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Cite as: [2004] ScotCS 198

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Nationwide Building Society v. Walter D Allan Ltd ScotCS 198 (04 August 2004)

OUTER HOUSE, COURT OF SESSION

OPINION OF LADY SMITH

in the cause

NATIONWIDE BUILDING SOCIETY

Pursuers

against

WALTER D ALLAN LIMITED

Defender

________________

Pursuers: Sandison, Advocate; Morton Fraser

Defenders: Paterson, Solicitor-Advocate; Tods Murray, W.S.

4 August 2004

Introduction:
[1] This case concerns the use of parking spaces at the rear of the pursuers' property. The pursuers are proprietors of commercial premises at 43-45 Marischal Street, Peterhead, Aberdeenshire, from which they carry on business. The defenders are proprietors of commercial premises next door to the pursuers, at the rear of 39-41 Marischal Street, Peterhead, from which they carry on business. The pursuers' property comprises office premises and an area of ground at the rear which is not large but is capable of providing parking for about half a dozen cars. The defenders' property is a building which extends along and beyond the southeast boundary of that area of ground.

[2] The pursuers' office premises have frontage on Marischal Street and are also accessible from their area of ground at the rear. The defenders' premises do not front the street, although they can be accessed via a lane from the street over which they have a right of access. They have a right of access over other property at the rear of their premises.

[3] The defenders acquired the property at 39-41 Marischal Street in 1971 and aver that, since then, they have parked two vehicles on the pursuers' parking area. The pursuers acquired their premises in 1978. In the present action, they seek interdict against the defenders from parking vehicles on their parking area for any time longer than is necessary to permit the loading or unloading of goods or the alighting from or boarding of persons into vehicles there. The defenders respond by asserting that they have 'a servitude right of access to park' on the pursuers' land.

[4] The case came before me on the procedure roll in respect of the pursuers' preliminary plea in terms of which they seek decree de plano.

The Titles:
[5] The pursuers acquired title to their premises in terms of a disposition by Netherscot Developments Limited in their favour dated 12 September and recorded in the Division of the General Register of Sasines for the County Aberdeen on 30 October, both 1978. The burdens clause includes the following:

"BUT ALWAYS WITH AND UNDER in so far as still valid, subsisting and applicable to the subjects hereby disponed, the whole burdens, conditions and others specified and contained in (ONE) Disposition by the Trustees acting under the said Agreement and Deed of Trust by John McIntosh with Supplementary Agreement and Deed of Trust dated and recorded as aforesaid in favour of Gall and Co. (Cash Drapers) Limited dated 13th December, 1968 and recorded in the said Division of the General Register of Sasines on Seventh January, 1969;"

[6] The disposition in favour of Gall & Co. was a disposition of subjects at 39 Marischal Street which include those that were subsequently purchased by the defenders. The grantors of the disposition were, at that time, also proprietors of subjects at 43-45, Marischal Street which included ground extending beyond the subjects subsequently purchased by the pursuers. In particular, the grantors of that disposition owned an area of ground extending approximately southwards from what is now the southwest boundary of the pursuers property, to Tolbooth Wynd and which was greater in area than that which was subsequently acquired by the pursuers. The disposition in favour of Gall & Co. provided that the subjects were disponed together with:

"(b) a servitude right of access for pedestrian and vehicular traffic from Tolbooth Wynd to the rear of the premises hereby disponed across adjoining ground belonging to us, which servitude right of access we bind ourselves and our successors to create a real servitude right of access on the first transmission of the said adjoining ground belonging to us;" .

[7] The defenders acquired title to their premises in terms of a disposition by Gall and Co. (Cash Drapers) Ltd dated 29 July and recorded on 18 August, both 1971. The subjects were disponed together with:

"(3) a servitude right of access for pedestrian and vehicular traffic from Tolbooth Wynd across adjoining ground to the south and west of the subjects .... hereby disponed...".

