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Cite as: [2003] ScotSC 33

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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT INVERNESS

A593/99

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		TOR MACLAREN WEBSTER
		Pursuer and Respondent
		against
		DIANE PATRICIA CHADBURN
		First Defender and Appellant and IAN CHARLES CHADBURN Second Defender and Appellant

Act: Mr I F Maclean, advocate, instructed by Dundas and Wilson, Edinburgh

Alt: Mr R D Sutherland, advocate, instructed by Anderson Shaw & Gilbert, Inverness

Inverness: 9^th May 2003

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 9^th December 2002; sanctions the employment by both parties of junior counsel for the purposes of the appeal; finds the defenders liable to the pursuer in the expenses of the appeal and allows an account thereof to be given in and remits the same to the auditor of court to tax and to report; quoad ultra remits to the sheriff to proceed as accords.

Note

In this case the current pursuer and respondent is the sole surviving trustee of a trust fund, the assets of which include the lands and estate of Kinrara. These lie broadly to the east and south east of the old A9 public road (now the B9512) between Kingussie and Aviemore. The entrance drive to the estate leads off this road more or less at right angles to it. At that point the main railway line between Perth and Inverness runs approximately parallel to the road at a distance of some 50 metres from it. Between the road and the railway there is a small area of ground, just over half an acre in extent, upon which are situated two semi-detached cottages. These were built at the end of the 19th century to house railway workers. This area of ground, which is about 50 metres square and which I shall call "the cottages", is bounded on the north east by the estate drive, on the south east by the railway, on the south west by the estate and on the north west by the line of the old public road. The cottages now belong to the first defender and appellant, having been disponed to her in 1997. Her husband is the second defender and appellant.

The action was originally raised by Stephen Ernest Scammell who at that time was himself the sole surviving trustee of the trust fund in question. He died on 28^th November 2001, having assumed the current pursuer as a trustee on the previous day. By that stage the sheriff had taken the cause to avizandum. A minute of sist was thereafter lodged in terms of which the current pursuer sought to be sisted as pursuer in the action in room and in place of Mr Scammell. This the sheriff allowed, and no issue arises in the appeal about this aspect of the matter.

In terms of the first crave Mr Scammell sought to have the defenders themselves and all others acting under their authority, on their behalf or on their instructions, their agents, contractors and employees employed, instructed or invited by either of them from taking access by driving any vehicle to the cottages over or through any part of the estate drive. In response the defenders pleaded inter alia that they had acquired by prescription the right to pedestrian and vehicular access to the cottages across the estate drive, and so should be assoilzied. After proof, the sheriff by interlocutor dated 9^th December 2002 granted interdict as craved. Against this interlocutor the defenders have now appealed, and in their note of appeal as amended they maintain that the sheriff erred in law in not finding that a servitude right of user had been established in their favour by prescription and that on the basis of the facts as found by him the sheriff ought to have found that for the purposes of establishing a servitude right of access by prescription there had been peaceable possession exercised as of right for the prescriptive period.

In his interlocutor the sheriff made a total of thirty four findings in fact. At the appeal counsel for both the defenders and the pursuer indicated that they were content to accept these findings in fact, and neither proposed that any amendment or addition should be made to them. So far as material to the appeal, they were to the following effect. Mr Scammell, the original pursuer in the action, was aged 89 when he gave evidence on 5^th June 2001. At that time he was a land agent, retired from general practice, but continuing to factor, inter alia, the estate at Kinrara. The trust fund of which he was then the sole surviving trustee was constituted by a deed of settlement which was executed in 1965 in favour of Mr Scammell and his wife (who died in 1985). The lands and estate of Kinrara were disponed to the trust fund by a disposition dated 1^st December 1974. In terms of this disposition the date of entry was 14^th August 1972. Mr Scammell had been a regular visitor to the estate from 1947 onwards, and he took occupation of it as the owner in trust at or around the date of entry. Thereafter he visited the estate three or four times a year, a fortnight at a time, primarily for business purposes as the factor thereof.

As already indicated, the estate is situated between Kingussie and Aviemore. To the south there is a hotel which was formerly known as the Lynwilg Hotel. Before 1980 the estate drive led directly onto the old A9 road. But at about that time a new A9 road was constructed elsewhere and the previous A9 was re-aligned and became the B9512 road. As so re-aligned, this road still leads directly into the estate drive, but with a reshaped entrance, and to the south of this the edge of the road is no longer contiguous with the estate boundary, but is generally to the west of it.

By a disposition dated 20^th August 1970 the then British Railways Board conveyed the cottages to Mr William Kennedy Fotheringham, Writer to the Signet. The date of entry was 8^th June 1967. Prior to 1970 the ground occupied by the cottages was enclosed by fences on all four sides. Access thereto was pedestrian only, taken by a wicket gate, about three feet wide, in the fence between the north west boundary of the property and the old A9 public road. In 1970 this fence was damaged in a road accident. It was replaced, but without any gate, so that entry to the cottages thereafter could only be achieved by climbing over the fence.

