Scottish Sheriff Court Decisions

(A5011/04)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

 

in the appeal

in the cause

 

BARRY PEART AND SUSAN ANNE PEART

Pursuers and Appellants

 

against

 

SYMON B LEGGE

 

 

Act: Reid, Solicitor, Archibald Campbell & Harley

Alt: Clancy, QC instructed by Burness LLP

 

EDINburgh, 8 November 2006

 

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor complained of dated 5 April 2006; finds the pursuers and appellants liable to the defender and respondent in the expenses occasioned by the appeal and remits the account thereof, when lodged, to the Auditor of Court to tax and to report thereon; certifies the cause as suitable for the employment of junior counsel for the purposes of the appeal; remits to the Sheriff to proceed as accords.

(signed) EFB

 

NOTE:

1. This is an action of declarator and interdict relating to a right of access to a piece of ground owned by the defender in Newbattle, Midlothian. The right of access, which has never been exercised, was granted to the defender's predecessor in title in a Disposition by the Marquis of Lothian which was recorded in the General Register of Sasines for the County of Midlothian on 12 July 1981 ("the 1981 Disposition"). In the first Crave of the Writ the pursuers seek declarator that any right of access granted in terms of that Deed has prescribed by virtue of the provisions of Section 8 of the Prescription and Limitation (Scotland) Act 1973.

 

2. For the purposes of the present appeal it is not necessary to describe in detail the physical configuration of the parties' lands, save to note that the ground which was conveyed in the 1981 Disposition is, and remains, separated from a track or lane by a stone wall which is on the subjects conveyed. The servitude right of access was granted over the track or lane; it is situated on subjects conveyed to the pursuers by the Marquis of Lothian in 1997. The Disposition of those subjects in the pursuers' favour was granted subject to the right of access granted in the 1981 Disposition.

 

3. The right in question granted in favour of the defender's predecessor in terms of the 1981 Disposition was in the following terms: "(3) A right of access to said piece of ground by the lane or track leading from the Eskbank/Newtongrange road to the northwest side of the said piece of ground as the same is shown coloured blue on said plan but subject to the provisions that the disponee shall be entitled to breach the existing wall on the northwest boundary of the said piece of ground only subject to the approval of me and my successors as adjoining proprietors of making good the wall where necessary and inserting gates or doors of a form and type satisfactory to me my foresaids all of which and the maintenance of the said shall be done at the sole expense of the disponee and his foresaids".

 

4. In response to the pursuer's claim that the right of access be as prescribed the defenders contend that what was granted in the 1981 Disposition was in the nature of a res merae facultatis, that is to say a right which may be exercised or not at pleasure and which is inprescriptable in terms of Schedule 3 of the 1973 Act. They found in particular on the case of Smith & Others v Stewart 1884 11R 921. Following debate, the Sheriff upheld that contention, dismissed the first crave and refused to remit to probation the averments in support of it. He held, in substance, that the right conferred by the 1981 Disposition was not simply a right of access over an existing route but was in the nature of a right to be exercised in the future when the aperture in the wall had been opened up.

 

5. The pursuers have appealed, contending that the right in question is ex facie a servitude right of access and is not exercisable as a res merae facultatis. They contend that the Sheriff erred in law in failing to distinguish the facts of the present case from those in Smith & Others v Stewart, and that it was not necessary for the Sheriff to follow the decision in that case.

 

6. In Smith & Others v Stewart the original feuers were in occupation of two areas separated by a stone wall which ran north and south. "A" had a servitude right to grow fruit trees on the west side of the wall which was to be built on "Bs" own land. In 1825 "A" granted a bond of servitude in favour of "B", in terms of which he agreed not to build within twenty feet of the wall, but reserved the right to use the intervening ground as a road or street as well as the original right to grow fruit trees. He granted to "B" the right to use the space as a road or entry for carts, carriages and others "and to open up a passage or entry not exceeding 10 feet in width in said dyke" within certain limits. Some 60 years later "Bs" successor built warehouses on his side of the wall, and proposed to demolish a section of the wall and use the south part of the strip of ground as a means of access to his property. In a petition for suspension and interdict brought by the successors of "A", it was held that the right conveyed by the bond was "of the nature of a res merae facultatis - a right which is to be used in the future when occasion arises" and was of such a nature as not to be covered by the negative prescription.

