Scottish Court of Session Decisions

In 1889 William Campbell, Esq., M.D., of Burnsyde, in the parish of Largs and county of Ayr, brought an action of declarator against Mrs Margaret Kerr or Halkett, Great Fosters, Egham, Surrey, proprietrix of the lands of Hangingheugh in the

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parish of Largs, and against Matthew Rankin, tenant of said farm of Hangingheugh, and residing at Broomieknowe, Largs, to have it found and declared that there was no servitude right-of-way or access of any description over the pursuer's lands of Burnsyde in favour of the defender Mrs Halkett's lands of Hangingheugh, and to have the defenders interdicted from trespassing on the lands of Burnsyde. Hangingheugh and Burnsyde were adjoining properties in the immediate neighbourhood of Largs. There was a road from Hangingheugh to Largs through a property called Holehouse, as to the use of which no difficulty had ever been raised, but the road was not very good and for reaching places to the north of Largs it was more convenient to go through Burnsyde. The march between the properties was a burn, across which there was a bridge of planks with a gate or slap in the fence on the Hangingheugh side. There was a road to the bridge on the Burnsyde side but not on the other. There was a steep bank between the bridge and the Hangingheugh steading. At the time of this action the steading was in ruins. Carts and cattle had frequently passed across the bridge from the one property to the other, and the tenants of Hangingheugh had used the road through Burnsyde, which had been merely a farm road. The pursuer of this action, however, had turned this road into an avenue, and wished to prevent the further use of the road by Hangingheugh. From 1817 to 1834 both properties belonged to one person, Mr William Lang primus. He left a will under which his nephew William Lang secundus took Burnsyde, and his brother Dr Hugh Lang became liferenter of Hangingheugh until 1864. No servitude was created in favour of the Hangingheugh over Burnsyde by said will. The titles were silent on the subject. In 1873 William Lang secundus sold Burnsyde to David Cousin, architect, Edinburgh, who sold it in 1875 to the pursuer. In 1864 the defender Mrs Halkett, a granddaughter of William Lang primus, became proprietrix of Hangingheugh. From 1851 to 1876 the tenants of Burnsyde were John Rankin, his widow, his son Robert, and his son-in-law, and from 1860 to 1877 the tenant of Hangingheugh was the said John Rankin's son Matthew.

The pursuer pleaded—“(1) The pursuer being the proprietor of the lands of Burnsyde, and there being no servitude right-of-way over the said lands in favour of the lands of Hangingheugh, the pursuer is entitled to decree of declarator as concluded for.”

The defenders pleaded—“(2) There being a valid servitude right-of-way over the lands of Burnsyde as set forth in the record, the defenders ought to be assoilzied. (3) The said servitude over the lands of Burnsyde being necessary for the convenient occupation and useful enjoyment of the said lands of Hangingheugh, the same must be held to bave been impliedly conveyed to the owner of the said lands of Hangingheugh by the disposition of the common author.”

After a proof the Lord Ordinary ( Kyllachy) upon 20th March 1890 found and declared in terms of the conclusions of the summons.

“ Opinion.—The question in this case is as to an alleged servitude of way claimed by the defender, as owner of the lands of Hangingheugh, over the lands of Burnsyde belonging to the pursuer. The two properties are adjacent, and situated in the immediate neighbourhood of Largs; and the defenders' case is that there is a right-of-way both for foot-passengers and for carts and carriages from the march of his property along a farm road which passes the pursuer's steading, and thence to the public road north of Largs by what was formerly a farm road but is now part of the avenue to the pursuer's house.

The action is brought by the pursuer for the purpose of negativing the claim thus made, but in the proof which was lately led the defender of course led as being pursuer of the issue.

Having considered the proof I am of opinion that the defender has failed to prove his case, and that the pursuer therefore is entitled to decree in terms of the summons.

(1) In the first place, I am satisfied upon the evidence that the proper road to the lands of Hangingheugh (which forms a single farm almost entirely pastoral) is by a road known as the Holehouse road, which does not pass through the pursuer's property at all. That road appears to be in some parts out of repair, and to have been always of a somewhat rough description, but it has all along been a quite definite track from the town of Largs, not only up to the defenders' lands, but through those lands up to the house and steading, which since 1844 have been in ruins. On the other hand, it is clear upon the evidence that while the road claimed affords the defender a slightly shorter access to Greenock and other places to the north of Largs, it is a road which stops short almost at the defenders' march, so that horses and carts have to find their way to the house and steading by zig-zagging up the side of a somewhat steep hill face. While, therefore, in such a case the a priori probabilities are by no means conclusive, it must be admitted that those probabilities are somewhat against the existence of the alleged right-of-way.

(2) In the next place, the evidence of possession appears to me to be plainly insufficient to establish the acquisition of a right-of-way by prescription or implied grant subsequent to the separation of the two properties in 1834. From 1834, when Mr William Lang, the common author of both parties, died and left Burnsyde to one relative and Hangingheugh to another the period which has elapsed is no doubt upwards of forty years, but since 1860 the two properties were until quite lately tenanted by members of the same family, and worked together as one possession. The only period, therefore, of possession which can at all be counted is the period from 1834 to 1860, when William Crawford was tenant

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of Hangingheugh, and Burnsyde was occupied successively by Robert Kerr, William Lang, and John Rankin. Now, even assuming—what I think very doubtful—that William Crawford's use and possession of the road claimed had the character of possession as matter of right, and was not merely the result of neighbourly tolerance, it is obvious that, extending only to twenty-six years, it falls considerably short in point of duration of what is required to set up a prescriptive right. Nor is there room in this case for the presumption which applies in some cases, that possession carried back as far as evidence goes may be extended back indefinitely so as to complete the forty years. For between 1817 and 1834 the two properties belonged to the same proprietor, who, for a time at least, himself cultivated both or part of both; and during that period, accordingly, no servitude of way was possible as between the two properties.

