Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 70

XA80/15

Lady Paton

Lord Drummond Young

Lord Malcolm

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in the cause

ASA INTERNATIONAL LIMITED

Pursuers and appellants;

against

(FIRST) KASHMIRI PROPERTIES (IRELAND) LIMITED; and (SECOND) TULI INVESTMENTS

Defenders and respondents:

Act: Sandison QC; Burness Paull LLP

Alt: Thomson; Harper Macleod LLP

23 August 2016

[1]        The appellants and the first respondents are the respective owners and occupiers of neighbouring properties at Nos 6 and 7 Coates Crescent, Edinburgh.  Tuli Investments, the second respondents, is a trading name used by the first respondents and other associated companies.  Coates Crescent is a terraced street forming part of the Western New Town, constructed in the years after 1814.  It runs approximately east and west, with the numbers running from east to west.  

[2]        The appellants’ property at No 6 includes a terraced townhouse, which was converted to office use some years ago, garden ground to the rear of the house and a garage at the rear of the garden ground;  the garage opens on to William Street South East Lane.  William Street South East Lane runs along the back of the properties in Coates Crescent, and several of the houses have access to it.  The Lane leads on to William Street, which has access through the streets at either end, Stafford Street to the east and Walker Street to the west, to Coates Crescent.  Thus Coates Crescent, Walker Street, William Street and Stafford Street form an approximate rectangle, and William Street South East Lane penetrates the rectangle, starting from a point in William Street close to the junction with Walker Street.  

[3]        The garden ground to the rear of No 6 is at basement level.  The garage is at ground level.  The main doors are adjacent to the Lane, and permit vehicles to enter from it.  Access on foot to the back of the garage is available from the garden ground by means of a set of steps which ascend to a door at the back of the garage.  The garden ground behind No 6 is adjacent to a car park at the back of No 7.  The two properties were formerly separated at this point by a fence on top of a retaining wall, and the steps leading from the garden ground in No 6 to the garage are located next to the wall and fence.  At the top of the steps there was a gate in the fence, which led from the steps, and ultimately the garden ground, to the car park behind No 7.  The appellants are also the proprietors of a car parking area and accommodation for cars on William Street South East Lane to the rear of 9 Coates Crescent.  Title to this area was obtained by the appellants’ predecessors in title in 1970.  This area is close to the entrance to the Lane, near the junction of Walker Street and William Street. 

[4]        The respondents’ property at 7 Coates Crescent, like the property at No 6, is a terraced townhouse converted to office use some years ago.  At the rear there is a car parking area at ground level, with access from the house, and the gate referred to in the last paragraph leads to this area.  The car park leads on to William Street South East Lane. 

[5]        A dispute has arisen between the parties as to whether the proprietors of 6 Coates Crescent have a servitude right of pedestrian access over the car parking area at the rear of 7 Coates Crescent, between the gate leading from the steps at the back of No 6 through the car parking area behind No 7 and on to William Street South East Lane.  The appellants have raised proceedings in Edinburgh Sheriff Court to resolve this matter.  In those proceedings they seek a declarator that there exists in favour of the heritable property of 6 Coates Crescent “a servitude right of pedestrian access over the land to the north of the terraced townhouse at 7 Coates Crescent… and that by means of the route marked and coloured red” on a plan annexed as a schedule to the pleadings, or such other route as the court should deem proper.  The declarator that is sought further provides that the first respondents and their successors as heritable proprietors of No 7 are not entitled to build on or over that land, nor to obstruct or occupy the same in any way so as to defeat or impede the use of the servitude right of pedestrian access by the appellants and their successors as heritable proprietors.  Supplementary craves seek interdict against the first and second respondents’ denying the appellants their right of access, whether personally or through others. 

