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Cite as: [2003] ScotCS 312

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Thomas & Anor v. Allan & Anor [2003] ScotCS 312 (16 December 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kirkwood Lord Johnston Lord McCluskey	XA87/02 OPINION OF LORD KIRKWOOD in the cause JOSEPH LLOYDS THOMAS AND ANOTHER Pursuers and Appellants; against CHARLES ALLAN AND ANOTHER Defenders and Respondents:   _______

 

Pursuers and Appellants: Sandison; Drummond Miller, W.S.

Defenders and Respondents: Joughlin; Beveridge & Kellas

16 December 2003

[1]      I agree with Lord Johnston that the 1992 disposition did not innovate on the right of access to which the pursuers originally became entitled when they purchased 5 Moor of Balvack in 1983, and that their right of access is confined to the existing track and does not include the verges on either side of the track. In my opinion, the sheriff reached the correct conclusion as to the extent of the right of access. That issue having been decided in favour of the defenders, counsel for the pursuers and appellants conceded that the question as to whether the alleged obstructions constituted a material interference with the pursuers' right of access does not now arise for our determination. It follows that the appeal must be refused.

Thomas & Anor v. Allan & Anor [2003] ScotCS 312 (16 December 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kirkwood Lord Johnston Lord McCluskey	XA87/02 OPINION OF LORD JOHNSTON in the cause JOSEPH LLOYDS THOMAS AND ANOTHER Pursuers and Appellants; against CHARLES ALLAN AND ANOTHER Defenders and Respondents:   _______

 

 

Pursuers and Appellants: Sandison; Drummond Miller, W.S.

Defenders and Respondents: Joughlin; Beveridge & Kellas

16 December 2003

[2]      This case is concerned with a dispute with regard to the extent of a right of access admittedly granted in favour of the pursuers by the Secretary of State for Scotland, representing the Forestry Commission, by a Disposition dated 30 April 1992 and registered in the General Register of Sasines for the County of Aberdeen on 18 November 1992 ("the 1992 Disposition"). The defenders do not dispute a right of access, but contest its extent.

The physical features of the ground are that the parties' properties lie adjacent to a track, some 100 yards apart, in the countryside of Aberdeenshire, near Inverurie. Access in fact is gained from the main road by a service track which then diverts onto the track which passes both properties. Over the years the defenders, claiming the right to the verges on each side of the track, have placed various items thereon, including stones, metal posts, chicken feeders and some plants and shrubs. It is an unfortunate fact that the extent of the dispute in this case goes no further, nor any less, than the right of the defenders so to have acted.

At the proof held by the sheriff the two principal items of contention were the extent of the right of access with regard to the ground on both sides of the actual track and also whether or not the items in question, to which I have referred, amounted to unreasonable obstructions. This latter issue only arises if the grant of access in favour of the pursuers extends to the verges. Physically the track has verges on each side being bounded originally by walls and now by, on the one side, a fence and wall and on the other side, the pre-existing wall.

As a matter of history, the track was slightly realigned in order to allow the defenders to extend their building and the provision for this was granted in a Disposition by the Secretary of State in favour of the pursuers dated 24 April 1992 and registered in the General Register of Sasines for the County of Aberdeen on 1 May 1992 ("the realignment Dispositon"). At the proof there was an issue as to whether or not acquiescence had operated, in this respect, as against the pursuers with regard to the extension, but this point was not taken on appeal and, indeed, counsel for the pursuers sought to amend his crave to reflect that concession. The issue of amendment was opposed by the defenders, but only becomes relevant once the essential issue of construction and interpretation of the original grant in favour of the pursuers is determined.

Historically, the original grant of access was conveyed by the Secretary of State in favour of a William Dow, by a Disposition dated 22 February 1961, and recorded in the Register of Sasines in the County of Aberdeen on 2 March 1961. The pursuers' title to their property derives from a Disposition from the executors of the said Dow, dated 17 June 1983, recorded in the same Register on 6 July 1983. The pursuers' title in that latter Disposition mirrored the original grant of access in the original 1961 Disposition in favour of William Dow which was in the following terms:

"(One) a right of access to the subjects hereby disponed from the main Kintore-Alford road by the existing service road which serves inter alia other subjects belonging to me, my said disponee and his foresaids being bound to pay a proportion of the cost of upkeep of the said service road with the parties using same according to user....".

