Scottish Court of Session Decisions

Lord President (Clyde).—The question in this case is whether the appellant is entitled to carry building materials to his land across the respondents' property by an alleged prescriptive servitude way. There are two questions:—Has the appellant prescriptively acquired any servitude right over the respondents' lands? If so, is the prescriptive right limited (as the Sheriff-substitute has found) to use of the way by traffic for agricultural and market garden purposes only?

At the debate before us the appellant maintained a full right of access; the respondents contested the sufficiency of the proof to establish any right, but alternatively supported what I may call the via media adopted by the Sheriff-substitute. If, on the legal aspect of the case, the Sheriff-substitute substitute is mistaken in the reliance he places upon the applicability to Scotland of the principles of the law of England illustrated in Wimbledon and Putney Commons Conservators v. Dixon, the appellant can only succeed by convincing us that, meagre and far from satisfactory as the evidence is, the Sheriff-substitute has underestimated the weight and effect of it with regard to the use of the way by the appellant and his predecessors. The legal question is new and difficult, and raises a point of wide application. Moreover, by its close bearing on the question of fact in the case, it greatly enhances the difficulty of the latter; and a case, which at first sight appeared short and easy, has turned out to be one of general importance fully meriting the exhaustive debate to which we listened.

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 measure of their burdensomeness, as footways, horse roads, and carriage-ways; and prescriptive use determines under which of the fixed categories the way shall be ranked. It may be noted in passing (as indicating a rather more formal quality in the law of Scotland with regard to this department as compared with the law of England) that, while in Scotland the more burdensome right includes the less, in England this does not follow. Again, the right is attached to the dominant tenement; but the question what grounds or subjects are included in the dominant tenement is determined in accordance with the prescriptive use of the way. The use may be by the owner of an extensive estate, his tenants, and his and their servants, generally; in that case, the whole estate is pointed at as the dominant tenement. But the use may be only by a resident owner and his household, or it may be only by the tenants and occupiers of a particular farm or of a particular cottage, relatively cut off by hill or water from convenient access: in such cases, the mansion-house, farm, or cottage, as the case may be, is revealed as the true dominant tenement; and the extent of the right is limited accordingly. 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.

But the question in the present case is whether the use may put a further kind of limitation on the right acquired, namely, by reference to the purposes served by the traffic. I am advisedly stating the question in this way, because it is in this form that it arises on the conclusions and on the Sheriff-substitute's interlocutor, and I think also in his note. It is no doubt true that a dominant tenement cannot increase the burden of a servitude without the consent of the servient owner. But the first thing is to ascertain what the servitude is. And the Sheriff-substitute's conclusion is that the servitude way in the present case is not of the ordinary kind entitling use for access and passage generally, but only for agricultural and market garden purposes.

There are undoubtedly cases in the law of Scotland in which servitudes prescriptively acquired are limited by reference to the purposes of the traffic carried by them. Thus, a private way to a mill (and nowhere else) ceases when the mill is discontinued (Winans v. Lord Tweedmouth, (1888) 15 R. 540, see esp. per Lord Mure, at p. 568). Again, if A acquires by prescriptive use a servitude of casting turf on C's moss, and in order to reach the moss uses a way which crosses the intervening lands of B, the servitude of way thus acquired over the lands of B is limited to the purpose of leading the turf cast on C's moss home to his own lands (see Ross v. Ross, (1751) M. 14,531, where the servitude is described as one “for carrying turf”). The reason in these cases is to be found in the special and restricted character of the only destination to which the private way provides an access; the way is stamped with a corresponding restriction which necessarily limits the purposes of use. A private way to a place of sepulture would, I think, be in the same position; since it could only be used by the owner of the dominant tenement for burial or for paying respects to the dead. Again, a kirk road may be acquired by prescriptive use as a private servitude way for the purpose of going to church on Sundays and other days of divine service (see Bruce v. Wardlaw, (1748) M. 14,525); but this does not necessarily make it a way for use on other days or for other purposes. Perhaps the most striking example is that of a private servitude of drove road for the passage of sheep to an annual fair at a neighbouring town—Porteous v. Allan, (1773) M. 14,512. In none of these instances, however, would it be more than a half truth to say that it was the use which limited the right acquired to something less than a full servitude of way; for the limited use merely conformed to a restriction springing from the special and restricted character of the destination to which the way gave the owner of the dominant tenement access—a peat moss, a tomb, a place of worship, or the ground of an annual fair.