Also in 1970, builders employed by Mr Fotheringham removed a length of the boundary fence along the boundary of the cottages beside the estate drive from the strainer post at the corner of the drive and the old A9. The resulting gap was sufficiently wide to admit a lorry which the builders used to gain access to the cottages. The section of fence thus removed was never replaced nor repaired, and the gap remained and by an indeterminate amount was widened. Thereafter, for some weeks each winter a local farmer closed the gap with two hurdles when driving sheep. No objection was made to the farmer in respect of this activity.

Mr Fotheringham owned the Lynwilg Hotel between 1964 and 1973. He visited it from time to time thereafter. The hotel is situated no more than half a mile from the estate drive. Between about 1972 and 1976 an employee at the hotel, Mrs Caird, lived in the cottages, as did another employee. She travelled to the cottages continuously day by day, and entertained friends therein. No objection was intimated to her.

Mr and Mrs Brown bought the hotel from Mr Fotheringham with entry at Easter 1973, and they remained the owners and occupiers of the hotel until Easter 1977. During the period of their occupation they leased the cottages from Mr Fotheringham. During these four years the cottages were occupied primarily by staff at the hotel, and from time to time in the winter months by Mr and Mrs Brown. During these years they and their staff drove cars between the hotel and the cottages, entering and exiting the cottages by the gap in the fence parallel to the estate drive. No objections to such use were intimated to Mr and Mrs Brown or to any of their employees. The use of the gap by their cars was open, regular, and natural, and could be observed by anyone present and able so to observe.

Mr and Mrs Barnett bought the hotel from a Mr Brooke with entry as at October 1977. They sold the hotel in March 1982. During their period of ownership they leased the cottages from Mr Fotheringham, and these were occupied almost entirely by their staff. After March 1982,
Mr and Mrs Barnett continued to lease the cottages from Mr Fotheringham until 1994, and they then occupied them effectively as holiday home, mainly in the summer months, sometimes in the winter, and almost entirely at weekends. During the period of their occupation they and their staff drove cars between the hotel and the cottages, entering and exiting them by the same gap in the fence parallel to the estate drive. No objection to the use of the gap was intimated to Mr and Mrs Barnett or to any of their employees. The use of the gap by their cars was open, regular, and natural and could be observed by anyone present and able so to observe.

Between 1972 and 1994 therefore motor vehicles used by the owners and staff of the hotel were driven through the gap in the fence at the cottages beside the estate drive. To go through that gap these vehicles required to travel over part of the estate drive, and the verge or embankment adjacent thereto, all belonging at that time to Mr Scammell in his capacity as trustee or to his predecessors in title. This use was open and without judicial interruption.

Prior to their being occupied by his tenants, and after purchasing the cottages,
Mr Fotheringham had instructed their repair and refurbishment. On 7^th April 1973
Mr Scammell wrote to Mr Fotheringham at the hotel inquiring whether he was aware that his builder when renovating the cottages appeared to have committed a trespass on the estate drive to gain access for his lorry, taking down a section of the fence which he did not then put up again. The letter ended: "I would be obliged if this could now be done". Mr Scammell received no reply to this letter, but he then telephoned Mr Fotheringham who agreed to repair the fence. In the event this was not done.

In or around the year 1981 Mr Scammell, after consultation with his solicitors, wrote out a note and pinned it to a door of the cottages. The note observed that Mr Scammell had seen a car parked at the cottages on occasions having obviously gone through a gap in the fence. It also stated that Mr Scammell had asked Mr Fotheringham, not for the first time, to put up the agreed wicket gate and to repair the fence. It concluded with an offer to arrange parking elsewhere, if there was difficulty. The response was a telephone call of thanks from an occupier of the cottages.

On 10^th January 1981 Mr Scammell wrote to Mr Fotheringham at the hotel. The letter was concerned with the omission, as Mr Scammell saw it, of any access to the cottages as a result of the re-alignment of the road. Mr Scammell offered an easement over a yard or two of the estate drive for a pedestrian right of way to a new wicket gate to be constructed at a point in the fence around the cottages where the estate drive met the public road. No reply was received to this letter. Mr Scammell followed it up with a further letter to Mr Fotheringham at the hotel dated 17^th May 1982. He referred to his earlier letter and asked Mr Fotheringham without further delay to put up the wicket gate and make good the fence. He said that this was not only to improve the appearance but also because it was not fair to the farmer that he should have the trouble of closing the gap each year with hurdles. He added that the gate should adjoin the corner post (at the junction of the estate drive and the public road).