[6]        The history of the parties’ titles, so far as material, is as follows.  The appellants’ predecessors in title, National Mutual Life Assurance Society, obtained title to 6 Coates Crescent and the garden ground and garage at the rear from the Trustees for St George’s West Church by disposition dated 19 March and recorded in the division of the General Register of Sasines for Midlothian on 9 April 1975.  National Mutual disponed the property to the Scottish Provident Institution by disposition dated 30 September and recorded on 4 October 1994, entry being taken on the latter date.  Scottish Provident disponed the property to ASA International Ltd (which is a different company from the appellants) by disposition dated 28 April and recorded on 7 May 1999.  ASA International Ltd disponed the property to the appellants by disposition dated 19 April 2005, entry being taken on 31 March 2005.  National Mutual leased the property at 6 Coates Crescent while it was in their ownership.  From May 1988 their tenant was IMI Computing Ltd.  In 1991 IMI Computing Ltd sublet the upper floors of the building and the garage at the rear to Newell & Budge Ltd.  The lease in favour of Newell & Budge Ltd was extended to include a further part of the property and two of the four car parking spaces behind 9 Coates Crescent.  From 1993 onwards Newell & Budge Ltd were permitted to occupy the remainder of the property under licence.  The car park at the rear of 9 Coates Crescent was acquired by National Mutual in 1970.  It was sold to Scottish Provident Institution in 1994, and has been held on the same title as 6 Coates Crescent since then. 

[7]        The heritable title to 7 Coates Crescent, now the respondents’ property, was acquired by National Mutual in 1989, and National Mutual took entry on 27 September of that year.  As with No 6, National Mutual leased the property to tenants.  National Mutual sold the property in 1996 to a company known as Sologlade Ltd, and thereafter it passed through various hands until it passed to the first respondents in 2002, with entry being taken on 25 June of that year.  It follows from the foregoing history that during the period between 4 October 1989 and 3 October 1996 both properties were in the ownership of National Mutual, although both were leased to tenants.

[8]        The action proceeded to proof before Sheriff Noble, who on 4 June 2015 found in favour of the respondents and granted decree of absolvitor.  The sheriff made detailed and helpful findings in fact.  These include the description of the property found at paragraphs [2]-[4] above and the description of the title as warrants in paragraphs [6] and [7].  The existence of the gate leading from the steps at the back of No 6 to the car parking area behind No 7 was of some importance in the argument presented on behalf of the appellants, and on this matter the Sheriff found as follows.  The gate is shown in architects’ plans in the 1970s and 1980s, before the time when the two properties, Nos 6 and 7, were separated.  The first of these plans, dated 16 December 1974, is by Alistair M Smith & Partners.  The works shown in the plan involve replacement of the existing stone steps leading to the back of the garage with new precast concrete steps.  On the plan, next to the door leading from the top of the steps into the mews garage, appear the words “Access through single garage to street”.  Next to the gate leading to the car park at No 7 appear the words “Access to street level.  William St Lane S.E.”.  The plan was submitted to Edinburgh District Council as part of an application for building warrant, and the warrant in question was granted on 21 March 1975.  The second plan showing the steps is dated April 1987, and was prepared by the Turnbull Jeffrey Partnership.  A building warrant was granted in respect of that plan on 18 September 1987.  This plan does not show any work connected with the steps, but it does instruct pointing and rendering work on the wall.  The steps are clearly shown, together with the gate at the top leading to the car park behind No 7. 

[9]        The sheriff made certain further findings of fact about the use of the property by the appellants’ predecessors and the appellants themselves;  these are as follows.  When National Mutual leased the property at No 6 to IMI Computing Ltd in 1988, Dr Eric Hogg, a director of IMI Computing Ltd was involved in the acquisition of the lease.  IMI Computing Ltd was an IT company.  Dr Hogg had no knowledge of No 6 before that time, and she was shown around the property by letting agents acting on behalf of National Mutual.  He did not recollect being told anything about the gate.  After the lease was entered into in 1988, Dr Hogg used the garage for parking his car.  Because the garage was quite small, he would leave it by way of the front door and enter the garden behind No 6 by means of the gate.  Most employees of the company entered by the front door of No 6, but some would enter by the gate, for example those who had parked their cars to the North of William Street.  Employees would use the gate to visit takeaway food shops in William Street or to go for drinks after work.  The members of staff allocated parking space behind 9 Coates Crescent would enter and leave the place of work through the gate, and some, by virtue of the nature of the work, would require to use their vehicle on a number of occasions in the course of the day. 