In the realignment Disposition in 1992 the access is defined as follows:

"All and whole a heritable and irredeemable servitude right of access and egress for pedestrian and vehicular traffic over that part of the access roadway formerly forming part of the southmost verge of the access roadway leading from the subjects known as Five Moor of Balvack...".

[7]      As I have indicated, the grant with which this action is concerned is contained in the 1992 Disposition where the subjects of the Disposition are defined as follows:

"All and whole the area or piece of ground lying in the Parish of Monymusk in Gordon District of Grampian Region and for the purposes of Registration of Writs in the County of Aberdeen extending to nought point one nought six hectare or thereby being the piece of ground mostly comprising of the track between the two areas of ground already owned by our said disponees and their foresaids known as Four Moor of Balvack, aforesaid as shown delineated by and including the red verge on the plan annexed and signed as relative thereto...".

That Disposition contains the relevant burden in the following terms:

"And also with and under the following additional burdens, namely (one) the subjects hereby disponed are so disponed subject to all existing rights of way; and in particular there is reserved in favour of the proprietor of the adjoining subjects, 5 Moor of Balvack, a pedestrian and vehicular right of access for all purposes and at all times over the said subjects hereby disponed and declaring that the said proprietor shall contribute to the cost of maintenance, repair and renewal of said track and that according to user."

[8]      To summarise the position accordingly, in the pursuers' base title granted in 1983, there is repeated a right of access granted originally by the Secretary of State in 1961 in the terms thereby stated, and which I have quoted. Thereafter, the servient tenement is burdened with that right of access by the burden in the 1992 Disposition in favour of the defenders and it will be observed at once that the language in that latter Disposition is not identical to that in the predecessors. This focuses the dispute.

The sheriff determined the matter after proof upon the basis that the 1992 Disposition did not innovate on the original grant of 1961, repeated in 1983 and accordingly in practical terms he held that the right of access pertaining to the pursuers' property was restricted to the use of the existing track and did not extend to the verges or beyond. On that basis he determined that the pursuers were entitled in fact to place the materials on the verges which they had done. In any event, he held such did not constitute unreasonable obstruction of a right of access for the pursuers, even assuming, at least upon one view of his judgment, that innovation had taken place. It was accepted by counsel for the pursuers that if no innovation had taken place, there could be no question of an issue of obstruction arising since the access ex hypothesi was restricted to the track.

Accordingly, at the end of the day, the resolution of the dispute before us depends upon how the 1992 Disposition grant should be construed having regard to its terms.

Against that background counsel for the pursuers submitted that the wording of the executory part of the burdens clause in the 1992 Disposition was clear, not capable of ambiguity, and not raising any real doubts as to its meaning. He referred to the speech of Lord Reid in Hunter v Fox 1964 SC (HL) 95. He accepted that if an ambiguity in the wording did exist, the presumption of freedom would favour the defenders' position so as to restrict the access to the actual track, but he said that was not the case. Looking at the wording, he submitted that the access in 1992 extended to the whole of the subjects disponed, which amounted to the whole area of ground with which that Disposition was concerned and thus extended beyond the track to the limits of the ground through which the track ran. He referred us to Erskine, Book 2, Title 9, para.4, Alvis v Harrison 1991 S.L.T. 64, Wimpey Homes Holdings Ltd v Collins 1999 S.L.T. (Sh.Ct.) 16 and Stansfield v Findlay 1998 S.L.T. 784. However, at the end of the day, counsel was prepared to accept that the issue essentially to be determined depended upon the construction of the particular deed in a particular case, although there were helpful remarks by Lord Jauncey in Alvis, on the general rules to be applied to servitude rights of access.

