OUTER HOUSE, COURT OF SESSION
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P434/09
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OPINION OF LORD TURNBULL
in the cause
NIALL JERVIS COLL LIVINGSTONE OF BACHUIL
Petitioner;
against
YORICK PAINE and ANOTHER
Respondents:
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Petitioner: Sandison QC; HBJ Claims Solutions
Respondents: Agnew of Lochnaw QC; Lindsays
12 October 2012
Introduction
[1] The
petitioner in this action for interdict is the owner of heritable property on
the Isle of Lismore. The respondents assert a right of servitude access over
the petitioner's property, which they claim has been established by use, as of
right, in excess of the prescriptive period.
[2] The
petitioner challenges the existence of any such servitude right as is claimed,
he challenges the right of the second respondent to be heard in this process
and contends that certain of the averments made in support of the respondents'
case are irrelevant, or lacking in specification and should not be admitted to
proof. The case called before me on the Procedure Roll on the petitioner's
first and second pleas in law.
[3] The
petitioner is the present Baron of Bachuil. He and his family have been the
heritable proprietors of the Bachuil Lands on the Isle of Lismore for
generations. The first respondent is the uninfeft proprietor of an area of land
known as Croft Ballimackillichan. The second respondent, the domestic partner
of the first respondent, is said to be the tenant of Croft Ballimackillichan.
[4] Croft
Ballimackillichan adjoins an area of land known as Ballimackillichan Farm. Both
areas of land were previously part of the estate of Baliveolan and until the
early 1980s were owned by a single proprietor, Robert Campbell-Preston. In
1983 the farm was sold to its tenant, Archie Campbell and in 1984 the croft was
sold to its tenants, John and Dorothy Livingstone. The present owner of
Ballimackillichan Farm is Archie MacColl and the respondents are his tenants in
the farmhouse. In around 2008 John and Dorothy Livingstone granted a
Disposition of Ballimackillichan Croft to the first respondent. That
disposition awaits registration.
[5] The
petitioner avers that a track which runs from the public road at Clachan to
Portcharron and thence to the southern part of Ballimackillichan Farm gives the
respondents access to the farmhouse. He also avers that they are able to use a
continuation of that track to access the croft. Whilst the respondents appear
to accept that they currently access the croft using the route referred to they
say that there is an issue over their legal entitlement to use all of this
route. They aver that they currently exercise their right of access as tenants
of the farmhouse and from the farm land onto the croft by the agreement of the
owner of the farm, Archie MacColl.
A further route is available between the public road and Croft Ballimackillichan. This route is by way of the entrance drive to the house on the Bachuil Lands, across its policies and across its open fields to a boundary fence and gate between the Bachuil Lands and the croft. It is this route which the respondents assert a right to use.
The Petitioner's Submissions
[6] Counsel for
the petitioner submitted various criticisms of the case as pled on behalf of
the respondents. He submitted that the case pled against the petitioner of res
judicata was irrelevant and should not be admitted to proof. He submitted
that the case pled against the petitioner of personal bar was irrelevant or
insufficiently specific and should not be allowed to proceed to proof. He
submitted that various other averments within the respondents' pleadings were
irrelevant or lacking in specification and should not be admitted to proof and
he submitted that the second respondent had no title to defend the proceedings.