Private ways constituted by writing may undoubtedly be made subject to close restriction with reference to the purposes of the traffic which is carried by them. Such restrictions are rigorously enforced—Cronin v. Sutherland, (1890) 2 F. 217. But I know of no Scottish case (and none was cited to us) in which—apart from some specialty arising out of the peculiar character of the terminus ad quem—a prescriptive servitude of way has ever been held to be established subject to limitations with reference to the purposes of the traffic which might be carried by it. In the ordinary case, the way is either a means of access and passage between two parts of the dominant tenement separated by intervening lands, or it is a means of access and egress between the dominant tenement and a public highway. In either case I have always understood that the access, if constituted at all, was constituted as a general one to and from the ground of the dominant tenement, and that therefore the traffic entitled to use it was unlimited as regards the purposes it served so long as these purposes were connected with the enjoyment of the dominant tenement—unless indeed the purpose was one lying beyond the reach of the owner of the dominant tenement as such. I apprehend that a statutory undertaker (for example) who acquired the dominant tenement could not, without statutory authority, use a private servitude way belonging to it for the purposes of the statutory undertaking.

The understanding as to the generality of the right of access involved in an ordinary servitude way which I have expressed above is not, however, definitely borne out by anything in the institutional writers or in Scottish precedent. The case of Swan v. Buist —so far as it goes—favours this understanding; and the cases of Malcolm v. Lloyd and Mackenzie v. Bankes —the latter a public road case—point, although only indirectly, in the same direction. On the other hand, I know of nothing either in the institutional writers or in Scottish precedent which conflicts with it. A case may be figured in which the purposes of the traffic using a way are so restricted in relation to the wide extent of the actual or natural requirements of the dominant tenement (in its actual condition) as to be inconsistent with the assertion of a right to use it generally for access. My impression is that user of so limited a kind, even if sufficiently notorious to affect the servient owner with knowledge, would be held attributable to his tolerance. However that may be, if the use is such as fairly meets the requirements of access on the part of the dominant tenement, according to its condition during the period of use, there seems to be no satisfactory ground for inferring that the access acquired is other than general in its character. What further assertion of right on the part of the dominant tenement could be made? Can a general right of access—such as that which in Scotland is familiarly associated with a servitude way—never be prescriptively acquired, unless the use has comprehended traffic for all the legitimate purposes for which the owner of the dominant tenement is entitled to enjoy his property? If the principle tantum prœscriptum quantum possessum had been logically carried out in Scotland (with reference to the purposes of the traffic), as it seems to be in England, there must have resulted an almost infinite variety of prescriptive servitude ways—a variety of the existence of which (in fact or in right) no Scotsman ever dreamt. I think that if a servitude way has been prescriptively used for purposes of access and passage between two discontiguous parts of the dominant tenement or between the dominant tenement and a public road or place—either as a footway, horse road, or carriage-way—it is not material that the traffic carried falls short in its variety of all the purposes for which the dominant tenement might be legally enjoyed.

I am not forgetting that the question raised in the present case might be stated in a different way—namely, Does the alteration in the purpose of the traffic involve an increase of the burden borne by the servient tenement? The owner of the dominant tenement cannot extend or communicate his servitude right to other grounds or subjects—Scotts v. Bogle, July 6, 1809, F. C.—and there may be limitations upon an increase in the number of persons entitled to avail themselves of a servitude, particularly if the servitude is one (like peat-cutting) involving the exhaustion of the servient tenement (see Rankine on Landownership, 4th edition, p. 424). But, if the true interpretation of the right (asserted on the one hand and acquiesced in on the other) is one of general access to the grounds or subjects composing the dominant tenement, it cannot, in my opinion, be material that the practical incidence of the burden varies—since the true quality of the burden is always the same.

