Scottish Court of Session Decisions

At advising on 27th January 1978,—

LORD PRESIDENT (Emslie).—[His Lordship narrated the facts as set out above, and continued]—

After a proof the Lord Ordinary granted decree in favour of the pursuers in terms of their first declaratory conclusion and in this reclaiming motion the defenders challenge the interlocutor in which the Lord Ordinary finds and declares that the defenders are not entitled to exercise any right of access over the pursuers' land at 53 and 55 East Road, Irvine.

The ground of judgment of the Lord Ordinary is to be found in the following paragraph of his opinion—"In my opinion the conclusive fact in this case is that the subjects No. 84 to 90 High Street which were the subjects of the Grant of Servitude can no longer be identified. The defenders may possess a title to them, but they could not grant a disposition of them as such to anyone else, because they have demolished the building which comprised them, and erected another and more extensive building on and beyond the site on which they stood. At present therefore in my opinion there is no dominant tenement and, as it is only for the purposes and benefit of the dominant tenement that the access can be used, use of it is precluded at the present time and must be suspended until, if ever, a building which can be identified as 84 to 90 High Street is erected."

At the hearing before us the pursuers did not support the Lord Ordinary's reasoning for he was plainly in error in a number of material respects. In particular he thought, wrongly, that the dominant tenement was merely the building which formerly stood on the High Street end of the subjects 84 to 90 High Street. He was also wrong in saying that the subjects 84 to 90 High Street can no longer be identified, that the defenders could no longer dispone these subjects, and that there is now no dominant tenement for the purposes of the servitude. Parties are agreed, and they are plainly right in this, that the subjects known as 84 to 90 High Street are still capable of identification and disposition, and that the dominant tenement of land is still very much in existence.

In this state of matters the debate before us amounted in substance to a re-examination of the dispute between the parties. In course of this debate the pursuers contended, on grounds quite different from those which led to the decree in their favour, that they were entitled to a declarator in terms of their first conclusion. Alternatively, their contention was that they were, in any event, entitled to declarator in terms of their second conclusion. The factual basis of their submission in its alternative branches was, however, the same and before examining the argument further I propose to say, briefly, what the proof disclosed.

It was not suggested before us that we need concern ourselves at all with that part of the defenders' department store in the reconstructed building to the west of the dominant tenement, namely numbers 92 to 106 High Street. The whole of the defenders' buildings facing High Street were, no doubt, devoted to the purposes of a department store operated as a single commercial enterprise but each department therein was under separate control, and the defenders' use of the access was not, on the evidence, for the purpose of gaining access to the subjects 92 to 106 High Street, nor was it to supply, or to serve the purposes of, those departments of their store located in these reconstructed subjects. In examining the defenders' use of the lane for access to the rear of their premises after the erection of the new two-storey building, attention was concentrated, and rightly concentrated, upon the two-storey building and the uses to which it was devoted by the defenders. The position is as follows. On the ground floor of the new two-storey building is a food hall which extends from the east wall of the building across the boundary between numbers 78 to 82 High Street and the dominant tenement. The food hall, which includes on its east side a liquor store, occupies most of the depth of the building from the High Street frontage northwards. Immediately to the rear of the food hall is a back shop or store of the same width as the food hall itself. This back shop is used to hold goods to be sold in the food hall until they are required to be put on the shelves there for sale. Immediately to the west of the food hall is, at the front, part of the Dry Goods Department the remainder of which occupies the whole of the upper floor of the new building. The westmost part of the Dry Goods Department on the ground floor is devoted to electrical goods, and to the rear of the ground floor portion of the Dry Goods Department is a meat preparation room and a Chill. The doors leading into the rear of the new building all lie within the subjects 84 to 90 High Street. According to the evidence the lane is used by the defenders to bring supplies in for the food hall and the Dry Goods Department, and, to a very small extent, to take out, by their own vehicles, groceries for delivery to customers. Two of the four entrances are not used at all. The two in use are the doors marked A and D on the Plan No. 16B of Process. Door A is in that part of the rear wall of the back shop which lies wholly within the dominant tenement, and Door D is in the west wall of the new building to the rear of the Dry Goods Department. It may be accepted that all groceries, foodstuffs and liquor brought by vehicle to the rear of the new building by way of the lane are taken through Door A into store in the back shop, or through the back shop directly into the food hall or to the liquor store. Door D is used for deliveries of goods, including electrical goods, for the Dry Goods Department.

