Scottish Court of Session Decisions

Mrs Jessie Lindsay or Carstairs, St Andrews, and David Carstairs, joiner, St Andrews, pursuers, brought an action in the Sheriff Court of Fife and Kinross at Cupar against John D. Spence, builder, St Andrews, defender, craving for declarator that the pursuers were respectively proprietors of two pieces of ground in St Andrews and of a road bounding one of the pieces of ground, “free from any right or servitude of passage in favour of the defender,” and for interdict against the defender “(1) from using the passage or roadway … as an access to land belonging to him … for the passage of himself, his servants, bestial, and

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vehicles of any kind, or for carrying or carting building or other material to the defender's land; and (2) from interfering with any portion of the lands belonging to the pursuers, and particularly said roadway, by laying drains, gas and water pipes, or electric cables therein, or otherwise.”

The following narrative of the facts of the case is taken from the note ( infra) of the Sheriff-Substitute ( Dudley Stuart) “The defender recently acquired a plot of ground in the South Hauch of St Andrews, which had hitherto been cultivated as a market garden. He purchased it for building purposes, and is in course of erecting a number of workmen's houses thereon. This plot is the westmost portion of a larger area, formerly belonging to one Alexander Herd, market gardener in St Andrews. The eastmost portion of Herd's land, now the property of one Leslie, lies between the defender's and the pursuers' property. In order to reach the public road the defender must pass through Leslie's land—over which he has aright of access—and thence through the pursuers' land. There is no other cart access, the defender's plot being otherwise completely shut in. In connection with his building operations the defender is using, and claims the right to use, a road or track leading from the south-east corner of Leslie's property through the pursuers' ground, in order to reach the public road, which lies a few yards further east. The pursuers dispute his right to cross their ground for any purpose, and crave interdict. They deny that there is any servitude of passage over their property, or at all events that any right the defender may have does not entitle him to cart building material, no such use having been hitherto enjoyed. The main question is, whether the defender has established, by proof of uninterrupted use during the prescriptive period, a servitude of road for all cart traffic. Proof was led on this question. The material facts seem to be pretty clearly proved. The inference to be drawn may not be so plain. The facts that I think are established are these—Prior to Herd's ownership, which began in 1872, the whole area, i.e., the defender's and Leslie's lands, was in agricultural cultivation. It cannot have been so used without a cart access for the usual purposes of cultivation and removal of the crop. That there was such an access—whether of right or of tolerance—is proved by the fact that the Ordnance map of 1854 shows an opening or gateway at the point in dispute entering the glebe, now the pursuers' ground. It also shows a track of sufficient width for carts through the glebe and thence to the public road. This opening appears also on the Ordnance map of 1893, but the track is not shown. In 1872 Herd converted the ground into a market garden and cultivated it as such till his death in 1898. It was thereafter let to one Macdougall, and he and his sub-tenant Chisholm continued this use until a recent date, at least down to 1913, probably later. It is not doubtful that from about 1900 Macdougall and Chisholm continuously used the disputed road for the conveyance of their produce by means of carts and lorries. During Herd's occupancy it is said by the pursuers that the entry was permanently closed and that no use was made of their ground for cart traffic. I think this contention is disproved by a number of witnesses, who speak positively to having driven or having seen carts being driven with manure to Herd's garden. It appears that Herd had no cart of his own, and was in use to dispose of his produce by hand-barrow or to customers who called at his house. But I hold it proved that when Herd required manure for his garden and wished it deposited at the lower side of the ground, the gateway and access through the glebe were used. It is true that this was not a continuous traffic. It happened perhaps only twice or thrice in the year. But so far as appears he made use of the access as often as he found it convenient to do so without protest or objection from the owner of the glebe or his tenants.”

On 13th February 1923 the Sheriff-Substitute after a proof found that the use had by the defender and his authors of undisputed access through the pursuers' lands for more than forty years was sufficient to infer that the defender had a right to a servitude road 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,” and found the pursuers entitled to the declarator and interdict craved “in respect of the use by the defender of said access for the carting of building material to his land,“ and interdicted the defender from using the access for this purpose.

Note.—[ after the narrative quoted supra]“I think the evidence as to the history and use of this gateway and access warrants the inference that the defender's authors had acquired, by use beyond the prescriptive period, a right of passage for carts through the pursuers' lands. If this view of the defender's rights is well founded, it follows that the pursuers are not entitled to a declarator that their lands are wholly free from any servitude or right of passage as craved in the writ. But they maintain that, assuming the defender's right of passage for purposes hitherto enjoyed, the same must be limited to these or similar purposes, and cannot be held to warrant a use for other purposes, if these should have the effect of increasing the burden of the servitude upon their property. It is not doubtful that the use which the defender is making of the access through the pursuers’ lands means a heavier and more constant traffic than hitherto, and the defender does not deny that he desires to use this access, as indeed he must, as the main road to his colony of dwelling-houses. I have reached the conclusion, which I think is supported by authority, that the defender's claim infringes the rule which prohibts the dominant from increasing the burlen laid on the servient owner without the consent