In 1996 Mr Fotheringham communicated with Mr Scammell and offered to sell him the cottages including the surrounding half acre or so of ground. Mr Scammell made an offer to buy these, but Mr Fotheringham rejected the price offered. On 9^th May 1996 Mr Scammell wrote to Mr Fotheringham at his address in Edinburgh commenting that his previous offer had been a fair one, bearing in mind that there could be no vehicular access. At the same time he increased his offer by £1,000, but this was rejected without comment or qualification.

By a disposition dated 22^nd October 1997 Mr Fotheringham sold the cottages to the first defender. Included in the subjects of sale were "a heritable and irredeemable servitude right of access for pedestrian and vehicular purposes over the area shown coloured pink on the plan annexed and subscribed as relative hereto". In point of fact the area coloured pink was no more than a small segment of ground at the corner of, but within, the subjects which were in any event disponed by Mr Fotheringham to the first defender. In other words, to put the matter bluntly, the conveyance of this right of access was not worth the paper it was written on.

On the same day, namely 22^nd October 1997, that he signed the disposition in favour of the first defender, Mr Fotheringham swore an affidavit in which he designed himself as a Writer to the Signet. With reference to the sale of the cottages to the first defender, he stated that they had access from the adjoining public road over part of the private drive shown red on an annexed plan, and he declared that these access rights had been enjoyed by him as heritable proprietor of the cottages for the period from 11^th September 1970 until 24^th(sic) October 1997 for both pedestrian and vehicular traffic peaceably and openly by him as heritable proprietor without challenge by any third party. Once again, the small area of ground shown red on the plan formed part of the subjects which Mr Fotheringham was in any event conveying to the first defender with the result that the affidavit too was not worth the paper it was written on.

The sheriff made a single finding in law that the existence of a positive servitude right of vehicular access was not established in terms of section 3(2) of the Prescription and Limitation (Scotland) Act 1973. Section 3(2) provides: "If a positive servitude over land has been possessed for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the servitude as so possessed shall be exempt from challenge". In terms of section 15(1) of the Act the expression "possession" includes civil possession, and "possessed" is to be construed accordingly.

It was common ground at the appeal (a) that, in order to establish the existence of a positive servitude right of vehicular access to the cottages across the estate drive, it had to be shown that the vehicular access which had been had to the cottages over the drive during the period from 1970 onwards had been as of right, and further (b) that the onus was on the defenders to prove this. At the end of the day this was the single, overriding issue which divided the parties at the appeal. Counsel for the defenders maintained in short that, on the facts found by him, the sheriff ought to have found that the vehicular access across the estate drive had been had as of right, whereas counsel for the pursuer contended that the sheriff had been right to find that this had not been proved.

The sheriff dealt with this issue at pages 32/3 of his note where, after considering whether or not there had been peaceable possession of the access over the estate drive (which issue by the conclusion of the appeal appeared to have been subsumed into the issue whether or not the access had been as of right), he wrote:

Considering peaceable possession, however, leads inevitably to the right of possession. It is well established that possession must be the assertion of right not tolerance or permission. The point is clearly set out in McGregor .....:-

"Open unqualified user in ordinary course may well be deemed to be in fact adverse user as of right, when no more appears; but if the evidence suggests that it was after all due to tacit permission, the question must then be whether the user does, upon the whole case, establish the growing acquisition of a servitude right".

In this case, Mr Fotheringham, through his builder, broke the fence, to establish what came to be a feasible, though not natural, means of vehicular entry and exit. He made no assertion of right, either at his own instance, or in response to
(Mr Scammell). He maintained in his disposition to the first defender, and in his affidavit, a servitude right, not over property of (Mr Scammell), but over his own property. None of those elements point to user as of right.

The tenants of Mr Fotheringham used vehicular access continuously. Undoubtedly all used in good faith. None spoke of a right or anything resembling it having been granted, or having been granted purportedly. The first defender was asked in cross at 364 about her understanding concerning access. Her reply was that we didn't have any, we just assumed that was how it should be, there was never a problem, we just drove in, no problem.

(Mr Scammell) made sporadic and infrequent efforts to complain that there was a broken fence, needing mending, and pedestrian access only, that is the inference from his letters as a whole, his understanding of the extent of vehicular access was of much less usage, and in that he was mistaken. He took no steps in court till the action in 1999.

The matter is not crystal clear, the position of (Mr Scammell) and his actings not being of the strongest, but the source of the right, Mr Fotheringham, from all the evidence related to him shows no basis for a right to develop into a servitude and that is an essential pre-requisite. Though there is no reference to the matter in the process or the shorthand notes, it is my understanding that Mr Fotheringham is deceased.

The defenders assert a right, which the pursuer rejects. The pursuer should be granted an interdict as the assertion of prescription is not based on right .....