The Pleadings:

[8] In article 4 of Condescendence , the pursuers aver :

"The defenders' directors, employees, agents and invitees have parked and continue to park vehicles on the said area of ground belonging to the pursuers at the rear of their offices during the defenders' shop hours. The defenders' staff park three cars on the pursuers' ground along the side wall of the defenders' premises, which cars are generally left there from early morning to early evening on days when the shop is open. The defenders also operate four or five commercial vans, which are parked on the said area for lengthy periods during the defenders' working day. The defenders also appear to invite or encourage their customers or visitors to their shop to park their vehicles on the pursuers' area of ground. The continual presence of the defenders' vehicles, or vehicles left by customers or visitors of the defenders, on the pursuers' area of ground, prevents the full and free use of that ground by the pursuers."

[9] The defenders' response can be found in their averments in answers 3 and 4 which make reference to the servitude right of access contained in the 1969 disposition in their favour by Gall and Co., and also include the following:

"The defenders have occupied the subjects at 39-41 Marischal Street since 1971 and have traded from the said subjects since that date. Since occupying the subjects the defenders have parked vehicles at the rear of the said subjects. They have parked vehicles there for the purposes of gaining access to their premises. The defenders have parked two vehicles in the spaces at the eastern edge of the subjects belonging to the pursuers, of which area immediately joins the western edge of the defenders property........ the defenders have thus acquired a servitude right of access to park. The defenders have exercised their said servitude right of parking for 20 years continuously, openly, peaceably and without judicial interruption. In particular they have exercised their said right continuously, openly, peaceably and without judicial interruption for more than 20 years since the pursuers became heritable proprietors of the adjoining subjects." ........

"....... the defenders park two cars on a regular basis on the area of ground immediately adjacent to their property. In addition they receive deliveries to their property in terms of the vehicular right of access hereinbefore condescended upon. The said vehicles are parked there in normal business hours. The defenders operate a number of light commercial vans which may park in the said area from time to time."

The Defenders' Submissions:
[10] Although the case was sent to the procedure roll on the pursuers' preliminary plea, given that parties were in agreement that the onus lay on the defenders to establish that they had a right to park their vehicles on the pursuers' property, it is logical to begin by recording the defenders' submissions.

[11] Although the defenders' pleadings refer to a 'servitude right of access to park', the approach on behalf of the defenders in submission was to the effect that they had acquired an independent servitude right of parking by the operation of prescription. That was a right to park from 8a.m. to 6p.m. each week from Monday to Saturday. In any event, so it was submitted, they had a right to park on the pursuers' property as an incident of the right of access that was contained in their titles. The solicitor-advocate for the defenders recognised that there is no clear authority to the effect that Scots law recognises an independent servitude right of parking. He submitted that obiter dicta in various authorities suggested, however, that it did so: Ayr Burgh Council v British Transport Commission 1955 SLT 219; Murrayfield Ice Rink v SRU 1973 SLT 99; Kennedy & Kennedy v MacDonald (Dunoon Sheriff Court) unrepd 14 November 1988; Moncrieff v Jamieson (Lerwick Sheriff Court ) unrepd 7 July 2003; Harris v Wishart (Arbroath Sheriff Court) unrepd 23 January 1997. He also submitted that an easement of parking is recognised in English Law: London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 1 All ER 307; Saeed v Plustrade Ltd [2001] EWCA Civ 2011; Das & Ors v Linden Mews Ltd [2002] EWCA Civ 590, and in some Commonwealth jurisdictions: Phillips v Marrickville Municipal Council [2002] NSWSC 396; Depew v Wilkes 31.7.2002 (Court of Appeal for Ontario). Reference was also made to the discussion in Servitudes & Rights of Way by Cusine and Paisley in chapter 3.

[12] It was submitted that the defenders' pleadings supported their case that they had acquired a servitude right of parking through the operation of prescription in respect that it was sufficient to aver that there had been actual parking for more than 20 years given the terms of section 3 of the Prescription and Limitation (Scotland) Act 1973. The solicitor-advocate for the defenders recognised that, for prescription to operate, the use relied on required to be 'as of right' but if that use had been openly, peaceably and without judicial interruption, it could be inferred that it was 'as of right'. On his approach, it was not necessary to prove that the defenders' parking was other than on the basis of tacit permission or licence. In support of that submission he relied on the following authorities: McGregor v Crieff Co-Operative Society Limited 1915 SC (HL) 93; Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1993 SC (HL) 44; R v Sunderland City Council [2004] 1AER 160; Grierson v Sandsting & Aithsting School Board (1882) 9R 437; Webster v Chadburn (Inverness Sheriff Court) unrepd 9^th May 2003. It appeared to be accepted on behalf of the defenders that the servitude right of parking contended for could not subsist if it was of such extent as to deprive the pursuers of all reasonable use of the property but, under reference to London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd, Bachelor v Marlow & Anr [2003] 1 WLR 764, and Copeland v Greenhalf [1952] 1 Ch 488, he submitted that the test was one of degree and since the pursuers would be left with some use of their own property the subsistence of the servitude right was not open to question in that respect.

