EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2013] CSIH 110
Lady Paton Lord Brodie Lord Wheatley	P434/09 OPINION OF THE COURT delivered by LADY PATON in the cause NIALL JERVIS COLL LIVINGSTONE OF BACHUIL Petitioner and respondent; against YORICK PAINE (AP); and SARAH CAMPBELL (AP) Respondents and reclaimers: _______________

Petitioner and respondent: Sandison QC; HBJ Claim Solutions LLP

Respondents and reclaimers: Sir Crispin Agnew of Lochnaw BT. QC; Lindsays LLP

12 December 2013

Introduction

[1] The petitioner owns a house and land at Bachuil, Lismore. The first respondent owns a nearby croft known as Ballimackillichan croft, comprising a ruined unoccupied building and land. The second respondent is his partner. She is the tenant of the croft.

[2] The petitioner sought to interdict the first respondent

"his invitees, agents, employees or others acting on his behalf or on his instructions, from entering onto, or taking pedestrian or vehicular access across, the lands of Bachuil ... other than for the purpose of the operation of Ballimackillichan croft as an agricultural unit, or other than by agricultural vehicles, and from altering the nature of the route so as to make it suitable for non-agricultural vehicles, as by adding hardcoring or surfacing materials to the route, other than with the consent of the petitioner".

On 11 May 2010 he obtained interim interdict.

[3] The respondents lodged answers, averring inter alia a right of access to the croft using what was formerly a public right of way, failing which a private servitude right of access constituted by use for 20 years openly, peaceably and without judicial interruption (section 15 of the Prescription and Limitation (Scotland) Act 1973). Their pleas‑in‑law included a sixth plea (res judicata), a tenth plea (personal bar) and a fifth plea in the following terms:

"5. There having been a right of access to the croft across the lands of Bachuil using a public right of way established in the sheriff court action as condescended upon, said right of access was not lost when the route ceased to be a public right of way (esto it has ceased to be a public right of way) and accordingly the prayer of the petition should be refused."

The court action referred to in the fifth plea‑in‑law took place in Oban sheriff court in 1899. The then owner of Bachuil sought interdict against the then crofter's son from trespassing on the lands of Bachuil or using those lands as access to a store on his father's croft. The crofter was sisted as a defender on his own motion, and claimed a private servitude right of access to the croft. The sheriff found that a public right of way existed between the main road at Clachan, running through the lands of Bachuil past the croft and onwards to a harbour at Port na Morloch. As the defenders were able to access the croft using the public right of way, the sheriff did not find it necessary to determine whether or not a private servitude of access to the croft also existed.

[4] On 4 March 2011, the interlocutor of 11 May 2010 was varied to read

"his invitees, agents, employees or others acting on his behalf or on his instructions, from taking pedestrian or vehicular access across the lands of Bachuil ... as would increase the burden on the lands of Bachuil beyond that imposed by the use of the access by agricultural vehicles for the purpose of tending stock on Ballimackillichan croft, and from altering the nature of the route of such access so as to make it suitable for non‑agricultural vehicles as by adding hardcoring or surfacing materials to the route, other than with the consent of the petitioner".

[5] On 9 May and 20 June 2012 a debate took place before Lord Turnbull. By interlocutor dated 12 October 2012 the Lord Ordinary sustained to an extent the petitioner's first plea‑in‑law (directed to relevancy and specification), and refused to admit certain averments to probation all as noted in paragraph [9] below. He also sustained the petitioner's second plea‑in‑law ("The respondent Sarah Campbell having no title as tenant of the croft to insist in her answers to the petition, they should be repelled insofar as stated at her instance"); awarded expenses against her as an assisted person; repelled the respondents' fifth plea‑in‑law (see paragraph [3] above), sixth plea‑in‑law (res judicata) and the first part of their seventh plea‑in‑law ("Alternatively, esto there is no right of access, by virtue of there having been a right of access using the public right of way"); and quoad ultra allowed a proof before answer.

[6] The respondents reclaimed, although not challenging the decision relating to res judicata. In this opinion, unless otherwise indicated, references to page numbers are references to the printed paginations at the bottom right-hand corner of each page of the reclaiming print dated May 2013.

Map of the area

[7] Tab 11 of the appendix contains a map of the area dated 1898. It shows inter alia a road or track leading in a north-westerly direction from the main road at Clachan through the lands of Bachuil, past Bachuil House and over fields to the croft.

