Scottish Court of Session Decisions

[1] In 1942 the Lamberts, who were the owners of the Strathmartine Estate in Angus, decided to break it up and sell off the various parts by auction. One of these was Wynton Farm, to the west of which lies a public road. The farm was among a number of properties sold to a Mr. Troup for £21,040. Within the area of the farm was a group of buildings known as Wynton Knackery, which a chemical company, William Forrest and Sons (Paisley) Limited, had apparently been occupying for the purposes of their business. The land on which the Knackery stood, and a right of access to it across the farm from the public road, were excluded from the sale of the farm and were sold instead to the chemical company for £600.

[2] The Lamberts granted the disposition of the farm and other properties to Troup on 8 January 1945 and it was recorded in the Register of Sasines on 25 January. The dispositive clause excluded "the subjects known as the Knackery ... belonging to William Forrest and Sons (Paisley) Limited ... with right of access thereto and egress therefrom by the roads leading through said Wynton Farm and forming enclosure Number Twenty-three and parts of enclosures Numbers Forty one, Nineteen and Eighteen" on the relevant Ordnance Survey plan. On 16 January 1945 the Lamberts granted the disposition of the Knackery to the chemical company and it was recorded on 9 February. They disponed the subjects "Together with ... (5) the right to use, for the purpose of access and egress to and from the subjects hereby disponed, all existing service roads and ways over any other parts of the said Estate of Strathmartine, which are at present used for that purpose, and, in particular, but without prejudice to said generality, the right of access to, and egress from, the subjects hereby disponed by the road leading from the public road between Strathmartine Castle Farm and Wynton Farm eastwards through said Wynton Farm and forming enclosure Number Twenty-three on said Ordnance Survey Map, by the road leading northward therefrom, being Part of enclosure Number Nineteen on said Ordnance Survey Map, and by the said road, being Part of said enclosure Number Eighteen on said Ordnance Survey Map, which access roads are delineated and coloured Brown on the said Tracing annexed and subscribed by us as relative hereto...". Two points are worth noting. First, the disposition to Troup, though granted before the disposition to the chemical company, describes the Knackery as "belonging to" the company. This shows clearly that the sales and conveyances of the two properties were linked. Secondly, the right to use the access road across the farm is treated as a particular example of a right to use existing service roads and ways. This suggests that before 1945 the road in question was used for access to the Knackery.

[3] The result of these dispositions was that the Knackery, owned by the chemical company, formed an enclave entirely surrounded by Wynton Farm, in the ownership of Troup. But the necessary access to the enclave from the public road was provided along the prescribed route. Troup sold the farm in 1956 and the pursuers bought it from the intermediate owners in 1972 and in each case reference was made to the burdens created over the property in 1945. The defender bought the Knackery in 1996 and the disposition in his favour was recorded on 9 April. In it the chemical company excepted from warrandice the servitude right of access to and egress from the subjects contained in the 1945 disposition to them.

[4] We were shown a copy entry in the valuation roll which indicated that, by about 1970 at least, the chemical company had stopped using the Knackery and presumably therefore - though the defender disputes this - the access road to the Knackery. According to their averments, in about 1974 the pursuers constructed a fence without a gate across the access road at a point just to the east of the farm buildings. At a later date they shut off the access road at its junction with the public road. The result is that it is now impossible to get to the Knackery except by passing through the main entrance to the pursuers' farm and through the complex of farm buildings. The pursuers are therefore offering to prove that the servitude of access was not exercised for twenty years. The servitude is a "right relating to property" which is not specified in Schedule 3 to the Prescription and Limitation (Scotland) Act 1973 as an imprescriptible right. Nor is it a right falling within Section 6 or 7 of the Act. So, if the pursuers prove their averments, they will establish that by virtue of Section 8 the servitude right was extinguished at the end of the twenty-year period.

[5] According to the pursuers, on 5 April 1996, just before his title to the Knackery was recorded, the defender instructed the driver of a mechanical digger to begin work on the pursuers' farm with a view to reinstating the former access roadway. At the pursuers' request the driver left their land but the following day he and the defender returned and began to dismantle part of the pursuers' fence. After the police were called, the defender and the driver left the farm. The pursuers then raised the present action in the Sheriff Court at Forfar for interdict against the defender

The defender counterclaimed for declarator that he has a real right of access from the Knackery over Wynton Farm, in effect, in terms of the express right of access in the deeds. He also sought interdict against the pursuers from interfering with his right of access and egress as granted and constituted in the 1945 disposition in favour of the chemical company. The Sheriff dismissed the pursuers' action on the basis that the owner's exercise of the right of access to the Knackery under the 1945 deed was a res merae facultatis and, as such, imprescriptible (paragraph (c) of Schedule 3 to the 1973 Act). He left all the pleas in the counterclaim standing. In due course the defender lodged a minute of amendment in respect of the counterclaim but, before the minute of amendment could be considered, the pursuers appealed to this court.