[13] Finally, it was submitted that the defenders could also derive their right to park as ancillary to the express grant contained in their titles under reference to the cases of Kennedy and Depew and to a passage contained in Prescription and Limitation by David Johnston @ para.17.11 . It was not accepted that there was any contradiction in the defenders' case by reason of doing so.

The Pursuers' Submissions:
[14] On behalf of the pursuers, it was recognised that the defenders' titles contained a servitude right of access in favour of their property. However, it was important, when ascertaining the nature of that right to examine the titles of the servient tenement. When that was done, it was apparent that there was no need to read the defenders' right of access as affecting the pursuers' land and land is presumed to be free from restriction unless it can be shown to be subject to it: Rankine: Landownership 4^th ed. p.417. In any event, even if the defenders' servitude right of access did affect the pursuers' land, such a right did not ordinarily confer upon the dominant tenement any right to park, load or unload on the servient tenement. Baird v Ross (1832) 6 W&S 127, (1836) 14S 528; Devlin v Conn 1972 SLT 11; Stewart Pott & Co v Brown Bros. (1876) 6R 35; Kennedy & Kennedy v MacDonald; Moncrieff v Jamieson. It was evident from these authorities that parking was not normally regarded as an incident of a right of access. Whilst there may, in a particular case, be special circumstances such as the physical nature of the tenements involved implying that it was contemplated that vehicles would be parked by the owner of the dominant tenement, this was not such a case. There was nothing in the defenders' averments to bring this case into that category.

[15] Regarding the defenders' case founded on prescription, counsel for the pursuers submitted that it was irrelevant in respect that there was a fundamental contradiction in the defenders asserting prescriptive acquisition at the same time as founding on the express right in their titles, that not only is there no Scottish case in which recognition has been given to the constitution of a servitude right of parking by prescription but the existing Scottish and English authority is to the contrary effect: Dyce v Hay (1852) 1 Macq. 305; Copeland v Greenhalf; London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ; Bachelor v Marlow & Anr, and that, in any event, the defenders gave no sufficient specification of the relevant ingredients of the acquisition of a servitude by prescription in that it was not enough simply to aver the fact of having parked on the pursuers' land since 1971. The defenders required to go further and say something about the way in which they had done so because, to establish the acquisition of a servitude right by means of prescription, it was necessary to show that usage had been in a way that indicated to the proprietors of the putative servient tenement that they were asserting a right to do so and in a way that indicated unequivocally the nature of the right being claimed. It was necessary to show that what was being done was by way of assertion of a right ascribing to the dominant tenement. Purdie v Still 33 Mor. Sect 1, 14511; McGregor v Crieff Co-Operative Society Ltd; Patel v W H Smith (Eziot) Ltd & Anr [1987] 1 WLR 853 ; Duke of Atholl v McInroy's Trustees (1890)17R 456. The defenders had fallen foul of the common misconception that to establish the prescriptive acquisition of a right, it was only necessary to show possession or use. The authorities relied on by the defenders in support of their submission that assertion 'as of right' could be inferred from silence on the part of the landowner over whose property the right was sought to be exercised were distinguishable because they concerned the question of whether or not public rights of way had been established. Whilst there was some discussion in the case of Grierson as to what was required for proof of the animus involved in user 'as of right' the discussion was obiter but, in any event, the observations by Lord Young were supportive of the pursuers' argument. Parking could not, of itself, be regarded as a deliberate invasion of another's property or an assertion of a continuing right to do so. In any event, the defenders' primary submission, namely, that the right to park was an incident of their existing right of access, was destructive of any case that, in parking, they had been asserting a separate, independent servitude right to do so.