 

7. Mr Reid, solicitor for the pursuers and appellants sought to argue that Smith and Others v Stewart was a case which involved a particular contractual right, in effect a right to interfere with the pursuer's right to grow fruit trees at a particular future date, and that it was quite distinguishable from the present in which the original grant was simply of a servitude right of access. The decision in Smith and Others v Stewart was special because of the precise terms of the bond. Here the grant was of a servitude right of access which was susceptible to one negative prescription. His "fall back" position, as I understood it, was that because the defender in the present case had an unrestricted right of ownership of the wall there was nothing to stop him breaking it down at any time; in the absence of any averments that the right of access had been used in the last 20 years it had prescribed.

 

8. Mr Reid sought to support these general submissions by reviewing those authorities which define the term "res merae facultatis" and others which illustrate the type of rights which fell to be regarded as such. Reference was made to Bell's Dictionary 7^th Ed page 917; Erskine, Principles, 21^st Ed 554 Bell's Principles 7^th Ed page 477 and 10^th Ed page 766; to the cases reported in Morrison's Dictionary nos 10724 - 10732; Crawford v Bethune 1821 1S 110; and Gellatly v Arrol 1863 1M 592. These authorities, he contended, indicated that res merae facultatis was a right which flowed from a right of ownership. In Smith & Others v Stewart the right was of a different character. In Rankine On Landownership 4^th Ed page 440 under the heading "Extinction of Servitude" it was stated: "Where the right is of the nature res merae facultatis - which is to be used in the future when occasion arises - it cannot of course be lost non utendo". Smith & Others v Stewart was cited in support of that statement but was described as "a narrow case".

 

9. Modern writers also appeared to suggest that Smith & Others v Stewart should be regarded as a special case. Paragraph 473 of volume 18 of the Stair Memorial Encyclopedia was in the following terms: "Some doubt appears to have existed as to whether a servitude can, in any circumstances, constitute res merae facultatis unaffected by negative prescription. The right to open a door on to a common stair in a tenement has been treated as being in that position, but this was stated not to be a servitude. On the other hand in a case where it was regarded as implied that a right of access expressly granted was not to be exercised until some future date when a occasion arose, the right, although of the nature of a servitude, was held to be in effect res merae facultatis". Smith and Others v Stewart was cited in support. The paragraph proceeds: "As a general rule, however, the negative prescription applies to servitudes distinguishing them in this respect from rights of a propriety nature". The author concluded this passage by saying: "With the period of negative prescription reduced to 20 years it may be advisable to have the grant of a servitude, of which immediate or early use is not contemplated, made on the basis that the dominant proprietor's rights will not be exercisable until some future date, event or development". In the present case the grant of the right of access contained no reference or mention of future use or the timing of the right to exercise it.

 

10. Mr Reid sought further support for his argument from the book on Prescription and Limitation by Mr David Johnston, Advocate. In the opening part of the chapter on Imprescriptable Rights and Obligations (paragraph 3.01) Mr Johnston observes that Schedule 3 of the 1973 Act sets out a list of rights and obligations which are not subject to negative prescription. He states: "It is probably right to suppose that the schedule should be interpreted narrowly, since it is a list of exceptions to the rule that rights and obligations should prescribed; and in the law before the 1973 Act the long negative prescription was applied liberally. As Bell noted "abandonment is presumed in respect of all absolute rights and obligations whatever, mutual or unilateral, heritable or moveable, if not insisted on within the term"". Mr Johnston gives detailed considerable to the term res merae facultatis from paragraph 307 onwards. At paragraph 308 he states: "The description of res merae facultatis given by the Scottish Law Commission in its memorandum preceding the 1971 Act is not accurate: "rights of such character that their exercise would be expected only periodically or irregularly". Better is the statement made to the House of Lords by the Minister of State when commenting on this provision in the Bill "the right to exercise the ordinary uses of property which the proprietor may assert or not as he pleases, without the risk of loosing the right by failure to assert it"". Mr Johnston summarises his discussion at paragraph 316 by stating: "It seems reasonable therefore to conclude that a res merae facultatis is a property right which cannot be lost by negative prescription either (1) because it is a right whose exercise implies no claim on anyone else or against their rights or (2) because it is a (normal) incident of ownership which can be lost only as a consequence of the fortification in some other person of a right inconsistent with it. The common ground between these two categories is that they are rights which are lost only by the establishment of an adverse right, and that can happen, if at all, only by positive prescription. But so long as there is no adverse right there is no question of their prescribing". The right in the present case, said Mr Reid, could not be said to fall into either category.