[6] When she opened the appeal, Mrs. Smith challenged the Sheriff's decision on the basis that by the 1945 deeds the Lamberts had created a servitude of access to the Knackery, that such a servitude could prescribe under Section 8 of the 1973 Act and that the pursuers were offering to prove that it had done so. While the exact scope of the notion of a res merae facultatis might be difficult to determine, the essence of the matter was that it covered things which were part of ownership proper, the normal incidents of ownership. See the learned discussion in Mr. Johnston's Prescription and Limitation (1999), beginning at paragraph 3.07, especially at paragraph 3.13. A servitude right of access was not one of the normal incidents of ownership and was therefore not to be regarded as a res merae facultatis and imprescriptible; rather, as a positive servitude, it prescribed if not used for twenty years (Prescription and Limitation, p. 35, n. 32).

[7] Mr. Upton countered with an argument which had not been fully foreshadowed before the Sheriff. What he described as his primary argument - though he spent little time developing it - was that the right of access created by the 1945 deeds was not a servitude but, rather, an express declaration of a right of access to and from the public road across the farm which was an incident of the ownership of the Knackery. Since this was the nature of the express right of access in the deeds, it was imprescriptible.

[8] This argument admits of a short answer. Mrs. Smith put the point succinctly but correctly when she said that the forms of words used in the dispositions in 1945 were apt for creating a servitude of access. Moreover, the method which the Lamberts used to create the right is consistent with the creation of a servitude: the right was excepted from the grant in the dispositive clause in the disposition of the farm and noted in the title to the dominant tenement, the Knackery, by mentioning it in a "together with" clause after the description of the subjects. We refer to Gretton and Reid's Conveyancing (second edition 1999), paragraph 13.15. Finally, it appears that the chemical company, at least, considered that the right created by the 1945 deed had been a servitude, since they referred to it as "the servitude right of access and egress" in the warrandice clause of their disposition in favour of the defender. For these reasons we are satisfied that the express right over Wynton Farm which the Lamberts reserved in the disposition of the farm in 1945 was indeed a servitude right of access. That being so, it partook of all the incidents of such a servitude and in particular it would prescribe under Section 8 of the 1973 Act if not used for twenty years. The pursuers' averments of non-use are therefore relevant to support their case that the express right granted in the 1945 disposition of the farm has prescribed. It follows also that, if the pursuers were to prove their averments of non-use for the prescriptive period, the defender would not be entitled to declarator in terms of the first conclusion, nor interdict in terms of the second conclusion, in the counterclaim, both of which are framed by reference to the express grant.

[9] But the pursuers do not simply ask for interdict against the defender from purporting to exercise that servitude right of access. They ask that he be interdicted from interfering in any way with their property. In order to establish a relevant case for interdict in those terms, the pursuers' averments must disclose a situation in which the defender has no right whatever to demand access across the pursuers' farm. That brings us to the defender's second and more fundamental argument. Mr. Upton submitted that, even if the express right of access in the deeds was a servitude and even if it had prescribed by non-use, nevertheless the defender, as owner of the landlocked Knackery, still had a right to take access to the public road across the farm. There were said to be two possible and sufficient bases for this right in our law. The first was a general right of the owner of an enclave to require his neighbours to afford him the necessary access to a public road. The second derived from the fact that before 1945 the farm and the Knackery had been part of the same estate which the owners had split up to create the two separate feus, the farm and the Knackery. Before 1945 the Lamberts, and indeed the chemical company as occupiers of the Knackery, had access to it along the access road across the farm. Therefore when, as a step in the transaction of splitting the Knackery from the farm, the Lamberts disponed the farm but kept the Knackery for a few days before disponing it to the chemical company, as owners of the Knackery for that short period they retained the inherent right of access across the farm to the public road. That right of access, which was to be distinguished from any specific servitude granted to the owner of the Knackery, passed to the chemical company when they became owners; from the company it passed to the defender in his turn.