The law on this issue is conveniently summarised in a number of passages in two leading cases to which I was referred, namely Duke of Athole v McInroy's Trustees 1890 17R 456 (which is reported in the House of Lords as McInroy v Duke of Athole 1891 18R (HL) 46) and McGregor v Crieff Co-operative Society Limited 1915 SC (HL) 93.

In McInroy a mountain path through the Cromalton Pass formed a convenient short-cut from one part of the estate of Lude to another through a projecting tongue of the Duke of Athole's estate. The path was used by the proprietors of the Lude estate as the means of going from the one part of the estate to the other when deerstalking in autumn. On appeal, reversing the judgement of the Lord Ordinary, the Second Division held that the use of the path proved was not sufficient to show that it had been in the assertion of a right and therefore that the proprietors of the Lude estate had failed to instruct the existence of a servitude right of way over the path. At page 463 the Lord Justice Clerk observed:

But the character of the possession as being in the exercise of right must be proved by the litigant asserting the claim of the alleged dominant tenement, whatever be the locality. It is for him to prove, and to prove conclusively, that what was done was in the assertion of a right, and so done as to bring the assertion of the right home to the proprietor of the tenement which is said to be servient. In my opinion the respondents have failed to prove that they have used this path in the exercise of a right .....

The judgement of the Second Division was affirmed in the House of Lords. At page 48 Lord Watson stated:

I do not doubt that, in order to found a prescriptive right of servitude according to Scots law, acts of possession must be overt, in the sense that they must in themselves be of such a character or be done in such circumstances as to indicate unequivocally to the proprietor of the servient tenement the fact that a right is asserted, and the nature of the right.

At a later stage in his judgement Lord Watson referred to two incidents which in his opinion had a significant bearing on the case. In the first of these the then Duke of Athole saw the proprietor of the Lude estate and his keeper walking along the path in question. The Duke gave orders to his head keeper to turn back the intruders, and this they duly did. Of this incident, Lord Watson observed at page 50:

Persistent use in the face of challenge is a clear assertion of right; but I can find no grounds for supposing that Mr McInroy, either previously or subsequently, used the track or the pass in such a way as to indicate that he was asserting a right. If that be so - and in my opinion it was so - the conduct of Mr McInroy was well calculated to assure his Grace of Athole that he was making no pretension to a right of way through the Cromalton Pass.

In the second incident the Duke, having observed traces of a party having passed along the path with a horse, wrote to the head keeper of the Lude estate stating his belief that the party must have come from that estate and intimating that the keepers and others from the estate must understand that they were trespassing when they went along the path. Of this incident Lord Watson stated, again at page 50:

Whatever may have been the instructions given by Mr McInroy to his keeper, it is certain that he neither answered the (Duke's) letter himself nor directed his keeper to do so, and that no answer was sent.

I cannot understand why no answer was sent to the (Duke's) communication, and the appellants' counsel made no attempt to explain it. Going through the pass next week was no answer, unless there was someone there to see on the (Duke's) behalf. The terms of the communication implied that the writer was unaware of there having been any previous use of the pass, and unless he came to know of its being used subsequently by the Lude people, the silence of (the head keeper) and his master would naturally be construed as an admission of trespass. I entertain no doubt that it was so construed, and that the (Duke) was unaware of the continuance of the use for five years afterwards.

In these circumstances I have no difficulty in coming to the conclusion that there has not been an open and unequivocal assertion of the rights which the appellants claim, such as the law requires in order to the constitution of a servitude of way ......

In McGregor the pursuers sought to establish a servitude of way by prescription along a passage leading from a street in Crieff. Continuous and uninterrupted user as of right was established over a period of thirty eight years, and the principal point at issue in the case came to be whether there was sufficient evidence to establish the necessary user for the remaining two years of what was then the prescriptive period of forty years. But in the House of Lords both Lord Dunedin and Lord Sumner had some observations on the meaning of the expression "user as of right". At pages 103/4 Lord Dunedin stated:

So much for the period. Now as to the character of the use. The expression hitherto used has invariably been that it must be "as of right". Sometimes it is put negatively, that it must not be clam vi aut precario. And here, I really do deprecate the observation made by Lord Skerrington (when the case had been before the First Division), that the expression "as of right" is misleading, and that the true question is whether the use "was by tolerance - that is, by permission - or whether it was without permission". With great deference, I think his substituted phrase is apt to be misleading - so apt that if a jury were charged in those words alone, without further explanation, that "by permission" includes tacit permission and "without permission" means an assertion of right, I would not hesitate, on exception taken, to grant a new trial. Take the countless cases where persons are allowed by a proprietor to use his avenue or his paths. These persons go there knowing full well that they are tolerated, but probably not one out of twenty has had an interview with the proprietor, or received a letter from him in which permission to go was accorded. I do not say that, strictly considered, Lord Skerrington's proposition is wrong; but I do say it is couched in language very apt to mislead. The expression "as of right", on the other hand, has as he observes, been widely used in cases of this kind. It will be found used by several learned Judges in the cases already cited. It is true that these were cases of public rights of way, not of servitude. In the question of the character of the use, I do not think that makes any difference, except that in the one case it is the public, in the other it is the owner of the dominant tenement, that asserts his right.