Whether the defenders' servitude right of access includes a right to park on the pursuers' property?
[16] I have reached the conclusion that the express grant of a right of access in favour of the defenders' property that is contained in the titles does not include the right to park that is contended for by the defenders namely, the right to park on the pursuers' property between the hours of 8am and 6pm, Monday to Saturday, each week. Firstly, I agree that it is not at all clear that the current right of access extends across the pursuers' property at all. As was correctly stated on behalf of the pursuers, it is their titles which fall to be examined to ascertain the nature and extent of the grant. It is there that the burden is defined. The right of access is said to be by pedestrian or vehicular means but no precise line of access is stated. The purpose of the right of access is to enable the defenders to get to the rear of their property from Tolbooth Wynd. The boundaries of the properties and their title derivations are set out on a plan no. 6/10 of process. They are also broadly ascertainable from the photographs nos. 7/5-8 of process. Whilst it is evident from the plan and photographs that the defenders require to travel over the property lying to the south of the pursuers' property to take access through the entry doors to their building, it is not at all apparent that they require to travel over the pursuers' property to do so. Indeed, it was a matter of agreement between the parties that the defenders' doors adjoin not the pursuers' property but the ground to the south of it. There is nothing in the defenders' averments to suggest that the right of access was, when the pursuers acquired title, being exercised over the property purchased by them. They do not, accordingly, make any averments to the effect that the right of access subsisted and was applicable to that property at that time. On their averments, it is possible that the right of way was being exercised over the ground that was not acquired by the pursuers. Indeed, given the positioning of the defenders' entry doors, it seems likely that that was the case. In these circumstances even if the defenders were able to establish that they had a right to park as an incident of their express right of access, it would not follow that that was a right to park on the pursuers' property.

[17] Secondly, whilst it seems not to be in doubt that there will, from time to time, be cases where it is implicit from the facts and circumstances of a particular grant of a servitude right of access that the owner of the dominant tenement will be entitled to park a vehicle on the servient tenement, the defenders' averments do not bring this case within that category. An example of such a case was Kennedy & Kennedy where the lane over which the pursuer had a right of vehicular access terminated at a gate which allowed pedestrian but not vehicular access into the dominant tenement. Reasonable enjoyment of the dominant tenement clearly indicated the need to allow stopping, turning and parking at the end of the lane, beside the gate. The Sheriff Principal (Caplan) determined that:

"It follows in my view that activities which are reasonably incidental to the enjoyment of such access may be incorporated in the right. In the case of domestic premises this would include stopping the vehicle for such reasonable time as would permit passengers to mount or dismount or deliveries to be made to the house.."

but he added that:

"If the pursuers were to deviate from the normal and reasonable incidents of access by parking vehicles for extended periods on the defenders' land or by materially obstructing the lane then no doubt the defender would have other remedies, but such questions do not arise in this case."

[18] He considered that such an approach was consistent with authority including Baird v Ross, where the owner of the dominant tenement in an express grant of a right of access by 'cart entry' sought, unsuccessfully, to assert the right to use the whole area of adjoining ground owned by the servient tenement for loading and unloading carts and of making general use of the area of ground for commercial purposes. The Lord Chancellor commented (@ p. 137):

"It appears to me that here is nothing like a servitude for anything more than the keeping of vacant space open as a cart- way, and the right to have a free opening for the purposes of light;....... that there is nothing operating in the smallest degree towards constituting a servitude to allow of the loading and unloading carts in the vacant space of No. 7 ......"

and @ p. 139:

"... more is required in order to justify the act of one party on the property of another than that those acts do not interfere with another object; it was necessary to show that the acts were justified by the title of that party; namely, that the respondent had a right to drive through, and to load and unload. The onus lies upon him who makes such a claim."

The case then returned to the Court of Session and, in the Inner House, Lord Medwyn commented as follows:

"Servitudes are not to be extended beyond the words of the intention of the party;..... as to the point before us, I think the Lord Ordinary quite right. The respondent is not entitled to load or unload nor to turn carts there, unless he can do so in the cart way, and it is clear that no usage prior to the purchase can affect the construction of the titles."