In the circumstances which I have just summarised the starting point of the alternative contentions for the pursuers is that since the new building has been in commission the defenders have been making a use of the access which is outwith the scope of the grant.

There is, I am happy to say, no material dispute between the parties as to the legal principles by which this proposition falls to be judged. It is matter of agreement that the dominant tenement in favour of which the right of access was granted consists of the whole, and not merely a part, of the heritable subjects known as 84 to 90 High Street. It is also common ground that this right is not restricted expressly or by implication by reference to the purposes to be served by the traffic which may use the lane [see the discussion of this topic in Carstairs v. Spence, 1924 SC 380 in the opinion of the Lord President (Clyde) at pp. 385 and 386]. It follows, and this is not in dispute either, that the defenders as proprietors of the dominant tenement are entitled to use the lane for traffic of all kinds which is intended to serve, and which in fact serves, any lawful purpose to which they may choose to devote the dominant subjects. Putting the matter in another way the defenders are entitled to obtain access to the dominant tenement in connection with the purposes for which they elect to use it and to facilitate the carrying on of those purposes. What they may not do, however, is to use the way, or permit its use by others, to obtain access to subjects other than the dominant tenement, whether or not they happen to be heritable proprietors of those other subjects. They may not, in short, increase the scope of the right of access, and in particular they may not use the way for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the lane and the non-dominant subjects. These principles are amply vouched in Scotland by cases such as Scott v. Bogle, 1809 Faculty Collection, Vol. 15, 397 and Anstruther v. Caird (1862) 24 D. 149 and although there may be differences between the laws of England and Scotland in inter alia the measurement of the scope of a right of access created by express grant, the law of England appears to me to be at one with the law of Scotland in declaring that a right of access in favour of one heritable subject may not be used to secure access, viathat dominant tenement, to a contiguous subject in the same or different ownership in order to serve the purposes of that contiguous subject. This was precisely the principle upon which the Court of Appeal decided the case of Harris v. Flower, 1904, 74 L.J. (Chancery Division), page 127 in which the position of the respondent was, for all practical purposes, indistinguishable from that of the defenders in this case. In Harris the facts were that the proprietor of a dominant tenement, who was also the proprietor of adjoining land, had built a factory, a single building, which straddled the boundary between the two parcels of land, and it was held that he was not entitled to use a right of way over the servient tenement to obtain access to his land adjacent to the dominant tenement and for the purposes of that part of his factory building erected on that adjacent land. Mr Morison, for the defenders, was no doubt well founded in warning us that in the field of easements or servitudes of way English authority must be used with caution but, having regard to the question with which the case of Harris was concerned, I have no doubt that the answer is to be found, according to the laws of Scotland and England, by applying the same test.

I now ask myself whether, on the evidence, it has been established that the defenders have been using their right of access over the lane leading from East Road to the rear of the subjects 84 to 90 High Street for purposes outwith the scope of the grant. I have no hesitation in answering that question in the affirmative. It is perfectly clear that, to a substantial extent at least, goods brought to the rear of the subjects 84 to 90 High Street by vehicles which have used the lane have been unloaded and carried directly through the dominant tenement into parts of the new building which lie wholly within the adjoining heritable subjects 78 to 82 High Street. Goods for sale in the food hall have, for example, gone either into the back shop to be kept there until required on the shelves of the food hall, or through the back shop directly into the food hall. Goods for sale in the Dry Goods Department have also been taken from the rear of the dominant tenement into parts of the new building which lie wholly beyond its boundaries. To this extent accordingly the defenders have been making use of their right for the purpose of obtaining access for persons and goods to the subjects known as 78 to 82 High Street and in these circumstances the pursuers would, in my judgment, be entitled to the declarator which they seek in terms of their second conclusion as amended.