For these reasons I put aside, as foreign to the law of Scotland, the idea of a prescriptive servitude of way limited to agricultural or market garden purposes (and therefore exclusive of building purposes), and proceed to consider whether the evidence in the present case is sufficient to establish an ordinary servitude of way for cart traffic.

The appellant's land is situated in the city of St Andrews, and occupies the westmost portion of a quadrilateral, bounded on the north by a passage known as the Ladebraes Walk, on the east by Melbourne Place, and on the south by the Kinness Burn. The property comprised in this quadrilateral was originally cut into three slices (the cuts running north and south). The eastmost slice consisted of the frontage to Melbourne Place; the middle slice was a part of the St Leonard's Glebe, and now belongs to the respondents; and the westmost slice (known as Herd's Market Garden) was a field, which the construction of a line of railway in 1885 cut into two parts (the division ran from north to south), the part which was acquired by the appellant in 1919 being the westmost part. Means of communication between the two parts was preserved by an accommodation access. The quadrilateral lies on the outskirts of the city and immediately to the south-west of the actual town; and the servitude way claimed by the appellant follows the north bank of the Kinness Burn from Melbourne Place westwards.

What I have called the eastmost slice (forming the frontage to Melbourne Place) was built on some time ago; and in 1894 a row of houses was built on its southern frontage looking out on Kinness Burn. These houses obtained their sole access from Melbourne Place by the ground forming the northern bank of the burn. This access has never been properly formed. It is part of the line of way which the appellant claims the right to use; but this particular part of it is not in dispute, so far as this case is concerned.

The old glebe was cut off by an intervening strip of ground from the Ladebraes Walk on the north, and was thus completely land-locked on all sides but for access along the northern bank of the burn. There is ample evidence of the use of that access by the glebe land for cattle, carts, a threshing-mill, and the like; and quite recently the respondents have erected buildings on it which also derive their sole access along the northern bank of the burn. In laying out their ground for building the respondents have kept back their fences so as to allow a continuous line of access along the northern bank across the whole breadth of their property from east to west. The consequent sacrifice of land is, however, sufficiently accounted for by considerations of their own and their feuars' convenience.

Herd's market garden, to the west of the glebe, was accessible by foot-passengers and barrow traffic from the Ladebraes Walk on the north; but, unless it enjoyed the servitude right claimed by the appellant, it was and is wholly inaccessible to cart traffic. Ish and entry is described by Lord Stair as implied in the right of property (Inst. II. vii. 10); and although it does not necessarily follow that all land must be accessible by cart traffic as well as by foot traffic, the fact that an alleged servitude way is the only access for the former is an important makeweight in establishing a prescriptive servitude way to a not inconsiderable piece of agricultural land (see per Lord Justice-Clerk Moncreiff in Rome v. Hope Johnstone, (1884) 11 R. 653, at p. 658). It is significant that on the Ordnance Survey Map of 1854 the surveyor has marked a track of cart-width running along the northern bank of the burn from Melbourne Place, crossing the glebe land, and debouching into Herd's garden; and also that there is some evidence of the use of this way by men, horses, ploughs, and agricultural implements generally at a time anterior to the prescriptive period, and before Herd had turned the land into a market garden. It will be seen that the general circumstances and history of the locality are on the whole favourable to the existence of the way claimed; but at the best these are no more than indicia.

