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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Macfadyen

Lord Philip

Lord Kingarth

[2007] CSIH 70

XA12/07

OPINION OF THE COURT

delivered by LORD MACFADYEN

APPEAL

in the cause

BARRY PEART and ANOTHER

Pursuers and Appellants;

against

SYMON B. LEGGE

Defender and Respondent:

_______

Act: Davies; Archibald Campbell & Harley, W.S.

Alt: Clancy, Q.C.; Burness, W.S.

6 September 2007

Introduction

[1] The pursuers are the heritable proprietors of The Old Golf House, Newbattle, Dalkeith. They are also heritable proprietors of an adjoining area of woodland ground extending to 669 square metres or thereby, which they acquired from the Marquess of Lothian by Disposition dated 21 July 1997. That area of woodland ground is referred to in the pleadings, and in this Opinion, as "the pursuers' ground". The defender is heritable proprietor of The Mill, Newbattle, Dalkeith. That property is referred to in the pleadings, and in this Opinion, as "the defender's ground". The defender's ground adjoins both The Old Golf House and the pursuers' ground.

[2 ] By the Disposition by which the defender's predecessor in title acquired the defender's ground from the Marquess of Lothian in 1981 ("the 1981 Disposition") there was constituted in favour of the heritable proprietor of the defender's ground a right of access over the area of woodland which is now the pursuers' ground.

[3 ] The pursuers aver that since 1981 neither the defender's predecessor in title nor the defender has made any attempt to exercise that right of access. The pursuers therefore assert that the right of access has prescribed in terms of section 8 of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act").

[4 ] The defender responds with averments of use during the prescriptive period, but in addition maintains that the right of access created in the 1981 Disposition is res merae facultatis, and therefore imprescriptible by virtue of section 8(2) of, and paragraph (c) of Schedule 3 to, the 1973 Act.

[5 ] The sole issue which was debated before the sheriff, and on appeal before the sheriff principal, was whether the right of access granted in the 1981 Disposition was or was not imprescriptible. They both held that it was properly to be regarded as a res merae facultatis, and was thus imprescriptible. On appeal before this court, that same issue was reopened.

The legislation

[6 ] Section 8 of the 1973 Act provides as follows:

	"(1)	If, after the date when any right to which this section applies has become exercisable or enforceable, the right has subsisted for a continuous period of twenty years unexercised or unenforced, and without any relevant claim in relation to it having been made, then as from the expiration of that period the right shall be extinguished.
	(2)	This section applies to any right relating to property, whether heritable or moveable, not being a right specified in Schedule 3 to this Act as an imprescriptible right or falling within section 6 or 7 of this Act as being a right correlative to an obligation to which either of those sections applies."

[7 ] Schedule 3 provides inter alia as follows:

	"The following are imprescriptible rights and obligations for the purposes of sections 7(2) and 8(2) of, and paragraph 2(h) of Schedule 1 to, this Act, namely―
	...
	(c)	any right exercisable as a res merae facultatis; ..."

The phrase "res merae facultatis" is not defined in the 1973 Act.

The titles

[8 ] The 1981 Disposition, having conveyed to the defender's predecessor in title the piece of ground which is referred to in these proceedings as the defender's ground, went on to confer a right of access to it in the following terms:

"(Three) a right of access to said piece of ground by the lane or track leading from the Eskbank/Newtongrange road to the North-west side of the said piece of ground as the same is shown coloured blue on said plan [i.e. 'the plan annexed and signed by me as relative hereto'] but subject to the provision that the disponee shall be entitled to breach the existing wall on the North-west boundary of the said piece of ground only subject to the approval of me and my successors as adjoining proprietors of making good the wall where necessary and inserting gates or doors of a form and type satisfactory to me and my foresaids all of which and the maintenance of the same shall be done at the sole expense of the disponee and his foresaids".

[9 ] The present title to the pursuers' ground is a Land Certificate bearing the title number MID59459. The right of access constituted by the 1981 Disposition is noted in the burdens section, except that the words "as the same is shown coloured blue on said plan" are omitted.