[10] Mrs. Smith drew attention to the potentially far-reaching implications of the argument that the owner of an enclave has a right to access across the land of his neighbours, even where the lands have not been in single ownership and there is no contractual relationship between the owners. Some at least of those implications were highlighted by Lord Trayner in an obiter passage in Menzies v. Marquis of Breadalbane (1901) 4 F. 59 at p. 61. It is unnecessary to examine this wider argument in the present case since, if the law does not accord a right to access to an enclave where the lands have been split off from a single estate, it is unlikely that the owner of the enclave can derive such a right on a more general basis. We therefore confine ourselves, so far as possible, to Mr. Upton's narrower argument.

[11] In considering this narrower argument, we find it convenient to start with a point made by Mrs. Smith. It was obvious, she said, even from the terms of the disposition in favour of the defender, that before he bought the Knackery, he and his advisers had been well aware that the servitude right of access across the farm had been lost. In those circumstances it would be inequitable for the court to assist him by recognising any right of access across the pursuers' farm, especially when the pursuers had for long developed their farm on the basis that the servitude of access was not being exercised and, latterly, had prescribed. In our view her argument is unsound. There can, of course, be no suggestion that the defender has acquiesced in the pursuers' alterations to the layout of their farm which took place before he became owner. Nor is the defender asking the court to exercise some equitable power to provide him with an access. He simply relies on what he asserts is his right as the owner of the Knackery to take the necessary access to his property across Wynton Farm. If such a right exists, then it has existed since the lands were split in 1945 and the defender enjoys the right by virtue of his title, irrespective of what he may have been told about the servitude of access in the 1945 titles before he bought the Knackery.

[12] The right of an owner of property to obtain access to it is recognised by the institutional writers. In his Jus Feudale 2.3.30 Craig gives the full text of wording which was originally found at the end of the tenendas clause in a feu charter. As he explains, the wording, which was included more out of caution than necessity, listed all the matters which were impliedly carried by the grant of the fee. In particular, the lands were to be held "cum pastura, libero introitu, et exitu" - with the right of pasture, free entry and ish. When he comes to comment on liber introitus et exitus, free entry and ish, Craig simply says "certum est rem ipsam semper comitari" - "it is certain that it always goes with the feu itself" (2.8.36). Any such right of the original vassal would, of course, transmit to any disponee of the fee, as part of the disponer's "right, title and interest" in the subjects, under the various forms of disposition which have been used down the centuries.

[13] Similarly, Stair says that, even though not expressed, free ish and entry are implied in the very right of property (Institutions 2.7.10). When discussing what is implied in an infeftment in lands under a feu charter (Institutions 2.3.59 fin.), he glosses the relevant phrase in the old form of charter (2.3.79):

Just like Craig, Stair holds that the grant of the fee gives the vassal the right to free entry and ish, but he clarifies the position by saying that the right includes a right to such passages as may be necessary through the ground of the superior and of any other, where rights of way have not already been constituted by concession or by prescription.

[14] In his Institute Bankton discusses "Parts and Pertinents, or Appurtenances of Fees" which are implied in the right of property. He comments on certain items in the old wording of the tenendas clause and says (2.3.163):

Once more the emphasis is on the right of access to the lands being implied in the right of property since otherwise the lands cannot be possessed by the owner. The right includes the right to use passages "thro' the disponer's grounds" and also such passages "as were accustomed at the date of the right through the grounds of neighbouring heritors". Bankton indicates that the right in question is not a servitude but only the natural result of property.

[15] In the same way, when commenting on the various matters to be implied in the grant under a feu charter, Erskine refers to the items which used to be set out expressly in the tenendas clause. In particular in relation to the grant being cum libero exitu et introitu - the order of the terms has been reversed to correspond with "free ish and entry" - he says that the clause must without doubt import a right to all ways and passages, in so far as they may be necessary for the vassal's access to kirk and market, through the adjacent grounds of the granter, who is, by the clause, laid under that obligation (Institutes 2.6.9).

[16] In summary, the institutional writers proceed upon the view that it is of the very essence of a right of ownership of land that the owner should be able to have possession of it and that this implies a right to enter and to leave it. The right to free ish and entry, and the resulting right of access are "necessary concomitant[s] of property" and therefore, like the right of property itself, they do not prescribe. Cf. Erskine, Institute 3.7.12 and Napier, Commentaries on the Law of Prescription in Scotland (1854), p. 633. Were it otherwise, and the right of access could prescribe if not exercised for twenty years, this would be tantamount to saying that the owner was obliged to visit his property and use the right of access on pain of losing the right to enjoy his property. Such a conclusion would be inconsistent with the very nature of ownership. The true position is that an owner can choose not to visit his property and exercise his implied right to access, without running any risk of losing his right to enjoy his property. In that sense the exercise of the implied rights of ish and entry and of access may be described as a res merae facultatis.