Counsel for the defenders submitted that, properly construed, the grant was in itself restricted to the track but, in any event, she submitted there was an ambiguity, particularly if one applied the rules of law as to how a servitude should be used in the context of the word civiliter (Alvis supra, Erskine supra). She said it was relevant to look at the surrounding circumstances if there was an ambiguity, and this included the original grants and the realignment Disposition in 1992.

As I have indicated, counsel were also concerned with the issue of unreasonable obstructions and there was a separate question surrounding a Minute of Amendment that was proposed by the pursuers on the assumption that this court favoured their position. However, it was accepted that neither of these issues arose if the principal issue was determined against the pursuers and I accordingly turn to consider that question as being the initial and, perhaps, only issue to determine.

There is no doubt that the law requires a servitude right of access to be exercised civiliter, but I do not consider that at least in general terms that principle can be applied to a question of construction which initially must depend upon the terms of the particular deed. If ambiguity is established, the surrounding circumstances require to be examined to determine the extent of the grant rather, in my opinion, than as to how it should be exercised or used. Accordingly, it seems to me, that the fact that using the track alone may benefit the servient tenement, and thus should be regarded as a civiliter use does not, to my mind, assist in the exercise of construction.

I would propose to decide this matter by looking at the 1992 Disposition in detail. The issue turns on the meaning of the words "said subjects hereby disponed" in the burden clause.

Looking at the wording of the burden, at first blush, it does seem to refer to the subjects "hereby" disponed which in turn uses the word "mostly", but I consider there is more importance to be attached to the words first of all "existing rights of way" and secondly, "in particular". If the phrase "existing rights of way" can be construed to include the existing servitude granted by the 1961, and repeated in the 1983 deed, which is at least arguable, that would militate against any idea that the 1992 Disposition was designed to innovate upon the original grant. The phrase "in particular" would seem to add to this position on the basis that, as it would seem to suggest, it is merely a part of a generality which has already preceded, and not a separate and distinct grant. On that view, of course, it could be said to be otiose, but nevertheless stated for the sake of clarity.

This, to my mind, clearly creates an ambiguity as to what the words "over the said subjects hereby disponed" mean, in a question between merely passing through on the one hand and over the whole extent of the ground on the other hand. Against that background the surrounding circumstances in my opinion militate strongly in favour of the access being restricted to the track, since that was what was granted in 1961, repeated in 1983, and referred to, incidentally, in the realignment Disposition, also of 1992.

It is also not without significance that throughout the deeds, although there is a slight variation in wording, the maintenance clause refers to the track and use thereof, again suggesting that the draughtsman did not contemplate extending the grant in 1992 to the whole of the land being disponed.

In these circumstances, it seems to me that there is a sufficient ambiguity in the wording in the 1992 Disposition to meet Lord Reid's test in Hunter supra of real doubt. It therefore is appropriate, in my view, to examine the surrounding circumstances, all of which in my opinion point clearly to the access being limited to the track as existing in 1961 and still existing in 1992. For these reasons I would therefore favour that interpretation which secures the defenders' position.

In my opinion, therefore, without necessarily supporting all his reasoning, the sheriff came to the right conclusion, and I would therefore dismiss this appeal.

Having taken that view it is not necessary to consider either the issue of obstructions, be they reasonable or not, or the issue of the Minute of Amendment and I offer no further view in that respect.

Thomas & Anor v. Allan & Anor [2003] ScotCS 312 (16 December 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kirkwood Lord Johnston Lord McCluskey	XA87/02 OPINION OF LORD McCLUSKEY in the cause JOSEPH LLOYDS THOMAS AND ANOTHER Pursuers and Appellants; against CHARLES ALLAN AND ANOTHER Defenders and Respondents:   _______

 

Pursuers and Appellants: Sandison; Drummond Miller, W.S.

Defenders and Respondents: Joughlin; Beveridge & Kellas

16 December 2003

[22]      I agree with your Lordships that the Sheriff reached the right conclusion, and that the appeal should be refused.