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of the latter. Sir John Rankine, in his treatise on land ownership, referring to the various classes of servitudes of way, states the matter thus—‘In both countries’ (England and Scotland) ‘the more usual division is into footpaths, horse roads, drove or drift roads, and cart or carriage roads, the amount of the burden being determined by the terms of the grant, or in the absence of grant, by the state of possession’ (3rd ed., 393). In England the rule was stated by Mellish, L.J., in these terms—‘Where a right-of-way is claimed by user, then, according to the authorities, the purpose for which the way may be used is limited by the user, for we must judge from the way in which it has been used what the purposes were for which the party claiming has gained the right’ ( United Land Company v. Great Eastern Railway Company, 1875, 10 Ch. App. at p. 590). I am not aware of any case in our own Courts in which the facts were similar to the present. But the principle which thus appears to be accepted in both countries was applied in an English case, where the facts seem to me to be indistinguishable from those which are proved here. In Wimbledon and Putney Commons Conservators v. Dixon, 1875, 1 Ch. D. 382, the defendant, the occupier of a farm, had admittedly the right by immemorial use of a road or passage over Wimbledon Common for the service of his farm. He proposed to build houses upon his land, and for that purpose made use of the road for conveying building materials. The Court of Appeal, affirming the judgment of Jessel, M.R., granted an injunction against his doing so. I quote the following passages from the opinion of James, L.J.—‘The evidence practically comes to this, that the right-of-way has been exercised for all purposes connected with the use of the farm for residential or agricultural purposes. We have then to consider whether the character of the property can be so changed as substantially to increase or alter the burden upon the servient tenement. I said when this case was first opened that I was strongly of opinion that it was the settled law of this country that no such change in the character of a dominant tenement could be made as would increase the burden on the servient tenement.… I am satisfied that the true principle is the principle laid down in these cases, that you cannot, from evidence of use of a privilege connected with the enjoyment of property in its original state, infer a right to use it, into whatsoever form or for whatever purpose that property may be changed—that is to say, if a right-of-way to a field be proved by evidence of user, however general, for whatever purpose, qua field, the person who is the owner of that field cannot from that say I have a right to turn that field into a manufactory or into a town, and then use the way for the purpose of the manufactory or town so built.’ This decision seems to me to be directly in point, upon the question of use of the disputed access, and to support the pursuers’ contention that the defender's right, if proved, must be restricted to what has hitherto been enjoyed. But the defender states a further argument, upon the pursuers’ own titles, which, it is said, contain an admission of the existence of the access which they now dispute. It is pointed out that in David Carstairs’ feu-charter his subjects are described as ‘bounded on the south or south-west by the said road or street forming a continuation westwards of the said road or street called Kinnessburn Terrace,’ and that the plan shows the disputed access marked ‘road.’ In point of fact there was no ‘street,’ but there was a road, or at least a cart-track, made by Macdougall, which served to indicate the southern boundary of the feu. It was no doubt intended, as was explained, that a road should be made in connection with a plan of the late Mr Carstairs for feuing the whole of the glebe, but this plan was abandoned, and no feus except David Carstairs’ were given off. The projected road, therefore, was never formed, it was, in fact, merely a contemplated road or street, on the line of the existing cart-track. I do not think that the defender can in these circumstances take any advantage from the description in David Carstairs’ title. It remains to refer to the title of Mrs Carstairs, whose disposition is of later date than David Carstairs' feu. Her grant is burdened with a ‘right-of-way or access over and across the southern portion of the said piece of ground in favour of the proprietor of the subjects on the west side thereof ( i.e., David Carstairs) as well as of all other parties who may be entitled to exercise said right.’ It is said for the defender that ‘all other parties’ can refer to no one but the owners of Herd's property, including the defender. I do not read these words as expressly conferring a right of passage, they seem to be merely precautionary. But I think they are explained by the fact above mentioned that the grantor Andrew Carstairs had then in view a scheme for feuing the whole of the glebe, in which event a road would necessarily have been formed for access to the several feus. It is to be noted in this connection that this reservation of a right of access through Mrs Carstairs’ property is not consistent with the idea that there was a street or road leading to Herd's land. On the contrary it implies that the subjects disponed were not available as an access save as expressly provided. If there was a road or street it must necessarily have traversed both properties, that of Mrs Carstairs being nearest to the public road. To return to the main question, viz., the use had of the disputed road, I propose to find the defender entitled to the use of the access so far as the same has been hitherto enjoyed, viz., for agricultural or market garden purposes, but that the pursuers are entitled to interdict against the use claimed by the defender of carting building material.”