[17] Mrs. Smith submitted that, despite what was said in the institutional writers, in modern Scots law the only correct analysis of the nature of the right of access to an enclave was that it arose by either implied grant or implied reservation of a servitude of access, which then fell to be treated like any other servitude. In support of her submission she referred to Ewart v. Cochrane (1861) 4 Macq 117, where both Lord Campbell L.C. and Lord Chelmsford use the language of servitudes, as well as to Gow's Trs. v. Mealls (1875) 2 R. 729 and McLaren v. City of Glasgow Union Rly. Co. (1878) 5 R 1042. We are unable to accept that submission. Not only does it run counter to the doctrine contained in the passages from the institutional writers which we have quoted, but, more importantly, those passages expound a fundamental aspect of the ownership of land which cannot be overlooked. More specifically, the insistence that the right of access must be analysed as a servitude is irreconcilable with Bankton's explicit statement that the owner's right of access through the disponer's grounds is not a servitude, "but only the natural result of property, viz. the liberty to enjoy it."

[18] In any event, the authorities do not support the view that the doctrine of implied grant or reservation should be regarded as inconsistent with the institutional writers' doctrine that the right of access is implied in the right of ownership. The fact of the matter is that the doctrine of the implied grant or reservation of servitudes, so far as applied to ways of necessity, is a means - fiction, if you will - by which the law rationalises the operation of the rule that the owner of an enclave has a right to the necessary access for the enjoyment of his property. In other words in such cases "servitudes" of this kind are in substance a manifestation of the right of access which the owner of land must have, if he is to enjoy the possession of his land, and which the law accordingly implies. This is essentially the analysis which Rankine uses when discussing the implied grant of servitudes of necessity (The Law of Land-Ownership in Scotland (fourth edition 1909), pp. 430 - 432). More importantly, it also appears to be the basis of the reasoning of Lord President Inglis in Walton Brothers v. Magistrates of Glasgow (1876) 3 R.1130. The pursuers had owned an area of ground since 1857. In 1870 Walton's Trustees disponed part of the land to Craig who later conveyed it to the Magistrates. Before Craig became owner in 1870 he had had a lease of part of the subjects from the Waltons and, during that period, he had had access to them by a lane on the Waltons' land. The pursuers raised an action for declarator that they held their land free of any servitude of access. The court assoilzied the defenders on the basis that, at the time of purchase, Craig had obtained a right of access via the lane and that the Magistrates had acquired the same right from him. Speaking of Craig, Lord President Inglis held (3 R. at p. 1133) that

The Lord President decides two matters. First, he considers that the disponee of land which has no other access obtains an implied right of access to it. Secondly, he considers that, if nothing is said, the access is to be obtained by the existing way, i.e. by the route which provided access before the properties were split. In formulating his decision the Lord President follows Cochrane v. Ewart and holds that there is an implied grant of access. But he explains that the implied grant is consistent with equity and legal principle and, in that connexion, he goes on to refer to the settled law that the conveyance of a piece of property implies a right of access to it. It appears therefore that the Lord President placed the law relating to the implied grant of a necessary access within the framework of the established law on access as an implied right in ownership.

[19] In the light of these authorities we regard it as clear that, if the Lamberts had simply disponed the Knackery to the chemical company and had retained the surrounding farm land, then the chemical company would have obtained an implied right of access to the Knackery. To put the point another way, the Lamberts would impliedly have reserved a right of access to the Knackery. Moreover, if nothing had been said, the access would have been by the route which had been used before the lands were split up. The wording of the disposition to the chemical company suggests that the access road across the farm to the Knackery had been used to obtain access before 1945. So, it appears that, if nothing had been said, the chemical company would have been entitled to access along the same access road.