The difficulty of the case is that, while for the last twenty-four years of the prescriptive period (marked by the tenancy of the market garden by a man named MacDougall) the use of the way proved is continuous and notorious, and extended to foot, horse, and cart or lorry traffic for every purpose of ingress and egress connected with a market garden (including the carting of materials for a tomato-house), the use proved for the preceding sixteen years is not only meagre in the extreme, but occasional only, and is the matter of sharp conflict of testimony. The presumption resorted to in M'Gregor v. Crieff Co-operative Society —as eking out the imperfect evidence relative to the first two years of the prescriptive period—can hardly be applied to so considerable a proportion of the whole as is represented by sixteen years.

I think it is proved that during these sixteen years the way in question was used for carting manure into the market garden whenever it was needed for the low-lying part of the land. But the manure needed for the upper part and all the materials for building Herd's cottage fronting the Ladebraes Walk were taken in by barrow along the walk. There is also some evidence of use of the alleged servitude way in Herd's time for foot traffic, and one witness speaks to the pigs which Herd kept in the garden being carted out by the way in question. This evidence by itself could not, in my opinion, be held sufficient to support an assertion of general right of access. But there is what strikes my mind as a strong piece of corroborative evidence in the proved state of the enclosure of the glebe during Herd's time. It is proved that, throughout his occupancy, the east fence of the glebe stopped short of the site of the alleged way instead of being carried southwards to the burn, thus leaving an open access along the top of the bank ex adverso of the glebe, which led nowhere but into Herd's garden. It is also proved that (although the fences seem to have been very irregularly maintained) the south fence of the glebe (towards the river frontage) was kept far enough back from the burn to leave a rough but open passage between the south fence and the burn. If there was no servitude way across the glebe, one would have expected the east fence to have been carried right on to the burn, with a gate in it, placed across the access from Maggie Murray's Bridge and opening on to the glebe (and on to the glebe alone). Again, it is, I think, proved that the west fence of the glebe (between the glebe and Herd's garden) was carried down to the burn, and had during all his time a gate in it opening directly into his garden. Such traffic as was carried on the alleged servitude way during Herd's time used this gate. The existence of this gate is one of the points on which there is a conflict of evidence; but the Sheriff-substitute evidently preferred the appellant's evidence in support of it which was tendered in his presence, and as an appeal Judge I see no sufficient ground on which I should be justified in preferring the respondents' evidence against it. Viewing the proof of use, such as it is, together with the history and circumstances of the alleged way and the proved state of the fences and enclosures—as a whole—I have arrived, not without difficulty, at the conclusion that prescriptive use of the servitude of way claimed by the appellant is proved. If your Lordships agree in this conclusion, it will be necessary to recall the interlocutor appealed against, and, subject to appropriate findings in fact, to assoilzie the appellant from the general declarator concluded for and from the first conclusion for interdict. We heard no argument on the second conclusion for interdict.

Lord Skerrington.—The chief difficulty in this case arises from the restricted character and limited extent of the use which the defender's author, Alexander Herd, is proved to have made of the private cart access leading from the south-eastern corner of his ground to the public carriage road from St Andrews to Largo. The defender maintains that Herd and his successors possessed and used this cart access for upwards of forty years before 1922 as a prædial servitude attached to their property, which was the dominant tenement, over the southern portion of a small glebe (now belonging to the pursuers), which was the servient tenement. Herd bought his ground (about 212 acres in all) in the year 1872, converted it into a market garden, and used it for that purpose until his death in 1898. During all this time he used the disputed cart access for the purpose of enabling persons from whom he bought manure to bring a few cartloads of dung or seaweed from time to time into his market garden. He imported nothing else, and he exported nothing by means of carts passing along this access except some pigs, which according to one witness were during some unspecified period “carted out” by this road. He did not keep a horse. For the purposes of his home (a cottage which he built for himself on his northern boundary), and also of his business, he made use of what appears to have been a public footpath, which abuts upon the northern boundary of his ground and communicates both with the Largo road and with another public carriage road called Argyle Street. If it had not been for certain specialties in the case, I might have had difficulty in holding that the restricted and limited possession of the cart access enjoyed by Herd must have been known to the owner of the servient tenement, and ought to have been interpreted by him as an unequivocal assertion by Herd of a right to use that access as a pertinent of his property. On the contrary, I might have been disposed to regard the evidence as equally consistent with the view that Herd used the access as he did, not in the assertion of any right, but because he believed that his neighbour the minister was unaware of it, or at any rate had no interest to object and was unlikely to do so. As regards the facts, there is a conflict of evidence. While, however, the burden of proof is upon the defender, I agree with the Sheriff-substitute in thinking that this has been discharged, and that the counter-case presented by the pursuers' witnesses has been disproved.