[10]      IMI Computing’s successors as tenants were Newell & Budge Ltd, another IT company, headed by Dr Ann Budge.  She was told by Dr Hogg that she could use the gate.  She took over use of the garage and, like Dr Hogg, she used the gate rather than the rear doors of the garage unless the weather was bad.  Four members of staff who had been allocated a space behind 9 Coates Crescent, who included Dr Hogg, also entered by the gate, as did other members of staff in a similar manner to the employees of IMI Computing.  The current managing director of the appellants, Mr Iain Moir, began working at 6 Coates Crescent in 1999;  the appellants are a recruitment agency.  For some years Mr Moir has used the garage to park his car.  The garage now has an electronically operated front door, and Mr Moir keeps the key fob in his vehicle.  He also keeps the key for the rear doors of the garage, although he uses the front door rather than the rear doors for pedestrian egress and access.  Because of the size of the vehicle that he ordinarily uses only one of the rear doors can be opened, but it is still possible to enter and leave the garage at the rear.  The gate is used extensively by members of the appellants’ staff.  At least three of the persons using the allocated parking spaces behind 9 Coates Crescent use their vehicles in the course of the day in addition to getting to and from work. 

[11]      The sheriff made further findings about the use of the gate as part of a fire escape route from the rear of No 6;  nevertheless, counsel for the appellants indicated that he regarded these findings as of less significance.  The appellants rely upon the gate as allegedly being part of a fire escape route from the rear of the house.  Two fire certificates were produced, issued in 1993 by the Lothian and Borders Fire Brigade to IMI Computing Ltd and Newell & Budge Ltd.  The certificates contained Fire Action notices, which specified that those within the building were to leave it and report to an assembly point at the corner of Coates Crescent and Shandwick Place.  Persons leaving the building were instructed to use the nearest available exit. 

[12]      Before we leave the narration of the facts, we should note that the sheriff states in his note (paragraph [8]) that the garage at the rear of No 6 is not very far from the front entrance to the building, even if the long way round via Walker Street or Stafford Street is taken.  The sheriff further records that, although employees used the gate to obtain takeaway food from shops in William Street, there were other takeaway establishments in the vicinity of the front entrance.  Finally, he notes that William Street is not very far from the front entrance in Coates Crescent.  If one heads northwards on Walker Street or Stafford Street from Coates Crescent, one has only a few houses to pass before reaching William Street.  These factors, which were treated by the sheriff in his opinion as material, appear to us to be of considerable importance in deciding whether a servitude should be implied. 

[13]      The legal basis for the appellants’ claim relies on a combination of factors:  first, the physical configuration of the steps and gate leading from the rear garden of No 6 into the car park at No 7;  secondly, the fact that the tenants and sub-tenants of the proprietors had used the steps and gate to obtain access from the rear of No 6 across the car parking area of No 7 since at least 1988, and in particular to access the car park to the rear of No 9;  and thirdly, albeit to a very limited extent, the need for effective fire escapes from the property.  In the light of those factors, it is said that the critical question was whether in all the circumstances a presumption or inference arose that the parties to the 1994 disposition of No 6, whereby National Mutual separated the ownership of No 6 from that of No 7, would have intended that the servitude right contended for was to be an incident of the subjects conveyed.  We intend to discuss the legal principles that are applicable to this issue, both as they appear in the decided cases and as a matter of policy, and thereafter to consider the application of those principles to the facts of the present case, again having regard to the policy that the law has adopted in this area.