Lord Dunedin proceeded to cite with approval the passage from the judgement of Lord Watson in McInroy at page 48 which I have quoted at paragraph [23] above. Subsequently, at pages 107/8, Lord Sumner commented upon Lord Skerrington's proposition and opined that it should be received with caution. He continued:

If, "without permission", used in antithesis to "by permission", means in disregard or defiance of the want of permission, it may be right, but I do not see in that case why "as of right" is wrong. If the party entering virtually says to the owner of the property entered, "Here I am and here I stay; I do not care whether you permit me or not", and he is neither ejected nor proceeded against, I think his user may be said to be "as of right". But it would bear hardly on good relations between proprietors and their neighbours, if Lord Skerrington's proposition held good as it stands. There is much enjoyment of access, without leave ever asked or given, which on both sides is truly tolerance. He, who uses, knows and accepts that his enjoyment is nonetheless permission though no one ever says him nay; he, who permits, means, and is known to mean, no more than the goodnatured extension of his own amenities to his friends, but always on the common understanding that it is to cost him nothing. It would be strange if, long afterwards, in a question of the acquisition of a prescriptive servitude right, this friendly commerce should be treated as an assertion and inchoate establishment of a right, merely because to the question "Where was the permission?" the only possible answer must be that no proof of any is forthcoming. Open unqualified user in ordinary course may well be deemed to be in fact adverse user as of right, when no more appears; but if the evidence suggests that it was after all due to tacit permission, the question must then be whether the user does, upon the whole case, establish the growing acquisition of a servitude right.

It will be observed that, on the question of the character of the use, Lord Dunedin made no distinction between cases in which a public right of way was sought to be established and those in which a servitude was sought to be established. As he put it, "...... in the one case it is the public, in the other it is the owner of the dominant tenement, that asserts his right". With these observations in mind it is perhaps helpful to consider what was said by Lord Jauncey of Tullichettle in Cumbernauld and Kilsyth District Council v Dollar Land Limited 1993 SC (HL) 44. In that case the pursuers sought a declarator that a public right of way existed over a walkway through Cumbernauld town centre. In the House of Lords Lord Jauncey referred to the judgement of the Lord President (Hope) in the First Division and stated (at page 47):

Lord President Hope said: "...... where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right". This proposition was entirely in line with the following dictum of Lord President Normand in Marquis of Bute v McKirdy & McMillan Limited (1937 SC 93), at pp. 119-120: "The question is rather whether, having regard to the sparseness or density of the population, the user over the prescriptive period was in degree and quality such as might have been expected if the road had been an undisputed right of way. If the public user is of that degree and quality, the proprietor, who fails for the prescriptive period to assert or put on record his right to exclude the public, must be taken to have remained inactive, not from tolerance, but because the public right could not have been successfully disputed or because he acquiesced in it." I have no doubt that these dicta correctly state the law of Scotland.

Counsel for the defenders submitted that on the basis of the facts as found by the sheriff there had been possession of the access exercised from an uncertain date in either 1972 or 1973 so that by 1994 the twenty year prescriptive period had been completed. Accordingly where the sheriff spoke about the actings of Mr Fotheringham in 1996, these matters were of no relevance. If the conditions set out in section 3(2) of the 1973 Act had been satisfied for a period of twenty years, then the existence of the servitude as possessed was automatically exempt from challenge. In the present case the defenders relied on the possession which had been taken by the tenants of Mr Fotheringham and their employees. It was quite clear that no consent had been given by Mr Scammell expressly, and there had been no evidence of tolerance or permission on his part. The sheriff's findings in fact demonstrated that there had been nothing more than sporadic and infrequent efforts by him to complain about the broken fence and to assert that there was a pedestrian access only to the cottages. He had stated that he had taken certain advice and had thought that the limited objections which he had made were enough to stop a servitude right being acquired by prescription. But in this he was, so it was submitted, wrong. Mr Fotheringham had been aware of Mr Scammell's complaints and yet had continued to let the cottages out to various tenants who had continued to take vehicular access thereto across the estate drive over the period of twenty years in question. If it was necessary to consider the point at all, it was to be implied in terms of the leases which Mr Fotheringham had granted to these tenants that they were to have a right of vehicular access to the cottages over the estate drive. Referring to the case of Stevenson v Donaldson 1935 SC 551, counsel submitted that this was authority for the proposition that, where the occupier of the servient tenement was a tenant, the actions of this tenant could not interrupt the running of prescription unless done on the authority of the owner of that tenement. But it did not follow that the reverse was true as well. The sheriff had erred in law in the proper application of the relevant legal principles to the facts as found by him and accordingly the interdict pronounced by him should be recalled, the defenders' third plea-in-law (which was to the effect that, having acquired by prescription the right to pedestrian and vehicular access across the estate drive, the defenders should be assoilzied) sustained and decree of absolvitor pronounced with the pursuer being found liable to the defenders in the whole expenses of the cause including the appeal.