Res Judicata
[7] Counsel for
the petitioner submitted that the case pled by the respondents on res
judicata was irrelevant. The case as pled was based on the outcome of an
action heard in the Sheriff Court at Oban
in 1899 in which the then proprietor of
the Lands of Bachuil sought to interdict the then tenant of Croft
Ballimackillichan from trespassing on the Lands of Bachuil for the purpose of
accessing the croft. The then tenant and his son, who operated a shop on the croft
tenanted by his father, were the defenders in the action. The route in
question was said to be substantially the same route as featured in the present
case. In that case the sheriff held, after proof, that:
"there is a public road or right of way leading from the highway at Bachuil, in the island of Lismore, through the pursuers lands of Bachuil and the croft at Ballimackillichan, in the occupation of the defender, John Livingstone senior, and thence to a public harbour or fishing station called Portnamorloch, situated in Locherkar Bay, on the northwest side of the island of Lismore, and the said road or way forms an access to the said croft of Ballimackillichan to the highway at Bachuil;"
Counsel pointed out that in 1899 the croft was still part of the estate of Baliveolan and the then heritable proprietor of that estate was not a party to the action. Counsel criticised the suggestion that the second respondent could be seen as some form of successor in title to the tenant in 1899 and submitted that the nature of the action adjudicated upon by the sheriff was quite different from the private servitude right which was the subject of dispute in the present case. He drew attention to the averments made on the petitioner's behalf at pages 27 and 28 of the Record to the effect that Portnamorloch had many years ago ceased to be a place to which the public had resort and that the public right of way had been extinguished by non-use for more than the prescriptive period. He pointed out that the respondents did not seek to assert the ongoing existence of a public right of way but sought to assert a form of private right deriving from that previous public character of the route. On his submissions none of the averments concerning the 1899 action should be admitted to proof and a claim of res judicata could not arise on the basis of the facts averred.
Personal Bar
[8] Counsel for
the petitioner attacked the nature and extent of the averments made by the
respondents in Answers 5 and 6, in
so far as they purported to set out a claim of personal bar, all as reflected
in the 10th Plea in Law (as introduced by Minute of Amendment). The
averments in Answer 5 related to a conversation said to have taken place
in around December 2006. Those present were said to have been the petitioner's
father (now deceased), his mother and the two respondents. At that time the
petitioner's father was the heritable proprietor of the Bachuil Lands. The
averments in Answer 6 related to work said to have been carried out by the
first respondent at the request of the petitioner's mother at Bachuil House. These
averments included a reference to a conversation concerning a track which ran
across the fields between Bachuil House and Croft Ballimickillichan. It was
claimed that during this conversation the petitioner's mother told the first
respondent to use certain stones to hard core the track at a later stage and
thereby implicitly recognised the existence of the right of access claimed. Counsel
acknowledged that the petitioner's mother had been a joint executor of her
husband's estate from around March 2008 and that things said by her in that
capacity might be capable of founding a claim of personal bar. Various
criticisms of the averments on this part of the respondents' case as set out in
both Answers 5 and 6 were developed by counsel for the petitioner, which I
will refer to in more detail later.
General Specification and Relevancy Points
[9] Counsel for
the petitioner identified that certain averments made by the respondents set
out, in relevant and specific terms, the basis upon which they claimed to be
entitled to take access to Croft Ballimackillichan over the lands owned by the
petitioner. These were the averments found in Answers 5 and 6 asserting
that the first respondent's predecessors in title had taken such access openly,
peaceably and without judicial interruption throughout the period of their
ownership of the croft from 1984 until 2008 and that John Livingstone had done
the same whilst previously tenant of the croft between 1962 and 1984. Counsel
accepted that these averments would require to be the subject of evidence and
adjudicated upon. However counsel submitted that no relevant or specific claim
was made about the nature or quality of any access supposedly taken to the croft
over the Bachuil lands outwith these periods. Accordingly he submitted that
certain of the respondents' other averments were either lacking in
specification or irrelevant to the proper issue in the case. I will also
return to these submission in more detail later.
The Second Respondent
[10] The petition
for interdict was served by the petitioner on the first respondent only. On
the petitioner's behalf it was submitted that the dispute in the case was
whether there existed a real right of servitude over the Bachuil Lands for the
benefit of the heritable proprietor of Croft Ballimackillichan. That question
was one which concerned only the heritable proprietors of those properties and
as a consequence the second respondent had no title to defend the petition. Counsel
relied on what was said in Servitudes and Rights of Way, by Cuisine
& Paisley at paragraphs 1.50 and 1.51, The Law of Property in
Scotland, by Reid at paragraph 481 and Rankine on the Law of Leases,
at pages 709-711. In the present action it was not claimed that Croft
Ballimackillichan was let to the second respondent with a right of servitude
over the Bachuil Lands such as would create a real right thereto in the tenant.
