Scottish Sheriff Court Decisions

JOHN CLOY AND and MRS JANICE CLOY v. MESSRS T M ADAMS and THOMAS MURDOCH ADAMS and AGNES JANE ADAMS and COLIN ADAMS [1999] ScotSC 12 (28th April, 1999)

STRANRAER: 20 May 1999

The Sheriff Principal having resumed consideration of the cause refuses the appeal; affirms the interlocutor of the sheriff dated 19 January 1999 of which complaint was made; finds the defenders and appellants liable to the pursuers and respondents in the expenses occasioned by the marking and hearing of the appeal; allows an account thereof to be given in and remits the same when lodged to the Auditor of Court to tax and to report; remits the cause to the sheriff.

NOTE:

The pursuers and respondents own a property which includes a dam. The defenders and appellants have a vehicular servitude right of access over the top of the dam wall. The pursuers aver that if the dam were to be breached their house and its occupants would be in danger. If the breach occurred while a vehicle was being driven over the dam the occupants of the vehicle would also be likely to suffer serious injury or worse. The pursuers have obtained a report from a civil engineer which concludes that if the defenders, who are farmers, continue to exercise their right of access the probability is that the dam will be breached. In these circumstances the pursuers have raised an action in which they seek an interdict preventing the defenders exercising their right of vehicular access. The learned sheriff was moved to grant interim interdict. After visiting the locus at the invitation of the parties he granted the motion. The defenders have appealed. Although formally making avizandum I indicated my decision to the parties at the conclusion of the appeal but said that I would give my reasons in writing.

Mr Forster who appeared for the appellants argued:-

1. The learned sheriff misdirected himself in law in two respects. Firstly he had held that the appellants had to exercise their right of access civiliter. The sheriff had misunderstood the meaning of civiliter which simply meant that the dominant proprietor had to exercise his right in the way least burdensome to the servient proprietor. The respondents averred a nuisance on the part of the appellants not a failure to exercise their right civiliter. The law of nuisance had no application to the exercise of a servitude right. Reference was made to Rankine, Land Ownership 4th Ed at p 417/8; Erskine's Institutes 2:9:34; Cusine and Paisley: Servitudes at 5.14; Gordon: Scottish Land Law at 24.70; Greig v Stroud, unreported, Sheriff Kelbie at Stonehaven on 29 September 1993. Secondly the learned sheriff had misdirected himself in relation to the law of interdict. Interdict is sought or granted to prevent a wrongful act on the part of the person sought to be interdicted. In this case no wrongful act was averred. The appellants were merely seeking to continue exercising their lawful right. A permanent interdict if granted would have the effect of discharging the servitude.

2. The sheriff had misunderstood the material facts. It was the respondents who had created the danger by creating the dam. If the water had been allowed to flow freely through a culvert under the access track, as it had done in the past, there would be no danger.

3. The sheriff in any event had not exercised his discretion correctly. It was not reasonable to grant interdict. The balance of convenience favours the appellants. The respondents should be obliged to open the dam, and strengthen the embankment. In the meantime they should negotiate payment of compensation to the appellants who would in the meantime be obliged to use the alternative means of access.

Mr McAndrew for the respondents argued that the sheriff had reached the right conclusion. There is an alternative route which the appellants can use. He summarised the history of events leading to the grant of interdict. The real dispute was whether it was the age old structure which was weak or whether the danger resulted from the recent alterations. The balance of convenience favoured interdict. In granting interdict the sheriff had exercised his discretion. He had had the benefit of visiting the locus. The appeal court should be very slow to interfere with his decision correctly. A servitude right of access must be used civiliter. That meant that it had to be exercised reasonably. He referred to Lovie v Kirkmires Sand & Gravel Ltd, unreported, Sheriff Principal Ireland, QC, Peterhead, 24 October 1981; British Railways Board v Macbeath, unreported, Sheriff Principal Ireland, QC, Dornoch, 19 March 1990; GWD 13-735; Gale: Easements 16th Ed p 342-344; and White v Richards; (1993) 68 P & CR 105. The appellants if they wish to resume use of the right of access can make the structure safe and then apply to have the interdict lifted. The appeal should be refused.