The sheriff’s decision
[14]      As we have noted, the sheriff rejected the appellants’ claim that an implied servitude right of access had been created when the properties were divided in 1994.  He considered that the crucial question was whether the alleged servitude was at least reasonably necessary, if not absolutely necessary, for the enjoyment of the property at 6 Coates Crescent.  He answered that question in the negative.  Its use was clearly convenient for a number of purposes, but the evidence did not go beyond that and establish reasonable necessity in relation to any of the individual aspects relied on by the appellants.  The fact that a number of members of staff found it easier to come to work by way of the gate, rather than to the front entrance, did not, he thought, come close to showing reasonable necessity.  Neither did the fact that Mr Moir and others who park their cars in the garage preferred to use the gate rather than the rear doors of the garage.  He noted, as recorded above, that neither the garage nor the car park at the rear of 9 Coates Crescent was far from the front entrance to 6 Coates Crescent, even by way of Walker Street or Stafford Street.  Using the gate might be convenient for a number of purposes, but that did not satisfy the legal test. 

Relevant legal principles
Legal analysis of the issue between the parties
[15]      The present dispute arises out of the division of property.  At an abstract level, the critical question is whether, when a heritable property is divided, conveyance of one part of the property carries an implied grant of a servitude right over the retained part.  (A similar issue can arise in respect of the retained part, whether it contains an implied reservation of a servitude over the part that is alienated, but that does not arise in the present case).  A servitude can be created by a grant or reservation implied from the facts and circumstances surrounding the conveyance dividing the property:  see Cusine and Paisley, Servitudes and Rights of Way (Edinburgh, 1998), paragraph 8.03.  It is the grant or reservation that creates the servitude, the surrounding circumstances are relevant as the basis for inferring that a servitude has been created:  ibid.  In determining whether a servitude has been created in this way, it is the presumed intention of the parties that matters.  That is clearly an objective exercise, the actual intentions of the parties are irrelevant to it.  

[16]      The creation of a servitude by grant implied from circumstances must be distinguished from the creation of a servitude by necessity.  The latter concept applies particularly to landlocked sites, where a right of access is necessary to enable the property to be used at all.  Servitudes by implied grant may exist, however, in circumstances where they are not strictly necessary for the use of the property.

Policy considerations
[17]      The creation of a servitude by implied grant raises a number of important policy questions.  There is a general presumption in favour of the freedom of the servient property:  Cusine and Paisley, op. cit, paragraph 8.02.  We are of opinion, however, that a number of more specific policy considerations apply to implied grant, and that these strongly support the view that in individual cases the law should be slow in recognizing the creation of servitudes in this manner.  First, when property is divided, it is always possible to create servitudes by express grant.  If a servitude right is important, it can generally be expected that the matter will be raised in negotiation and that an appropriate clause will be inserted into the disposition.  The question of an implied grant only arises where no express provision has been made. 

[18]      Secondly, claims for implied rights inevitably involve a degree of uncertainty, and if an expansive approach is taken to the creation of such rights there is a risk that a substantial number of dubious or even extravagant claims may be made.  Thirdly, and more importantly, servitude rights are real rights created over heritable property.  In this area of the law certainty has always been regarded as crucial, because of the perpetual existence of such rights.  Fourthly, perhaps the most important factor is that real rights bind the whole world, and will be binding on any future purchaser of the servient property.  Any such purchaser should be able to discover the existence of real rights easily.  Normally this is achieved by express grant and the recording of the relevant deeds in the Land Register.  Implied rights, however, do not appear in the Land Register.  Thus there are strong policy reasons for restricting the recognition of such rights to cases where their existence is reasonably obvious from the surrounding facts and circumstances.  Cases where the right is reasonably necessary for the enjoyment of the dominant tenement can be said to fall into the latter category. 

