"The roads, footpaths, drains, sewers, street lighting and open spaces and any area of ground within the whole area but not part of a feu ('the public areas' which are shaded yellow and pale green on the plan annexed and executed as relative hereto) shall be maintained in a neat and tidy condition and in good order and repair all to the reasonable satisfaction of the superiors unless and until the public areas or any part of them are conveyed to or are taken over by any public authority for maintenance... Each proprietor shall have a heritable and irredeemable right of access for vehicular and pedestrian purposes over the 'public areas' which are shaded in yellow and pale green on the aforesaid plan...".

Clause SEVENTH (B) made provision for the convening of meetings of all the proprietors of feus within the whole area. Clause EIGHTH reserved certain powers to the superiors. Clause NINTH entitled the superiors to call on any proprietor to produce his title. Clause TENTH provided for the resolution by arbitration of all questions, differences and disputes which might arise among the proprietors or any of them regarding the matters set forth therein. Clause ELEVEN provided for irritancy of any feu in respect of which the proprietor had contravened or failed to implement any of his obligations. The clause also provided:

"[T]he whole reservations, burdens, conditions and others herein contained shall be real liens, burdens and servitudes upon and affecting the said whole area and any part thereof so far as the same applies thereto and as such are appointed to be inserted in any infeftment that may follow... and also inserted or validly referred to in all deeds or instruments relating to any part of the whole area...".

"Mr Bose knows that he has to purchase a legal access to Plots 6 & 7 over our private property and is doing his best to avoid payment to you as the West End Homeowners Association."

When pressed about this, counsel for the defenders finally accepted that the true dispute was as to whether the pursuers were entitled to a servitude right of vehicular access across the footpath without having to make any payment to the defenders. He did not indicate how much money would be sufficient to secure the defenders' agreement, assuming it to be required. There appears to have been some correspondence between the parties, but no meaningful negotiation. Once the defenders had placed obstructions on the path, on 19 September 2005, the raising of the present action by the pursuers a few days later became inevitable.

"I accept that once servitudes are properly constituted in favour of the owner of the dominant tenement they become pertinents of the dominant tenement. A servitude cannot however be described as a pertinent before it is properly granted. In the case of a servitude contained in a Deed of Conditions it is only when it is conveyed in some way to the owner of the dominant tenement that it can be described as a pertinent of the dominant tenement as only then is it properly constituted in favour of the owner. Pertinents cannot encompass rights that do not exist or are not properly constituted. The use of the expression pertinents in the Feu Disposition does not therefore advance the pursuers' case."

The sheriff therefore reached the conclusion that it had not been shown that the rights of access specified in the Deed of Conditions had been constituted in the pursuers' favour, so the pursuers had not demonstrated a prima facie case. The sheriff went on to hold that in any event he would have found that the balance of convenience lay in the defenders' favour. He said inter alia that what was proposed was a significant change from pedestrian use to vehicular access including access for construction traffic. He laid emphasis on a contention for the defenders that the pursuers were seeking to increase the burden beyond what was acceptable. He also said that it was probable in the circumstances that the sale to Mrs Todd would not go ahead, and that the pursuers would find it difficult to sell either of the houses on plots 6 and 7 while the action was a live issue and so long as it remained defended. It should be noted that the sheriff was not invited to and did not base his decision on the terms of the defenders' title.

"I consider that, on the basis of the arguments and ex parte statements which were placed before me and which I have set out in full, both sides have respectable arguments to place before the court. There is clearly a case to try. I consider the appellants have demonstrated a prima facie case."

He went on to say that the final resolution of the issue between the parties must await a determination of the case with a Closed Record, productions, evidence if necessary and citation of authority. There is no indication in the sheriff principal's judgment of the evidence which might affect the determination of the question of law outlined above.

"I am reviewing the sheriff's decision. In my opinion, unless I were to take the view that his decision fell to be set aside, I cannot have regard to these matters in this appeal. I accordingly do not propose to do so."

"I fail to see any problem in this case as the deed of conditions clearly constitutes the right of access for the benefit of each 'proprietor', which will include your purchaser [presumably Mrs Todd]."

For these reasons we consider that the pursuers are able to establish what we would go so far as to describe as a strong prima facie case.