In response, counsel for the pursuer submitted that I should adhere to the sheriff's interlocutor and refuse the appeal. By the conclusion of the proof the defenders' sole line of defence had been that a servitude right of vehicular access across the estate drive had been established by possession for a period of twenty years from either 1972 or 1973. Counsel submitted that the defenders' proof had been inadequate to instruct this defence as there had been no evidence adduced that the acts of possession founded on by the defenders had been as of right in the sense of an assertion of right by or on behalf of the proprietor of the dominant tenement. The defenders here had been in error in concentrating exclusively on the actings of Mr Scammell, in particular in seeking to interrupt or dispute the taking of vehicular access, while neglecting to adduce evidence as to how it was that the proprietor of the would-be dominant tenement, namely the cottages, had asserted that this taking of access had been as of right. In the present case Mr Fotheringham throughout the whole prescriptive period of twenty years had done nothing by his actions to bring to the attention of Mr Scammell that he, Mr Fotheringham, had been asserting a right to vehicular access over the estate drive to the cottages. Referring to the submission of counsel for the defenders to the effect that the actings of Mr Fotheringham after 1994 were irrelevant, counsel for the pursuer submitted that, in the absence of Mr Fotheringham himself, evidence of what he had done after 1994 could be relevant in that it might shed light on the question whether or not during the course of the prescriptive period he had considered himself to be asserting a servitude right of vehicular access across the estate drive to the cottages. Mr Scammell's having written to Mr Fotheringham on 9^th May 1996 pointing out that the price which he had offered for the cottages had been a fair one, bearing in mind that there could be no vehicular access, had been a perfect opportunity for Mr Fotheringham to respond to the effect that he had been asserting a right of vehicular access over the prescriptive period and hence already had such a right. But he had not done this. It was accepted that, where there had been no indication of the position of the owner of the would-be servient tenement, so that there was nothing for the court to go on but the fact of use, then the volume of possession might in certain circumstances drive the court to the conclusion that this possession had been adverse and as of right. But that was not the position in this case. On the contrary, Mr Scammell had clearly indicated his position to Mr Fotheringham. As for the latter's tenants and their employees, there had been no evidence of the spirit in which they had taken vehicular access to the cottages and no evidence that any lease which had been granted by Mr Fotheringham had contained a grant of a vehicular right of access to the cottages. Nor had there been any evidence to indicate that any vehicular access which had been taken by these tenants and employees had been approved or authorised by Mr Fotheringham. It would have been a different matter if he had been asserting a right to take vehicular access across the estate drive and had instructed or authorised the tenants and their employees that they might take such access. In such a situation he or his singular successors might found upon their actings to establish the existence of the servitude right of access. But where the proprietor of the dominant tenement was not asserting such a right, the actings of his tenants could not supply the missing state of mind. In any event, there had been no evidence that any of the witnesses in this case had taken access with the intention of asserting a right against Mr Scammell. Accordingly the defenders had failed to demonstrate any flaw in the judgement of the sheriff, either by way of misdirection as to the relevant law or as to its application to the facts as found by him, which would vitiate it and justify its being overturned on appeal.

In addition to the authorities which I have already mentioned, counsel referred in the course of the discussion to Grierson v School Board of Sandsting and Aithsting 1882 9R 437, McNab v Munro Ferguson 1890 17R 397, Carstairs v Spence 1924 SC 380, Trotter v Earl of Marchmont 1736 1 Paton 186, Burt v Barclay 1861 24D 218, Hamilton v McIntosh Donald Limited 1994 SC 304, Douglas v Crossflags (Motors) Limited (Dumfries, 24^th April 1989 - unreported), Clerk v Earl of Home 1747 Kilkerran's Reports 11, Johnston: Prescription and Limitation, paragraph 17.05 and Cusine and Paisley: Servitudes and Rights of Way, paragraphs 10.15 and 10.19.