[19] Another of the sheriff court cases relied on by the defenders which appears to have resulted in a determination that an express grant of a right of access included an implied right to park was Moncrieff v Jamieson. Again, the physical characteristics of the land, a cliff edge, were somewhat different from those under consideration in the present case. Further, it is noteable that the determination was not to the effect that the dominant tenement would be entitled to continual parking. Rather, the finding was that the dominant tenement was not reasonably capable of comfortable enjoyment without there being rights attached thereto to turn, to stop, to load, and unload vehicles, and, as part of that unloading process, temporarily to place goods on the servient tenement and to park there. The question of the extent of the parking allowed was not addressed. I was advised that the decision is currently subject to appeal.

[20] The authors of Servitudes and Rights of Way suggest, at paragraph 3.47, that the decision in Kennedy & Kennedy was to the effect that the right to park a car was recognised as being implicit in an express grant of a servitude of access because of the surrounding circumstances but thus stated, their gloss appears to ignore the limitations on the parking right which the Sheriff Principal was careful to state and which would result if the approach set out in Baird v Ross were to be followed. Those limitations appeared to be such as would accord with the principle conceded on behalf on the defenders to the effect that no servitude right can extend beyond that which retains for the servient tenement reasonable use of its own property. To suggest otherwise would involve failing to recognise that a servitude represents only a burden on land and is to be distinguished from any form of proprietory interest or exclusive possession. It is intrinsic to the relationship between the dominant and servient tenement that the latter retains some real and practical use of its own land.

[21] The Court of Appeal in England have given consideration to the question of whether the right to park can extend to such significant use of the other party's land as to indicate that it cannot be properly regarded as an easement, the equivalent in English Law, of a servitude. Their approach is one which seems to accord with the Scots Law principles that can be deduced from authorities such as Baird v Ross. In Batchelor v Marlow, the right under consideration was an alleged right to park six cars on the plaintiff's land between 8:30a.m. and 6p.m. Monday to Friday. The court adopted the formulation of the relevant question as being that which was posed by Judge Paul Baker QC in London & Blenheim Estates Ltd, namely:

"The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant."

[22] The answer, they said, would depend on the facts of each case and, on the facts of the case before them, where the defendants were claiming an exclusive right to park six cars for 9 1/2 hours every day of the working week, since, in practice, it prevented the plaintiff from making any use of his land, it made his ownership of it illusory. He would have no use of the land at all during the whole of the time that the parking space was likely to be needed. The right was not, accordingly, capable of subsisting as an easement. The facts were similar to those in the earlier case of Copeland v Greenhalf where Upjohn J. had determined that the right of parking asserted, which was to the effect that the defendant claimed the right to leave as many or as few lorries on a strip of the plaintiff's land for as long as he liked, was not an easement because it was too extensive and amounted, practically, to a claim to the whole beneficial use of the land.

[23] It is, accordingly, clear that even in a case where it is determined that the right to park is incidental to a right of access, the right is limited. If what is asserted is so extensive as to deprive the landowner, in practice, of the reasonable use of his own property, it will not be sustained. Determination of the issue will depend on the particular facts and circumstances of each case. Retention of reasonable use of the servient proprietor's own land in the countryside is bound to involve different considerations from those which arise in the urban context. In the present case, it is abundantly clear that the parking right asserted by the defenders would, in effect, deprive the pursuers of virtually all practical use of their property. Space at the rear of their premises is at a premium. Like the defenders, they are a commercial entity which carries on business during normal working hours from Monday to Saturday each week. To suggest that retaining the use of the parking spaces outwith those hours would afford the pursuers reasonable use of their own land is like suggesting that reasonable use could be made of a car that has no petrol tank. The rights retained would, to use Tuckey LJ's expression in Batchelor, be illusory.

[24] I should record that, in the course of debate, reference was made, by way of comparison, to examples of servitudes which involve significant invasion of the servient tenement, such as that of drainage in the form of a septic tank or the right to cut peats in the servitude of fuel, feal and divot. In these servitudes, the servient tenement requires to tolerate the continuous presence of a structure belonging to the owner of the dominant tenement on the one hand, and the removal of substance from its land, on the other hand. However, the way in which these servitudes operate is not such as to deprive the owner of the servient tenement of all practical or reasonable use of the land and I do not regard their existence as indicating that a right of car parking to the extent that the defenders assert can be sustained as a servitude right.