Case law on servitudes by grant implied from surrounding circumstances
[19]      The statement of the relevant legal principles that has been cited most frequently in subsequent cases is that of LC Campbell in Ewart v Cochrane, 1861, 23 D (HL) 3, at 4: 

“[W]hen two properties are possessed by the same owner, and there has been a severance made of one part from the other, anything which was used, and was necessary for the comfortable enjoyment of that part of the property which is granted, shall be considered to follow from the grant, if there be the usual words of conveyance.

When I say necessary, I do not mean so essentially necessary that the property could have no value without it; but necessary for its convenient and comfortable enjoyment, as it existed at the time of the grant “.

It can be seen that the test so proposed contained two elements:  first, that the servitude right that is claimed must have been used by the proprietor of the property that is said to have become the dominant tenement, and secondly, that such a servitude right should be necessary for the comfortable enjoyment of the dominant tenement.  The word “necessary” is qualified;  it does not mean absolute necessity, but necessity for what is described as “convenient and comfortable enjoyment”.  It is further presumed that the property is used as it was at the time of the grant.  

[20]      The critical question that arises in the present case is the relationship between the two elements of use and necessity, the latter word being understood in the sense of reasonable necessity for convenient and comfortable enjoyment.  This aspect is important because on the sheriff’s findings in fact there was considerable evidence of use of the route up the steps at the rear of No 6, through the gate and across the car park at the rear of No 7.  In relation to the necessity for a servitude right for the convenient and comfortable enjoyment of No 6, by contrast, the evidence was much less compelling, as the property had its main access at the front, on to Coates Crescent itself, and an access at the rear on to William Street South East Lane through the garage.  On the basis of the formulation used by Lord Campbell in Ewart v Cochrane, which has been followed in a substantial number of subsequent cases, we are of opinion that the elements of use and necessity are intended as cumulative requirements.  If anything it is necessity that is more important, because in some cases, where the two parts of the property that is divided were occupied together, there might be no actual use of the route claimed because another route through the servient part of the property was in fact used.  Nevertheless, in such a case there might be a good argument that a route of some sort was necessary for comfortable enjoyment, in a practical common sense manner, and that the most suitable route was one that had not in fact been used but was still necessary.  We would not wish to pre-empt such an argument.  The critical point is that the element of necessity, in the sense described, appears to us to be essential to the formulation used in Ewart.

[21]      Such an approach is in our opinion strongly supported by the policy considerations discussed in the last section of this opinion.  The law should be relatively slow to recognize real rights that arise by implication, largely for the reason that they are real rights that are permanent and bind successors in title.  The use of a property may not be obvious to a purchaser when he acquires the property, especially if the use is not constant.  The element of necessity for convenient and comfortable enjoyment, by contrast, is a matter that is more obvious, as it is likely to be based on the configuration of the property rather than any particular practice of the occupiers for the time being.  We are accordingly of opinion that, if a servitude is to be created by grant implied from circumstances, it is essential that the servitude claimed should be necessary for the convenient and comfortable enjoyment of the dominant tenement.  The statement of principle in Ewart should be construed accordingly. 

[22]      We were referred to a number of cases decided in the Court of Session subsequently to Ewart v Cochrane, and we will now consider these individually.  We have, however, three general observations to make about these cases.  First, this is an area of law where every case turns on its own facts.  In the words of LJC Moncreiff in McLaren v City of Glasgow Union Railway Co, 1878, 5 R 1042, at 1047,

“This principle, which was given effect to in Cochrane v Ewart…, is in itself undoubted; but it is very enunciation implies a generality which must vary its application, according to the circumstances to which it is to be applied.  It resolves, necessarily, in all cases, into a question of presumed intention, which of course may be inferred or excluded by the nature of the transaction out of which it arises”.

In our opinion the decided cases must be understood in the light of that observation.  Each case must be assessed individually on its particular facts.  In this respect, for example, there may be an important difference between a claim for a wide access route, obviously necessary for the proper enjoyment of the property, and a narrower access route that can never be more than secondary in its importance for the property. 