The ownership of the wall

[10 ] In the course of the hearing on the summar roll it appeared that on one view the issue to be determined in the appeal might turn on whether the existing wall referred to in the right of access conferred by the 1981 Disposition belonged to the pursuers or the defender. We therefore invited submissions on the question of ownership, so far as it might be resolved by reference to the titles. In the result, however, we have come to the conclusion that the issue in the appeal can be determined without resolving the question of the ownership of the existing wall. We therefore say no more on that subject.

The pursuers' submissions

[11 ] For the pursuers, Mr Davies submitted that the issue in the appeal was one of statutory construction. The 1973 Act, as the language of the long title ("to ... make new provision ... with respect to the extinction of rights and obligations by negative prescription") made clear, introduced a new scheme. Authorities decided under the former law therefore required to be handled with some care. There was no doubt that section 8 applied to servitudes and rights of access. If a right fell to be construed as effective from a future date, that postponed the commencement of the running of the prescriptive period (section 8(1)), but did not take the right out of the scope of section 8. The issue in the appeal was whether the right of access conferred by the 1981 Disposition was taken out of the scope of section 8 by virtue of being a right exercisable as a res merae facultatis and thus imprescriptible. The exception created by section 8(2) and paragraph (c) of Schedule 3 should be narrowly construed. The right conferred by the 1981 Disposition did not fall within its scope. It was therefore not imprescriptible.

[12 ] That a servitude right of access falls within the scope of section 8 and is therefore subject to the long negative prescription was settled in Bowers v Kennedy 2000 SC 555 (per Lord President Rodger at 559C, paragraph [8]). That case also illustrated what is meant by res merae facultatis. Despite loss of the express servitude right of access by operation of the long negative prescription, there was held to be an implied right of access which was imprescriptible. Lord Rodger, delivering the opinion of the court, said (at 561D-F, paragraph [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 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. ... The true position is that an owner can choose not to visit his property and exercise his implied right of 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."

(See also 564A, paragraph [24]; reference was also made to Duffield Morgan Ltd v Lord Advocate 2004 SLT 413, per Lady Smith at 421I, paragraph [38]). However, in the present case, no question of an implied right of access arose, because, as the plan attached to Land Certificate MID59459 clearly illustrates, the defender's ground is accessible from the south-east (Inverness Seafield Development Co Ltd v Mackintosh 2001 SC 406, at 410A, paragraph [9]).

[13 ] In relation to the nature of rights exercisable as res merae facultatis, Mr Davies referred to certain Scottish Law Commission documents, and to Hansard. In the Scottish Law Commission Memorandum No. 9 (1968), "Reform of the Law Relating to Prescription and Limitation of Actions", at page 12, paragraph 21(2), the following passage appears in the description of the existing law:

"The [long negative] prescription also applies to rights to land which are merely personal and rights to servitudes and rights of way and other public rights. It does not apply to any other rights in heritable property, to rights which are res merae facultatis i.e. rights of such a character that their exercise would be expected only periodically or irregularly ...".

A similar statement appears in the Scottish Law Commission Report No. 15 (1970), "Reform of the Law Relating to Prescription and Limitation of Actions, at page 10, paragraph 25. That explanation of res merae facultatis has been said to be "not accurate" (Johnston, Prescription and Limitation, page 33, paragraph 3.08). At the second reading in the House of Lords of the bill that became the 1973 Act, the Minister (Lord Polwarth), without mentioning the term res merae facultatis, said (Hansard, HL Vol. 341, 5 April 1973, cols. 421-2):

"For these obligations which are not caught by the short negative prescription, the long negative prescription of twenty years is retained, subject to the exclusion of certain imprescriptible rights and obligations which are listed at Schedule 3. These imprescriptible rights include, for example, a real right of ownership in land, or the right to exercise the ordinary uses of property, which the proprietor may assert or not as he pleases, without the risk of losing the right by failure to assert it."