In my opinion the submissions for the pursuer are to be preferred. For present purposes it seems to me that the starting point for consideration of the question whether the vehicular access taken to the cottages across the estate drive was as of right must be the year 1970. Before then the access to the cottages had been pedestrian only and taken by the wicket gate in the fence between the cottages and the old A9 road. In 1970 this fence was damaged in a road accident, and was replaced, but without the gate, so that entry to the cottages could be had only by climbing over a fence. In the same year builders employed by Mr Fotheringham (who had in that year acquired title to the cottages with a date of entry of 8^th June 1967) removed a length of the fence beside the estate drive from the strainer post at the corner where the drive met the old A9 road. The resulting gap was sufficiently wide to admit a lorry, and the builders used the gap to gain access to the cottages. The section of fence thus removed was never replaced or repaired, and the gap remained thereafter. The sheriff found that Mr Fotheringham had instructed the repair and refurbishment of the cottages at some time before 1972, but otherwise there is nothing in the findings (beyond the fact that he must have known that until 1970 there had been pedestrian access only to the cottages) to indicate what was in his mind, when he instructed these works, about how the builders were to gain access to the cottages. Thus there is, for example, no finding that he told the builders to remove the length of fence or that they might drive a vehicle across the estate drive through the resulting gap to the cottages. As for the builders themselves, there is again no finding as to their state of mind in regard to the means by which they could or should take access to the cottages.

At this point in time Mr Scammell, although a regular visitor to the estate, had still to take occupation of it as the owner in trust. It was still in the ownership of his predecessors in title, and there is no finding as to their attitude towards the activities of Mr Fotheringham's builders, if indeed they were aware of these activities. But what is known is that, following the creation of the gap in the fence, the local farmer closed it for some weeks each winter with two hurdles. The sheriff found that no objection was made to the farmer in respect of this activity. It is not clear whether Mr Fotheringham even knew of it at that stage. If he did, then the fact that he apparently made no objection may be said to be consistent with the view that he did not then consider that he had any right to take vehicular access to the cottages across the estate drive and through the gap in the fence.

The high point of the defenders' case is clearly to be found in the sheriff's findings in fact 22 to 25 which describe the activities of first Mrs Caird and then Mr and Mrs Brown and Mr and Mrs Barnett and their respective employees. In short, between 1972 and 1994, a period of some twenty two years, cars were driven regularly across the estate drive and through the gap in the fence to the cottages. As the sheriff found, the use of the gap in this way was open, regular, and natural, and could be observed by anyone present and able so to observe. Moreover, no objections to these activities were intimated to any of these persons. On one view, therefore the use over such a lengthy period of time of the gap for vehicular access to the cottages across the estate drive may be said to have been as of right. But even here there are difficulties for the defenders. In the first place, and in contrast to some of the cases to which I was referred, it is known in this case when the practice of taking vehicular access to the cottages across the estate drive first started, namely 1970, and there is nothing in the sheriff's findings to suggest that either then or at any time thereafter had the proprietors for the time being of the estate conceded, let alone granted, such a right of access across the estate drive. And secondly, there is no finding as to the state of mind of any of those persons who drove their cars across the estate drive to the cottages between 1972 and 1994. Thus it is not known, for example, if any of them supposed, or had any reason to suppose, that he or she had any right to take access to the cottages in this way. When each of them first came upon the scene he or she would have seen the gap in the fence and, no doubt, indications that cars had previously been driven through it to the cottages. Many of them were I dare say also told by previous occupants that they could drive through the gap to the cottages, and they would have found out soon enough that no objection was being made to their doing so. But there is nothing here beyond the fact of long continued use to support the view that, individually or collectively, these persons were asserting a right, or even supposed that they had a right, as occupants for the time being of the cottages, to take vehicular access thereto across the estate drive as opposed to being permitted to do so by the proprietors of the estate.

That Mr Scammell did not consider that there was any such right is clear from the letters which he wrote to Mr Fotheringham and the note which he left at the cottages in 1981. The first of these letters was written on 7^th April 1973, and in it he asked Mr Fotheringham if he was aware that his builder when renovating the cottages appeared to have committed a trespass on the estate drive to gain access for his lorry. If Mr Fotheringham's position at that stage was that he and those authorised by him had a right to take vehicular access across the estate drive to the cottages, then this was the time for him to make this clear to Mr Scammell. But he did not do so either by replying to Mr Scammell's letter or in the subsequent telephone conversation which he had with him. It is true that he (Mr Fotheringham) did not follow up his agreement to repair the gap in the fence beside the estate drive, but it can scarcely be suggested that this is consistent with an assertion on his part that he had a right to drive motor vehicles across the estate drive and through the gap.