The following are the specialties to which I attach importance, both severally and collectively, as tending to rebut the inference which might otherwise have arisen to the effect that Herd's restricted and limited user of the cart access over the glebe was either unknown to or tolerated by the minister:—

(1) As far back as we know anything about the ground which Herd converted into a market garden, there has never been any access to it for ordinary agricultural purposes except that in dispute. There is evidence that before Herd bought the ground it was cultivated as an agricultural subject, and that horses, ploughs, &c., were taken along the road in question, which was the only way available for the purpose. This evidence relates to about the year 1868, but the Ordnance Survey of 1854, which was used by the consent of both parties, affords at least prima facie evidence that so far back as 1854 there was no other cart access to the ground. The importance of this fact from a legal point of view is emphasised by the Lord Justice-Clerk (Moncreiff) in his opinion in the case of Rome v. Hope Johnstone, and in support of his opinion he refers to a well-known passage from Stair (II. vii. 10) in regard to ish and entry.

(2) From 1868 to the raising of the action it is proved, notwithstanding some evidence to the contrary, that the southern portion of the glebe together with the ground along the north bank of the Kinness Burn eastwards as far as the public road has been continuously open and available as a cart access to the ground situated on the west of the glebe by means of a gate through the fence which separates that ground from the glebe.

(3) While the glebe was bounded on the west by Herd's market garden, it was bounded on the east by a property which belonged to the same person. Upon the latter property Herd or his feuars built a number of houses called Melbourne Place, which faced eastwards to the public road, and also (in 1894) some three houses (called Kinnessburn Terrace), which faced southwards to the access in question near the point where it leaves the public road, and before it reaches the glebe. The titles give to these latter feuars free ish and entry by “the road or waste land immediately on the north of the Kinness Burn on the southern boundary” of the feus. The facts therefore suggest the existence of mutual servitudes as between the minister in respect of his glebe and the owner or owners of the properties on the east and west, though of course the glebe was in an exceptional position, seeing that, unlike Herd's market garden, it had no access even for foot-passengers from the north. It is, however, more than a mere argumentum ad hominem when the defender avers in his answer to condescendence 3—“The pursuers use Kinnessburn Terrace as an approach for vehicular and other traffic to their subjects, and they have no higher right to do so than has the defender to use the extension of the terrace, being the disputed access, as an approach to his land.” The pursuers do not answer this challenge. They or their authors bought the glebe under the authority of the Court in the year 1910, and they do not suggest that the access conferred upon them in their title had any origin except necessity or prescription.

(4) It is, I think, material that after Herd's death the persons who carried on the market garden as tenants under his representatives proceeded to keep a horse and to make a daily use of the disputed cart road for ish and entry to their ground—a use which confessedly cannot be attributed either to ignorance or to tolerance on the part of the owners of the servient tenement. The pursuers' counsel stated that this user had continued for more than twenty years prior to the raising of the action. This fact suggests that Herd's somewhat scanty use of the road was not regarded from the point of view either of the dominant or of the servient tenement as something which was attributable to tolerance.