[14 ] The law relating to imprescriptible rights and obligations is discussed in some detail in Chapter 3 of Johnston, Prescription and Limitation. Mr Davies cited first paragraph 3.01 as authority for his submission that Schedule 3, as a list of exceptions to the rule that rights and obligations should prescribe, should be narrowly interpreted. As to the meaning of res merae facultatis, he cited paragraph 3.07:

"This Latin expression is sometimes ― not very helpfully, perhaps ― glossed in English as 'a mere faculty'. Its ... essence is that it is a right which a person is at liberty to exercise or not."

At paragraph 3.16, the author says:

"It seems reasonable therefore to conclude that a res merae facultatis is a property right which cannot be lost by negative prescription either (1) because it is a right whose exercise implies no claim on anyone else or against their rights or (2) because it is a (normal) incident of ownership which can be lost only as a consequence of the fortification in some other person of a right inconsistent with it."

At paragraph 7.14(3) he adds:

"Servitudes. Real rights in another's property (jura in re aliena), such as servitudes, are not imprescriptible. They will prescribe, in the case of positive servitudes, from the date when they ceased to be exercised and, in the case of negative servitudes, from the date when the free exercise of the servitude was obstructed."

[15 ] As to the older authorities, Mr Davies cited Bell's Dictionary, 7^th edition, s.v. res merae facultatis; Bell's Principles, 10^th edition, § 2017; Erskine, Principles, 21^st edition, III, vii, 16; Trayner, Latin Maxims, 4^th edition, s.v. res merae facultatis; Crawfurd v Bethune (1821) 1 S 115; Gibb v Bruce (1837) 16 S 169; and Leck v Chalmers (1859) 21 D 408. We do not consider it necessary to examine these in detail. Of more assistance, perhaps, is Gellatly v Arrol (1863) 1 M 592, in which a reserved right to re-open a previously existing doorway into a common stair was held to be part of the pursuer's right of property, and thus res merae facultatis and therefore imprescriptible (per Lord Justice Clerk Inglis at 599).

[16 ] Mr Davies turned finally to the case on which the defender relied, and which formed the foundation of the decisions of the sheriff and the sheriff principal, namely Smith v Stewart (1884) 11 R 921. In that case a right of access with a power to open an entry through a wall dividing the dominant tenement from the servient tenement was held to be res merae facultatis and therefore not affected by the long negative prescription. Before turning to the opinion of Lord President Inglis, with whom the other members of the court concurred, it is necessary to record the facts of the case in some detail.

(1) In 1824 the Dundee Joint Stock Company ("the Company") acquired in feu certain subjects in Dundee, being part of Donaldson's Croft. Another part of Donaldson's Croft had previously been acquired in feu by John Baxter. The two feus were separated by a stone wall or dyke, running north and south, built on Baxter's feu. The Company's feu lay to the west of the wall, and Baxter's lay to the east of it. The Company's title contained a reservation in its favour of:

"a liberty and servitude in all time coming to rear and keep fruit trees upon the west side of the aforesaid dyke".

(2) In 1825 the Company granted a bond of servitude in favour of Baxter. In terms of that bond the Company bound itself, first, in the following terms:

"We shall not at any time build or erect any house or any other fabric or building whatever within twenty feet of the said John Baxter's said garden-wall, nor upon all or any part of the said piece of ground lying within the said space".

Secondly, the bond contained a reservation in the following terms:

"reserving always to us, our feuars, tenants, and successors in said subjects, the right and privilege to make and use the said piece of ground as a road or street, and also reserving to us, and our successors in said subjects, the liberty and servitude in all time coming to rear and keep fruit trees upon the west side of the foresaid dyke built by the said John Baxter".

Thirdly, the bond contained a grant in the following terms:

"and further, we ... hereby grant to the said John Baxter, and his foresaids, full power and liberty to use the said space of twenty feet in breadth as a road or entry for carts, carriages, and others, and to open up a passage or entry, not exceeding ten feet wide, in said dyke, but said passage or entry last mentioned not to be further north than the north line of the southmost street to be formed on the ground belonging to the said company as aforesaid, which servitude we ... bind and oblige us and our foresaids to warrant".

(3) In 1827 the southmost street on the Company's property (George's Place) was formed. It ran at right angles westwards from the wall, dividing the twenty foot strip into two parts. The northmost part was later laid out as a street running north and south (Idvies Place). The southmost part of the twenty foot strip was all along used as a bleaching green and garden ground.