Respondents' averments relating to the second respondent's interest

[8] In Answer 1 for the respondents, at page 7B-C, it is averred that:

"Sarah Campbell also residing at Ballimackillichan farmhouse (hereinafter referred to as the second respondent) has an interest in the subject matter of the petition as the tenant of Ballimackillichan (otherwise Balure) croft (hereinafter referred to as the croft). An extract from the Register of Crofts will be produced."

Respondents' averments excluded from probation

[9] The Lord Ordinary excluded from probation certain passages in the respondents' pleadings:

Answer 4 at pages 13, 14, and 16 of the reclaiming print, namely:

·      A passage concerning previous crofters, owners and tenants of Ballimackillichan farm, not taking access to the croft through the farm (pages 13B-14C).

·      A reference to the traditional access to the croft shown on ordnance survey maps (page 14E).

·      A further reference to an ordnance survey map (page 16 A-C).

Answer 5 at page 22 of the reclaiming print

·      An averment about army vehicles in the Second World War (page 22B).

·      A reference to the "traditional" route (page 22E).

Answer 6 at pages 34-35, and 37-39 of the reclaiming print

·      A short passage including the averment "There has been no other usable route since at least the 1920s" (page 34A-B).

·      A longer passage concerning a conversation with Mrs Livingstone about putting rubble onto the route as it crossed the field (pages 34E-35E).

·      A still longer passage referring to the 1899 sheriff court litigation, focusing upon the public use of the route from time immemorial (pages 37B-39C).

Respondents' pleas-in-law repelled

[10] As already noted, the Lord Ordinary repelled the respondents' fifth and sixth pleas‑in‑law, and the first part of their seventh plea‑in‑law. Those pleas‑in‑law were in the following terms:

"5. There having been a right of access to the croft across the lands of Bachuil using the public right of way established in the sheriff court action as condescended upon, said right of access was not lost when the route ceased to be a public right of way (esto it has ceased to be a public right of way) and accordingly the prayer of the petition should be refused.

6. There having been a right of access to the croft across the lands of Bachuil using the public right of way established in the sheriff court action as condescended upon, the issue is res judicata and accordingly the prayer of the petition should be refused.

7. Alternatively, esto there is no right of access by virtue of there having been a right of access using the public right of way, the long use of the access over the lands of Bachuil for well in excess of 20 years openly, peaceably, and without judicial interruption, as condescended upon, a servitude right of access for pedestrians, stock, carts and vehicles has been established and accordingly the prayer of the petition should be refused."

Submissions for the respondents

[11] Senior counsel for the respondents submitted that the reclaiming motion should be allowed in whole or in part, and the case remitted to the Lord Ordinary for a proof before answer.

The second respondent

[12] The Lord Ordinary erred in holding that the second respondent did not have title to defend the petition. The petitioner's action did not seek declarator that there was no right of way, but was a petition for interdict of the first respondent and others, clearly affecting the second respondent. As tenant, she had both title and interest to defend. The lease could not grant her a servitude right of access, but could only authorise her to use an existing servitude right. Her tenancy was by way of unwritten lease, which would include the normal access to the croft (i.e. a servitude). Reference was made to Rankine, Leases (3^rd ed) pages 709-713; Fleming v Gemmill 1908 SC 340 at page 348; and Cusine and Paisley, Servitudes and Rights of Way, paragraphs 1.50 and 1.51). The prayer of the petition expressly invited her answers (cf The Gas Power and By-Products Co Ltd v Power Gas Corporation Ltd 1911 SC 27).

Particular averments
Mrs Livingstone and conversation about stone rubble

[13] The averments in Answer 6 pages 34E-35E of the reclaiming print should not have been excluded from probation. They gave context to averments which had been allowed through to probation (paragraph [23] of the Lord Ordinary's opinion.) They demonstrated the state of knowledge of Mrs Livingstone qua wife of the heritable proprietor and qua executrix.

References to tradition, maps, and routes not used to access the croft

[14] The averments in Answer 4 at pages 13B-14C of the reclaiming print should not have been excluded from probation. It was the petitioner who had introduced the issue of an alternative route from the south through Balimackillichan Farm. The averments in Answer 4 were (i) simply a response to that issue, and furthermore (ii) background, in that if lack of use of a route from the south were proved, that would tend to support the use of the north-westerly route from the main road past Bachuil House to the croft.