The defender appealed to the First Division, and argued—A servitude of way for carts was proved. There was ample evidence of use for more than the last twenty years of the prescriptive period, and where that was the case the presumption was that the

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use for the whole prescriptive period was of right not tolerance and therefore such as to create a servitude— M'Gregor v. Crieff Co-operative Society, Limited, 1915 SC (HL) 93, 52 S.L.R. 571; Grierson v. School Board of Sandsting and Aithsting, 1882, 9 R. 437, per Lord Rutherfurd Clark at p. 441, 19 S.L.R. 360. Further, all the use that could have been made of the access, considering the locality, had been made of it, and the proprietor must be regarded as having known of the use as an assertion of right— Mann v. Brodie, 1885, 12 R. (H.L.) 52, 22 S.L.R. 730; Magistrates of Edinburgh v. North British Railway Company, 1904, 6 F. 620, per Lord Kinnear at p. 637, 41 S.L.R. 492; Ellice's Trustees v. Commissioners of the Caledonian Canal, 1904, 6 F. 325, 41 S.L.R. 260. The fact that there was only this access for carts was of importance— Rome v. Hope Johnstone, 1884, 11 R. 653, 21 S.L.R. 459—and the Ordnance Survey sheet of 1854 showing the road, together with the proved use prior to the prescriptive period, supported the defender's case. In the Duke of Athole v. M'lnroy's Trustees, 1890, 17 R. 456, 27 S.L.R. 341, the proprietor could not have observed the use as a use of right, and in Magistrates of Edinburgh v. North British Railway Company ( cit.) and Ellice's Trustees v. Commissioners of the Caledonian Canal ( cit.) the assertion of right against an Act of Parliament was excluded. There was no foundation for the theory that servitudes of way were based on implied grant—Bankton ii, 7, 16. (2) The Sheriff-Substitute was wrong in finding that the servitude was only for agricultural and market garden purposes. There was no such restricted form of servitude of way recognised in Scots law. There servitudes of way were divided into classes—and the particular class of the servitude depended on the nature of the use without regard to the purpose—Stair ii, 7, 10; Ersk. ii, 9, 12, and 34; Malcolm v. Lloyd, 1886, 13 R. 512, per Lord President at p. 514, 23 S.L.R. 371; Swan v. Buist, 1834, 12 S. 316; Crawford v. Menzies, 1884, 11 D. 1127. This servitude therefore must be taken to be one of cart traffic for all purposes for which the land could be used, and a change in the use of the dominant tenement did not matter. (On this point Cowling v. Higginson, 1838, 4 M. & W. 245, per Parke, B., was also referred to.) There was no case here of increasing the burden on the servient tenement. That would mean that the defender was trying to extend his right to a higher class of servitude or was not willing to take the road as it was— Mackenzie v. Bankes, 1868, 6 Macph. 936, 5 S.L.R. 607. There was no analogy between this servitude and that of drawing off water— M'Nab v. Munro Fergusson, 1890, 17 R. 397, per Lord Justice-Clerk at p. 400, 27 S.L.R, 309. The Sheriff-Substitute had erred in following English law which allowed a servitude of cart road for limited purposes— Wimbledon and Putney Commons Conservators v. Dixon, 1875, 1 Ch D 362; Ballard v. Dyson, 1808, 1 Taunton 279, per Chambre, J., at p. 287. English and Scottish law were not the same on this question— Mann v. Brodie ( cit.). The following cases were also referred to— Hay v. Robertson, 1845, 17 J. 186; Thomson v. Murdoch, 1862, 24 D. 975; Milner's Safe Company, Limited v. Great Northern and City Railway, [1907] 1 Ch 208; Bradburn v. Morris, 1878, 3 Ch. D. 812; United Land Company v. Great Eastern Railway, 1875, L.R., 10 Ch. 586; Finch v. Great Western Railway Company, 1879, 5 Ex. D. 254; White v. Grand Hotel (Eastbourne) Limited, [1913] 1 Ch 113.

Argued for the pursuers—(1) The defender had failed on the evidence to establish a right of servitude. His titles did not support his claim and there was no use of the access as of right for the prescriptive period. The use during the earlier part of the prescriptive period was merely for occasionally carting manure. Such use was merely by tolerance and could not be regarded as use of right with the knowledge or acquiescence of the proprietor which was necessary for the constitution of a servitude— Duke of Athole v. M'Inroy's Trustees ( cit.). This could not be overcome by the proof of use prior to the prescriptive period and by the evidence of the state of the fences. The Ordnance Survey of 1854 was not to be relied on in the absence of a knowledge of its history, (2) But if a servitude had been acquired it was limited to agricultural and market garden purposes. Servitudes of way were distinguished according to the purpose for which they were introduced—Stair, ii, 7, 10. They were divided into classes but were subject to further qualification—Digest viii, 1, 4 (1); viii, 1, 5 (1). Further, a right depending upon use was to be measured according to the possession—Ersk. ii, 9, 4; Gale on Easements, 9th ed., pp. 312–316, The question here was not one of whether carts were to be used for manure or something else, but whether the defenders were entitled to change the nature of the dominant treatment and thereby increase the burden on the servient tenement. To do so was to alter the nature of the character of the right and was unlawful— Scouller v. Robertson, 1829, 7 S. 344; Cronin v. Sutherland, 1899, 2 F. 217, 37 S.L.R. 160; Allan v. Gomme, 1840, 11 A. and E. 759; Williams v. James, 1867, L.R., 2 C.P. 577, per Bovill, C.J., at p. 280, and Willes, J., at p. 581; Anstruther v. Caird, 1861, 24 D. 149; and Clark & Sons v. Perth School Board, 1898, 25 R. 919, 35 S.L.R. 716, were also referred to.

At advising—