopt the sheriff's view of the practical effect of Mr Mackay's evidence, had he accepted it.
Conclusion
[73] But for his approach to the question of onus of proof and what was required of the pursuer to discharge that onus, it seems clear to me that the sheriff would have felt bound to have found in favour of the pursuer. This is evident from para 4.4 of his note (pages 92 to 98), particularly the last sentence thereof where he says:
"But, even though on my view of the evidence there was sufficient use in an open and continuous way from the end of November 1976 to at least 18 October 2002, almost 26 years with no actual challenge, the Pursuer has not excluded this as equally consistent with "tolerance or permission" and therefore has not established a prescriptive right."
[74] As I have already pointed out, the sheriff did not make a finding in fact that there had been open, peaceable and continuous use of the route for a period in excess of twenty years, although it is plain from the terms of his judgment that that was indeed his view. For the reasons which I have set out above, I consider that the sheriff was entitled to reach that view and accordingly I see no impediment to my making a finding which reflects it. The finding in fact which was proposed by the pursuer seems to me to achieve that end and also gives effect to my conclusion that the use was as of right. I have varied the sheriff's interlocutor accordingly and also made a number of minor corrections with which both parties concurred.
[75] In the result therefore I have sustained the pursuer's appeal, refused the defenders' cross-appeal and granted decree as craved. Parties were also agreed that expenses should follow success. The defenders' motion for certification of the appeal as suitable for the employment of junior counsel was not opposed and is in my view justified by the complexities of the case.
Authorities referred to:
1. Prescription and Limitation (Scotland) Act 1973, Section 3.
2. Scottish Law Commission Report (No.15) entitled "Reform of the Law Relating to Prescription and Limitation of Actions" (1970).
3. D Johnston, Prescription and Limitation (1st ed.)(1999), Chapters 16 and 17.
4. Stair, Institutions, II, xii, 1-20.
5. Erskine, Inst., III, vii, 1-16.
6. Duke of Buccleuch v Sir William Cunynghame (1826) 5 S 57.
7. Rankine, The Law of Land Ownership in Scotland (4th ed.)(1909). p. 429.
8. Cusine & Paisley, Servitudes and Rights of Way, (1st ed.)(1998), Chapters 10 & 11, and paras. 18.11 & 20.36 - 20.48.
9. Stair Memorial Encyclopaedia, Volume 18 (Property), paras. 458-462 and 495-501.
10. Grierson v School Board of Sandsting & Aithsting & Others (1882) 4 R 437.
11. Rome v Hope Johnstone (1884) 11R 653.
12. McGregor v Crieff Co-operative Society Limited 1915 SC (HL) 93.
13. Rhins District Committee of the County Council of Wigtownshire v Cunninghame (1917) 2 SLT 169.
14. Marquis of Bute v McKirdy & McMillan Limited 1937 SLT 241.
15. Stevenson v Donaldson 1935 SC 551.
16. Middletweed v Murray 1989 SLT 11.
17. Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Limited 1992 SLT 1035 (Inner House).
18. Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Limited 1993 SLT 1318 (House of Lords).
19. R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335.
20. R (on the application of Beresford) v Sunderland City Council [2004] 1 All ER 160.
21. Webster v Chadburn, 9 May 2003, Sheriff Principal Sir Stephen Young Q.C., Sheriffdom of Grampian Highland and Islands at Inverness, unreptd.
22. Nationwide Building Society v Walter D Allan Limited, 4 August 2004, Outer House (Lady Smith), unreptd.
23. Purdie v Steil 33 Mor. Section 1, 14511.
24. Aberdeen City Council v Wanchoo, 2007 SLT 289 and 2008 SLT 106 (IH).
25. Harris v Wishart, 23 January 1997, Arbroath Sheriff Court, Sheriff J. Irvine Smith Q.C., unreptd.
26. Carstairs v Spence 1924 SC 380.
27. McInroy v Duke of Athole (1891) 18 R 36.
28. Bell, Principles, para. 947.
29. Conveyancing 2006, Reid and Gretton (2007)
30. Thomas v Thomas 1947 SC (HL) 45
31. Hamilton v Allied Domecq plc 2005 SLT 1151