[15] References to maps in Answer 4 at pages 14E and 16A-C of the reclaiming print should not have been excluded from probation. The topography and all the circumstances of the case were relevant (Aberdeen City Council v Wanchoo 2008 SC 278 paragraphs [3] and [14]; McInroy v Duke of Athole (1891) 18R (HL) 46 at page 48; Norrie v Magistrates of Kirriemuir 1945 SC 302 at pages 304-305, 313; Rainsford‑Hannay v Smith 1934 SLT 491 at page 492 second column). Nor should averments about "tradition" or "traditional access" have been excluded. Evidence that there was a tradition about the use of a route was relevant evidence of all the circumstances (Scotland v Wallace 1964 SLT (Sh Ct) 9, pages 11 and 12).

The 1899 sheriff court case: the repelling of the respondents' fifth plea-in-law

[16] The Lord Ordinary erred in repelling the respondents' fifth plea‑in‑law. The whole of the 1899 sheriff court case was relevant. While the sheriff in 1899 had made no decision about a servitude right of access, he had concluded that a public right of way ran from the main road at Clachan through the lands of Bachuil, past Bachuil House, past the croft, and continuing northwards to the harbour at Port na Morloch. Use made of part of that public right of way could be founded on to establish a servitude right of access from the main road past Bachuil House to the croft. Senior counsel referred to the "superadded right" described by the Lord President and Lord Skerrington in McRobert v Reid 1914 SC 633. However if that approach was not accepted, then Lord Johnston's alternative approach was appropriate. Lord Coulsfield's obiter dicta in Lord Burton v Mackay 1995 SLT 507 were consistent with the proposition that use made of part of a public right of way could be founded upon to establish a private servitude right of access for that part. The evidence led in the 1899 case was admissible (Geils v Geils (1855) 17 D 397).

Submissions for the petitioner

[17] Senior counsel for the petitioner invited the court to refuse the reclaiming motion.

The second respondent

[18] The issue was whether the second respondent had averred that she had had communicated to her by lease the benefit of a servitude right over Bachuil lands. Senior counsel submitted that she had not. It was not enough to rely on the status of "tenant". Only if the heritable right had been communicated to the second respondent was she entitled to answer the petition. The passages cited from Rankine were consistent with Cusine and Paisley at page 710 et seq. Fleming v Gemmill concerned the ability of a tenant to complain about pollution of a stream which formed part of his let. In The Gas Power and By-Products Co Ltd case, the third party demonstrated not merely an interest, but a right arising from contract, which the interdict would have impeded. It was accepted that the second respondent might have been able to plead sufficient to entitle her to participate in the litigation: but she had not, and the Lord Ordinary was correct to sustain the petitioner's second plea‑in‑law and to repel the answers so far as stated at her instance.

Particular averments

[19] Senior counsel submitted that the respondents' averments ought to focus on the nature, quality, and frequency of use of any access route to the croft over Bachuil lands. It had been necessary to insist upon a debate in order to achieve that focus, to avoid a wide-ranging and ill-defined general investigation, and thus to keep the proof within reasonable proportions.

Mrs Livingstone and conversation about stone rubble

[20] The passage at page 34E-35E concerning Mrs Livingstone and the use of rubble on the track was properly excluded from probation. (i) The conversation could not be relied upon for personal bar: there were no averments of any reliance by the respondents upon that event. (ii) Mrs Livingstone could be cross‑examined about the conversation whether or not those averments were on record. The averments were properly excluded in order to restrict any proof to reasonable proportions. It was not enough to justify the averments as "context" or "background".

References to tradition, maps, and routes not used to access the croft

[21] At page 34B it was averred that "There has been no other useable route since at least the 1920s". However the respondents should tell the court what had happened (not what had not happened). Just because X did not do A did not mean that X did B. The croft had been in ruins since the 1960s, so it was for the respondents to aver who was taking access, and by what routes. Whether or not there was a useable access route from the south through the Fell estate and passing Ballimikillichan Farm did not assist in answering the question whether there was a servitude right of access over Bachuil land. The negative averments were therefore irrelevant.

[22] Furthermore, in passages at pages 13-14, the respondents referred to "the traditional access to the croft". That did not relevantly focus upon what a claimant had to prove in order to establish the existence of a servitude, namely proof of (i) a period of possession (use of the route); (ii) the possession being continuous and for a period greater than the prescriptive period; (iii) the person(s) by whom the possession was exercised; (iv) the possession being open, peaceable and without judicial interruption, "as of right"; and (v) the possession being unequivocally referable to the servitude claimed. If averments about tradition were allowed, there would be no limit to the amount of undefined hearsay and opinion evidence at the proof. The Lord Ordinary had been correct to exclude those irrelevant and inspecific averments.

[23] As for the averments about maps and ordnance survey sheets, in the present case those did not assist in proving who used the track, the circumstances of the use, how frequent the use was, and what the means of transport was. The averments were therefore irrelevant and correctly excluded.