[23]      Secondly, in assessing individual cases, we consider the policy considerations previously discussed to be important.  In some of the decided cases it may be that the underlying policy of the law has not been kept as clearly in mind as it should be.  Thirdly, in some cases, perhaps in consequence of the last factor, the importance of the test of reasonable necessity for comfortable enjoyment laid down in Ewart v Cochrane appears to us to have been underestimated.  While we entirely accept that use will normally be an important factor in establishing a servitude right by implication from facts and circumstances, we are of opinion that it is the test of reasonable necessity for convenient and comfortable enjoyment that is critical.  

[24]      We consider that this interpretation is consistent with most of the decided cases subsequent to Ewart.  The earliest of the cases to which we were referred was Walton Brothers v Magistrates of Glasgow, 1876, 3 R 1130.  In that case the proprietor of an area of ground in Glasgow sold part of it, the occupants of which had always enjoyed access through the part that was retained.  The access ran from a public street, and at its narrowest was nine feet wide.  It was held that an implied right of access was created.  LP Inglis stated (at 1133): 

“[The defenders] contend that when this portion was sold to a stranger purchaser he was entitled to rely on getting with the ground the existing access.  I think that is a sound proposition.  When a man sells a portion of his ground which has an access through the other portion which he reserves there is an implied grant of that access.  That is the principle of the case of Cochrane v Ewart, and a number of other decisions, and it is consistent with equity and legal principle.  Nothing is better settled than that the conveyance of a piece of property implies a right of access to it.  No one can possess a piece of ground without having a right of ish and entry, and the way that is to be obtained if the conveyance is silent is just the existing way”.

That statement might be taken as consistent with the view that existing use is sufficient to carry an implied servitude right of access, but when the facts of the case are properly understood we do not think that it bears such an interpretation.  The access claimed was through a lane, which appears generally to have been 20 feet wide, running through the middle of an urban block from one street to another.  Thus for practical purposes it was the primary access to the claimed dominant tenement.  The owners of a number of properties in the middle of the block used the lane in both directions.  In these circumstances the argument that such access was necessary for the convenient and comfortable enjoyment of the properties would appear to be fairly strong, although it does not appear to have been discussed to any great extent during the litigation.  Furthermore, the latter part of the quoted passage suggests that the access was treated as necessary for the enjoyment of the property that had been sold. 

[25]      Walton Brothers can be contrasted with the subsequent decision in McLaren v City of Glasgow Union Railway Co, supra.  The background to the latter case was the compulsory acquisition by the defenders of subjects at the back of the pursuer’s property in Glasgow.  The defenders claimed a right of access to the property that they acquired through a pend running through buildings at the front of the property contiguous to the street.  It was held that the sale did not carry the right of access claimed, as access could be obtained from the defenders’ own property.  LJC Moncreiff (at 1047-1048) referred to Cochrane v Ewart as authority for the proposition that “every sale of land implies that all incidental rights are included in the conveyance which are essential to the reasonable enjoyment of the subject of the sale”.  Nevertheless, the principle resolved itself into a question of presumed intention, inferred or excluded by the nature of the transaction out of which it arose.  Two cases were said to be particularly strong for such an inference:  first, where the right claimed “is one of constant necessity to the reasonable enjoyment of the property sold – such as air, light, water, drainage and the like”, as in Cochrane;  and secondly    , “when the subject of the sale is a property originally separate, although afterwards held by the same proprietor;  and where the access claimed is that which was used when the two tenements were held by different proprietors”. 

[26]      Counsel for the appellants placed particular reliance on the latter proposition, as there had been evidence in the present case that the route through the gate and across the car park had been used before National Mutual acquired both No 6 and No 7.  We think, however, that use before the properties were separated is merely one factor, albeit an important one, in the overall exercise of determining whether the servitude right of access that is claimed is reasonably necessary for the convenient and comfortable enjoyment of the dominant tenement.  The existence of another means of access, such as that directly from Coates Crescent, is also an important factor. In the present case, it must be said that the configuration of the building suggests very strongly that the access direct from the street is the main access, rather than the route across the car park at the rear of No 7. 