(4) Baxter never availed himself of the right to open up an entry through the wall. The wall remained in its original condition, without an opening, when he sold his part of Donaldson's Croft to a Mr Shiell. Mr Shiell's trustees feued the subjects to a Mr David Stewart.

(5) The Company brought a note of suspension and interdict against Stewart seeking interdict against his entering upon, passing along, interfering with, or using in any way the strip of ground belonging to them, then used as a bleaching green, and lying immediately west of the wall. Their complaint was that Stewart had opened a breach in the wall opposite the bleaching green, and had commenced to build warehouses on his property to the east of the wall, and to use the strip of ground as a means of access to these buildings. They argued inter alia that if the bond of servitude originally gave a servitude right so to proceed, it had been lost through non-use for the prescriptive period.

[17 ] The part of the Lord President's opinion which is material for present purposes was in the following terms:

"In regard to the contention that the right which has been conferred has been lost by the negative prescription, because it was conferred in 1825, and it is not until lately that it has been proposed to exercise it, I am of opinion that if the right conferred upon Mr Stewart had been a right of access to his ground by an existing road or street, and if the right had not been exercised for forty years, this plea might have been well founded. But the right which has been conferred is of a different description. No doubt a right of access was included in the grant, but it was contemplated and implied in the words of the bond that it was not to be exercised at once. It was only when the access was required in exercise of the privilege conferred by the bond that the right came into operation, and the first thing to be done in the exercise of the privilege was to demolish the dyke. It was by demolishing the dyke that access was to be got, and therefore until Mr Baxter or his successors found occasion to use the access on that side they could not be expected to avail themselves of the privilege which had been conferred upon them. If the respondent had done anything maliciously or mischievously under their right of servitude, when no advantage was to be gained, then probably an application for interdict might have been made in more promising circumstances. But how is it possible to say that such a right as that conferred under the bond can be lost by negative prescription? The right is clearly of the nature of a res merae facultatis ― a right which is to be used in the future when occasion arises ― and is of such a nature as has never been held to fall under the negative prescription."

[18 ] Mr Davies submitted that Smith v Stewart was not binding on this court, since it dealt with the former law, whereas this case turns upon a construction of the relevant provisions of the 1973 Act. In any event, he submitted that Smith v Stewart was distinguishable. There the terms of the titles were held to have made it clear that the right to break open the wall and take access through it was a privilege to be exercised at some future date as and when the proprietor of the dominant tenement chose to do so. There were elements in the bond which supported that view, such as the continuing obligation on the Company to keep the twenty foot strip clear of buildings. It was not enough to render the right a res merae facultatis that the access required to be established, by breaking open the wall, before it could be exercised. If that were sufficient, every servitude of access, other than one by an established road or way, would be res merae facultatis. Smith v Stewart did not go as far as that. A right was res merae facultatis if it was a normal incident of ownership or involved no claim against the property of others. The right of access in the present case did not fall into either of those categories. On the contrary, it was a straightforward servitude right of access, which was immediately exercisable when granted, and as such was subject to the long negative prescription.

The defender's submissions

[19 ] Mr Clancy, for the defender, submitted that the case had been rightly decided by the sheriff and the sheriff principal, and that the appeal should accordingly be refused. He began his submissions by identifying three strands of argument in the pursuers' grounds of appeal. These were that the sheriff had erred (i) in holding that he was bound to follow and apply Smith v Stewart, given that the present case involved the interpretation of the 1973 Act, (ii) in failing to hold that Smith v Stewart was distinguishable in that the nature of the rights given in that case differed from those given in the present case, and (iii) in failing to hold that rights exercisable as res merae facultatis were rights which were normal incidents of ownership or involved no claim against the property of others, and did not include servitude rights such as that claimed by the defender.