Whether Scots Law recognises a servitude right of parking?
[25] A survey of the authorities relied on by the defenders discloses no case in which it is clearly determined that a servitude right of parking is recognised in Scots law. Cusine & Paisley, in chapter 3 of Servitudes and Rights of Way, review those authorities and others and discuss the arguments for and against the existence of such a right. They reach the conclusion that there is doubt as to whether such a servitude exists, a conclusion which seems inevitable on the authorities referred to. Their advice is that where a party seeks to establish such a right, it should be constituted as a real burden.

[26] I cannot conclude that Scots law recognises, in principle, a servitude right of parking independent of any right of access. I do not agree that the various obiter dicta relied on by the defenders lead to that conclusion. The reference by Lord Patrick to the potential relevance of evidence of land having been used regularly for parking, in the case of Ayr Burgh Council v British Transport Corporation, @ p. 225, was in the context of the possibility of establishing the existence of a servitude right of access, not of parking. The comment in the case of Murrayfield Ice Rink v SRU by the Lord Justice Clerk to the effect that the car park at the Murrayfield Ice Rink was used by the appellants 'on a servitude right basis' is simply a repetition of what was provided in the feu charter. The decision of the Sheriff Principal in Kennedy & Kennedy v MacDonald far from being to the effect that an independent servitude right of car parking existed, was careful to provide that only a limited right of car parking existed as an incident of a servitude right of access. The approach in Moncrieff v Jamieson was to similar effect. Further, the English cases cited do not indicate that an independent easement of car parking has in fact been recognised there. Indeed, in Saeed v Plustrade, the Court of Appeal expressly left open the question of whether a right of car parking could exist as an easement. From a reading of the Commonwealth cases referred to, it seems that the right of car parking may there be recognised as an incident of a right of access or if necessary for the better enjoyment of the dominant tenement. The approach in those jurisdictions cannot, however, be determinative of the correct approach in this one.

[27] The authors of Cusine and Paisley suggest that justification for the view that an independent servitude right of car parking exists might be found in the fact that it is reasonably clear that it can exist as an adjunct to a servitude right of way. I do not see that that follows. Parking as an incident of exercising a right of access to the dominant tenement, which connotes a brief, temporary and intermittent stoppage of a vehicle, is an activity of a wholly different character from that of parking for a period of ten hours every day, six days each week, which is the right that the defenders assert. In the case of the latter, parking appears to be the main activity or objective and the impression is that the principal benefit to the car driver is in having somewhere to deposit his car during working hours rather than that of being able to exercise access to any property. It is not simply a question of extracting from a composite servitude right of access, one of its component parts. Nor does the approach suggested by the learned authors resolve the difficulty arising from the fact that a right of car parking such as is asserted by the defenders in the present case would deprive the servient owner of all practical use of his own property, in antithesis to the fundamental principles underlying all servitude rights.

[28] However, the general question does not require to be determined. The pursuers' approach was, rather than to address the general question of whether Scots law recognises a servitude right of parking, to submit that even if the cases referred to can be relied on as showing that it does, none can be construed as being to the effect that a servitude right of parking can be constituted by prescriptive use, an observation which appears to be correct.

Whether the defenders relevantly aver prescriptive acquisition of a servitude right of parking?
[29] I am satisfied that the defenders' case that they have acquired a servitude right of parking by the operation of prescription is irrelevant. Firstly, their case conflicts with the principle that a heritable proprietor cannot, through the operation of prescription, be deprived of the reasonable or practical use of his land, that being intrinsic to his retention of ownership (Dyce v Hay). As I have already discussed, the parking rights claimed by the defenders would do so. Different considerations might well arise in the case of express grant or reservation (see Dyce v Hay p.315)but it does not follow that all such rights are capable of being acquired and sustained by means of prescription. In particular, it does not follow that a right to use another's property in such a way as to, in effect, deprive them of all practical use of it, is capable of being so acquired and sustained.