[27]      It is also significant that in McLaren LJC Moncreiff agreed with the proposition that in general no right of access over the ground of the seller can be held as implied in a contract of sale “unless the importance or necessity of the access be such as, if it were withheld, would have prevented the purchaser from entering into the contract”:  page 1048.  That suggests that the test of necessity for convenient or comfortable enjoyment is a relatively high one.  Of course, as is pointed out in Cusine and Paisley, Servitudes and Rights of Way, at paragraph 8.12, there are limits to how far this test will help, because a reasonable purchaser might be willing to buy the property at a reduced price in view of the lesser access that is available.  Nevertheless, the general indication is that the mere previous use of a particular access route is not enough by itself for a right over that route to be implied in the sale. 

[28]      In Loutitt’s Trustees v Highland Railway Co, 1892, 19 R 791, an action primarily concerned with the application of the actio quanti minoris, an argument was advanced that a disponer must give such accesses to the ground conveyed as were found necessary by the disponee.  Ewart v Cochrane and Walton Brothers were discussed.  The Lord President stated (at 797): 

“Now… all that Cochrane v Ewart laid down was that if a disponee retains the right of access existing at the date of the disposition his right is satisfied”.

Lord Adam stated (at 799)

“The presumption is, that when parties enter into a transaction for the purchase of a piece of ground, they see with their own eyes the advantages and disadvantages which the ground possesses, and if the disposition is silent on the matter of access, and says nothing about increased access, I think the presumption is almost irresistible that the land is sold with the existing access”.

We are of opinion, however, that that passage must be read in context.  In Loutitt’s Trustees the land had an obvious existing access, but the purchasers claimed that they were entitled to access to it at a number of other points, where there had been no history of use.  The proposition advanced by Lord Adam was accordingly intended to reduce the scope of any claim for access.  Cusine and Paisley comment (paragraph 8.17) that only in rare cases may there be sufficient evidence from circumstances surrounding the severance to merit a servitude of greater extent than that demonstrated by the prior use.  Thus in Loutitt’s Trustees prior use of access routes was used to limit the rights of access that had been claimed, not to increase them. 

[29]      Finally, we should note the helpful discussion of this subject in Cusine and Paisley, Servitudes and Rights of Way, chapter 8.  In particular, at paragraph 8.09, the conditions for the creation of a servitude by grant or reservation implied from facts and circumstances are set out, with the qualification that these are not all absolute.  We agree in general terms with the authors’ statement of the law.  This includes the following: 

“(2) The servitude claimed must be reasonably necessary for the comfortable enjoyment of the benefited tenement.…

(4) The servitude must generally have been foreshadowed prior to the severance by some exercise of the activity which is now claimed to be justified in terms of the servitude.…

(6) The terms of the deed effecting the severance of the tenements will require to be examined to ensure that it does not exclude the implication of a grant of reservation of a servitude”.

That passage appears to affirm the view that we have taken as to the statement of the law in Ewart v Cochrane, namely that both prior use and reasonable necessity for comfortable enjoyment are normally required before a servitude right can be implied from facts and circumstances.  That is, as we have indicated, consistent with the policy considerations discussed above. 

Application to the facts
[30]      The crucial facts are set out above.  As we have indicated, the appellants assert that they have a servitude right of access through the gate leading to the car park at the rear of 7 Coates Crescent because of a number of factors:  the physical configuration of the steps and gate leading into the car park;  the use made by the occupiers of No 6 of that route for a significant period, and at least since 1988, before Nos 6 and 7 were separated, an event that occurred in 1994;  and to a limited extent the need for a fire escape from No 6.  The last of these points was not seriously pressed by counsel, in our opinion rightly so.  If there is a serious emergency, such as a fire, the occupants of the building are clearly entitled to leave it by whatever route they can, and the niceties of servitude rights have no application.  Furthermore, egress from the back of the property is available through the garage. 