The 1899 sheriff court case: the repelling of the respondents' fifth plea-in-law

[24] The Lord Ordinary had allowed a passage at page 39C-D to go to proof (namely "The use of the said access by the first and second respondents' predecessors in occupation was not occasional or pedestrian only. Such use was reasonably substantial, persistent and constant as hereinbefore condescended upon and as disclosed in the said Notes of Evidence"). Thus the Notes of Evidence from the 1899 sheriff court case could be used to demonstrate such reasonably substantial and continuous use as would be relevant for the constitution of a private servitude right. But the Lord Ordinary had properly excluded averments relating to members of the public walking up and down the public right of access from the main road at Clachan to the harbour at Port na Morloch, because evidence relating to the public right of way would have no relevance to the constitution of a private servitude. The Lord Ordinary had properly applied McRobert and Lord Burton, and was right to reject the submission that, as a proposition of law, whenever a public right of access ceased to exist, a private servitude right of access automatically emerged.

Discussion
The second respondent

[25] The prayer of the petition is in standard form, namely:

"MAY IT THEREFORE please your Lordships to appoint this petition to be intimated on the walls in common form, and to be served upon the respondent [Yorick Paine] designed in the Schedule for service in the manner therein specified; to ordain him and any other party claiming interest to lodge answers hereto if so advised within 21 days of such intimation and service ... [emphasis added]"

As is averred on behalf of the second respondent in Answer 1, she "has an interest in the subject matter of the petition as the tenant of Ballimackillichan ... croft".

[26] In our opinion, the averments in Answer 1 are sufficient to give the second respondent a qualifying title and interest to lodge answers in the proceedings. The respondents offer to prove that she is the tenant of the croft, and refer to an extract from the Register of Crofts. As such tenant, she is clearly affected in her use of the croft by the current interim interdict, and would be affected by a perpetual interdict in similar terms. For present purposes we do not consider it necessary for the averments to specify whether the lease is written or oral, whether it contains an express reference to access rights or whether access rights can in some way be implied. The tenant, being affected by the interdict, has title and interest in the proceedings (cf Rankine, Leases (3^rd ed) pages 709-710; Cusine and Paisley, Servitudes and Rights of Way, paragraph 1.51). Furthermore the prayer of the petition expressly invites a "party claiming interest" to enter the process. We do not therefore accept that it was necessary for the second respondent to give any greater specification of her title or interest in the action. Nor do we consider that it would be conducive to the administration of justice to exclude her from the present litigation reserving to her a possible right to raise her own action at some future time in order to resolve matters relating to the access to the croft.

Mrs Livingstone and conversation about rubble

[27] We accept that, on one view, the passage at pages 34E-35E might be regarded as pleading evidence relevant to a conversation, averments about which have been allowed to go to proof (all as set out in paragraph [22] of the Lord Ordinary's opinion). We also note Mr Sandison's concern that the averments and the resulting evidence might be used in some way to support the plea of personal bar. As he pointed out, the alleged incident could be put to Mrs Livingstone in cross‑examination without the averments on record, in order to test her credibility and reliability. Nevertheless we have reached the view that the respondents are entitled to have those averments on record. The averments could be categorised as "background", but they also give the petitioner fair notice of an incident about which evidence is to be led, and questions will be put. If evidence about the conversation is elicited in the course of a proof before answer, there is ample opportunity for both the petitioner and the respondents to make closing submissions concerning the proper use of that evidence.

The 1899 sheriff court case: the repelling of the respondents' fifth plea-in-law

[28] So far as any interrelation between a public right of way and a private servitude right of access over the same route is concerned, we are not persuaded that, when the route ceases to be a public right of way, prior use of that public route (or part of it) automatically, as a proposition in law, gives rise to a private servitude right of access. In our opinion, McRobert and Lord Burton confirm that in certain circumstances, use of a route as a public right of way may co‑exist with use by an individual of a private servitude right of access over all or part of that route: but that does not detract from the basic requirements for the constitution of such a servitude right as detailed in Cusine and Paisley, Servitudes and Rights of Way, Chapter 10. Thus we do not accept as a proposition of law that, where a route was a public right of way for a period, and then ceased to be a public right of way, all or part of it can in law be deemed to constitute a private servitude. On the contrary, the normal requirements outlined above must be established. Thus the fact that the route was, for a time, a public right of way, does not in our opinion assist in the proof of the constitution of a private servitude right of access. Indeed it may hamper such proof (as it would be necessary to establish that the use of the route was attributable to the private rather than the public element of the route).