 

11. For the sake of completeness, although it did not appear to me to add significantly to his argument, Mr Reid referred to a passage in the book on Servitudes and Rights of Away by Cusine and Paisley at paragraph 1733; to Gibb v Bruce (1837) 16S 169 and to the unreported case of Duffield Morgan Limited v The Lord Advocate (Lady Smith, 13 February 2004). Cusine and Paisley, and the case of Gibb cited by them, supported the view that although a servitude right constituted by express grant could be lost by the operation of prescription that would not apply where part of the grant fell to be regarded as res merae facultatis. At paragraph 38 in Duffield Morgan Lady Smith referred to a res merae facultatis as arising "as an incident of the right of property".

 

12. Mr Reid contended that the right which the defenders sought to invoke was not a right of property or an incident of such a right. He therefore contended that but for the case of Smith & Others v Stewart he would be in a strong position. He submitted that Smith & Others v Stewart was a very difficult case to understand. Once the defenders' wall had been breached it could not be said that a res merae facultatis continued to exist. The right was simply a servitude right of access. It was not clear why that should not have been regarded as subject to the long negative prescription. On the authorities a contractual right was not res merae facultatis. In consequence it was only possible to rationalise the case on the basis that the parties had agreed that what was effectively a right to interfere with fruit trees would not occur until a future date. In any event there were material distinctions between the present case and that of Smith & Others v Stewart, not least of which was that the latter involved a sophisticated grant of rights whereas in the present case there was a straightforward grant of a general right of access. In the final analysis the case concerned the pursuers' right to grow fruit trees on the defender's wall. But for that the defender could have breached the wall at any time. That drew a distinction from the present case in which it was open to the defender to breach the wall whenever he wished. Mr Reid's primary submission was that it was only by looking at the very specific nature of the agreement in Smith and Others v Stewart that the use of the right of access could be said to have been reserved to a future date. In the present case one could not say that there was any such postponement and in consequence the right of access fell to be treated as a servitude right which had lapsed non utendo.

 

13. In response Mr Clancy QC did not seek to examine the authorities in detail. He observed that the theme of the submissions made both to the Sheriff and on appeal was that Smith and Others v Stewart was inconsistent with earlier authorities and to be regarded as a special case. In point of fact the authorities cited failed to provide a comprehensive definition of res merae facultatis. The Lord President's definition of res merae facultatis in Smith and Others v Stewart - "A right which is to be used in the future when occasion arises" was not inconsistent with earlier authority. There was nothing to prevent a servitude right also falling into the category of res merae facultatis. It was impossible to construct a rule which confined res merae facultatis to a particular type of real right, such as ownership in the true sense. In the present case the right in question could be viewed as a single right to break through a wall and cross a piece of ground. It was immaterial whose wall it was. There was thus no material distinction between the right concerned in the present case and the right concerned in Smith and Others. While the language in the two grants might have been different they were entirely the same when one came to examine their nature and content. The Sheriff had accordingly been correct to hold that what was said in Smith and Others v Stewart was applicable to the present case.

 

14. Mr Clancy stressed that there was no basis for distinguishing that case on a proper analysis of it. It was true that the bond regulating the parties' rights contained differing rights and obligations but the majority of these had no bearing on the central issue. The discussion by Lord President Inglis narrowed that issue to the right of Mr Baxter to break down the wall and exercise access. It could thus be said that his Lordship's analysis was confined to those provisions of the bond which were directly equivalent to obligations in the present case. His Lordship observed (at page 924): "The precise effect of the last provision which I have read is that with a certain limitation to the north Mr Baxter is to have power and liberty to use the strip of ground...and to enable him to do so he is further empowered to open up a passage or entry not more than 10 feet wide in the dyke. That is the same dyke on which the right to rear fruit trees was reserved....There was no restriction as to the time within which the privilege was to be exercised". Exactly the same applied here.

 

15. So far as the pursuers fallback position was concerned that was irrelevant. The fact that the defender had an unrestricted right of ownership of the wall was neither here nor there; what the case was concerned with was a single right of access which only came into play when the wall was breached.