The pursuers, however, argued that they are entitled to declarator in terms of their first conclusion and I suspect that this declarator which would effectively preclude any future use of the lane by the defenders was their principal objective when this action began. The situation created by the defenders here, said Mr Cameron, is unprecedented in the sense that the Courts have not had to consider the effect of the use of a right of access in order to serve the purposes of a single building, erected on a dominant tenement and adjacent subjects, in which the proprietor is carrying on purposes which are indivisible. The defenders have devoted their new building to the purposes of their food hall and their Dry Goods Department, each operated as a single commercial unit, and their import of goods by means of the access lane cannot be identified as being for the purposes of the dominant tenement or for the purposes of the non-dominant tenement. The use made of the lane was to obtain access to the new building for the purposes of the indivisible enterprises being carried on there. The dominant tenement and the adjoining subjects have thus been inextricably devoted to these unitary enterprises, and so long as the defenders use the new building in its present state in the way they are now using it they cannot claim to be using the right, or to be able to use the right, for the purposes of the dominant tenement. The circumstances of this case, according to Mr Cameron, ought to be regarded as analogous to those cases in which the law recognises that a right of access has been suspended by events, e.g. by the total destruction of a mill which is the dominant tenement, or by the disappearance of the way as the result of inundation by the sea or erosion of the land.

I have no hesitation in saying that this argument which, to be fair to Mr Cameron, was recognised to have its difficulties, is without substance. Even if it be supposed that the entire use which the defenders have, up till now, been making of the right of access has been outwith the scope of the grant—and I am far from accepting the supposition—the pursuers made no attempt to prove, and could hardly have proved, that in the events which have happened the right possessed by the defenders is incapable of exercise in any way within the scope of the grant in the foreseeable future. It is conceded that the dominant tenement is identifiable and still exists, and that the right of access in favour of the defenders as proprietors of the dominant tenement continues to exist also. It does not follow at all from the fact that the use of the access in the past may have been outwith the scope of the grant that there are no uses of the grant which the defenders may make tomorrow or in the future, within the scope of the grant. They may, for example, require access for the purposes of repair of the yard within the subjects 84 to 90 High Street and to the rear of that part of the new building which stands within their boundaries. Repair or even demolition of that part of the building itself is another legitimate purpose for which the access may properly be used. Delivery of electrical goods for sale in the part of the building erected on the dominant tenement is a further purpose for which the access may properly be used. Further, the access may unquestionably be used for all purposes to which the defenders choose to devote the dominant tenement and it is easy to figure that some rearrangement of the defenders' use of their new building, even if they choose to devote that part of it built on the dominant tenement exclusively to the function of a genuine distribution centre or store in connection with all their retail enterprises, will result in their being able to use the right of access for purposes which can be identified as the purposes of the dominant tenement. That a proprietor may use his dominant subjects for a genuine purpose which serves the interests of his business enterprise, as a whole, carried on in those subjects and elsewhere, cannot be doubted and the case of Williams v. James 1867, L.R. 2 C.P. 577 is a good example of circumstances in which a proprietor's use of a right of access to one of three fields on which he grew hay all of which he stacked on the dominant field, was held to be unexceptionable. In all these circumstances there can be not the slightest justification for granting declarator in terms of the first conclusion of the summons which, be it noted, is limited neither by time nor by reference to any defined event. In conclusion on this branch of the case, I have only to add that the point sought to be taken by Mr Cameron appears to have been taken, without any success at all, in the case of Harris to which reference has already been made.

On the whole matter I am for recalling the interlocutor complained of, for sustaining the second plea-in-law for the pursuers, and for granting declarator in terms of the second conclusion of the summons.

LORD CAMERON .—The pursuers in this case, who are the respondents in the reclaiming motion, seek decree of declarator in terms of the first and second conclusion of their summons, the second in a form which was amended in the course of the debate upon the reclaiming motion, and for interdict in terms of the third and fourth conclusions. After debate the Lord Ordinary granted decree in terms of the first conclusion of the summons to the effect that the defenders are not entitled to exercise any rights of access over the pursuers' land at 53 and 55 East Road, Irvine. It is against that interlocutor that the defenders have reclaimed. The right of access in question was constituted by specific grant and does not rest either upon prescription or by invocation of the law of servitude of necessity.