[29] In our opinion therefore the Lord Ordinary did not err when he deleted the averments at pages 37B-39C (the passage concerning the 1899 litigation, focusing upon the public use of the route from time immemorial). The remaining averments in Answer 6 include the averments at page 39C-D that:

"The use of the said access by the first and second respondents' predecessors in occupation was not occasional or pedestrian only. Such use was reasonably substantial, persistent and constant as hereinbefore condescended upon and as disclosed in the said Notes of Evidence."

Thus the respondents, on the basis of the remaining averments, are entitled to use such evidence from the 1899 action as may clarify and confirm prescriptive possession of a private servitude right of access. That approach was specifically accepted and acknowledged by senior counsel for the petitioner in his submissions.

Averments concerning maps

[30] The averments at pages 14 and 16 of the reclaiming print are as follows:

"The traditional access to the croft has been shown on ordnance survey maps going back to when the croft house was built probably in the late 19^th century ... The said ordnance survey map of 1897 also shows that access to the croft though the Bachuil Lands. Such evidence as there is suggests that the track was never while this route existed up to about the 1920s the principal access route to the croft. This route may have been used by anyone coming from the south, but it was not the main access to the croft and if used was only occasionally used until the route ceased to be used by about the 1920s".

The Lord Ordinary has excluded those averments from probation. We consider that he cannot be criticised for doing so. Lines or markings on maps may give a depiction of what the map-maker considers to be a fence or a gate or a path or a track. However in our opinion they do not show or assist in demonstrating the elements necessary to establish a private right of servitude. Moreover there is the reference to "traditional", which we criticise for the reasons given in paragraph [31] below. In the result we agree with the Lord Ordinary's refusal to remit those passages to probation.

References to "tradition" or "traditional"

[31] Proof of a private right of servitude requires quite specific averments and proof, cf paragraph [28] above. Reference to a tradition, which may include local people's memories or hearsay or anecdotal material passed from person to person, could in our opinion result in wide-ranging, vague and inspecific assertions which would not provide evidence relevant to the constitution of a private right of servitude of access. In Scotland v Wallace 1964 SLT (Sh Ct) 9, the dicta concerning "tradition" came in the context of a public right of way, not in the context of a private servitude right. As a result we agree with the Lord Ordinary's exclusion of the averments concerning "tradition" and traditional".

Pleading in the negative

[32] Senior counsel for the respondents contended that averments of routes not used to reach the croft were relevant. We accept that such an approach may be relevant if there are clear averments that the non-use of certain approaches might give rise to an inference that only one remaining viable approach must have been used. In this case, the respondents make the following averment at page 34B:

"There has been no other usable route since at least the 1920s."

[33] That averment is sufficient, in our opinion, to make relevant other averments about non-use of certain apparent alternative routes. Thus we consider that the averment quoted above, and the passage at pages 13B-14C should be allowed to probation but under deletion of the word "traditional" where it appears before the word "access" at page 13B. The passage at page 14E remains excluded from probation.

Decision

[34] For the reasons given above, we shall recall the interlocutor of the Lord Ordinary dated 12 October 2012 insofar as it (1) refuses to admit to probation the averments at pages 13B-14C of the reclaiming print (pages 11B-12C of the record): thus there is restored to the record the passage beginning "The [delete "traditional"] access to the croft has not been through Ballimackillichan Farm" and ending "Access to the croft was taken through the lands of Bachuil"; (2) refuses to admit to probation the averment at page 34B of the reclaiming print (page 32B of the record): thus there is restored to the record the averment "There has been no other usable route since at least the 1920s"; (3) refuses to admit to probation the passage relating to the conversation involving Mrs Livingstone and rubble at pages 34E‑35E of the reclaiming print (pages 32E‑33E of the record): thus there is restored to the record the passage beginning "Explained and averred that the first respondent did works at Bachuil House for Mrs Livingstone" and ending "It was not until some time after the wedding that Mrs Livingstone first started to claim there was no right of access."; (4) sustains the petitioner's second plea-in-law and repels the answers insofar as stated at the instance of Sarah Campbell: thus the answers insofar as stated at Miss Campbell's instance are not repelled; and (5) awards expenses in the Outer House in favour of the petitioner against her as an assisted person: thus we recall the award of expenses against Miss Campbell. Quoad ultra we adhere to the interlocutor of the Lord Ordinary dated 12 October 2012 and remit the cause to the Lord Ordinary for a proof before answer. Meantime we continue the question of the expenses of the reclaiming motion.