In these circumstances counsel submitted that the cases relied upon by the
second respondent were all distinguishable from the circumstances of the
present action. In particular they offered no support for a general contention
that any party with a mere interest in the outcome of any action for interdict
would be entitled to defend the proceedings.
The Respondents' Submissions
Res Judicata
[11] Counsel for
the respondents contended that since the decision of the sheriff in the 1899
case established that there then existed a right of way over the Bachuil Lands
which right of way provided access to Croft Ballimackillichan, rights of access
to the croft would not be lost even if the route ceased to be a right of way. On
this basis he submitted that the dispute between the parties was res
judicata, or a form of it. In support of this argument counsel referred to
McRobert v Reid 1914 SC 633 & Lord Burton v Mckay
1995 SLT 507. More generally
counsel submitted that the courts were slow to permit multiple actions
concerning the same interest and that what had been said in cases such as Greig
v Magistrates of Kirkaldy (1851) 13D 975 and Primary Healthcare
Centres (Broadford) Ltd v Ravangave 2009 SLT
673 was applicable to the circumstances of the present case and supported his
contention that the issue between the parties had been judicially determined
and could not be re-opened.
Personal Bar
[12] Counsel for
the respondents submitted that the test for personal bar could be found in the
speech of the Lord Chancellor in the case of Gatty v Maclaine
1921 SC (HL) 1 at page 7 where he said:
"Where A has by his words or conduct justified B in believing that a certain state of facts exists, and B has acted upon such belief to his prejudice, A is not permitted to affirm against B that a different state of facts existed at the same time."
Counsel submitted that the averments made on the respondents behalf at pages 22 and 23 of the Record were sufficient to allow him to prove that a conversation took place in which the present petitioner's mother did most of the talking and stated that the croft enjoyed a valid prescriptive right of access which did not require to be formalised. Counsel submitted that the respondents' averments to the effect that:
i. the petitioner's frail father did not dissent from what his wife had said;
ii. that he told her to hear out what the respondents were saying in regard to seeking a formalisation of the existing right of access, and
iii. that he ended the conversation by saying that he would look at any proposals put forward by the respondents to formalise the access;
met the test in Gatty and were sufficient to constitute a valid claim of personal bar against the petitioner as his father's successor.
General Pleading Points
[13] In response the
more general criticisms of aspects of the case pled, it was submitted that the
respondents' pleadings had in the first place to be viewed in the context of
what was pled against them. The respondents sought to underpin their claim by
averring occupation of the croft and the means of access thereto all the way
back to the 1899 action. They were entitled to lead what evidence was
available of access taken throughout that period. A proper consideration of
the nature of any use of the route under discussion, such as might be necessary
to consider whether use had been as of right, would require a consideration of
"all of the circumstances" which pertained to or cast light on the use of the
route concerned. Given such a test he submitted that it would be relevant to
take account of "tradition" in the sense of what had been understood to be the
case by others. For these reasons counsel submitted that, with a few minor
exceptions, his averments ought to be admitted to proof. In developing these
submissions counsel referred to Aberdeen City Council v Wanchoo 2008 SC 278, McInroy v Duke of Atholl (1891) 18R (HL) 46, Cumbernauld
& Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1992
SC 357 and at 1993 SC (HL) 44. Neumann v Hutchison an unreported
decision of the Sheriff Principal of Tayside Central and Fife
dated 1 May 2008 and Scotland
v Wallace 1964 SLT
(Sh.Ct.) 9. I allowed the pleadings to be amended in terms of a short Minute of
Amendment for the respondents which introduced some minor amendments to the
averments in Answers 4, 5 and 6 and which introduced the 10th plea
in law previously omitted in error.