[20 ] Dealing first with the second of those strands, Mr Clancy submitted that Smith v Stewart was indistinguishable from the present case in any material respect. The ratio of that case was to be found in the passage in the opinion of the Lord President quoted in paragraph [17] above. The right in question in Smith v Stewart was a single right comprising two elements, namely a right of access with a right to breach the wall. That was exactly the nature of the defender's right in the present case. As recorded by the sheriff in paragraph 26 of his Note (Appendix, page 38), the common elements shared by the right in Smith v Stewart and the right in the present case were that each (a) conferred a new right of access by a route not previously in use; (b) involved passage over neighbouring land; (c) involved the necessity of breaking through an existing wall in order to enable the access to be used; and (d) involved the future exercise of the right of access through the break, to be formed in the future, in the wall. It was the fact that what was conferred was a future right which could only be exercised when the break in the wall had been formed that made the right a res merae facultatis. Mr Clancy further submitted that the Lord President's analysis of the right in Smith v Stewart did not depend on classifying the right of access as a servitude. Nor did the analysis depend on who owned the wall; that factor was not mentioned in the passage quoted from his opinion. What mattered was the factual content of the right, and in particular the features that made it clear that the right was not to be exercised until some future date after the grant. The critical passage in the Lord President's opinion was the following:

" ... it was contemplated and implied in the words of the bond that it was not to be exercised at once. It was only when the access was required in exercise of the privilege conferred by the bond that the right came into operation, and the first thing to be done in the exercise of the privilege was to demolish the dyke. It was by demolishing the dyke that access was to be got, and therefore until Mr Baxter or his successors found occasion to use the access on that side they could not be expected to avail themselves of the privilege which had been conferred upon them."

These were the considerations that led to the conclusion that the right was "clearly of the nature of a res merae facultatis ― a right which is to be used in the future when occasion arises".

[21 ] Turning to the third strand of the argument expressed in the pursuers' grounds of appeal, Mr Clancy noted that it adopted the formulation of the nature of res merae facultatis proposed by Johnston (Prescription and Limitation, paragraph 3.16, quoted in paragraph [14] above). He submitted that there was no clear authority for that formulation, and that it did not accommodate the decision in Smith v Stewart, analysed as he sought to analyse it. Smith v Stewart demonstrated that a right could be res merae facultatis without falling into Johnston's formulation.

[22 ] Finally, Mr Clancy returned to the first strand expressed in the grounds of appeal, namely that this court is not bound by Smith v Stewart, because that case was concerned with the former law, whereas this case turns on the interpretation of the 1973 Act. He submitted that, in the absence of a definition of res merae facultatis in the 1973 Act, there was no basis for construing the expression differently now from the way in which it had been construed before the 1973 Act was passed. There was a presumption that Parliament understood the existing law, and did not intend to change it (Craies on Legislation, paragraph 14.1.7). The expression res merae facultatis in Schedule 3, paragraph (c), could only be understood by reference to its meaning in the former law.

Discussion

[23 ] It is clear that the right of access conferred on the defender in the 1981 Disposition, if it is properly to be regarded as simply a servitude, falls within the scope of section 8 of the 1973 Act and is subject to extinction by virtue of the long negative prescription (Bowers v Kennedy at 559C, paragraph [8]). The question raised in the appeal is whether, despite conferring on the defender a right of access to the defender's ground over the pursuers' ground, the right in question is not simply a servitude, but possesses the character of a res merae facultatis, and is accordingly imprescriptible by virtue of section 8(2) and Schedule 3, paragraph (c) of the 1973 Act.

[24 ] It is no doubt correct that the 1973 Act introduced a new scheme for the law of prescription. We are, however, unable to accept Mr Davies' submission that because our task may be regarded as one of interpretation of the provisions of the 1973 Act, authorities dealing with the concept of res merae facultatis decided before the passing of that Act are on that account not binding upon us, or fall to be treated with care. The expression res merae facultatis is not defined in the 1973 Act. It must therefore be taken that its meaning in the 1973 Act is the same as its meaning was in the former law. Parliament must be taken to have been aware of that meaning, and the only inference to be drawn from its use in Schedule 3 without definition is that it was intended there to have the same meaning as before. If, as Johnston suggests, it is, despite its "extremely fine pedigree in the civil law tradition", a "deeply obscure term" (Prescription and Limitation, paragraph 3.07), none of that obscurity is alleviated by its use in paragraph (c) of Schedule 3 to the 1973 Act. Its meaning must therefore be sought in the law as it stood before 1973. It follows, in particular, that Smith v Stewart cannot be dismissed as a case concerned with the former law. If Smith v Stewart cannot be distinguished, its ratio is binding upon us.