So far I have confined myself to stating my reasons for agreeing with the Sheriff-substitute in his view of the import of the evidence and for thinking that his sixteen findings in fact ought, with certain additions and modifications, to be affirmed. From these findings it appears (as one might expect) that, while the defender's predecessors and authors have for more than forty years had ish and entry from and to their property by means of carts passing over the disputed access, their use of this access during the forty years prior to the action has been in connexion with the only profitable use to which the ground itself was put during this period, viz., its cultivation as a market garden. I should have expected, however, that these sixteen findings in fact (which imply, though they do not express, that the use of the road was known to the owner of the servient tenement and was exercised as of right and not by tolerance) would have led up to a finding in law to the effect that the owner of the dominant tenement had acquired by prescription a servitude right of ish and entry to his property by means of vehicles, horses, bestial, and foot-passengers. Such a finding would have entitled the defender to use the disputed cart access for all ordinary purposes connected with and beneficial to his property, including its use as a market garden or as a farm, agricultural or pastoral, and also as a site for building—subject always to the right of the servient owner to appeal to the Court for protection or regulation in the event of an abuse of their rights upon the part of any of the persons entitled to use the road. The Sheriff-substitute has, however, taken a very different view of the law applicable to the facts as he has found them to exist. He has found “in fact and in law” that the use of the road in question, as previously found by him, is sufficient to infer that the defender has a servitude right for the passage of carts, “but that only for the purposes for which said access had hitherto been used, viz., for the passage of carts for agricultural or market garden purposes; that said use is not sufficient to infer a right to use said access for all cart traffic, and in particular for the carting of building material to the defender's land.” I do not think that the Sheriff-substitute intended to draw a distinction between the use of ground as a market garden and its use for agriculture or for pasture, and I am therefore disposed to read his interlocutor as meaning that the defender has acquired by prescription a servitude right of ish and entry by vehicles, horses, bestial, and foot-passengers, for any or all of these three purposes, but not for the purpose of carting building material to his land and so converting it into an urban or quasi-urban property. I know of no authority, however, for the course taken by the Sheriff-substitute, which seems to me to run counter to the Scottish conception of ish and entry which the law regards as a natural and necessary pertinent prima facie belonging to every heritable subject—Stair, II. vii. 10; Ersk. II. vi. 9. Of course it is open to the owner of a servient tenement to demonstrate either from the character of the dominant tenement, or from the nature of the right as evidenced and measured by prescriptive user, that the servitude existed for a special and limited purpose different from that of ordinary ish and entry. Thus, if the owner of an estate which included a mansion-house and a peat-moss carted peats for use in his mansion for a period of forty years over a road belonging to a third party, it would be difficult to hold that he had acquired by such user a servitude right to cart peats by that road to all the farms on his estate or to use the road for carting goods between his mansion-house and a railway station. Similar considerations would apply if, following the precedent of a case relating to a drove road, the Court were to hold that a servitude right of carting might be acquired by prescription for the purpose of going to and returning from an annual fair—Porteous v. Allan, (1773) M. 14,512. None of the Scottish authorities cited by the pursuers' counsel seems to me in any way to support the Sheriff-substitute's judgment upon this point. As regards the English decisions which were cited to us, while they indicate that, in England as in Scotland, there is no hard and fast rule on the subject, some of them would not, I think, have been pronounced in this country. However, the question is one dependent upon positive law rather than upon legal principle, and I am not surprised that opinions should differ in regard to it. It is enough for me that there is no precedent or authority in Scotland for the course adopted by the Sheriff-substitute, and that the principles governing this branch of the law differ in the two countries, as appears from the opinions of Lord Blackburn and Lord Watson in the case of Mann v. Brodie .

I am accordingly of opinion that the defender is entitled to be assoilzied from the conclusions of the action.