As the Lord Ordinary viewed the case and as he put it, "The real question now is whether the defenders are entitled to use the said access road at all, or put another way whether there is a definable dominant tenement for whose benefit the servitude right can be exercised." The Lord Ordinary also found that the pursuers' action came "at a time when no serious complaint can be made as to the type of use which the defenders are at present making of the access road." It was not suggested that in this particular finding the Lord Ordinary was in error and therefore in my opinion the critical question in the case is whether the defenders' actions in the use which they are in fact making of the access road are proved to have in any way exceeded the scope of the servitude right which as proprietors of the dominant tenement they are entitled to enjoy as such proprietors. As the Lord Ordinary's method of disposal of the case as indicated in his only stated ground of judgment was not supported by the pursuers, therefore the foundation of his decision to grant decree in terms of the first conclusion of the summons disappears. In my opinion the position taken by the pursuers was correct and the Lord Ordinary erred in holding that there was no identifiable subject which could form the dominant tenement, because it is not disputed that the boundaries of No. 84–90 High Street, Irvine, can be discerned and determined and that as a consequence there is in fact an identifiable heritable subject to which a servitude right of access can attach. Consequently there is no need to discuss the question whether and in what particular circumstances a servitude right of way can be "suspended" or held to be in abeyance.

The servitude right here claimed is one of the recognised praedial servitudes—a servitude of way—and in this case constituted by Grant. The deed of Grant is dated 21st December 1964 and is in favour of the defenders predecessors in Title to No. 84–90 High Street, Irvine. The defenders, who are now in ownership of a continuous range of heritable subjects forming Nos. 78–106, have demolished the buildings which formerly occupied 84–90 High Street, Irvine, in a scheme of reconstruction which has embraced the whole range. At the time of the Grant the subjects 84–90 High Street were in separate ownership from the remainder of the subjects comprising 78–106 High Street. Today the range has been developed as a supermarket and restaurant and with a wide measure of unrestricted movement throughout. Now that it is conceded that the subjects can be identified, the first question is what are the terms of Grant and thereafter whether it is established that the defenders are making use of the access to 84–90 for purposes which are not within the scope of the Grant, and in particular whether in fact the defenders are using the access granted as a means of access to other subjects not covered by the Grant. The servitude is described as a "heritable and irredeemable servitude of road or passage from East Row, Irvine, to the … subjects forming Nos. 84–90 High Street, Irvine." Under the Deed it is expressly provided that the defenders or their predecessors should not be entitled to park vehicles on any part of the passage, the right to be for "the sole purpose of providing access" to the High Street property and "it is further provided that the defenders or their predecessors shall take all possible steps to ensure that the use of the road or passage, particularly by vehicular traffic, shall be such as to cause the minimum of inconvenience" to the pursuers. But apart from these special provisions which I have noted, the right of passage or access is without limit as to the extent of permitted use either by pedestrians or vehicles provided always that their use of the roadway is for the access prescribed in the Deed.

This therefore in the matter of limits is just such a case as Carstairs v. Spence, 1924 SC 380. In that case, which was one of prescriptive acquisition of a servitude of way, Clyde L.P. at p. 386 said:

"But I know of no Scottish case (and none was cited to us) in which—apart from 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 purpose of the traffic which might be carried by it … 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."

In the Deed of constitution of this Servitude there is nothing which places any limit on the purposes to which the subjects may be put, and therefore it can be said that not only is there no limit on the extent of user but also no limit on the purpose which the proprietors of the dominant tenement as such proprietors may lawfully pursue within the subjects or for which they may use them. This, however, does not mean that, being in right of a servitude of way over the pursuers' property to give access to the subjects designated 84–90 High Street, the defenders were entitled to use that access as a means of access to any other subjects owned by them—whether within the range of subjects comprised in 78–106 or not.

The proposition in law upon which the submissions for the pursuers were based is that the proprietor of a dominant tenement cannot at his own hand increase the burden laid upon the servient tenement and in particular "communicate the benefit" of the servitude to a non-dominant tenement so as to extend the right to the non-dominant tenement. The proposition was illustrated by reference to a tract of authority in Scotland of which the cases of Scott v. Bogle, 6th July 1809 F.C. and Anstruther v. Caird, (1862) 24 D. 149 are instances, and is in my opinion sound. It would also appear that the law of England is to the same effect of Williams v. James, L.R. 2 C.P. 577 and Harris v. Flower, 1904 L.J. 127. I would quote a passage from the judgment of Bovill C.J. in the former case:

"It is also clear, according to the authorities, that where a person has a right of way over one piece of land to another piece of land, he can only use such right in order to reach the latter place. He cannot use it for the purpose of going elsewhere. In most cases of this sort the question has been whether there was a bona fide or a mere colourable use of the right of way."