Title to Defend
[14] Counsel for
the respondents submitted that the second respondent had, as a tenant, the
right to protect her tenancy and rights accruing to it in respect of access. He
referred to what was said in Cusine and Paisley
at paragraph 1.51 to the effect that tenants are entitled to enforce
certain rights and to the passages in Rankine at pages 709 to 711, where
the author deals with same subject matter. Counsel relied upon what was said
in the cases of Fleming and others v Gemmill 1908 SC 340 at page
348, The Gas Power and Bi-Products Co Ltd v William Beardmore &
Co Ltd 1911 SC 27, and Glasgow Ship Owners Association v Clyde
Navigation Trustees (1885) 12R 695. Counsel submitted that the case of Gemmill
provided clear authority for the proposition that a tenant was entitled to
protect his or her interests and that the other cases cited supported the
general proposition that a person who might be adversely affected by the grant
of an interdict has the right to be heard.
Discussion
Res Judicata
[15] The case
brought before the sheriff at Oban in 1899 resulted in a judicial finding that
a public right of way existed across the Bachuil Lands and on to Portnamorloch.
The respondents do not assert that this right of way remains alive and do not
challenge the petitioner's averments to the effect that Portnamorloch is no
longer a place to which the public have resort for any purpose. The
implication arising from the averments at page 37 and the terms of their
fifth and sixth pleas-in- law is that the respondents accept this. The
respondents do not contend that they are entitled to take access along what is
a public right of way. They contend nevertheless that some form of private
right remains in place in their favour which flows from the findings made in
1899 with the result that the plea of res judicata, or a form of it,
applies.
[16] The
sheriff's decision was that a public right of way had been established by use
as such over the prescriptive period. In this manner, a right in favour of the
public at large had been created. It followed that, as members of the public,
the then tenant of Croft Ballimackillichan and his son had the right to access
the croft by using a portion of that right of way, regardless of whether they
personally ever went any further along the route. Such a right was recognised
in the case of McRobert v Reid. However, as is clear from was
said by the Lord President at page 638, the benefit which is obtained by
the proprietor of land adjoining a public right of way is a right of access
possessed as a member of the public, rather than as the beneficiary of a
praedial servitude. What is claimed in the present case is a private right
rather than a public right. No private right was conferred on anyone in the
1899 action. The sheriff's note records that two separate claims were made. The
first was that the access route claimed was part of a right of way used by the
public from time immemorial. The second was that the part of the route leading
from the croft to the highway at Bachuil was a servitude road giving access to
the croft. The sheriff declined to make any determination on the second claim,
stating that to do so was unnecessary given the public character of the route as
he found it to be.
[17] Nor do I
consider that the decision in the case of Lord Burton v Mackay
has the effect contended for by counsel for the respondents. The evidence in
that case enabled the finding to be made that there had been sufficient usage,
even after the route had ceased to be a public one, for more than the
prescriptive period, to establish the private right claimed. That was the
basis upon which the Court held that the defenders were entitled to continue to
use the route in dispute to access their property. Whilst not part of the
reasoning of his decision, Lord Coulsfield also considered the question of
whether established rights of use along a public right of way would be lost if
that right of way ceased to exist. In doing so he contemplated the possibility
of some residual public right remaining in place and also took account of the
possible acquisition by intermediate proprietors of a private right in the
manner discussed by Lord Johnston in McRobert v Reid.
[18] It is of
importance though to note that his Lordship was considering established rights
of use. It has never been held that the proprietor of Croft Ballimackillichan had
acquired a private servitude right of access in the manner contemplated by Lord
Johnston in McRobert v Reid. In his opinion, at pages 641
and 642, he made it clear that he saw the establishment of a public right of
way and the establishment of a private servitude right by the defender in that
action as being two quite distinct considerations. Whilst he acknowledged that
a private right of servitude might be established along part of a route
contemporaneously with the establishment of a public right of way along its
entirety, he stressed that the two were based on different rights and claims. The
heritable proprietor of Croft Ballimackillichan was not a party to the 1899
action. The two defenders were the tenant and his son, who it was recognised
were entitled to use any part of the public right of way but to do so in their
capacity as members of the public. In my view nothing further was established
in the 1899 case and the sheriff's decision does not operate to found a private
right of servitude in favour of the now owner of the croft more than one
hundred years later.