[30] Secondly, I agree that it is not sufficient for the defenders simply to aver that they have parked on the pursuers' land since 1971. It is clear from the authorities, as was conceded on behalf of the defenders, that the party asserting the right has the onus of proving user as of right through a 20 year period. The clearest explanation of the principle is probably that which occurs on the case of Purdie v Still, the short report of which bears repeating in full:

"THOMAS PURDIE had been in the use of bringing home his corns after harvest through a ridge of ground belonging to Steil and his authors, after their corns on the said ridge were cut down, and that the space of 40 years.

This, however, was found not to establish a servitude. In the case of town acres, every one, after the corns are cut down, leads his corn through his neighbour's ground, which, though done for 100 years, will not infer a servitude."

[31] It is well established that it is for the party claiming the prescriptive acquisition of servitude to prove that the usage relied on occurred by means of assertion of right rather than by the tolerance or licence of the landowner. Further, if the approach of the Court of Appeal in England is to be followed, it seems that that party must exclude tolerance as an explanation of the use founded upon. If their use of the other party's land is as consistent with toleration or licence on the part of that landowner as it is with user as of right, that is not enough (Patel & Ors v W H Smith (Eziot) Ltd). Such an approach seems logical and would accord with the principle clearly recognised in Scots law to the effect that the use relied upon requires to be shown by the proprietor relying on it to have been as of right.

[32] Questions clearly arise as to what is meant by the expression 'user as of right' and how it can be proved. In the cases referred to in the course of the debate, they were first considered obiter, in Grierson. That case involved a right to take fuel which was asserted by the schoolmaster in Shetland for the benefit of both his house and the school. Lord Rutherford Clark's approach was to draw the inference, from the fact that peats had been taken for the prescriptive period, that it had been established in evidence that the taking of them had been as of right. He said:

"Again, it is said that the use which has existed is to be attributed to mere tolerance. But I would rather draw the inference that it was due to right. A long continued and uninterrupted use is, I think, to be presumed to be in the exercise of right, unless there is something either in its origin or otherwise to shew that it must be ascribed to tolerance."

[33] Lord Craighill concurred. However, the question of whether mere use was sufficient to show that it was in assertion of right was the central issue in the case of Duke of Athole v McInroy's Trustees and it was there determined that proof of use was not, in itself, sufficient. Lord Rutherford Clark dissented. The Lord Justice Clerk said, @ p. 463:

"But the character of the possession as being in the exercise of right must be proved by the litigant asserting the claim of the alleged dominant tenement, whatever be the locality. It is for him to prove, and to prove conclusively, that what was done was in the assertion of a right, and so done as to bring the assertion of the right home to the proprietor of the tenement which is said to be servient."

"I also concur in thinking that this application for interdict ought to be refused; but it is not according to my opinion that we are in a position to declare the existence of a right of servitude. It is, however, probably sufficient to say that we are not called on to decide that question in order to dispose of this appeal ............I cannot concur in the view that the parish schoolmaster having for forty years cut peats, the legal conclusion is a servitude in favour of the house in which he lives. A servitude is not constituted by use for forty years, or even for 100 years.

A right of servitude requires a grant. It may be a direct grant, or it may be implied on sufficient grounds. But it is by grant alone of the proprietor of the servient tenement that it is created, though that grant be implied from usage, that is, possession. It that is proved or admitted to have existed for forty years, it is reasonable to presume that it was authorised, and a Court or a jury may therefore presume a grant as the origin or foundation of the use or possession which has been proved. But it is not the law that use for any period will constitute the right and in many cases which in former times were sent to a jury the issue was not put whether there had been use or possession for forty years, but whether the servitude had existed for forty years....................

Here the heritors provided a residence for the schoolmaster and allowed him to cut peats I could not conclude in law from that that therefore a servitude was created over the commonty in favour of that particular residence in which the schoolmaster lived. The statement is - the heritors provided their schoolmaster with a residence and allowed him to cut peats - and the conclusion desired to be drawn is, therefore, a servitude was constituted. I cannot assent to that. I may very well allow my parish minister to cut peats in my peat moss, but the conclusion from my admission that he has done so would not be to establish a servitude in favour of the manse. Manses have passed from parish ministers to priests, and a parish church might pass into the possession of the Roman Catholics. The house in which the schoolmaster or minister has resided might pass to an occupant of a totally different class, and permission to one occupant of it who happens to hold a particular public position of office would not be a safe ground for concluding that a servitude had been created in favour of the tenement itself in which he resided."