 

DISCUSSION AND DECISION

 

16. This is, I consider, an extremely difficult case in many respects. I have little doubt that Mr Reid was well founded in his submissions that, on the early authorities, res merae facultatis was a right which came as part and parcel of a right of property. That view is consistent with the definition provided to the House of Lords by the Minister of State in the debate on the 1973 Act cited with approval by Mr Johnston at paragraph 308 of his book, and indeed with Mr Johnston's own analysis of the nature of a res merae facultatis at paragraph 1316. If the right in issue in the present case falls to be regarded purely as a servitude right of access it is not res merae facultatis; it only falls to be treated as such by the application of the decision in Smith and Others v Stewart, and it is that case which falls in the pursuers' way.

 

17. I also consider that there is some force in Mr Reid's submission that the terms of the grant upon which the defenders found in this case falls to be contrasted from that in Smith and Others v Stewart. That contrast arises in my judgment not because of the relative lack of complexity of the provision in the present case, but simply because it is not easy to say that there was any contemplation that exercise of the right of access was to be significantly delayed. The whole thrust of the "arrangement" in terms of the Bond of Servitude in Smith and Others v Stewart related to exercise of rights over the area of ground in question "in all time coming" even if that qualification was expressed only in relation to the growing of fruit trees. It is not difficult to infer that parties did not envisage that part of the area might not be used for access in the immediate future. That is not so clear here.

 

18. I further accept Mr Reid's point that it is not easy to rationalise the decision in Smith and Others v Stewart. If one takes the view that the case concerned only the right to open up an entrance through a wall the case may be considered to be entirely consistent with the earlier authorities. Such a right was clearly res merae facultatis. That appears to be how Mr Johnston views the case when he refers to it in paragraph 313 of his book. In truth, however, the case was concerned with the defender's right to cross the strip of ground owned by the pursuers; interdict was sought against that activity. Viewed in isolation that was in the nature of a servitude right, not a res merae facultatis.

 

19. The approach of the Court, however, appears to have been to treat the right of the defender as a single right to breach the wall and cross the piece of ground. Thus the Lord President stated: "It was by the demolishing of the dyke that access was to be got, and therefore until Mr Baxter or his successors found occasion to use the access on that side they could not be expected to avail themselves of the privilege which had been conferred upon them". He concluded: "But how is it possible to say that such a right as that conferred under this bond can be lost by the negative prescription? The right is clearly of the nature of a res merae facultatis - a right which is to be used in the future when occasion arises - and is of such a nature as has never been held to fall under the negative prescription".

 

20. On that authority it cannot therefore be said that res merae facultatis can be confined to rights which arise as incidents of ownership. In my judgment the term must be said to cover a category of servitude, created by express grant, which is not intended to be exercised until the occurrence of a particular event over which only the owner of the dominant tenement has control. Such a view would be consistent with Smith and Others v Stewart and is also in line with the reservation in Cusine and Paisley's book that whilst servitudes are generally subject to prescription "something which is res merae facultatis is not affected". A servitude of such a nature does not fall within either the categories which Mr Johnston seeks to identify in his analysis at paragraph 316. I am driven to the conclusion, as was the Sheriff, that this analysis does not take the decision in Smith and Others v Stewart fully into account.

 

21. Whether I am right at arriving at the conclusion that such a category of servitude exists does not in a sense matter since the issue is whether the circumstances of the present case can be distinguished in the essentials from Smith and Others v Stewart. Like the Sheriff I have come to the conclusion that they can not. Whilst I have indicated it is not so easy to infer any long term intention, of a postponement of the exercise of rights, in the present case as it was in Smith and Others v Stewart the fact remains that it was plainly not intended that the right of access was to be exercised until an opening in the wall was made. Aside from any practical difficulties involved in determining when the prescriptive period would begin to run where the exercise of a right is to be delayed even for a minimal period, the position appears to me to be no different in essence from that in Smith and Others v Stewart. Not without hesitation I have come to the conclusion that the Sheriff's disposal of this matter was correct.

 

22. In consequence the appeal is refused and expenses follow success. Mr Reid opposed Mr Clancy's motion to certify the matter as suitable for employment of senior counsel and submitted that the case could have been dealt with a solicitor. In my view the complexities were certainly such as to justify the instruction of junior counsel and I shall grant certification at that level.