Scottish Court of Session Decisions

[1] In this action of adjudication the pursuer ("Seafield") has reclaimed against the interlocutor of the Lord Ordinary sustaining the defender's first plea-in-law and dismissing the action. At the hearing before this court both parties were eventually agreed that there were no issues of fact to be determined. Accordingly, on behalf of Seafield Mr. Howie, Q.C., moved us to recall the Lord Ordinary's interlocutor, to sustain the pursuer's pleas-in-law and to grant decree of adjudication de plano, while on behalf of the defender Mr. Thomson argued that we should simply refuse the reclaiming motion.

[2] In 1992 the defender owned the farm of Seafield of Raigmore in Inverness-shire. By missives dated 28 April and 5 May 1992 a company, then named Redleys Ltd., agreed to buy a plot of land forming part of that farm. They also agreed to take options to buy all or part of two more plots, the options being exercisable within a certain period. In 1997 Redleys assigned their rights under the missives to Seafield (then known as Havenway Ltd.). On 16 October 1997 that assignation was intimated to the defender. On the same day Seafield gave due notice to the defender of the exercise of the option in the missives to buy 12.78 hectares of land ("the option land"), forming part of one of the two other plots of land mentioned in the missives where it was referred to as "the Third Subjects". The defender offered to grant a disposition of the option land to Seafield, but insisted that it should include a reservation in favour of the defender of a servitude right of access to the part of the Third Subjects, lying generally to the east of the option land, which Seafield had not bought and which would therefore remain in the defender's ownership ("the retained land"). Seafield insisted on being granted a disposition without that reservation and, when the dispute could not be resolved, raised this action of adjudication in implement of the missives.

[3] Before Seafield exercised their option, the option land formed part of a larger area of ground owned by the defender. A public road ran along the north-west boundary of the option land and another public road ran to the north-east of the option land, though, except at two points, it was separated from the option land by a strip of ground which the defender did not own. Down the west side of the option land ran an access road which continued some further distance and eventually led to Ashton Farm. On the other side of the stretch of the access road where it ran past the option land lay the other plot of land which Seafield had an option to purchase under the missives. But in terms of the missives, in the event of that option being exercised, the defender had reserved a right to exclude from that other plot of land a triangle of land at its east end. The Ashton Farm access road formed one boundary of the triangle in question.

[4] In theory at least, before Seafield exercised the option, the defender could have got access to the larger area of ground, of which the option land formed part, from any point on the public road running along the north-west boundary. In reality, however, he could obtain access in one of two ways. As he avers in Answer 6, what the defender actually did was enter by a gate into the option land from the public road to the north-east from where he could reach the retained land by going across the option land. But he could also enter by going down the Ashton Farm access road and then turning left along a track which led to a gate. This part of the Ashton Farm access road was in the defender's ownership and was not included in any of the plots of land which he sold in terms of the missives. On the other hand, the track leading from the access road to the gate into the retained land was on the option land. It can readily be seen that, if Seafield become owners of the option land, that land will lie between the retained land and the gate which the defender previously used from the public road to the north-east and also between the retained land and the Ashton Farm access road. We should add that to the west of the retained land there is a further parcel of land which is in the defender's ownership. But the defender has no means of access from that further parcel of land to a public road. The result is, accordingly, that, once the option land is conveyed to Seafield, the defender's retained land will be bounded, mediately or immediately, on all sides by land which is not in the defender's ownership and which lies between it and any public road.

[5] It is in these circumstances that the defender has insisted on inserting in the burdens clause in the draft disposition an express servitude in these terms:

The draft disposition goes on to declare that the burden is to be a real burden and that it is to be registered in the appropriate division of the Land Registers of Scotland as part of the subjects and, under pain of nullity, to be referred to in all future transmissions and investitures of the option land. The line of the servitude of access described in the disposition is essentially that of the track from the Ashton Farm access road to the gate into the retained land.

[6] Faced with the defender's insistence on inserting this burden and with his refusal to grant a disposition without such a burden, Seafield raised the present action of adjudication based on their first plea-in-law:

In his defences the defender originally made a number of points but he now relies on two. The first is that Seafield's exercise of their option was unreasonable and hence invalid because it rendered the retained land landlocked. The second is that the defender is entitled to insert an express reservation of a servitude of access into any disposition of the option land which he grants. The defender focuses his position on these two matters in his fourth and fifth pleas-in-law:

[7] As we have explained, there is no doubt that the effect of the conveyance of the option land to Seafield would be to leave the retained land cut off from any direct access to a public road. In other words, unless access can be obtained over some part of the surrounding lands, the defender will be unable to use the retained land at all.