[25 ] In our opinion, it is correct (up to a point) that "the essence [of a res merae facultatis] is that it is a right which a person is at liberty to exercise or not" (Johnston, Prescription and Limitation, paragraph 3.07). But, without more, that is not a satisfactory definition, because there is a sense in which the possessor of any right may choose to exercise it or not. The real point is that in the case of a res merae facultatis the choice not to exercise it does not have the adverse consequence which failure to exercise a right would normally have. That point is made clearer in the formulation adopted by the Minister in the House of Lords debate on the second reading of the 1973 Bill (Hansard, HL Vol. 341, col. 422) ― a right "which the proprietor may assert or not as he pleases, without the risk of losing the right by failure to assert it". We agree with Johnston (paragraph 3.08) that that is preferable to the formulation adopted by the Scottish Law Commission in Memorandum No. 9 and Report No. 15. There is, perhaps, a danger of circularity, if a res merae facultatis is defined as a right which may be asserted whenever the proprietor pleases without the risk of losing it through prescription, and the expression res merae facultatis is then used in statute to define a category of imprescriptible rights. It seems to us, however, that the key lies in the nature of the right. If a right is of such a nature that it can be said to be intended to continue to subsist whether its possessor chooses to exercise it or not, it can be said that the possessor's election not to exercise it does not justify an inference of abandonment. To subject such a right to the negative prescription would be inconsistent with its nature. The expression res merae facultatis is thus the label to be attached to that category of rights. There remains the task of identifying whether a particular right falls, or does not fall, into that category.

[26 ] Johnston's formulation (Prescription and Limitation, paragraph 3.16) cited in argument identifies two kinds of right that can be described as res merae facultatis, namely (1) "a right whose exercise implies no claim on anyone else or against their rights", and (2) "a (normal) incident of ownership which can be lost only as a consequence of the fortification in some other person of a right inconsistent with it". We do not consider that it is necessary to examine more closely rights of the first kind: the present case (like Smith v Stewart) cannot be said to involve a right whose exercise implies no claim against the rights of another; any right of access over the property of another implies such a claim. It seems to us, however, that the second kind of right identified by Johnston is merely an example of a category that should be more widely expressed. The true scope of the category encompasses any right the inherent nature of which is that it is intended to continue to subsist whether its possessor chooses to exercise it or not. The ordinary incidents of ownership are an example of that category. Their nature, as rights intended to subsist whether exercised or not, derives from the general law of property. Another example of the category can be found, however, in rights which acquire their nature not from the general law, but from the terms of the instrument by which they are constituted. Smith v Stewart can be seen as an illustration of that example; the factors on which Lord President Inglis founded in characterising the right in that case as a res merae facultatis were to be found "contemplated and implied in the words of the bond".