[35] Whilst Lord Young's observations as to what may or may not have been considered socially acceptable in 1882 may appear odd and inappropriate to the 21^st century reader, the principle that he seeks to illustrate is clear and has been followed since. Servitudes emanate from grants. They are given, not taken. The grant may, through the operation of prescription, be implied but it follows that, to prove prescriptive acquisition of a servitude right, the person claiming must show not only use but use in a way that has amounted to a clear assertion communicated to the landowner that he was doing so as of right. If that is not insisted upon then there would be a real risk of burdening a person's land with a servitude in circumstances where, whilst he may have been content to tolerate use by a particular neighbour, he would not be content to tolerate use by all neighbouring proprietors in all time coming. The same approach was adopted when McInroy v Duke of Athole was appealed to the House of Lords. There, Lord Watson said:

"I do not doubt that, in order to found a prescriptive right of servitude according to Scots law, acts of possession must be overt, in the sense that they must in themselves be of such a character or be done in such circumstances as to indicate unequivocally to the proprietor of the servient tenement the fact that a right is asserted, and the nature of the right."

[36] The subject was considered again in McGregor v Crieff Co-operative Society Ltd where, on the question of the character of the use required to prove prescriptive acquisition, Lord Dunedin referred to the above passage from McInroy v Duke of Athole and Lord Sumner said @ p.107:

"There is much enjoyment of access, without leave ever asked or given, which on both sides is truly tolerance. He, who uses, knows and accepts that his enjoyment is none the less permission though no one ever says him nay; he, who permits, means and is known to mean, no more that the goodnatured extension of his own amenities to his friends, but always on the common understanding that it is to cost him nothing. It would be strange if, long afterwards, in a question of the acquisition of a prescriptive servitude right, this friendly commerce should be treated as an assertion and inchoate establishment of a right, merely because to the question "Where was the permission?" the only possible answer must be that no proof of any is forthcoming."

[37] The defenders' approach was to look firstly at the terms of section 3 of the 1973 Act and then to rely on what was said in Cumbernauld and Kilsyth District Council v Dollar Land and R v Sutherland City Council. Section 3(2) of the 1973 Act provides:

"If a positive servitude over land has been possessed for a continuous period of twenty years openly, peaceably, and without judicial interruption then, as from the expiration of that period, the existence of the right of way as so possessed shall be exempt from challenge."

[38] The defenders' submission was that the term 'openly' subsumed the requirement 'as of right'. Accordingly, so long as the use of land relied on had been carried out openly and not covertly, it satisfied, it was said, the requirement that it be 'as of right'. I do not agree. The reference at the beginning of the subsection to 'positive servitude' indicates that the activity that has been carried out must have been of the character of a servitude, namely, as of right. The subsection does not provide, as would be the result of the defenders' interpretation, that open, peaceable use without judicial interruption will result in the activity having the character of a servitude at the end of the prescriptive period when it has not had that character throughout.

[39] Nor do I agree that the test for establishing whether prescriptive use as of right is to be found in the cases of Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Limited or R v Sutherland City Council. Both dealt with questions of whether rights had been acquired by the general public, not with the creation of rights and obligations as between adjoining lands. As is evident from the discussions in those cases, different considerations appear to arise when considering whether or not public use can, as a matter of evidence, be interpreted as having been as of right or not.

[40] I would add that, if confirmation of the error of the defenders' approach in this case were needed, it can be found in the fact that they insist on seeking to establish their right to park both as an incident of their right of access and as a separate independent right asserted, by inference, as of right. The idea that use has been as of right involves the owner of the dominant tenement proving that, when exercising the purported right, he did so intending to assert it as an entitlement of his land. I do not see that he can have been asserting that he had an independent right to park, separate from and thus capable of subsisting beyond, any rights of access, if, at the same time, he was exercising it simply as an incident of the express right of access granted in the titles. The approach is contradictory and, accordingly, irrelevant.

Disposal
[41] In these circumstances, I will accede to the pursuers' motion and repel the defenders' pleas in law, sustain the third plea in law for the pursuers and grant decree de plano.