In the latter case Vaughan Williams L.J. said at p. 132 "… a right of way of this sort restricts the owner of the dominant tenement to the legitimate use of his right; and the Court will not allow that which is in its nature a burthen on the owner of the servient tenement to be increased without his consent and beyond the terms of his Grant. The burthen imposed on the servient tenement must not be increased by allowing the owner of the dominant tenement to make a use of the way in excess of the Grant."

Both these cases were decided after the decisions on the Scottish cases to which I have referred and in both the decisions were precisely in line with the grounds of judgment in Scott v. Bogle, and Anstruther v. Caird the question in the latter case being posed by L. Ivory thus:

"The question is whether the use of a servitude road … can be communicated to another distinct subject but under the same proprietor."

This of course is a very different question from the one which arises when the exercise of a servitude right may, by the mere fact of its legitimate exercise, confer an incidental benefit on other adjacent or contingent properties. In such a case as that there is no deliberate attempt on the part of the proprietor of the dominant tenement to extend the rights nor to confer any additional or uncovenanted right on the tenement thus incidentally affected. Such a case was Simpson v. Godmanchester Corpn, 1897 AC 696 cited in Rankine on Landownership, (4th ed.) p. 423.

As to the law applicable to the present case I do not think that there was any real divergence of view between the parties. Their dispute lay in the application of it in the circumstances disclosed in the proof. The extreme contention of the defenders was that, provided the access to 84–90 High Street was used for the passage of goods or passengers, it was no concern of the proprietors of the servient tenement what use was thereafter made by them of those goods or where the passengers thereafter went. No doubt there is no limit prescribed in the Grant of servitude on the use or purposes to which the subjects 84–90 may legitimately be put—for the purposes of the proprietors of the dominant tenement in their capacity as such proprietors, but the law as evidenced by such cases as Scott and Anstruther does prescribe limits on the uses to which the right of access may be applied. I do not doubt that if the defenders decided to designate and to use the whole of the subjects 84–90 High Street as a store or distribution centre for the whole of their supermarket compound within the range of 78–106 High Street, they could legitimately do so, but equally I am of opinion that if they were to claim a right to import through the access or accesses giving on to 84–90, goods of any kind which immediately were delivered or transported to other parts of 78–106 High Street then they were acting beyond the legal limits of the right of way in favour of the subjects identified as 84–90 High Street. The proof appears to me to yield an inference beyond doubt that this is precisely what the defenders have been doing to a material degree. What the defenders are not entitled, in my opinion, to claim a right to do in virtue of this servitude right, is to use the subjects Nos. 84–90 as a "bridge" over which passengers or goods can pass as of right to the subjects Nos. 78–82. That the defenders might legitimately "ferry" such goods once properly received by this right of access into the subjects Nos. 84–90, used as a storage and distribution centre, by way of the public highway to other subjects in the same ownership is a very separate issue, and one in which other considerations might operate and I expressly reserve my opinion on that matter. In light of the law governing the issues which do arise in the present case, I am of opinion that the pursuers succeed in showing that the defenders have acted in material excess of the grant of servitude applicable to 84–90 High Street and the question now is to what remedy are they entitled in the present process. The argument which persuaded the Lord Ordinary to grant decree in terms of the first conclusion of the Summons—to the effect that the servient tenement was no longer identifiable, presented in that form of course cannot succeed in light of the evidence and the facts established thereby. Further, I know of no authority or decided case in the law of Scotland, and none was cited, in which, in the absence of proof of destruction or disappearance of the particular subjects to which a limited right of access was accorded, it was held that the right itself was in perpetuity extinguished because the proprietor for the time being of a servient tenement had acted in excess or beyond the scope of the servitude right. Therefore the fact that the defenders have acted beyond the limit of their right cannot be a foundation for holding that the right which attaches to the dominant tenement, though necessarily exercisable by the proprietor for the time being, is for all future time extinguished—which is the purport of the pursuers' first conclusion to which the Lord Ordinary has given effect. The facts established at the proof appear to me, however, to warrant decree in the pursuer's favour in terms of their second conclusion as now amended. I therefore agree with your Lordship in the chair as to the proper disposal of the conclusions in this case, that the Lord Ordinary's interlocutor should be recalled and decree pronounced as your Lordship proposes.

LORD JOHNSTON .—I agree with your Lordships and there is nothing I can usefully add.