[27 ] The question in this appeal therefore comes to be whether the right of access conferred on the defender in the 1981 Disposition was expressed in such a way that it can be held to have conferred a right which was intended to subsist whether exercised or not. In view of the reliance placed by the defender on Smith v Stewart, it is necessary to consider whether the answer to that question is conclusively provided by the ratio of that case. In our opinion, although the wall in that case belonged to the proprietor of the dominant tenement, that fact was not critical to the decision. As Mr Clancy pointed out, the Lord President did not mention that fact as the foundation, or part of the foundation, of his decision. We do not find that surprising. Were it otherwise, the question whether a particular right of access which involved opening a gap in a wall between the dominant and the servient tenements was a servitude vulnerable to extinction by the long negative prescription, or a res merae facultatis, would depend on the accident of whether the wall belonged to the servient or the dominant proprietor (and what would the position be if the wall was common property?) We therefore proceed on the basis that, in seeking the ratio of Smith v Stewart, the fact that in that case the wall belonged to the dominant proprietor is not critical. It seems reasonably clear that the critical feature of the right of access created by the bond was seen to be that it "was contemplated and implied in the words of the bond that it was not to be exercised at once". The Lord President did not, however, expressly identify those "words of the bond" which yielded that implication. It is therefore necessary to examine the words of the bond to see which of them support such an implication. Looking first at the words of the grant of the right of access, there was nothing in the principal provision ("we ... hereby grant ... full power and liberty to use the said space ... as a road or entry") that implied deferred exercise. We do not think that the mere fact that the creation of the access required the breaking open of a gap in the wall by itself supported the implication that the right of access was only to be exercised at some indeterminate date in the future. If that were so, any new right of access which involved work to make it useable (whether the making of a gap in an existing wall, or the laying of a suitable surface to bear the contemplated traffic) would convert a servitude into a res merae facultatis. On the other hand, one of the qualifications of the right ("but said passage or entry ... not to be further north than the north line of the southmost street to be formed on the ground belonging to the said company") does in our view support an inference that the formation of the entry was not expected to be immediate, but was to be delayed at least until the streets had been formed on the servient tenement. The bond contains no indication of when it was contemplated that that would occur, but George's Place was not formed until 1827. Further, the express undertaking by the Company to keep the access route over its ground free of buildings may be seen as implying that it was thought necessary for the company to give such an undertaking to preserve the access route for future use even if the access was not immediately formed. Moreover, the reserved right to keep fruit trees on the Company's side of the wall (which was originally constituted in the Company's feu contract, but repeated in the bond of servitude) might be regarded as implying that there would be a period following the grant of the right of access during which that right to grow fruit trees against the wall would remain, despite its being potentially inconsistent with use of the twenty foot strip as an access. It thus seems to us that the basis for the Lord President's conclusion that the words of the bond contemplated and implied that the right was not to be exercised at once is to be found in the detail of the relatively complex framework of reciprocal rights and obligations contained in the bond. We do not consider that the ratio of the decision in Smith v Stewart can be said to be that a servitude which can only be exercised after a power to create a gap in a wall between the dominant and the servient tenements has been exercised is on that account alone to be regarded as a res merae facultatis.

[28 ] We conclude, therefore, that Smith v Stewart illustrates that a right may be regarded as a res merae facultatis if the terms of the instrument constituting the right, properly construed, indicate that the right was not to be exercised at once, but was to subsist until exercised at an indefinite future date to be chosen by the proprietor of the dominant tenement. In Smith v Stewart there were features of the terms of the bond of servitude which contributed to the inference drawn by the court that the right of access was not intended to be exercised at once, which are not present in the present case. We therefore conclude that we are not bound by Smith v Stewart to hold that the right of access in the present case is a res merae facultatis. What we must do is examine the terms of the right granted in the present case to see whether they yield the inference that it was intended to subsist whether exercised or not, and not to be vulnerable to extinction through not being exercised. In interpreting the terms of the grant, it is in our opinion right in principle to construe the exception to the general rule in section 8 constituted by paragraph (c) of Schedule 3 narrowly. We are not prepared to hold that every servitude which, in order to be exercised, requires work to be done to open a gap in a wall or other boundary structure, or otherwise to render the servient tenement fit for the exercise of the right, is on that account to be regarded as indicating that the right is intended to subsist whether exercised or not until such indefinite future time as the dominant proprietor may choose to carry out the works. There is nothing else in the present case to indicate that the right of access conferred on the defender's predecessor in title by the 1981 Disposition was intended to subsist indefinitely whether exercised or not. We are therefore satisfied that the right in question was not a res merae facultatis within the meaning of Schedule 3, paragraph (c).

Result

[29 ] We therefore allow the appeal. We recall the interlocutor of the sheriff principal dated 8 November 2006 and the interlocutor of the sheriff dated 5 April 2006. We sustain the pursuers' first plea-in-law to the effect of excluding from probation the following averments in Answer 3, namely "In any event the grant of access contained in the 1981 Disposition is imprescriptible. It is res merae facultatis"; sustain the pursuers' second plea-in-law; repel the defender's third plea-in-law; and quoad ultra allow a proof before answer.