[19] It was also
contended that the parties to the present action were the successors in title
to those in the 1899 case and that both cases concerned access to the croft
over the petitioner's land. Whilst the owner of the croft was not a party to
the original action, stress was laid on the fact that the then tenant was a
party, as the now tenant is. On this basis it was also said that the plea of res
judicata applied. In my opinion the second respondent cannot be described
as anything more than the tenant for the time being of Croft Ballimackillichan.
There is no sense in which she is the legal successor to the tenant in 1899
such as would communicate any rights or obligations from one to the other. The
parties to the present case are not the successors of the parties to the 1899
case. The 1899 case did not concern the same subject matter as the present case
and the media concludendi are not the same between the two actions. For
all of these reasons I am satisfied that counsel for the petitioner was correct
in submitting that the case as pled on res judicata is irrelevant.
Personal Bar
[20] The
respondents' claim of personal bar is dependant upon the averments made in
Answer 5 at pages 22 to 23 of the Record and in Answer 6 at
pages 32 to 33. It is more straightforward to deal with the later
averments first. To found a claim of personal bar anything said by the present
petitioner's mother would have to have been said in her capacity as an executor
of her husband's estate, which she was from a point in March 2008. A further
requirement would be that the first respondent acted, to his prejudice, on the
basis of an assertion as to a particular state of facts made by the
petitioner's mother - Gatty v Maclaine. It is not plain from the
averments at page 33 when any such comments as the first respondent wishes
to found upon were made. The suggestion appears to be that the relevant
comments were made whilst he was undertaking work at Bachuil House. However it
is averred that he did such work in 2007 and in 2008. The first respondent
does not aver in Answer 6 that he entered into an agreement to purchase
Croft Ballimackillichan on the basis of any statement as to fact made by the
petitioner's mother, in either 2007 or in 2008. In this regard it is of
relevance to note, as counsel for the petitioner pointed out, that the first
respondent does not at any stage in the pleadings aver when he agreed to, or
did in fact, purchase the croft from its previous owners. However he does aver
at page 23 that he proceeded to purchase Croft Ballimackillichan on the
basis of assurances given in the course of a conversation in December 2006. In
these circumstances it seems clear that the averments at pages 32 to 33
cannot lay a relevant basis for any claim of personal bar and I will uphold the
petitioner's plea to the relevancy of these averments and refuse to allow them
to proceed to proof.
[21] The passages
founded upon in Answer 5 are a little less straightforward to adjudicate
upon. At pages 22 and 23 of the Record there are averments concerning a
conversation in around December 2006 when it is said that assurances were given
by Mr and Mrs Livingstone (the petitioner's parents) which were acted upon
by the first respondent and caused him to proceed with the purchase of Croft
Ballimackillichan. It was accepted in argument that Mr Livingstone was at
the time the sole proprietor of the Bachuil Lands and that accordingly it was
only his words or conduct which could found a plea of personal bar. The
averments in the main relate to comments said to have been made by Mrs Livingstone.
In particular it is averred that it was she who stated that the croft enjoyed
a valid prescriptive right of access. It is averred that Mr Livingstone:
"did not dissent from what was said by his wife" - page 22B
and that:
"The upshot of the conversation, which it was clear Alistair Livingstone accepted, was that the prescriptive access at Appin had worked perfectly well and therefore the prescriptive access to the Croft should be adequate for the Respondents' requirements." - page 23 A.