[20] Does the fact that the Lamberts had conveyed the farm to Troup some eight days before make any difference? In our view, in the circumstances of this case, it does not, since the sale of the farm and the sale of the Knackery are properly to be seen as linked parts, not merely of the larger enterprise of breaking up the Strathmartine Estate but, more particularly, of the localised transaction of splitting Wynton Farm and the Knackery. That transaction - carried out by conveyances made within days of one another - created the Knackery as an enclave which needed to have access across the surrounding lands of Wynton Farm. The new owner of the enclave therefore had an implied right of ish and entry and, if the matter had not been expressly regulated by the deeds, the proper inference from the transaction as a whole would have been that, in disponing the farm to Troup, the Lamberts as common authors intended that his enjoyment of the farm should be subject to the right of the chemical company to take access to the Knackery by the existing way. We refer to Russell v. Watts (1884) 25 Ch D 559 per Fry L.J. at p. 584; to Hansford v. Jago [1921] 1 Ch. 322 per Russell J. at pp. 332 - 337, and to Gale on Easements (sixteenth [21] Indeed Mrs. Smith did not go so far as to suggest that the chemical company would not have had an implied right to access over the farm when they bought the Knackery in 1945. Rather, her contention was that the defender had no such right of access today.

[22] In that connexion she argued that any right of the chemical company to access would have derived from the missives with the Lamberts and not from the company's title. In fact the sale proceeded on the basis of conditions of sale and roup, but in any event we need say no more than that the argument cannot be maintained in the face of the passages from the institutional writers describing the right in question as one of the incidents of ownership rather than as something derived from the antecedent sale. This is not, of course, to deny that the obligations of a seller may be shaped, in part at least, by the rights which any owner of land can expect to enjoy.

[23] Next, proceeding on the basis of her analysis of the right of access in terms of an implied servitude, Mrs. Smith argued that any underlying implied servitude of access would have prescribed, along with the express servitude, by non-use for twenty years. But, even supposing, without deciding, that any servitude arising by way of implied reservation would indeed have been extinguished by prescription under Section 8 of the 1973 Act, unless the circumstances changed, the necessity for access across the farm would endure for as long as the two pieces of ground remained in separate ownership. In other words, the owner of the Knackery would still have an implied right of ish and entry and a corresponding right to access over the farm.

[24] Mrs. Smith argued, however, that where, as here, an express servitude had been reserved in the disposition to Troup, that reservation in effect fulfilled the obligation to provide access and, if the servitude was subsequently extinguished by prescription, then the owner of the Knackery had no further right to access. We have come to the conclusion that this argument should be rejected. As the passages which we have quoted from the institutional writers make clear, the right of access is implied in, and necessarily lasts as long as, the right of property. So, the owners of Wynton Farm are obliged to make the necessary access available to the owners of the Knackery for so long as the properties remain in separate ownership and there is no other access to the Knackery. By granting the express servitude, the Lamberts and their successors fulfilled that obligation for as long as that servitude remained in existence. But, even if the express servitude is extinguished, the obligation to provide access remains. That would be obvious if the servitude in the deeds were discharged expressly: unless the (separate) right to claim access had somehow been abandoned, that separate right and the corresponding obligation would remain unaffected by the discharge of the particular specified servitude. The same must apply when an express servitude is extinguished by non-use. Indeed, since the right of access is implied in the right of ownership, it appears to us that in principle it cannot be abandoned by an owner in a manner which would bind his successors in title. Since, however, the point was not fully argued, we simply observe that, even if the implied right could be abandoned, this could be done only by the clearest words or by unmistakable implication. Neither the creation of the express servitude nor the non-use of the access for twenty years is indicative of an intention on the part of the chemical company to abandon their right of free ish and entry or their implied right of access.

[25] In these circumstances we consider that, when he bought the Knackery and it was conveyed to him, the defender qua owner became entitled to obtain free ish and entry to it over Wynton Farm. The essence of the right is that the defender should be able to get to the Knackery from the public road. The precise route is a secondary matter. In the particular circumstances of this case, where the pursuers appear to have re-organised the use of their land over a long period, it may be more convenient for them to make the access available by some route other than the access road mentioned in the 1945 dispositions. It appears to us that the defender could not properly insist on being given access by the old route and would have to accept any other suitable route offered by the pursuers. But, since the defender is indeed entitled to access across the pursuers' land, it follows that the pursuers' averments in the principal action in support of their crave for interdict are irrelevant and that the Sheriff was right to dismiss their action. So far as the counterclaim is concerned, the defender's statements and conclusions are framed by reference to the express provisions in the titles. The pursuers' answers turn on the issue of the prescription of the servitude created by the titles. The Sheriff left all the pleas in the counterclaim standing but continued the case to a procedural hearing, apparently in view of the pursuers' criticism of the form of the conclusions in the counterclaim. The defender did not ask the court to interfere with that aspect of the Sheriff's decision. We shall accordingly simply refuse the appeal. In doing so we express the hope that the parties will be able to settle the dispute without incurring further expense in court proceedings.