Lord Blackburn.—I also am of opinion that the evidence in this case is narrow, but I concur in thinking that it is sufficient to establish the full right of access claimed by the defender. I have arrived at this conclusion for the reasons already detailed by your Lordships, and it is unnecessary for me to recapitulate them. But I may say that the evidence provided by the Ordnance Survey Sheet of 1854, showing as it does that when the ground was occupied for ordinary agricultural purposes there existed an access to the ground at the point now claimed of a width sufficient for use by carts, while it shows no other possible cart access to the ground, has had much influence in enabling me to reach the conclusion at which I have arrived. I think it is clear from the findings of the Sheriff-substitute, who had the advantage of seeing and hearing the witnesses, that in his opinion the defender had sufficiently proved a right of access by carts for agricultural and market garden purposes. This, in my opinion, is sufficient to establish his full right to a carriage-way for all purposes. It is unnecessary, in my opinion, in order to constitute a right by prescription that the full enjoyment of which the right claimed may be capable must have been exercised throughout the prescriptive period. Acts which can be attributed to an assertion of ownership over parts of the foreshore ex adverso of an estate held under a title habile for prescription have repeatedly been held sufficient to prescribe a right to the whole foreshore. So in the case of servitudes, acts which are consistent with the general right of servitude claimed are sufficient to establish the right, and it is not necessary that the full use of which the servitude claimed is capable should have been made throughout the prescriptive period. But the possession founded on as establishing the servitude must be of a character consistent with the servitude claimed, and must be sufficient to demonstrate that it has been had as of right and not by tolerance. Here the use made of the access has been for cart traffic, and appears to have been all that was required for the enjoyment of the dominant tenement as occupied at the time. In my opinion it was sufficient to constitute a growing servitude right, and, for the reasons given by your Lordships, cannot be attributed to tolerance or tacit permission. There is, of course, a recognised rule, which has been appealed to by the pursuers, that the burden on the servient tenement must not be unduly increased, but this rule is not one which, in my opinion, calls for consideration in the present case. It would, I think, be most unfortunate if the strict application of this rule compelled one to hold that a servitude right of access constituted by use for agricultural purposes at a time when both tenements were occupied as agricultural subjects could not be extended into a right of access for other purposes when both the tenements are developing into building subjects.

In limiting the defender's right as he has done the Sheriff-substitute has applied a rule from the law of England for fixing the measure of a servitude right constituted by prescriptive use. As I understand the authorities to which we were referred, the measure of the right is ascertained in England on a very different principle from that which prevails in Scotland. Where a servitude is constituted by express grant there seems to be little difference between the laws of the two countries, and none in this at all events, that the words of the grant provide the measure of the right granted. But where the right is constituted by prescriptive possession the laws of the two countries seem to part company. In England, as I understand, the origin of a right which has been exercised for the prescriptive period is invariably attributed to a presumed grant—Mann v. Brodie, 12 R. (H. L.) 52, per Lord Blackburn, at p. 54;

and Dalton v. Angus, 6 App Cas 740, at p. 750. The terms of the presumed grant are inferred from the character of the possession which has been enjoyed for the prescriptive period, and the right so acquired is limited as strictly by the terms of the presumed grant as it would have been had the grant been express. There are in our law of servitude instances, already dealt with by your Lordship in the chair, in which the measure of a right is restricted to a definite use, but the theory of a presumed grant as used in England has no place in our law. The presumed grant used for this purpose differs essentially from an implied grant by which a servitude right may be constituted in Scotland. The terms of the presumed grant are instructed by the fact of possession alone, but to instruct an implied grant of a servitude it is essential that the dominant and servient tenements should have been formerly held as one property, and that the right claimed over the servient tenement should at that time have been exercised by the owner of the property as necessary for that part of his property which has become subsequently the dominant tenement. Further, the terms of the presumed grant are only inferred from possession for a period sufficient to establish a prescriptive right, while an implied grant may be constituted by possession for a period short of that required for prescription—Cochrane v. Ewart, (1861) 4 Macq 117. I assume that, had the Sheriff-substitute not been misled by the English authorities to which he refers, he would have found in fact that the defender had proved such possession of a right of access for the prescriptive period as is required to establish his right to the servitude which he now claims; and as in my opinion the evidence is sufficient to support such a finding, I concur in the judgment which is proposed.