Dealing with the arguments presented by the appellants it is appreciated that the respondents have averred that the continued use of the access presents a threat to their safety and on that account it constitutes a nuisance. Leaving aside any question of servitude rights if it can be demonstrated that the proprietor of land is using it in such a way as to present a threat of serious injury to a neighbouring tenement and its occupants then his persistence in that use could be termed a nuisance and he could be interdicted. Therefore in the present case if the appellants owned the wall of the dam and had the exclusive right to drive over it if it could be demonstrated that the passage of vehicles involved a foreseeable risk of injury to the respondents interdict prohibiting such use could be applied for and granted. It would be extraordinary if the appellants, not being the owners, but in possession only of a right of passage, were to be immune from interdict and therefore in a more favourable position than an owner with sole right of passage. In my respectful opinion the proprietor of the servitude right can in similar circumstances be interdicted by a neighbouring proprietor. But it is not necessary to pursue that question in the present case. He who possesses a servitude right of access is obliged to exercise that right "civiliter". In Alvis v Harrison 1991 SLT (HL) 64 Lord Jauncey at p 67L interpreted civiliter as meaning "reasonably and in manner least burdensome to the servient tenement". It is not reasonable to persist in a use which involves a serious risk of damage to neighbouring property and personal injury to its occupants. I appreciate, as I must, that whether the use by the appellants involves a danger is a disputed issue of fact. But there is a prima facie case to support the contention of the respondents contained within the reports of an appropriate expert.

If the evidence when led established that continued use of the type previously enjoyed would cause serious danger to people and property then the conclusion must be that it is unreasonable to continue that use and a permanent interdict would be justified. If at the stage of an application for interim interdict there is material before the sheriff which, if established in evidence, would justify the grant of a permanent interdict then the motion may be granted. In this case the learned sheriff visited the site at the invitation of parties. He was therefore as he points out in a unique position to assess the consequences if the respondents' averments about the security of the dam turn out to be well founded.

But then it is argued that before you can have interdict there must be a wrongful act in contemplation, whereas the appellants merely wish to continue acting as they have always done in accordance with the rights granted to them. The fallacy of that argument is this. The continued exercise of a right cannot be justified once it is shown that such exercise is a threat to the legitimate rights of others. It would be an actionable wrong if the exercise was persisted in once the danger it involved was known to or ought to have been known to the person exercising it and damage in fact was occasioned thereby. Interdict is available to prevent the commission of an anticipated wrongful act. The sheriff was satisfied on the basis of the engineer's reports that there was a serious risk of the dam being breached if the defenders persisted in their present use. As a result of his visit he could see for himself what the consequences might be if that occurred. Prima facie The continued use of the right of access was in the opinion of the sheriff wrongful because a foreseeable consequence use was damage to a neighbouring proprietor who happened also to be the owner of the servient tenement which is the dam itself.

Then it was argued that the sheriff misunderstood the facts. Mr Forster's point was that the present unstable condition of the dam and indeed its existence as a dam as opposed to a bridge over an open culvert was entirely due to alterations carried out by the respondents. They had, he said, created the danger and now sought to limit the appellants' use by interdict. Accepting for the sake of argument that the evidence when led will establish the truth of Mr Forster's assertions it respectfully seems to me that although the history of events may well be relevant to a future claim for damages by the appellants as a result of being prevented from exercising their rights it has no relevance to the decision which the sheriff had to make. The sheriff was faced with a stark choice. He either granted the interim interdict sought in order to prevent the prima facie risk of serious damage or he refused to grant an interdict on the basis that there was no such foreseeable risk. The relevant issue for the sheriff was the existence and seriousness of the risk and not the identity of the party responsible for creating it.

Finally it was argued that the sheriff's decision was plainly wrong and that the balance of convenience favoured the refusal of the interdict sought. With respect it seems to me that the sheriff's decision was plainly correct and indeed the only one which he could have arrived at in the circumstances as they were presented to him. The appellants can use an alternative route. Their farming operations can continue perhaps at greater cost and inconvenience. If after evidence is led it is demonstrated that the interdict granted was unnecessary the respondents may be faced with an action for damages for wrongful interdict for he who seeks an interdict does so at his peril.

The appeal therefore will be refused and the sheriff's interlocutor affirmed. Mr Forster conceded that if this were to be the outcome the appellants must bear the expenses of the appeal procedure.