[22] No averments
are included as to how Alistair Livingstone made his position clear and I
accept counsel for the petitioner's general contention that in law silence
should not constitute assent. However it is also averred that Alistair
Livingstone:
"at one stage told his wife to hear out what the Respondents were saying in regard to seeking a formalisation of the existing right of access" - page 22B
and that:
"Alistair Livingstone ended the conversation by saying that he would look at any proposals put forward by the Respondents to formalise the access" - page 23 C.
[23] Accordingly
it can be seen that the averments under challenge refer to more than just
failure to dissent and do include comments which a judge hearing the evidence
might choose to construe as representations as to a state of facts concerning
access to the croft. Furthermore, whether failure to dissent has no value, or
ought to be given some weight in combination with things said by Alistair
Livingstone himself, might well depend on the nature and detail of the
conversation and the circumstances in which it took place. In these
circumstances I have come to be persuaded that it would be wrong of me to deny
the first respondent the opportunity to lead evidence on these matters and I
will permit a proof before answer on this aspect of the case on personal bar.
Pleading Points
[24] Counsel for
the petitioner criticised certain of the averments made by the respondents in
relation to the assertion that a prescriptive right of servitude had been
acquired for the benefit of the owner of Croft Ballimackillichan over the
Bachuil Lands.
[25] Putting
aside the claim that the respondents are entitled to exercise a right of access
connected to the 1899 case, the first respondent, as the now proprietor of the
heritable property which constitutes Croft Ballimackillichan, claims that a
positive servitude right of access has been acquired by him such as would be
recognised in terms of section 3(2) of the Prescription and Limitation
(Scotland) Act 1973. The averments made at pages 19, 20 and 34B of the
Record reflect that claim, as does the seventh plea in law.
[26] In order for
a positive servitude right to be acquired by prescription there requires to
have been possession (or use) for a continuous period of at least twenty years,
which use must have been open, peaceable and without judicial interruption. Furthermore,
such use must have been exercised "as of right" rather than by tolerance or
licence. The use or possession must have been with the intention of
establishing an adverse right rather than exercising a right with the agreement
of the servient tenement. In this context the onus is on the person seeking to
establish a servitude to prove that there has been possession (or use) "as of right"
- Cuisine & Paisley paragraph 10.19.
[27] In the
present case it is averred that the buildings on Croft Ballimackillichan are in
ruins and it is admitted that no one has resided at the croft for many years. The
petitioner acknowledges that the previous owner of the croft was permitted to
use a shortcut across the Bachuil Lands by quad bike or tractor from the time
of his purchase in around 1985 but only for the purpose of tending stock kept
by him on the croft land. It is averred that this use was by way of tolerance.
The court will require to decide whether, on the evidence led, there has been
sufficient use to constitute the servitude right claimed and whether this use
has been made as of right. These questions will require to be decided by inference
from the actual use made with the onus resting upon the first respondent to
prove that the use which he relies upon has been use as of right. No doubt
this will involve considerations including the nature, quality and frequency of
the use. However, in these circumstances counsel for the petitioner was, it
seems to me, correct in submitting that only averments which are relevant to
instructing a decision on these matters can be permitted to proceed to
probation. Whilst counsel for the respondents sought to argue that he was
entitled to rely on what he called "all the circumstances of the case", any
such circumstances require to be capable of informing the decision to be
arrived at on the issues mentioned above. This assessment appears to me to be
consistent with what was said in both McInroy v Dule of Atholl
and in Aberdeen City
Council v Wanchoo. Nor do I consider that
there was anything concerning principle said in the case of Scotland
v Wallace which would support counsel for the
respondent's submissions concerning the admissibility of what he called
evidence of "tradition".
[28] In advancing
this part of his attack on the relevancy of the respondents' pleadings counsel
for the petitioner also drew attention to certain averments which appeared to
constitute the pleading of evidence, or to assert negative propositions.
Whilst these criticisms were included under the umbrella of his general attack
on the pleadings concerning the acquisition of a servitude right, he submitted
that they were equally susceptible to criticism on the basis that an assertion
of what was not done was of no value in advancing the evidence as to what was
done and that facts as opposed to a summary of anticipated evidence require to
be pled. In my view the criticisms identified by counsel for the pursuer were
well merited and ought to be sustained.