[31]      The strongest argument for the implied grant of a servitude right of access through the gate and across the car park arises from the physical configuration of the property, at least as it existed at the time of the division of Nos 6 and 7 in 1994, and the evidence of substantial use of that route.  The steps within the garden at the rear of No 6 obviously provided access to the garage, but the existence of a gate at the top of the steps, leading straight to the car park at the rear of No 7, indicates that a route was available linking No 6 with William Street South East Lane via the car park.  That obviously creates the possibility of access by that route.  That evidence is strengthened by the evidence of use of the route.  Nevertheless, it must be said that such use was not continuous, but involved relatively small numbers of people going to and from their cars, or on occasion visiting shops and other establishments in William Street or streets to the north of William Street.  Furthermore, it seems clear from the sheriff’s findings in fact and note that the main entrance to No 6 was through the front door from Coates Crescent.  Thus what was involved was very much a secondary access route.  That inevitably detracts to some extent from the force of this evidence. 

[32]      The main difficulty for the appellants’ argument arises out of the test of reasonable necessity for convenient or comfortable enjoyment.  The sheriff, with the agreement of parties, identified this as being the critical question:  paragraph [8] of his note.  In our opinion the evidence falls well short of satisfying this test.  First, it is significant that the main entrance to No 6 is the entrance at the front, from Coates Crescent;  that is an entrance, of a sort typical in the New Town, through a large door entering straight off a major street by way of steps and a plat.  Secondly, the block behind Coates Crescent in which Nos 6 and 7 are situated is not very large, and as the sheriff indicates it is relatively easy to access the car park at the rear of No 9 and indeed the garage at the rear of No 6 by way of Walker Street, on the west side of the block, and then through the entrance to William Street South East Lane, which is only a short distance along William Street.  The car park at the back of No 9 is only a short distance from the junction of William Street and Walker Street, and overall the distances involved are fairly small.  We think that this is an important consideration, because access to the car parking at the back of Coates Crescent is very straightforward even through the front door of No 6. 

[33]      Thirdly, access to the Lane at the rear of 6 Coates Crescent is available through the garage.  It may be that, with a vehicle parked in the garage, it is somewhat difficult to make use of that route, but the route is there.  Fourthly, some reliance was placed on the use of the route through the gate and across the car park at the rear of No 7 to access shops and the like in William Street and streets to the north.  Access to those shops, however, is very easy by going round the block, along either Walker Street or Stafford Street. 

[34]      In the foregoing circumstances we are of opinion that it cannot be said that access through the gate and across the car park at the back of No 7 is reasonably necessary for the convenient and comfortable enjoyment of No 6.  The test of reasonable necessity simply fails;  convenient alternatives are available.  No doubt there was substantial use of the route in question, but as we have indicated that is not enough:  the test laid down in Ewart v Cochrane requires not merely such use but also that the access route is reasonably necessary for convenient and comfortable enjoyment. 

[35]      Finally, counsel for the appellants submitted that if Nos 6 and 7 Coates Crescent had not been in the same ownership, that of National Mutual, between 1989 and 1996, prescription would have operated to create a right of access through the gate and over the car park.  On that basis, it was said, the court should look favourably on the creation of a servitude right by implication from facts and circumstances.  Clearly prescription did not operate, and indeed could not have operated because of the period of common ownership of the two properties.  To that extent this submission is speculative.  Indeed, had the properties been separately owned between 1989 and 1996 it is not impossible that the owner of No 7 would have taken steps to prevent such use, as ultimately happened between the present parties:  the respondents eventually built a wall to prevent the use of the car park by the appellants and their employees.  It is enough, however, to say that prescription did not operate, and the court must apply the law relating to implied servitudes on the evidence available.  In our opinion the argument based on the existence of an implied servitude must fail. 

[36]      We will accordingly refuse the appeal and adhere to the sheriff’s interlocutors assoilzieing the respondents from the craves of the initial writ.