It is a different question, and one which I shall consider immediately, whether the possession between 1834 and 1860 raises any presumption as to the possession prior to 1817, and whether that possession is of any moment in the present dispute. In the meantime I only observe that if the servitude in question was not imposed expressly or by implication by the disposition which William Lang executed in 1834, it has not been imposed or acquired by any use or possession which has occurred subsequent to that date.

(3) The question really therefore comes to turn upon the construction of the titles of 1834, and here several points are, I think, sufficiently clear—(1) There is certainly no mention of any servitude such as that now claimed either in the title to Hangingheugh or in the title to Burnsyde. It is not suggested that either title contains any clause which by subsequent possession or otherwise could be construed into a grant of the servitude claimed. The titles (and the fact is, I think, significant) are silent on the subject. (2) It is equally certain that there is here no case of a servitude of necessity. In other words, it is impossible to bring the defenders' case within the principle of the case of Cochrane v. Ewart, 4 Macq. 117, and other cases of that description. The right-of-way in question may be convenient as affording a double access to the defenders' property, but it is certainly not necessary to its convenient use. (3) Further, no inference of presumed intention can, I think, be drawn from the fact that in 1834, the date of the severance, the access in question existed, at all events to this extent, that a gate or gap was left in the defenders' march fence and was connected with a rough bridge of planks across the burn which formed the march between the two properties. It is not, I think, the law that on the severance of two tenements the right to use ways which during the unity of possession have been used and enjoyed in fact passes as matter of course to the owner of the severed tenement—( Pearson v. Spencer, 1 Best & Smith 571, per Lord Blackburn 583). On the contrary, there must I think be something in the conveyance to show an intention to grant the use of the ways de novo. But assuming the presumption to be otherwise, the evidence of the older witnesses makes it, I think, plain that the existence in 1834 of the bridge and gateway in question is to be ascribed, or at least may be ascribed, to the circumstance that William Lang between 1817 and 1834 farmed the lower fields of Hangingheugh along with the greater part of Burnsyde and required a communication across what is now the march in order to the convenient working of his farm. This fact, as spoken to amongst others by the witness James Dyer, displaces, in my opinion, any inference favourable to the defender which may be drawn from the existence of an access in the direction claimed at the date of the severance in 1834. (4) Lastly, the same consideration appears to me to exclude the argument, which otherwise might have had force, that the possession from 1834 onward presumes similar possession prior to 1817 when the two properties were separately owned, as it appears they had been from 1699. Had there been nothing known as to the origin or probable origin of the access as existing in 1834, it might not have been unreasonable to conclude that it was the continuance of an access which had existed when the two properties were separate; and that would have raised a perhaps interesting legal question. But any such conclusion appears to me to be displaced by the fact to which I have above referred, that William Lang between 1817 and 1834 possessed the lower fields of Hangingheugh (where alone there is any trace of the road), and worked the same from the Burnsyde steading along with the greater part of the lands of Burnsyde.

On the whole, and for the above reasons, I have come to the conclusion that the pursuer is entitled to decree.”

The defenders reclaimed, and argued—1. There had been immemorial usage. No doubt between 1817 and 1834 the properties belonged to the same person, and between 1860 and 1877 they were tenanted by members of the same family, but all the usage being proved which it was possible to prove, viz., between 1834 and 1860, and between 1877 and 1889, the law implied usage from time immemorial—Bell's Prin. sec. 997; Carnegie v. MacTier, July 18, 1844, 6 D. 1381; Brodie, &c. v. Mann, June 13, 1884, 11 R. 925, and May 4, 1885, 12 R. (H.L.) 52. 2. The access to the public road through Burnsyde being necessary, they were entitled to absolvitor. Their right to go by Holehouse might be challenged, but even if it were not absolute, necessity was not demanded if reasonable enjoyment of the property required the access—(Lord Chancellor in Cochrane v. Ewart, infra). 3. There was an implied grant in consequence of the will of William Lang primus. He left the two adjacent properties to members of his own family, and must have intended that Hangingheugh should continue to enjoy the access through Burnsyde — Pyer v. Carter, January 21, 1857, 1 Hurl.

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& Norm. 916; Cochrane v. Ewart, January 13, 1860, 22 D. 358, aff. March 25, 1861, 4 Macq. 117; Walton Brothers v. Magistrates of Glasgow, July 20, 1876, 3 R. 1130; Cuthbert v. Whitton, December 20, 1888, 16 R. 259.

Argued for respondent—1. Use had not been proved for the prescriptive period, and such use as there had been was due to the properties being in the same hands or to good neighbourhood. 2. There was no case of necessity. There was a recognised road through Holehouse. 3. There was no case of implied grant. The will of William Lang was absolutely silent on the subject, and there was nothing to indicate any intention on his part to constitute such a servitude. Such grants were not to be lightly inferred— Gow's Trustees v. Mealls, July 28, 1875, 2 R. 729; Macnab v. Munro Ferguson, January 24, 1890, 17 R. 397.

At advising—