[29] For the
reasons given in paragraphs [26] to [28] I have decided that certain of the
averments made on behalf of the respondents are irrelevant or insufficiently
specific and ought not to proceed to probation. They appear in the Record as
follows:
The averment at page 21 letter B, "it presumably having been recognised that access was clearly by the traditional route as shown on Ordnance Survey Maps", was also challenged but was deleted by the respondents Minute of Amendment.
[30] As a
consequence of the decision which I have arrived at in relation to the
respondents' claim of res judicata the averments in relation to this
aspect ought not to proceed to probation. Counsel for the petitioner submitted
that the entire reference to the 1899 case from page 34 letter C to
page 37 letter D ought to deleted. However counsel for the respondents
also sought to rely on aspects of the evidence led in that case in support of
his effort to establish the prescriptive acquisition of a servitude right. The
respondents seek to link their claim back through the use made by the previous
owners and tenants of Croft Ballimackillichan. Their averments on these
matters appear at page 19 letter B through to page 20 letter E and at
page 37 letter C to D. A servitude right could be established for the
benefit of the dominant proprietor by founding on use made by his tenant - Gordon
on Scottish Land Law paragraph 24-48. I cannot assert at this stage that
the evidence given in the 1899 case concerning the access taken over the
Bachuil Lands by the defenders to that action will be of no relevance to the
claim made concerning the prescriptive acquisition of a servitude right in the
present case. Accordingly I cannot give full effect to the submission by
counsel for the respondent. The passage which falls to be deleted will be the
passage commencing at page 35 letter B with the words "The defenders
pled" and ending at page 37 letter C with the words "stock, carts and
vehicles."
[31] I have been
satisfied by the submissions of counsel for the respondents that the remaining
passages criticised do pertain sufficiently to the issues raised and contain
sufficient specification to entitle them to remain in the pleadings. These
passages appear in the Record as follows:
Title To Defend
[32] In my
opinion the submissions presented by counsel for the petitioner on this aspect
of the case were correct. The question in the present case concerns the
existence or otherwise of a servitude right of access. That is a claim between
the heritable proprietors of the land concerned. The passages cited by counsel
for the petitioner in both Cusine & Paisley and Reid support the contention
that a tenant has no right to enforce a servitude unless he has been granted a
real right sufficient in its terms to entitle him to do so. Whilst Rankine
mentions a tenant's entitlement to vindicate his right to exercise servitudes
let to him along with the corporeal subjects in his lease so far as thus
acquired by him and no further, this does not assist the second respondent as
she does not claim to hold a lease granting a servitude right of access over
the petitioner's lands. The case of Gemmill does not in my view assist
the second respondent's claim. It simply concerned the tenant's right to
protect the subjects expressly let to and occupied by him, the enjoyment of
which was adversely affected by pollution at the hands of his neighbours. In
that case there was no question of the tenant seeking to assert rights over
neighbouring corporeal subjects by dint of a claim of servitude whose very
existence was in dispute between the relevant heritable proprietors. Nor do I
consider that the remaining cases relied upon by the second respondent support
the contention that she has any form of right entitling her to defend the
present proceedings.
[33] Having
decided upon the competing submissions in the ways described I will sustain the
petitioner's first plea-in-law to the extent of refusing to admit to probation
the averments indentified in paragraphs [20], [29] and [30] above. I will
sustain the petitioner's second plea-in-law and repel the answers insofar as
stated at the instance of Sarah Campbell. I will make an award of expenses in
favour of the petitioner against her as an assisted person. I will repel the
fifth and sixth pleas-in-law for the respondents along with the first part of
their seventh plea-in-law. Quoad ultra I will allow a proof before
answer. I will reserve the question of expenses as between the petitioner and
the first respondent until parties have had an opportunity to consider matters
and to decide upon any submissions they may wish to make.