[8] In Bowers v. Kennedy 2000 S.L.T. 1006 this court had occasion to consider the rights of the owner of an enclave which had been created by two associated transactions of sale. As we held in that case, under reference to a number of passages in the institutional writers, it is of the essence of the ownership of land that the owner should have possession of the land. Accordingly, the owner has, implied in his right of property, a right of free access to and from the land. It not infrequently happens that, when an owner sells off part of a larger estate, the result is that either the part sold off cannot be reached except over the part retained, or else (as here) the part retained cannot be reached except over the part sold off. In such circumstances, if the matter is not regulated by the express terms of the conveyance, the law holds that there has been either an implied grant or an implied reservation of a servitude of access. In paragraph 18 of his opinion in Bowers the Lord President observed (2000 S.L.T. at pp. 1010 L - 1011 A):

He went on to point out that, in Walton Brothers v. Magistrates of Glasgow (1876) 3 R. 1130, Lord President Inglis had held that, if nothing is said, any implied access is to be obtained by the existing way, i.e. by the route which provided access before the properties were split.

[9] Mr. Thomson accepted the law as so stated. Applying that general approach to the circumstances of the present case, we are satisfied that if, as a result of the conveyance of the option land to Seafield, the defender would be left with no direct access to the retained land from a public road, then he would have an implied right of access from a public road over the option land to the retained land. That may be expressed by saying that the law would imply a reservation of a servitude of access to the retained land over the option land. But, since any implied right of access or implied reservation of access arises out of necessity, necessity also dictates its duration. It will last as long as necessity requires, but it will also cease or be extinguished when it is no longer necessary. Therefore if, for instance, the defender came to have another means of access to the retained land from a public road, perhaps as a result of purchasing land lying between the retained land and the public road in question, then the need for the implied access over the option land would cease. For that reason the implied right of access itself would cease or, to put the matter another way, the implied servitude of access would be extinguished. See, for instance, Cusine and Paisley, Servitudes and Rights of Way, p. 374.

[10] We turn now to see how these general observations bear on the issue between the parties. On one particular matter Mr. Thomson did not seek to support the Lord Ordinary's reasoning and, indeed, he indicated that it had formed no part of the defender's argument in the court below. In reaching his conclusion that there was an implied reservation of a right of access over the track from the Ashton Farm access road, the Lord Ordinary attached significance to the fact that the part of the road in the defender's ownership was not to be sold. In his view, this showed that the parties contemplated that the defender would use the road for access. The need for access by that route would arise, however, only if there was going to be a partial disposition of the Third Subjects, since if the whole of the Third Subjects were disponed away, the defender would have no further need for access. It followed, the Lord Ordinary held, that the parties must have contemplated that the defender would take access from the Ashton Farm road to the retained land over the track running across the option land.

[11] In drawing this inference, the Lord Ordinary overlooked the fact that, in terms of Clause 7 of the missives, the defender was entitled to withdraw the triangular area from the sale of the Second Subjects. In that eventuality, the only way for the defender to get access to that triangular area would be along the Ashton Farm road. It follows that the need to obtain access to the triangular area would explain the exclusion of the Ashton Farm road from the missives. Therefore the exclusion does not in itself indicate that the parties contemplated that the defender would take access to the retained land along that route and along the track leading from it over the option land.

[12] In dealing with the main issue in the case the Lord Ordinary argued that, since in an appropriate case of necessity the seller of land will be held to have impliedly reserved a servitude of access to land which he retains, the right to make that reservation must equally be an implied term of the missives between the parties. And if there is such an implied term in the missives, the Lord Ordinary went on, the seller has a right to insert an express reservation in place of the implied reservation in any subsequent conveyance.

[13] As the Lord Ordinary recognised, of course, any right of access that a seller has over land which he has sold and conveyed arises at the time of the conveyance. The seller's right of property in the land that he retains includes a right of access which, in a case of necessity, he can exercise over the area of land conveyed away. Putting the matter another way, the disposition to the purchaser contains an implied reservation of a servitude of access in a case of necessity. Either way, the law does not permit circumstances to arise where the seller cannot get access to the land which he retains and where, accordingly, he is deprived of any use of that land. When, however, we look at the defender's averments on the two aspects of his defence in Answer 6 in the Closed Record, we see that in each case they proceed on the basis that any conveyance by the defender of the option land would have the effect of depriving him of the use of the retained land.