On 10^th January 1981 Mr Scammell wrote again to Mr Fotheringham and, in short, offered him an easement for pedestrian access over a short distance of the estate drive to a new wicket gate to be constructed at the corner of the drive where it met the re-aligned public road. It is true that there is in this letter no explicit refutation of any claim by Mr Fotheringham to be entitled as of right to take vehicular access across the estate drive to the cottages, but there would have been little point in Mr Scammell having written as he did if he had been prepared to acknowledge that Mr Fotheringham did have such a right. And if the latter's position then had been that he had such a right, this again would have been the time to say so to Mr Scammell in clear and unequivocal terms. But in the event there was no reply to the letter. It is of course possible that Mr Fotheringham never received it since it was addressed to him at the Lynwilg Hotel of which he had ceased to be the owner in 1973. But those who did own it in 1981, namely Mr and Mrs Barnett, leased the cottages from Mr Fotheringham so it seems to me to be more probable than not that the contents of the letter were made known to him by one means or another.

It was in the same year, 1981, that Mr Scammell left the note at the cottages. Once again it seems to me that the only reasonable construction to be put upon this note is that Mr Scammell did not then accept that the occupiers of the cottages had any right to drive a car through the gap in the fence (and hence, of necessity, across the estate drive). There is no doubt that this note was received since it prompted a telephone call of thanks from an occupier of the cottages. Here too, if this person had thought that he or she had a right, despite the terms of the note, to take vehicular access across the estate drive, this would have been the perfect opportunity to say so to Mr Scammell. But again this did not happen.

Mr Scammell wrote again to Mr Fotheringham at the hotel on 17^th May 1982. By this time Mr and Mrs Barnett had ceased to own the hotel, so it must be considered questionable whether Mr Fotheringham actually received this letter - which perhaps explains why the sheriff made no finding to the effect that no reply was sent to it. But as an indication of Mr Scammell's state of mind when he wrote the letter it seems to me to demonstrate no less plainly than did the letter of 10^th January 1981 that he did not accept that the occupiers of the cottages had any right of vehicular access thereto across the estate drive.

Given the terms of these letters and the note, it may be asked why Mr Scammell, according to the sheriff's findings, did nothing more to challenge the assertion (if that is what it was) of such a right in the succeeding twelve years to 1994 during which the owners and staff of the hotel continued to drive across the estate drive and through the gap in the fence to the cottages. On one view his apparent silence may be interpreted as a tacit concession on his part that they had a right to do this. On the other hand, so long as they did nothing to assert such a right beyond continuing to drive through the gap, it may be said that there was nothing for Mr Scammell to refute, given in particular that he had already made his position clear to Mr Fotheringham.

Contrary to the submission of counsel for the defenders, I consider that the evidence of
Mr Fotheringham's dealings with Mr Scammell in 1996 and with the first defender in 1997 is relevant in that it demonstrates clearly what was the attitude of the proprietor of the would-be dominant tenement to events during his ownership of the cottages between 1970 and 1997, and in particular between 1972 and 1994. In 1996 Mr Fotheringham offered to sell the cottages to Mr Scammell, but rejected the price offered by him. Then on 9^th May 1996 Mr Scammell wrote to Mr Fotheringham at his address in Edinburgh saying that the offer which he had made seemed a fair one to him bearing in mind that there could be no vehicular access to the cottages. It may be assumed that Mr Fotheringham at least received this letter since it was sent to his address in Edinburgh as narrated in both the disposition of the cottages in 1970 in his favour and the disposition in 1997 by himself in favour of the first defender. If ever there was an opportunity for Mr Fotheringham to state unequivocally that he had all along asserted a right to take vehicular access across the estate drive to the cottages, this was it. But he did not take it. Instead the offer was rejected without comment or qualification. And the reason for this may perhaps be discovered in the circumstances in which Mr Fotheringham came to sell the cottages to the first defender. Bearing in mind that he was himself a Writer to the Signet, and on the assumption that he was not being deliberately deceitful, the disposition which he granted in favour of the first defender and the contemporaneous affidavit are I think eloquent of a man who must either (a) have known perfectly well that he had had no right to take vehicular access to the cottages across the estate drive, or else, (b) have had no practical knowledge or understanding of what had been happening (in particular after the re-alignment of the road in 1980) in regard to the access to the cottages following his sale of the Lynwilg Hotel in 1973. Either way it seems to me that it cannot seriously be maintained that throughout the years between 1972 and 1994 he was asserting a right to take vehicular access across the estate drive.

On the whole matter therefore I consider that the sheriff was right to find that the existence of a positive servitude right of vehicular access across the estate drive to the cottages had not been established in terms of section 3(2) of the 1973 Act. I have accordingly refused the appeal, adhered to the sheriff's interlocutor of 9^th December 2002 and found the defenders liable to the pursuer in the expenses of the appeal. It was agreed that I should sanction the employment of junior counsel by both parties for the purposes of the appeal, and I am content to do this.

For the sake of completeness I should record that, on the view which I have taken of the actings of Mr Fotheringham's tenants and their employees, I have not found it necessary to consider the submission of counsel for the pursuer to the effect that Mr Fotheringham could not found upon these actings to set up a prescriptive servitude right in the absence of evidence that these actings had been known to, and authorised by, him.