"The roof of the garage building was to be raised; and its gable end, which abutted the site, was to be opened up, with large sliding doors opening onto the site. The new doors and the heightened roof would allow vehicles of all sizes, taking access to across the site, to reverse into the garage building and the warehouse to load and unload. Steel supports were needed for raising the roof. The drawing [accompanying the application] shows that one of the columns for this structure was to be positioned in the then existing opening from the garage building into Shiprow, so that, when the work had been carried out, the Shiprow access would be closed even to small vehicles."

" ... there was a meeting between Duthies and several officers of the town council at which it was agreed in principle that Duthies would construct a new entrance facing Shore Brae and would get access to this new entrance across the site. It is not clear precisely when this meeting occurred, but I am satisfied that it took place at latest before or at the beginning of negotiations for the lease. It may have been considerably earlier."

It is also to be noted that in the course of paragraph [24] of his Opinion the Lord Ordinary observes:

"By the time of Duthies' application for planning permission and building warrant in February 1976, the work required to create such a right of access had been worked out in detail (and, indeed, there were only minor alterations to the plans thereafter). It may well have been at about this time that the agreement was reached in principle (at the meeting to which I have referred) that Duthies could take access across the site. I cannot see why they would have progressed the matter so far without such agreement."

The issues arising in the reclaiming motion

The first issue

"1. Possession of the claimed servitude must be taken as of right, if it is to

found a basis for establishing a servitude by prescription.

2. Possession as of right must be unequivocably referable to the

putative servitude right and not some other basis such as contract, lease, or mere toleration."

"3. The Lord Ordinary erred in concluding that possession taken other than

by way of toleration must have been taken as of right.

4. The Lord Ordinary erred in holding that any right of access founded on

personal bar could be used to set up a different right, namely a right of servitude."

The principal focus by far of counsel's submissions was on the latter of those two propositions. For an understanding of that complaint of error on the part of the Lord Ordinary we were taken to paragraph [24] of the Lord Ordinary's Opinion, which includes the passage to which we have already referred but which for convenience we include again in the following quotation:

"By the time of Duthies' application for planning permission and building warrant in February 1976, the work required to create such a right of access had been worked out in detail (and, indeed, there were only minor alterations to the plans thereafter). It may well have been at about this time that the agreement was reached in principle (at the meeting to which I have referred) that Duthies could take access across the site. I cannot see why they would have progressed the matter so far without such agreement. Clearly they would not have carried out the considerable work in raising the roof of the garage building and installing the large double doors in the gable end of that building unless they had received an assurance that they could take access across the site. It matters not that the assurance or agreement in principle was not reduced to writing. It would have been sufficient to entitle Duthies to succeed in a plea of personal bar in answer to any attempt by the Council to prevent them using the access across the site. To that extent, it is clear that the access taken by Duthies was taken 'as of right' and not simply by tolerance of the part of the Council."

"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".

Very occasional user in peculiar circumstances may readily be ascribed to a sense of helpfulness or personal obligement on the part of the proprietor of the servient tenement. But as is stated in Gordon on Land Law paragraph 24-49:

"If usage is only occasional, the court is likely to infer that the usage was by tolerance rather than as of right. As a matter of good neighbourhood a proprietor is not likely to object to occasional use of his property by a neighbour, and the law does not oblige him to object to such occasional use in order to prevent his neighbour from acquiring a right. But if use is substantial and fairly constant, challenge is necessary to preserve freedom from servitude rights, and the challenge must be successful. Persistence in use in face of an unsuccessful challenge is good evidence of use as of right".

To similar effect are Cusine and Paisley at para. 10-19 in fine, where they say:

" ... what matters is the volume of possession. Where the volume is reasonably substantial, taking account of the nature of the right claimed, this will be regarded as adverse and as the assertion of a right."

The second issue

"The subjects shall be used, during the currency of the Lease, solely for the parking of vehicles by the Tenants, their employees and customers and other parties authorised by the Tenants; and it is hereby declared that the subjects shall be used for no other purpose unless with the prior approval in writing of the Council".

None of the other provisions of the lease touched in any way upon the question of vehicular access to the warehouse premises. At this point in time Duthies had not carried out any of the alterations necessary for, and thus conditional upon, effect being given to the agreement in principle respecting access.

Decision