[14] The averments that Seafield exercised their option unreasonably, and hence invalidly, are in these terms:

In our view those averments that the exercise of the option was invalid are irrelevant because, in a case of necessity arising in such circumstances, the law provides that the defender has a right of access. He is therefore not deprived of all use of the retained land.

[15] Further on in Answer 6, after a passage dealing with a matter which is no longer in issue, we find these averments:

The defender avers that there is an implied term in the missives relating to the reservation of a right of access over the option land. He further avers that business efficacy requires the implication of such a term into the missives since, without it, the retained land would be rendered useless in perpetuity. These averments are again irrelevant since, for the reasons already given, the conveyance of the option land to Seafield would not deprive the defender of access to the retained land or render that land useless.

[16] If the defender's only contention were that, where on conveyance the law imputes a right of access to the defender over the option land, it should equally impute an implied term conferring that right into any preceding missives, then that legal analysis might simply be regarded as somewhat over-refined. In itself it might not be of any real practical significance. The dangers which lurk beneath its surface emerge, however, when the defender goes on to argue that he is entitled to use this supposed implied term in the missives as the warrant for reserving an express servitude in the conveyance implementing the missives. This contention is to be seen in a later passage in Answer 6 where he avers:

[17] At first sight the defender's contention appears to involve only a small, formal, step: if he has an implied right to access over the option land, he should be entitled, if he wishes, to commute that implied right of access into an express right. And the Lord Ordinary indeed held that the defender was entitled to take that step. He first held that the implied right of access which arises in appropriate circumstances on conveyance means that the antecedent missives should be held to contain an implied term giving the seller a right to reserve the access. For the reasons which we have given, we are not attracted by that analysis. But, more importantly, the Lord Ordinary continued:

He then went on to see whether there was anything in the terms of the missives which excluded the conclusion that the servitude right could be implied by reservation. Having decided that there was not, the Lord Ordinary held that, in proffering the disposition including the express reservation of a specified servitude of access, the defender was acting in accordance with his rights under the missives and was therefore not in breach of contract. He accordingly dismissed Seafield's action.

[18] An essential element in the Lord Ordinary's reasoning is that an express reservation of a servitude in the terms envisaged by the defender would have the same effect as the right of access or the reservation of access which the law would in any event imply in a case of necessity. From the account which the Lord Ordinary gives of the arguments advanced before him and from what counsel for the defender told us, it appears that in the Outer House counsel for the pursuer did not really suggest otherwise. Before us, however, Mr. Howie, Q.C., pointed out that any implied right of access over the option land, whether thought of as arising out of the defender's right of property or by reason of an implied reservation, would be essentially different from an express reservation of a servitude in the proposed terms.

[19] We are satisfied that this is correct. As we have explained in paragraph 9, any implied right of access based on necessity lasts only so long as the necessity itself exists. In the present case, therefore, any implied right to access over the option land by the track from the Ashton Farm access road would be extinguished if, say, two years from now the defender obtained another means of access to the retained land. By contrast, once inserted into the title to the option land, the express servitude of access would continue to exist even if the defender obtained another means of access to the retained land. This demonstrates that the implied and express rights of access would be fundamentally different in nature and that the express right would be more burdensome to Seafield than the implied right of access. The provision in the proposed express servitude for arbitration to resolve any dispute about the route of the servitude is equally clearly not something which the common law would imply. We are accordingly satisfied that the defender is not entitled to insist on inserting this express servitude into his disposition. It follows that the defences to the action are irrelevant.

[20] That is sufficient for the disposal of the reclaiming motion. We should add, however, that there may well be force in the pursuer's argument that the scope of the express servitude was wider than the scope of any implied right of access, which would be limited to the type and extent of access exercised by the defender before the estate was sold off. See Cusine and Paisley, Servitudes and Rights of Way, pp. 295 - 296. But we do not need to decide that matter. We also observe that, on the defender's averments, he did not, as a rule, obtain access to the retained land over the track from the Ashton Farm access road. This is not therefore a case, like Walton Brothers, where the owner is relying on the existing use to establish the route of the implied access which he claims. Although it seemed to be recognised by both parties that the most practical route for any implied access would indeed be over the track from the Ashton Farm access road, counsel did not make any submissions on that matter and we therefore express no view on it.

[21] For the reason which we have explained and which was not really advanced in the Outer House, we shall allow the reclaiming motion, recall the Lord Ordinary's interlocutor, sustain the pleas-in-law for the pursuer and grant decree de plano.